MALIK, J. - (1.) I have read the judgments prepared by learned brothers Desai and Mukerji, JJ. and agreed to the answers proposed by them.
(2.) SO far as the second question is concerned, it presents no difficulty and it is not necessary for me to add anything to what has already been said. All that the Gains Act provides is, that nothing contained in the Oaths Act shall authorise the administration of oath to an accused person in a criminal proceeding. Reliance is not placed by the learned Government Advocate on anything in the Oaths Act to entitle him to cross -examine the contemner. The third question is a little difficult. Article 20(3) of the Constitution provides that : "No person accused of any offence shall be compelled to be a witness against himself." We are concerned with the words "accused of an offence". I shall not like in this case to consider the larger question whether the words "accused of" are restrictive and mean a person against whom proceeding in a criminal court for any offence committed by him has in fact been started. To similar provision in the Constitution of the United States though slightly differently worded, the American Courts have given a much wider meaning. Confining myself, therefore, to the word offence, (sic) the word has not been defined in the Constitution but Art. 367 provides that unless the context otherwise requires, the General Clauses Act, 1897 shall, subject to any adaptations and modifications that may be made therein under Art. 372, apply for the interpretation of the Constitution. The word offence has been defined in the General Clauses Act (No. 10 of 1897) as meaning "any act or omission made punishable by any law for the time being in force". I think the words "made punishable by any law for the time being in force" are important. In Art. 13(3) of the Constitution "law" is defined as "including any Ordinance, order, bye -law, rule, regulation, notification, custom or usage having in the territory of India the force of law." "Law as in force", on the other hand, have been defined as "including laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed......" No doubt these two definitions are applicable only to Art. 13 of the Constitution and cannot, therefore, be treated as a sure guide. In Art. 336 of the Constitution though law has not been defined, existing law has been defined which would only include statute law. That, however may also not be a sure guide. It is, however, important to note that nothing can be a crime or an offence unless the law makes it so.
(3.) IT is not necessary to give in detail how the Criminal Law has developed in this country. Before the passing of the Penal Code and the modification of the law, Criminal Law applied in the presidency towns and within a certain area thereof was the Criminal Law of England, but in the rest of the country where the courts established by the British were functioning it was mostly the Mohamedan Law relating to crimes that was applied. The Penal Code was drafted in 1837 though for various reasons it could net be enacted till 1860. The general principles upon which the Code was based was described as follows (see letter of Lord Auckland dated 14 -10 -1837, and Parliamentary Papers 1837 -38 (673), 41, 463) : "Your Lordships in Council will perceive that the system of penal law which we propose is not a digest of any existing system, and that no existing system has furnished us even with a groundwork". Then the prevailing state of Criminal Law in India was described and then it was said : "Under these circumstances we have not thought it desirable to take as the ground -work of the code any of the systems of law now in force in any part of India. We have, indeed to the best of our ability, compared the code with all those systems, and we nave taken suggestions from all; but we have not adopted a single provision merely because it formed a part of any of those systems." The Penal Code was enacted in 1860 and it purported to codify the Criminal Law of India as applicable to the country. Its Preamble is as follows : "Whereas it is expedient to provide a general Penal Code for British India; it is enacted as follows." Section 1 is to the effect that : "Every person shall be liable to punishment under the Code and not otherwise for every act or omission contrary to the provisions thereof......" And S. 5 is to the effect that : "Nothing in this Act is intended to repeal, vary, suspend, or affect any of the provisions of the Statute 3 and 4, William IV, Chapter 85, or of any Act of Parliament passed alter that Statute in anywise affecting the East India Company or the said territories, or the inhabitants thereof; or any of the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of Her Majesty ......or of any special or local law." A special or local law was thus saved by S. 5.;