Bhimasankaram, J. -
(1.)THIS is a batch of six criminal revision cases which have been referred to us by the Sub - Divisional Magistrate. Guntur under S. 432, Cri. P. C. The facts leading up to the reference are as follows: The Junior Inspector of Mines, Nellore, filed these charge -sheets against the owner and manager of the Haranath Gopal Mica Mine, situated at Chengannapalli Village, Rapur Taluq of Nellore District for the contravention of certain rules made under the Indian Mines Act of 1923 and stated to be punishable under Ss.. 73 and 66, Indian Mines Act (Act 35 of 1952).
They are C. C. Nos. 14.8, 149 and 150 of 1954. Three similar charge -sheets were filed against the owner and manager of Seetharamachandra Mica Mine situated at Kothapalli village of the same Taluq and District. They are C. C. Nos. 129, 132 and 153 of 1954. C. C. No. 148 of 1954 is a complaint for contravention of Regulations. 1926 for the non -maintenance and non -production of plans at the Mines.
C. C. No. 149 of 1954 is for contravention of R. 12 of the Rules made by the local Government under the 1923 Act. C. C. No. 150 of 1954 relates to the contravention of the mines Creche Rules, 1946 framed by the Central Government in exercise of the powers conferred by sub -section (bb) of S. 30 of the earlier Mines Act. C. C. No. 129 of 1954 against Seetharamachandra Mica Mine also relates to non -compliance by the accused with the provisions of the Mines Creche Rule 3, 1946.
C. C. No. 152 of 1954 is for the violation of R. 16. Indian Metalliferous Mines Regulations and C. C. No. 153 of 1954, for contravention of R. 63 of the Rules promulgated under the Mines Act by the local Government. It is to be noted that the Mines Act of 1923 has been superseded by Act 35 of 1952. S. 88 of the latter Act repeals the earlier Act 4 of 1923. Now, omission to furnish plans etc., is punishable under S. 66 and contravention of any provision of the Act or of any Regulation or by -law or any order made thereunder is punishable under S. 73 of the new Act.
Two points were raised before the learned Magistrate. The first, which is general in scope was that the Rules and Regulations framed under the old Act are no longer in force because of the rental of that Act. It was, accordingly contended that punishment under the provisions of the new Act for violation of the rules made under the old Act is not permissible.
The second point, which was limited to the validity of the Mines Creche Rules was that those rules offend against Art. 15 (1), Constitution of India in that they are confined to making a provision for the children and women employees only thus discriminating against male workers. The learned Magistrate was inclined to uphold both these objections and setting, out his own opinion, he has referred the cases for the decision of this Court.
(2.)MR . Gangadhara Rao, who appeared for the accused in three of these cases did not urge before us the point relating to discrimination between male and female employees. His main points were two -fold. He urged in the first instance that rules and regulations made under the earlier Act cannot be described as a 'law in force' within the meaning of Art. 20 of the Constitution and that the accused cannot be convicted under a law merely deemed to be in force.
Secondly, he urged that those rules and regulations are inconsistent with the provisions of the new Act 35 of 1952 and therefore unenforceable.
Article 20, Constitution of India in so far as it is material for the present purpose runs thus:
No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence.
Now it is to be observed that S. 24, General Clauses Act provides for the continuance in force of the old rules, by -laws etc., passed under an Act which has been repealed and re -enacted, until new rules or by -laws are passed under the repealing and re -enacting statute. S. 24 in so far as it is material, may he quoted:
Where any (Central Act) or Regulation is, after the commencement of this Act repealed and re -enacted with or with modification, then, unless it is otherwise expressly provided any (appointment, notification) order, scheme, rule, form or bye -law, made or issued under the repealed Act or Regulation shall, so far as it is not inconsistent with the provisions re -enacted, continue in force, and be deemed to have been made or issued under the provisions so re -enacted, unless and until it is superceded by any appointment, notification order, scheme, rule, form or bye -law made or issued under the provisions so re -enacted.
This section while providing for the continuance in force of the rules, bye -laws etc., passed under the Act repealed and re -enacted, further provides that they shall be deemed to have been made or issued under the provisions so re -enacted. The contention for the accused is that, Art. 20 prohibits conviction under a law which is only to he "deemed to be" in force.
The Learned Counsel argues that while the rules etc., framed under the repealed Act may continue in force under the new Act for other purposes, still no punishment as provided under the new Act can be made for violation of the rules made under the earlier Act, because they are not really rules in force, but simply rules which are under the General Clauses Act only deemed to be in force.
He points out that the accused cannot be convicted for infringement of these rules under the repealed sections of the old Act providing for punishment and that the prosecution can only invoke the appropriate sections of the new Act providing for punishment. Our attention has been drawn in this connection to the decision of the Supreme Court in 'Shiv Bahadur Singh v. State of V. P.', : AIR 1953 SC 394 (A).
It is true that in that case the Supreme Court were not dealing with a question similar to that now before us; but their Lordships considered in their decision the scope of Art. 20(1) of the Constitution. The point actually debated in that case was whether Art. 20 interdicted a conviction under an 'ex post facto' law. The following passage from the judgment of their Lordships deals with the scope of the question raised before them.
The next and the only serious question that arises in this case is with reference to the objections raised in reliance on Art. 20 of the Constitution, This question arises from the fact that the charges as against the two appellants, in terms, refer to the offences committed as having been under the various sections of the Indian Penal Code as adopted in the United States of Vindhya Pradesh by Ordinance No. 48 of 1949.
This Ordinance was passed on 11 -9 -49 while the offences themselves are said to have been committed in the months of February, March and April 1949, i.e., months prior to the Ordinance. It is urged therefore that the convictions in this case winch were after the Constitution came into force are in respect of an 'ex post facto' law creating offences after the commission of the acts charged as such offences and hence unconstitutional.
Their Lordships ultimately held that the various acts in respect of which the appellants were convicted constituted offences even before the Ordinance in question was passed and apart from that Ordinance and that consequently there could be no valid objection to the convictions on the ground that they were made under an 'ex post facto' law. But in the course of their judgment, they discussed the ambit of Art, 20(1) elaborately. They observe that that Article in its broad import has been enacted to prohibit convictions and sentences under 'ex post facto' laws and refer to the well known case of 'Phillips v. Eyre',, (1870) 6 QB 1 (B) as also to the case of 'Calder v. Bull', decided by the Supreme Court of the U.S.A.,, (1855) 1 Law Ed. 648 (C). Thereafter they proceed to say:
In this connection our attention has been drawn to the fact that the Vindhya Pradesh Ordinance 48 of 1949 though enacted on 11 -9 -1949. i.e., after the alleged offences were committed, was in terms made retrospective by S. 2 of the said Ordinance which says that the Act 'shall be deemed to have been in force in Vindhya Pradesh from 3 -8 -1948" a date long prior to the date of the commission of the offences.
It was accordingly suggested that since such a law at the time when it was passed was a valid law and since this law had the effect of bringing this Ordinance into force from 9 -8 -1949 it cannot be said that the convictions are not in respect of 'a law in force' at the time when the offences were committed. This however, would be to import a somewhat technical meaning into the phrase "law in force" as used in Art. 20.
"Law in force" referred to therein must be taken to relate not to a law "deemed" to be in force and thus brought into force but the law factually in operation at the time or what may be called the then existing law....It cannot therefore, be doubted that the phrase "law in force" as used in Art. 20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law "deemed" to have become operative by virtue of the power of legislature to pass retrospective laws.
It seems to us that the interpretation put upon the phrase "law in force" by the Supreme Court in the above passage is conclusive against the prosecution in the cases before us. It is not denied that all the acts or omissions with which the accused are sought to be charged are acts or omissions which occurred after Act 35 of 1952 came into force. The rules and regulations made under the old Act, it is true, continue in force but, for the purpose of a criminal prosecution, they cannot be properly described as being "Laws m force" because they are not rules made under the new Act, but are only to be deemed to be made thereunder.
(3.)MR . Munikanniah appearing for the prosecution has referred to the Full Bench decision of the Patna High Court reported in 'State v. Kunja Behari', : AIR 1954 Pat 371 (PB) (D). That was a case where validity of the Mines Creche Rules and the Pit -head Bath Rules made in the year 1946 under the Mines Act of 1923 was questioned. The learned Judges who decided the case were not called upon to determine the validity of the rules with reference to the new Act 35 of 1952 as the alleged offences in that case took place before the new Act came into force.
There is an observation, however, of one of the Judges that by reason of S. 24. General Clauses Act, the rules of 1946 are still in force even under the new Act. As we are in agreement with the first contention raised on behalf of the accused, it is not necessary for us in this case to decide whether the rules and regulations now in Question are vitiated by the process of double delegation or invalid as being inconsistent with the main provisions of the Act under which they are made; nor is it necessary for us to decide whether they are consistent with the provisions of the new Act.
We are not however, to be understood as implying that, these rules, regulations etc., are invalid for all purposes.