Patna High Court
Narhari Gir vs The State on 8 November, 1954
Equivalent citations: AIR1955PAT177, 1955CRILJ663, AIR 1955 PATNA 177
ORDER Das, J.
1. These two applications have been heard together and will be governed by this judgment. The facts out of which these two applications have arisen are the following. The petitioner, it is alleged, is one of the directors of the firm of Messrs. Goswami and Company, Limited, a firm carrying on trade and business in mica mining. The firm has a mica godown in village Dhob in the district of Hazaribagh On 26-2-1951 Sri Bageshwari Prasad, Inspector of Mica Accounts, Kodarma, visited the godown and wanted to inspect the stock and accounts of mica. Hema Mahto, the shiftman in charge, and Kedar Lal, manager of the mine were, it is stated, then present at the godown. The Inspector asked them to show the stock and accounts. They refused to do so.
On 16-8-1951, the Inspector submitted a report to the Subdivisional Magistrate of Hazaribagh.
In this report, the Inspector complained that on demand the shiftman in charge and the manager of the petitioner's firm failed to produce the account books and stock of mica for inspection and verification. He further said that on a pre vious occasion also he had visited the godown, but neither the accounts nor the stock of mica were produced. The licensee was warned, but to no effect. The Inspector said that there was a violation of Section 11, Bihar Mica Act, 1947, and the petitioner along with other directors of the firm were liable to the penalty laid down in Section 17(2), Bihar Mica Act, 1947. On the report of the Inspector, the Subdivisional Magistrate took cognisance and summoned the directors of the firm, of whom the petitioner is one. It appears that only one witness has been examined in the case so far.
2. Thereafter, two petitions have been filed in this Court, in one of which the petitioner prays that the proceeding in the court below should be quashed. In the other petition a prayer has been made that the case should be withdrawn by the High Court under Article 228 of the Constitution, and the High Court should either dispose of the case itself or determine the substantial question of law as to the interpretation of the Constitution which arises in the case and then return the case to the court below to dispose of the case in conformity with the decision of the High Court on the substantial question of law as to the interpretation of the Constitution.
3. Two points have been urged, before me, one of which is common to both the applications. In substance, these two points are: (1) that the report of the Inspector of Mica Accounts does not prima facie disclose the commission of any offence under the Bihar Mica Act, 1947, by the petitioner, and, therefore, the proceeding against the petitioner should be quashed; and (2) that the Bihar Mica Act, 1947, ceased to operate after the expiry of one year from 4-3-1848 and, therefore, no proceeding under the said Act could be instituted against the petitioner, in respect of an alleged, violation in 1951.
4. I shall take up these two points in the order in which I have stated them. Section 11, Bihar Mica Act, 1947, which the petitioner is said to have contravened, is in these terms:
"Every licensee and every registered proprietor shall, when so required by any officer authorised in this behalf by the Provincial Government,--
(a) produce his accounts and disclose or produce the full amount of his stock of mica for the inspection of such officer;
(b) give such officer every facility for inspecting any mica mine or mica dump of which he is in possession."
The relevant portion of Section 17(2), Bihar Mica Act, 1947, under which the offence is said to fall is the following:
"17(2). Any licensee or registered proprietor who-
* * * * *
(b) fails to produce such accounts or to disclose or to produce the full amount of his stock of mica when so required under Section 11;
* * * * * shall on conviction by a Magistrate of the first class be punishable with fine which may extend to five hundred rupees."
The expression "licensee" is defined in Section 2(1) and the expression "registered proprietor" is defined in Section 2(q) of the Act. The report of the Inspector shows that Messrs. Goswami and Company, Limited, are the holders of Mica Mines Licence No. 246-H. The contention of learned counsel for the petitioner is that the firm or the directors of the firm, were never required by the Inspector to produce the accounts and stock of mica, and the report of the Inspector shows merely that the shiftman in charge and the manager failed to produce the account books and show the stock. It is contended that in these, circumstances, assuming the report of the Inspector to be correct, the petitioner had not contra-vened the provisions of Section 11, Bihar Mica Act, 1947; he is, therefore, not liable to the penalty provided under Section 17(2) of the said Act. In my opinion, this contention of the petitioner cannot be upheld at this stage.
I have already stated that no evidence has yet been taken, and it is not known whether the shiftman in charge and the manager refused to produce the accounts and show the stock of mica under instructions of the directors of the firm. In his report the Inspector has said that on a previous occasion also there was a similar refusal, and the licensees were warned by means of a letter, communicated to them. Therefore, the question whether the act of refusal by the servants of the firm will make the directors responsible cannot be decided purely as an abstract question of law. The circumstances or the instructions under which the refusal was made have to be investigated, and they cannot be investigated unless evidence is given. Learned counsel for the petitioner has referred me to the decision in -- 'Srinivas Mall v. Emperor', AIR 1947 PC 135 (A), where their Lordships of the Privy Council were dealing with an offence under Sub-rule 2(b) of B, 81 of the Defence of India Rules. Their Lordships observed:
"They see no ground for saying that offences against those of the Defence of India Rules here in question are within the limited and exceptional class of offences which can be held to be committed without a guilty mind."
The question whether the petitioner had a guilty mind or not cannot, in my view, be decided at this stage.
Section 11, Bihar Mica Act, 1947, casts a duty on every licensee and every registered proprietor to produce his accounts and disclose or produce the full amount of stock of mica for the inspection of the officer, when required by the officer referred to in Section 11 of the Act. Whether there has been a breach of this duty or not will depend on the facts and circumstances proved in the case. I do not think that I should say anything more on this question at this stage. I do not wish to prejudice the case of either party on merits, and nothing that I have said in this judgment should be taken as a finding given by me on the merits of the case. All that I need say is that if the prosecution fails to prove a violation of Section 11, the petitioner will be entitled to an acquittal. I do not think that the question which has been mooted before me by learned counsel for the petitioner can be decided merely as an abstract question of law. In my opinion, it is a mixed question of law and facts.
5. I now proceed to the second point urged on behalf of the petitioner. The Bihar Mica Act, 1947, received the assent of the Governor-General on 30-1-1948 and was first published in the Bihar Gazette, Extraordinary, on 4-3-1948. Sub-section (2) of Section 1, as it originally stood, said 'inter alia' that the Act shall remain in force for a period of one year; this was amended by Bihar Act I of 1949 by which the words "and shall remain in force for a period of one year" were omitted. Bihar Act I of 1949 received the assent of the Governor on 3-3-1949, but did not receive the assent of the Governor-General. The real question is whether Bihar Act I of 1949 was validly made so as to extend the life of the Bihar Mica Act, 1947. The contention of learned counsel for the petitioner is that Bihar Act I of 1949 was not validly made. Learned counsel has given several reasons in support of his contention, but in the view which I have taken of Article 228 of the Constitution, I do not think that it is necessary to decide, at this stage, the points urged on behalf of the petitioner.
Therefore, I am referring very briefly to the points which learned Counsel for the petitioner has urged before me in support of his contention that the Bihar. Mica Act, 1947, ceased to be effective after the expiry of one year from 4-3-1948. It is pointed out that on 8-9-1948 the Governor-General gave his assent to a Central Act called the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948). Bihar Act I of 1949 was enacted on 3-3-1949; therefore, it was enacted after the coming into force of the Central Act. The contention is that in so far as the Central Act regulated mines and mineral development under Item No. 36 of List 1, the Provincial Legislature ceased to have any power to legislate under Item 23 of List II; and even if they had the power to legislate, that power was Subject to the Central Act with respect to regulation of mines and mineral development. I" need not elaborate this point any further as I had referred to it in great detail in -- 'State of Bihar v. A. F. A. Hamid', AIR 1954 Pat 387 (B).
Secondly, it has been contended that the provisions of the Bihar Mica Act,. 1947, which was made under the power given by Sections 2 and 4 of the India (Central Government and Legislature) Act, 1946, could not be continued after the expiry of one year from 4-3-1948, without the assent of the Governor-General of India. Thirdly, it was contended that the Bihar Legislature was not competent to legislate on mica and mica mines after the enactment of the Central Act. It was further contended that on the coming into force of the Constitution, the Bihar Mica Act, 1947, was not a valid existing law within the meaning of Article 372 of the Constitution of India. In support of these contentions learned Counsel for the petitioner has referred me to various decisions 'Ex parte McLean (1930) 43 CLR 472 (C)', -- 'Stock Motor Ploughs Ltd. v. Forsyth', (1932) 48 CLR 128 (D); and -- 'Lakhi Narayan Das v. Province of Bihar', AIR 1950 FC 59 (E).
6. I do not propose to discuss these decisions, because in my opinion it is premature at this stage to decide them. I have had occasion to consider the scope of Article 228 of the Constitution of India in 'AIR 1954 Pat 387 (B)'. Following the decision in -- 'Ramaswami Ambalam v. Madraa Hindu Religious Endowments Board', AIR 1952 Mad 20 (F), I pointed out that three conditions must be fulfilled before Article 228 of the Constitution can apply. These three conditions are: (1) that there must be a case pending in a court subordinate to the High Court; (2) the case must involve a substantial question of law as to the interpretation of the Constitution or the Government of India Act, 1935; (3) a determination of the question of law must be necessary for the disposal of the case. When these three conditions are fulfilled, the High Court shall withdraw the case.
In the case under my consideration, it is premature to say if the third condition is fulfilled. If on merits it is found that the petitioner has not contravened Section 11, Bihar Mica Act, 1947, as is urged on behalf of the petitioner, then it is un necessary to decide the constitutional question for the disposal of the case; the determination of the constitutional question is then not necessary for the disposal of the case.
I may refer in this connection to amend Section 432, Criminal P. C. That section reads as follows:
"Where any court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act; Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is Subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court".
In the case under my consideration, the principal question is if Bihar Act I of 1949, validly extended the life of Bihar Mica Act, 1947. If and when determination of that question becomes necessary for the disposal of the case, the proper procedure would be to make a reference under Section 432, Criminal P. C. It seems to me that Section 432, Criminal P. C. is more appropriate in the circumstances of this case than Article 228 of the Constitution. As a matter of fact, it is somewhat premature to apply Article 228 of the Constitution. It may even be premature to apply Section 432, Criminal P. C. But as soon as evidence has been given, the learned Magistrate will be in a position to decide whether the case can be disposed of on merits without going into the question of the validity of Bihar Act I of 1949; if, however, he finds that the determination of the question of the validity of Bihar Act I of 1949, is necessary for the disposal of the case, he shall have to state a case setting out his opinion and the reasons therefor and refer the same for the decision of the High Court, unless in the meantime a decision of this Court or of the Supreme Court is brought to his notice with regard to the validity of the Bihar Mica Act, 1947, as amended by Bihar Act I of 1949; because the provisions of Section 432 are mandatory, and as soon as the conditions, laid down therein are fulfilled, the Magistrate has to make a reference to the High Court.
7. For the reasons given above, I am of the opinion that the proceeding against the petitioner cannot be quashed at this stage; nor is it necessary at this stage to withdraw the case under Article 228 of the Constitution of India. The result, therefore, is that both the applications fail and are dismissed.