L HERMAN C CRUZ Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.)This is an application by the eighth accused in Crime No. 94 of 1963 of the Poonthura Police Station for enlarging him on bail pending trial of the case. The allegation against the accused is that on 17-5-1963 accused 1 to 3 and 6 to 10 instigated the Tindal and the crew including accused 4, 5 and 11 to 13 to resist the attempt of the officers to take delivery of the rice bags which had arrived by ship S. S. Maharani at the Valiathura port, thereby impeding and delaying the means of transport of the rice bags from the boat to the Government godown and also abetted the use of criminal force against public servants. The acts, if proved, would amount to "prejudicial acts" within the meaning of R.35 Clause.6 sub clauses (i) and (o), offences punishable under R.41 Clause.5 of the Defence of India Rules, 1962.
R.41(1) says that no person shall, without lawful authority or excuse do any prejudicial acts. Sub-r.(6) of R.35 indicates what is meant by prejudicial act and clause (i) of that sub-rule says that any act which is intended or is likely to impede, delay or restrict the means of transport or locomotion, any work necessary for the efficient conduct of military operations, the production, handling or transport of any munitions or the supply or distribution of any essential commodity is a prejudicial act. Essential commodity under S.35(5) would take in food products like rice. Likewise clause (o) lays down that to instigate directly or indirectly the use of criminal force against public servants generally or any class of public servants or any individual public servant would amount to the commission of a prejudicial act.
The petitioner denied the commission of the offence and denied participation in the acts alleged. The learned Sessions Judge before whom the petitioner applied for bail rejected the application on the ground that R.155 of the Rules framed under the Defence of India Act restricts the discretion of the court in the matter of granting bail and that a person accused of contravention of any rules notified by the Central Government cannot be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. That the offences charged have been notified by the Central Government is now conceded by the learned counsel for the petitioner even though disputed in the petition. The learned Advocate General has placed before us the relevant notification made by the Ministry of Home Affairs of the Government of India.
(2.)What is contended by the learned counsel for the petitioner is, that there is excessive delegation, that the Parliament has in S.3 given power to the Central Government to make rules without laying down any guiding principle, that the Parliament has really abdicated its essential function and the delegation is so uncanalised and uncontrolled that it amounts to the setting up of a parallel legislature. It is also stated that R.155, in particular, is ultra vires and void inasmuch as the rule involves the repeal of S.496 and 497 of the Criminal Procedure Code which is a legislative power and the Central Government as a delegated authority can exercise no such power. In other words what is stated is that the power of making rules which will have the effect of repealing by implication any existing law cannot be delegated. Reliance was placed on the majority decision of the Supreme Court in In re Art.143 Constitution of India and Delhi Laws (1912), ( AIR 1951 SC 332 ) where it has been laid down that to repeal or abrogate an existing law is the exercise of an essential legislative power and the conferment of power of such wide amplitude, to make the rule inconsistent with the pre existing laws is nothing short of power to repeal.
The learned Advocate General while agreeing that the legislature cannot part with its essential function, namely, declaring its policy submits that no such thing has been done in this case. He has argued that the policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority. It was also stated that the court can interfere only if no policy is discernible at all or the delegation is of such an indefinite character as to amount to abdication of legislative power. Learned Advocate General has referred to various rulings in support of his contention. We will refer only to a few of the important decisions.
(3.)In Harishankar Bagla v. The State of M.P. ( AIR 1954 SC 465 ), S.3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946 were attacked as ultra vires on the ground of excessive delegation of Legislative power. Mahajan C. J. who delivered the judgment of the court conceded that the legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into binding rule of conduct.
The learned Judge then considered the question whether such a policy had been laid down and stated that legislature has laid down such a principle and that 'principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. The principle was clear and it offered sufficient guidance to the Central Government in exercising its powers under S.3. For deciding whether guidance was afforded to the delegate in bringing into operation the material provisions of the Act by laying down the principles, his Lordship stated that the court may consider the statement of the principles contained in the preamble to the Act, as well as to the provisions of the Act itself.
This decision shows that if we can find a reasonably clear statement of policy underlying the provisions of the Act either in the provisions of the Act or the preamble, then any part of the Act cannot be attacked on the ground of delegated legislation by suggesting that questions of policy have been left to the delegate.
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