EMPEROR Vs. ANNAJI BALKRISHNA BARVE

JUDGEMENT

(1.) This is an appeal by the Government of Bombay against the order of acquittal passed by the Presidency Magistrate, Third Additional Court, Bombay, acquitting the accused Annaji Balkrishna Barve of the offence under Rule 39(6) read with Rule 39 (1)(b) of the Defence of India Rules 1939. The charge against the accused was that on January 28, 1943, he had in his possession without any lawful authority or excuse certain documents containing "prejudicial reports" and that such possession came within Rule 39(1)(b) and was punishable under Sub- rule (6). The learned Magistrate held on the evidence that out of the three documents, exhibits F G and H, relied on by the prosecution, exhibits F and G were "prejudicial reports" within the definition of that term in Rule 34(7). Exhibit F is a Congress bulletin and exhibit G consists of certain leaflets addressed to the police force. He, however, held that Rule 39(1)(b), was ultra vires inasmuch as it went beyond the powers of the Central Government to frame rules under sub-s (2) of Section 2 of the Defence of India Act. According to the learned Magistrate the only power which the Central Government had for making rules as to possession of information or documents was derived from two paragraphs, viz. (iv)(b) and (xxv) of sub-section (2) of Section 2. That sub-section says that without prejudice to the generality of the powers conferred by sub-section (1) the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters. Then thirty-five matters are enumerated. The matter relating to possession of information, according to the learned Magistrate, comes only under paragraph (iv)(b), which speaks of possession without lawful authority or excuse of information likely to assist the enemy and paragraph (xxv) which deals with possession of certain explosives, vessels, apparatus etc. Under paragraph (iv)(b) Government has power to frame rules only with regard to the particular kind of information mentioned in that paragraph, viz. information likely to assist the enemy. "Prejudicial report" as defined in Rule 34 does not include information likely to assist the enemy and there was no paragraph in Section 2(2) of the Act relating to possession of such reports. The learned Magistrate therefore thought that Rule 39(1)(b) was ultra vires and went beyond the rule-making power given to Government.

(2.) It was contended before him that even if Rule 39(1)(b) could not be framed under any of the paragraphs of sub-section (2), it would be valid if it carried out any of the general objects enumerated in Sub-section (1) of Section 2, viz. securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. But the learned Magistrate repelled that argument also on the ground that it was held by the Federal Court in Emperor V/s. Keshav Talpade (1943) 46 Bom. L.R. 22 F.C., that Sub-section (1) of Section 2 cannot be resorted to for justifying a rule which went beyond the rule-making powers given by Sub-section (2). The passage in Talpade's case which the learned Magistrate had in mind was as follows (p. 47) : The Legislature having set out in plain and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody, it is not permissible to pray in aid the more general words in Section 2(1) in order to justify a rule which so plainly goes beyond the limits of paragraph (x) ; though if paragraph (x) were not in the Act at all, perhaps different considerations might apply.

(3.) Those observations were made with reference to the facts of that case where the accused was kept under detention under Rule 26 of the Defence of India Rules. It was held that the rule was ultra vires inasmuch as it gave power to Government to detain a person if it was only satisfied that he did certain prejudicial acts, whereas the parent authority for making that rule, viz., paragraph (x) of Sub-section (2), empowered Government to apprehend and detain a person if he was reasonably suspected of having acted in a manner prejudicial to public safety etc. As Rule 26 went beyond the wording of paragraph (x), which required that the person must be reasonably suspected, it was held to be ultra vires. It was stated that in such a case it was not permissible to pray in aid the more general words in Section 2(1) of the Act. This passage in their Lordships judgment has been explained by Zafrulla Khan J. in the subsequent decision of King, Emperor V/s. Sibnath Banerjee [1944] F.C.R. 1, where it is observed (p. 27): It would not be correct to say that Section 2, of the Defence of India Act confers two kinds of rule-making powers, one under the first sub-section and the other under the second subsection. The rule-making power is conferred under the first sub-section and all that the Second sub-section does is to set out the conditions under which rules in respect of the particular subject-matters enumerated in its paragraphs may be made in the exercise of powers conferred under the first sub- section.