Madras High Court
C.V. Ranganathan vs Union Of India And Ors. on 13 February, 1981
ORDER
1. As the pointed canvassed in all the writ petitions are substantially the same, they are dealt with together.
2. W.P. 4118 of 1979 has been filed by one C. V. Ranganathan, who was a Subordinate Judge, in the service of the State Government and who stands charged for offences under Sections 161, 201 and 466, I.P.C. and Section 5(1)(d) of the Prevention of Corruption Act for the issue of a writ declaring that Section 161 I.P.C. so far as it related to a person in the service or pay of the State Government was not a law in force at the time of the alleged commission of the offence by him.
3. In W.Ps. 5106 and 5107 of 1979, one V. Krishnaswami who was the Gazetted Personal Assistant to the Honourable Minister for Health in the Government of Tamil Nadu during the period between 1972 and 1975, and who stands charged for offences under Section 109 I.P.C. r./w. Sections 5(1)(d) and 5(2) of the P.C. Act in CC Nos. 6 and 7 of 1978 on the file of the 5th Additional Sessions Judge (Special Judge, Madras City), has prayed for the issue of a writ declaring that the provisions of the Prevn. of Corrupn. Act 1947 and the provisions of the Criminal Law Amendment Act 1952 are not applicable to public servants serving or under the pay of the State Government.
4. One M. Kannappan, who was formerly Minister for Religious Endowments, Government of Tamil Nadu, and who stands charged, for offences under Sections 112(b), 420, 409 and 109 I.P.C. and Sections 5(1)(c) and 5(1)(d) of the Preven. of Corrupn. Act in CC No. 29 of 1978 on the file of the Sixth Additional Sessions Judge (Special Judge, Madras) has filed W.Ps. 730 to 732 of 1980 praying for the issue of writs declaring that the provisions of Section 5 of the Prevn. of Corrupn. Act, 1947 and the Cr.L.A. Act 1952, in so far as they are made applicable to public servants in the service or pay of the State Government were ultra vires the Central Legislature.
5. Thus in all the writ petitions the following contentions have been urged - (1) The Prevn. of Corrupn. Act, 1947 hereinafter referred to as the 1947 Act cannot be made applicable to public servants in the service or in the pay of the State Government as the Central Legislature which enacted the said Act had no power to legislate on the subject of public servants in the employ of the State Government as that subject fell within the exclusive jurisdiction of the Provincial Legislature; (2) If the provisions of the 1947 Act did not apply to State Government servants, then the Limitation provided for in Section 468 Crl.P.C. for initiating criminal proceedings will automatically apply in respect of the prosecution initiated against all the petitioners. (3) Section 163 I.P.C. was not a law in force in 1950 as the same stood impliedly repealed by the enactment of S. 124 of the Government of India Act 1915, and therefore, the said provision cannot be enforced as an existing law under Article 372(1) of the Constitution. (4) The Cr.L.A. Act, 1952 cannot be applied to State Government servants as the power to make a law in relation to State Government servants vested only with the State Legislature and the Parliament had no power to constitute special courts to try offences against them.
6. The first question that falls for our decision is whether the 1947 Act is a measure which is directly within the concurrent power conferred on the Central Legislature under Entry 1 of List III of the 7th Schedule to the Govt. of Ind. Act 1935, as urged by the respondents or whether it is a measure within the exclusive powers conferred on the Central Legislature under Entry 8 r./w. Entry 42 of List I. The 1947 Act was enacted by the Central Legislature while the Govt. of Ind. Act 1935 was in force. Its preamble makes it clear that the intention was to make more effective provisions for the prevention of bribery and corruption by public servants. Section 3 makes the offences under Sections 161, 165 and 165A I.P.C., cognizable. Section 4 provides for certain presumptions when a public servant accepts gratification other than legal remuneration. Section 6(1) creates an offence of criminal misconduct by public servants when the habitually accept gratification other than legal remuneration as a motive or reward as mentioned in Section 161 I.P.C. Section 5(2) prescribes the punishment for the said offence which shall be imprisonment for a period of seven years and fine subject to a minimum punishment of one year's imprisonment except for special reasons. Section 5-A provides for investigation of offences both under that Act as well as under Section 161 I.P.C. Section 7-A provides for the procedure for the trial of cases for offences under the Act by incorporating the provisions of the Cr.P.C. subject to the modifications therein specified.
7. It is contended on behalf of the petitioners that as the 1947 Act is complete self-contained statute which has created special offences of criminal misconduct different from the offence of bribery dealt with in the I.P.C., it is a special legislation in respect of public servants and as such it will not fall within Entry I of List III of the 7th Schedule to the 1935 Act, which read 'Criminal law including all matters included in the IPC at the date of passing of this Act" nor can it fall within the Entry 42 of List I reading "offences against laws with respect to any of the matters in this list". If the Prevn. of Corrupn. Act is taken as a law made under Entry 8 r./w. Entry 42 of List I, then the said Act cannot apply to public servants in the employ of the State Government in respect of whom the State Legislature can make a similar law under Entry 6 r./w. Entry 37 of List II. Therefore, the Prevn. of Corrupn. Act which is a special law relating to public servants enacted by the Central Legislature can apply only to the Federal Public servants and not to Provincial public servants.
8. The contention on behalf of the respondents, however, is that the petitioners' above contention is entirely misconceived and proceeds on an erroneous basis that the offences of criminal misconduct can only relate to persons in the pay or service of the then Federal Government and that the same cannot apply to persons in Provincial Public service, that the 1947 Act is not a legislation with respect to either Federal Public servants or Provincial Public servants that it is a law made by the then Central Legislature under item I of List III of the 7th Schedule to the Govt. of Ind. Act, 1935 and that it is not law made with reference to Entry 8 r./w. Entry 42, of List I as assumed by the petitioners. The fact that the 1947 Act creates a new offence of misconduct and provides for its punishment cannot lead to the inference that it is a special law made with respect to either Federal Public servants or Provincial Public servants. Taking the 1947 Act as a law made under Entry 1 of List III it will be with the competence of the Central Legislature.
9. As per Section 99 of the Govt. of Ind. Act, 1935 the Federal Legislature may make laws for the whole or any part of British India and a Provincial Legislature may make laws for the Province or for any part thereof. Section 100(1) says that the Federal Legislature has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the 7th Schedule to the Act, Section 100(2) says that the Federal Legislature as well as a Provincial Legislature have power to make a law with respect to any of the matters enumerated in List III in that Schedule. Section 100(3) says that the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule. Section 107(1) is to the effect that if any Provincial law is repugnant to any provision of a Federal law which the Federal Legislature is competent to enact or to any provision of an existing Indian Law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Federal law, whether passed before or after the Provincial Law or as the case may be, the existing Indian law shall prevail and the Provincial Law shall, to the extent of the repugnancy be void. However, Section 107(2) says that where a Provincial law with respect to any of the matters enumerated in the Concurrent Legislative List contains any provision repugnant to the provisions of an earlier federal law, or an existing Indian Law, with respect to that matter, then the Provincial law, having been reserved for the consideration of the Governor General or for the signification of His Majesty's pleasure, has received the assent of the Governor General or of His Majesty, the Provincial law shall in that Province prevail, but nevertheless the Federal Legislature may at any time enact further legislation with respect to the same matter. We are here concerned with the following Entries in List I :
Entry 8 : Federal Public Services and Federal Public Service Commission.
Entry 42 : Offences against laws with respect to any of the matters in this List.
Similar Entries in List II are Entries 6 and 37, which are as follows -
"Entry 6 : Provincial Public Services and Provincial Public Service Commissions.
Entry 37 : Offences against laws with respect to any of the matters in this list. Entries 1 and 2 of List III are set out below :
Entry 1 : Criminal Law, including all matters included in the Indian Penal Code, at the date of the passing of this Act, but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of His Majesty's naval, military and air forces in aid of the civil power.
Entry 2 : Criminal Procedure, including all matters included in the Code of Criminal Procedure at the date of the passing of this Act."
According to the petitioners, 1947 Act should be taken to be a law under Entry 8 r./w. Entry 42 of List I, and if so taken, the said Act made under a Federal Legislature list will not apply to persons belonging to the Provincial Public Service in respect of which the Provincial Legislature alone has the power to make a law under Entry 6 r./w. Entry 37 of List II. The contention on behalf of the respondents is that the 1947 Act is a law made under Entry 1 of list III. Having regard to the subject matter of the legislation we have to determine the Entry under which the 1947 Act will fall.
10. Entry 8 relates to the Federal Public Service and Federal Public Service Commission. This Entry will cover a law made in respect of or with reference to Federal Public Service and Federal Public Service Commission. Entry 42 relates to offences against laws with respect to any of the matters in List I. According to the petitioners the law relating to offences committed by persons in Federal Public Services will fall under Entry 42 and that the 1947 Act dealing with such offences will clearly fall under Entry 42 r./w. Entry 8 of List I. It is pointed out by the petitioners that similar entries are contained in Entries 6 and 37 of List II empowering the Provincial Legislature to make a law in relation to offences committed by public servants in the Provincial Public Service, that the offences with reference to persons in Provincial Public Service can only be created by a law made by the Provincial Legislature and that, therefore, the application of 1947 Act should be limited to the members of the Federal Public Service. The above contention of the petitioners proceeds on the basis that the 1947 Act is a special law with respect to public servants. However, having regard to the object sought to be achieved by the said Act it cannot be said to be a special law relating to public servants. It is true that the new offence of misconduct has been created under the 1947 Act but on that account it cannot be said to be a law relating to public servants. The law creating a new offence may have an effect on the public servants, but the subject matter of the legislation cannot be said to be 'public servants'. Admittedly Entry 1 of List III takes in the entire law of crimes including all matters included in the I.P.C. at the time of the passing of the 1935 Act and Entry 2 covers all laws of criminal procedure including all matters included in the Cr.P.C. at the time of the passing of the 1935 Act. The 1947 Act so far as it creates a new offence of misconduct will fall within the expression 'criminal law' though the impact of the law is mainly on the public servants. The constitutionality of a law can be decided only with reference to the subject it deals with and not with reference to its incidental effect. In K.D.H.P. Co. Ltd. v. State of Kerala, , the Supreme Court has clearly ruled that so long as a Legislature has got competence to make a law on a subject within its legislative field, its competence to legislate on the subject cannot be questioned on the ground that the legislation has some effect on a topic falling in another legislative list as the effect is not the same thing as subject matter. In that case, the State Legislature had legislated on a subject in Entry 18 of List II and Entry 42 of List III of the Constitution. The constitutional validity of that legislation was questioned on the ground that it has some effect on matters falling in List I. The Supreme Court held that the State Legislature cannot be denied the power to legislate on a matter within its legislative field merely on the grounds that the legislation will have effect on the subject matter of an Entry in List I. In Sitaram v. State of Rajasthan, , the Supreme Court again reiterated the principle thus -
"The constitutionality of the law is to be determined by its real subject matter and not by the incidental effect which it may have on any topic of legislation in List I."
It is well-established that for finding out whether a particular law made by the Legislature falls within its legislative field one has to see what is its dominant character or its 'pith and substance'. As has been pointed out by the Federal Court in United Provinces v. Atiqa Begum, AIR 1941 FC 16 none of the items in the three Lists of Schedule 7 should be read in a narrow or restricted sense and each general word should be held to extend to all ancillary or subsidiary matters which can fairly or reasonably be said to be comprehended in it. As pointed out by the Supreme Court in C.P. Officer v. K. P. Abdulla and Bros., , a Legislative Entry does not merely enunciate powers but also specifies a field of legislation and the widest import and significance should be attached to it and the power to legislate on a specified topic includes the power to legislate in respect of matters which may fairly and reasonably be said to be comprehended therein. For testing the constitutional validity of an Act it must be scrutinised in its entirety in order to determine its true character. The fact that an Act of a Federal Legislature may in some respects trench upon a Provincial subject cannot be the deciding factor. In deciding whether a particular Act is ultra vires the powers of a Legislature, the court has to have regard to the true nature and character of the particular legislation to ascertain the class of subjects to which it really belongs. In Gallagher v. Lynn, 1937 AC 863. Lord Atkin observed -
"It is well established that you are to look at the true nature and character of the legislation '(Rusell v. The Queen, (1882) 46 LT 889), the pith and substance of the legislation.' If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator."
11. Sometimes subjects which in one aspect and for one purpose may be within the powers of a Federal Legislature while in another aspect and for another purpose it may fall within the powers of a Provincial legislature. In such cases the nature and scope of the legislation should determine under which set of powers it falls in substance and reality. In this case, taking note of the subject matter of the 1947 Act, it can be taken to fall only under Entry 1 of List III which is in respect of criminal law including all matters included in the IPC. Merely on the basis that it has affected all public servants who may be comprehended either under Entry 8 of List I, or Entry 6 of List II, its subject matter cannot be said to be other than criminal law. The power to legislate on criminal law under Entry 1 of List III includes the power to legislate in respect of all persons whether they are public servants or not. 'Criminal law' under Entry I of List III cannot be restricted to mean criminal law not affecting public servants. The Entry in a list has to be given wide and liberal interpretation so as to include within its scope all ancillary and incidental matters. Therefore, the 1947 Act should be taken to be a law made only under Entry 1 of List III of the 1935 Act, and it cannot, in any sense, be taken to be a law under Entry 8 r./w. Entry 42 of List I.
12. The learned counsel for the petitioners would, however, contend that even assuming that the 1947 Act falls under the general term 'criminal law', in so far as Entry I excludes offences against laws with respect to any of the matters specified in List I or List II, the Central Legislature had no power to legislate in respect of offences against laws with respect to public services which comes either under Entry 8 of List I or under Entry 6 of List II. However, it is not possible to construe the 1947 Act as a law relating to offences against laws with respect to Entries 8 and 42 of List I or Entries 6 and 37 of List II. The 1947 Act is in relation to matters included in the IPC. In this case instead of making a separate law as the 1947 Act, if the Central Legislature had amended the IPC creating a new offence of misconduct, the petitioners could not have successfully questioned the constitutional validity of the said amendment, for the Central Legislature had admittedly the power to make a law in respect of matters included in the IPC. As a matter of fact, the 1947 Act, in addition to creating a new offence of misconduct, has also more or less amended the IPC in certain respects. Under Section 3 the offence under Sections 161, 165 and 165A, of the IPC have been made cognizable. Section 4 creates certain presumptions in respect of offences punishable under Section 161 or 165 of the IPC; Section 7 makes an accused person a competent witness in respect of offences punishable under Sections 161, 165 or 165A of I.P.C. Therefore the 1947 Act in addition to creating a new offence of misconduct deals with matters which are included in the I.P.C. As has been held in State of M.P. v. Narasimha, , the 1947 Act supplements the Penal Code. It is significant to note that the petitioners have not challenged Sections 161, 165 or 165A which also deal with public servants as ultra vires the Central Legislature. If these sections cannot be questioned as lacking legislative competence, we do not see how S. 5 of the 1947 Act alone could be challenged on the ground that it relates to public servants and hence it is ultra vires the Central Legislature. In this view of the matter, we have to hold that the 'pith and substance' of the 1947 Act is 'criminal law' falling within Entry I of List III. Therefore, the petitioners' first contention that the Central Legislature had no legislative competence to enact the 1947 Act so as to make it applicable to the persons in Provincial Service has to be rejected.
13. As we have already held that the 1947 Act is a legislation under Entry 1 of List III, the Act will apply to all public servants whether they belonged to the Provincial Public Service or the Federal Public Service the second contention that if the 1947 Act does not apply to the petitioners who were under the employment of the State, the prosecution launched against them in all these cases beyond the period provided in S. 468 of the Criminal Procedure Code will be barred, will not arise.
14. Then we come to the third contention that S. 163 I.P.C. should be deemed to have been repealed by the enactment of S. 124 of the Govt. of India Act, 1915, and that it will not stand revived even after the repeal of the said Act, S. 124 of the Govt. of India Act 1915, declared certain acts of public servants, such as oppression, wilful disobedience, breach of duty, trading and receiving illegal gratification to be misdemeanours and made it punishable under S. 129. It is said by the creation of the offence of misdemeanour which is identical with the offence created under Section 163 I.P.C., the latter should be deemed to have been repealed and that though the whole 1915 Act has been repealed by S. 321 of the Govt. of India Act, 1935. S. 163 I.P.C. stood repealed impliedly by S. 124 of the 1915 Act, cannot be taken to have been revived and that, therefore, S. 163 cannot be taken to be existing law on the date of commencement of the Constitution. It is, however, not possible for us to accept the contention based on implied repeal of S. 163 I.P.C. Though S. 124 of the 1915 Act created an offence of misdemeanour and provided for a punishment therefor, it is not possible to infer therefrom an implied repeal of S. 163. S. 124 can only be taken to be a law supplementing S. 163 I.P.C. The offence created under Section 124 of the 1915 Act is a separate offence and the ingredients also are different from those in S. 163. The scope of S. 124 of the 1915 Act is considerably wider. Therefore, the creation of a separate offence with separate ingredients in S. 124 of 1915 Act cannot result in the implied repeal of S. 163. The principle laid down by the Supreme Court in Om Prakash v. State of U.P., squarely applies here. In the view we have taken on the question of the implied repeal it is unnecessary to go into the further question that even if there was an implied repeal of S. 163 when the 1915 Act came into force, S. 163 would automatically spring into existence on the repeal of the 1915 Act. S. 163 of the I.P.C. which was on the statute book on the commencement of the Govt. of India Act, 1935, and S. 292 of that Act continues all the existing laws. Art. 372(1) of the Constitution continues in its turn all existing laws. Therefore, the petitioners' contention that S. 163 of the Penal Code has ceased to be enforceable after the enactment of S. 124 of the Government of India Act 1915 cannot at all be sustained.
15. With reference to the fourth contention, the petitioners submit that the constitution of special courts under the Cr.L.A. Act, 1952 for the trial of criminal cases launched against them is invalid inasmuch as under the provisions of the Constitution the Parliament has no power to constitute separate courts for trial of public servants who fall under Entry 6 of List II of the 7th Schedule. It is said that though S. 6 of that Act enables the State Government to appoint by a notification in the Official Gazette as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try offences under Sections 161 to 165 or under Section 165A of the I.P.C. S. 5(2) of the Prevention of Corruption Act, 1947 in so far as it contemplates constitution of Special Judges for certain areas, the constitution of Special Courts should be taken to have been done only by the Central Government and such a thing is not possible unless the Parliament has got the power to do so. It is also said that power to legislate on the constitution of courts to try offences against laws with respect to State Public Services only vests with the State Legislature under Entry 65 r./w. Entry 41 of List II. We have already noticed Entry 2 of List III which reads as follows - "Criminal Procedure, including all matters included in the Cr.P.C., at the date of commencement of the Constitution. The expression 'Criminal Procedure' will also include the constitution of courts and the conferment of powers and jurisdiction on those courts. Entry 46 of List III refers to jurisdiction of all courts except the Supreme Court with respect to any of the matters in that List. Entry 2 r./w. Entry 46 of List III will enable the Parliament to make law regarding the constitution of courts and the conferment of jurisdiction and powers of those courts. After the introduction of Entry 11-A of List III by the Constitution (Forty-second Amendment) Act 1976, the position is clear, because that Entry specifically refers to the constitution and organisation of all courts, except the Supreme Court and the High Courts. A provision like Entry 11-A was not there before 1976. Entry 2 relating to Criminal Procedure will take within it the power to constitute courts and the conferment of powers and jurisdiction on those courts. The preamble to the Cr.L.A. Act 1952, recites that it was intended to provide for a more speedy trial of certain offences including those punishable under Sections 161, 165 or 165A of the I.P.C. and S. 5(2) of the Prevention of Corruption Act. Sub-section (1) of S. 6 the said Act empowers the State Government to appoint as many Special Judges as may be necessary. Sub-section (2) of S. 6 provided that no person shall be appointed as a Special Judge unless he is, or has been, a Sessions Judge or an Additional Sessions Judge, or an Assistant Sessions Judge. Section 7 specifies what class of cases these Special Judges may try. Section 8 deals with the procedure to be followed by the Special Judge in the trial of the cases before him. Criminal courts are normally constituted under the provisions of the Cr.P.C. In addition to the provisions contained in the Cr.P.C., the Cr.L.A. Act 1952, provides that in respect of certain offences, there will be a Special Court manned by persons having specified qualifications. These two Acts supplement each other. If the constitution of courts under the Cr.P.C. could not be attacked as being outside the legislative field of the Parliament, then we do not see how the Constitution of Special Courts under the Cr.L.A. Act 1952, will be without legislative competence. As we are inclined to construe Entry 2 of List III as having the widest amplitude, the said Entry along with Entry 46 of List III will clearly comprehend a legislation for constitution of courts and conferment of jurisdiction and powers on those courts. In this view, we reject the contention that the constitution of courts relating to offences with respect to public servants under the pay of the State Government can only be done by the State Legislature under Entry 41 r./w. Entry 64 of List II.
16. Thus all the contentions urged by the petitioners having failed, the writ petitions are dismissed. There will, however, be no order as to costs in any of these petitions.
17. The petitioners seek leave of this court to appeal to the Supreme Court against the judgment just now pronounced. Having regard to the earlier pronouncements of the Supreme Court on the related points, we do not think that this is a fit case for grant of leave to appeal to Supreme Court. Hence the leave sought for is refused.
18. Petitions dismissed.