Dixit, J. -
(1.)THIS is a petition by one A.B. Lagu, who is being prosecuted in the Court of the City Magistrate, Indore, for an offence under Section 4(i) of Prohibition of Associations Dangerous to the Public Peace Act, Samvat 2000, Act No. 19/1919), praying that the original case pending against him may be withdrawn from the Court of the City Magistrate and be disposed of by this Court. The petition has been made under Article 228 of the Constitution of India on the ground that the case involves substantial question of law as to the interpretation of the Constitution, viz: Whether the Act No. 19/1949, the breach of which the Petitioner is alleged to have committed, is repugnant to Article 19 of the Constitution and is, therefore, void.
(2.)THE challan against the Petitioner which was parented on 18th March 1950, mentions that the Petitioner is a member of the Communist Party which had been declared by the Government to be an unlawful association, and that the Petitioner was found on 3rd December 1949 distributing bulletins of the party and thus assisting the party. On 18th April 1960, ' when the Petitioner was first produced in Court, the learned City Magistrate explained to him the substance of the challan, the Petitioner denied that he was a member of the Communist Party or that he in any way assisted the operations of the party. The witnesses for the prosecution were to be examined on 29th April 1910. in the meantime on 26th April 1960, the Applicant presented a petition raising an objection that the Prohibition of Associations Dangerous to Public Peace Act, under which he is being prosecuted, is repugnant to Article 19 of the Constitution and is void, and that, therefore, the Magistrate should first determine this preliminary question. The learned Magistrate informed the parties that he would hear arguments on the question raised by the Petitioner on 29th April 1960. On this date the witnesses for the prosecution were not present and the case was adjourned to 13th May 1960. The order recorded by the Magistrate on 39th April 1960, does not show that the preliminary objection raised by the Applicant was considered. In support of this petition Mr. Homi Daji, learned Counsel for the Applicant urged every thing that could possibly be said, bat we are nonetheless persuaded that at this stage this application must be refused. Article 328 of the Constitution says:
228. If the High Court is satisfied that the case pending in a Court subordinate to it involves a substantial question of law as to the interpretation this Constitution the determination of which la necessary for the disposal of the case, it shall withdraw the case and may
(a) either dispose of the case itself or
(b) determine the said question of law and return the case to the Court from which the case has been so withdrawn together with a copy of us judgment on such question, and the said Court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.
Under this Article before the High Court can withdraw a case, it has to be satisfied that the case "involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case." The word 'involves' and the expression 'the determination of which is necessary for the disposal of the case", which occur in Art 228 are important and significant. They indicate that the satisfaction of the High Court must be as to the point that the case cannot be decided without a decision on the constitutional question. If in a case, along with the question of law as to the interpretation of the Constitution, there are other questions independent of the constitutional question, which are sufficient in themselves to end the case, then the constitutional question is not one the determination of which is necessary for the disposal' of the case. The mere circumstance, therefore, that a question of law as to the interpretation of the Constitution has been raised and that it is] important' and substantial, cannot give the High Court jurisdiction to withdraw the case Approaching the matter without the assistance of any authority as we have to the Constitution being new, we are not disposed to think that Article 228 couched in terms so explicit is intended to preclude a subordinate Court from deciding a case, merely because, a substantial question of law as to the interpretation of the Constitution is raised. The obvious object of the article in to make in the States the High Court the sole interpreter of the Constitution and at the same time, as the learned Advocate General put it, to prevent the High Court from being made a forum for academic discussions on constitutional questions. It is only when on the facts found in the case, the, decision turns on the answer to the constitutional question that the High Court can exercise its jurisdiction to withdraw the case and adopt either of the courses mentioned in the article. But fortunately we are in a position to approach the matter of the interpretation of Article 238 with some confidence for the word "involves" has been the subject of judicial interpretation in a number of cases, dealing with Section 110, Code of Civil Procedure and Section 205, Government of India Act of 1936. In Banke Lal v. Jagat Narain, 23 ALL 94 :, 1901 A.W.N. 8, Banerjee J. observed in relation to Section 110, Code of Civil Procedure that "the mere circumstance that a question of law is raised in the case would not justify the inference that the appeal involves a substantial question of law if the findings upon the facts do not necessitate a decision of that question. Similarly, with reference to Section 205, Government of India Act, 1935, it has been held in Hafiz Mohomed v. Slnam Lal : I.L.R. (1944) ALL. 773 : A.I.R. 1944 ALL, 273 F.B. Emperor v. Saver Manual Dantes, I.L.R. (1941) Bom. 401 :, A.I.R. 1941 Bom. 245 :, 42 Cr.L.J. 713 F.B. and Venkita Narasinga Rao v. V. Surayyaraju I.L.R. : (1947) Mad. 403 : A.I.R. 1947 Mad 161), that a case cannot be said to involve a question unless its decision is necessary for the purpose of the case. It is noteworthy that Article 204 of the Draft Constitution, prepared by the Draft Committee of the Constituent Assembly did not contain the words "the determination of which is necessary for the disposal of the case". They were added subsequently by the Constituent Assembly itself, manifestly to place beyond doubt the meaning and implications of the word 'involves' in the Article. In our view the substantial question of law as to the interpretation of the Constitution that gives the High Court jurisdiction to withdraw a case from a subordinate Court must be such that it is not possible to decide the case' on the facts found therein without considering the constitutional point.
(3.)THE learned Counsel for the Applicant urged that it is sufficient for the withdrawal of the case, if the High Court is satisfied that the decision on the constitutional question is necessary at the time a party applies for the withdrawal of the case. This general proposition does not take note of the fact that the constitutional question must be necessary for the disposal of the case. The question whether the constitutional point is necessary for the disposal of the case, cannot be determined with reference to the time at which the prayer for withdrawal is made but with reference to the findings on the other questions in the case, and until those other questions are decided, the stage for considering whether the determination of the constitutional question is necessary for the disposal of the case cannot aired. In the present case other questions that arise for determination on the evidence that may be produced in the case by the prosecution are - - firstly whether there is a Communist Body; secondly whether the body has been validity declared to be an unlawful association and thirdly whether the Petitioner is a member of the unlawful association or in any way assists the operations of the association or does any of the things mentioned in Section 4(i) of the Act No. XIX  of 1949. It may be that the prosecution may fail to establish any one of these essential ingredients of the offence under Section 4(i) and in that event it would not be necessary to decide the question whether the Act No. 19/1949 is repugnant to Article 19 of the Constitution of India and void. On the other hand if all the above facts are found against the Petitioner it might become necessary to consider the question of the validity of the Prohibition of Associations Dangerous to the Public Peace Act, and it would be then open to the Applicant or the Magistrate himself to move this Court for the withdrawal of the case, and for a decision on the constitutional question. For the moment, as there has been no decision on these other questions it is clearly not possible for us to satisfy ourselves that a decision on the constitutional question raised by the Petitioner is necessary for the disposal of the case.