Sisir Kumar Dutta vs State of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: 275 of 1951

Decision Date: 5 December 1952

Coram: Vivian Bose, M. Patanjali Sastri, B.K. Mukherjea, N. Chandrasekhara Aiyar, Ghulam Hasan

In this matter the Supreme Court of India delivered its judgment on 5 December 1952, recording that the petitioner was Sisir Kumar Dutta and the respondent was the State of West Bengal, with the Union of India intervening. The judgment was authored by Justice Vivian Bose and was pronounced by a five-judge bench consisting of Justices Vivian Bose, M. Patanjali Sastri, B. K. Mukherjea, N. Chandrasekhara Aiyar and Ghulam Hasan. The decision was reported in 1953 AIR 63 and 1953 SCR 644. The case centered on the Essential Supplies (Temporary Powers) Act, 1946, particularly section 4, which authorised the Act to be extended for limited periods. The Act, originally a temporary measure, had been repeatedly extended for one-year terms, and a resolution of the Constituent Assembly’s Legislative Committee dated 20 December 1949 extended its operation up to 31 March 1951, superseding the earlier extension that had been due to expire on 31 March 1950. The petitioner had been convicted for an offence alleged to have been committed on 24 October 1950 under the said Act and argued that the Constituent Assembly lacked authority to prolong the legislation because of the constitutional provision contained in Article 379(1) of the Constitution of India, asserting further that the Assembly could not extend the Act beyond 26 January 1950. The Court examined whether, even assuming that Article 379(1) intended the provisional parliament to function from 26 November 1949 rather than from 26 January 1950, the Constituent Assembly, as a designated body under the India (Central Government and Legislature) Act, 1946, as incorporated by the India (Provisional Constitution) Order, 1947, possessed the valid power to act on 20 December 1949, and concluded that it indeed did exercise such power by passing the resolution on that date. The Court also held that the provisional parliament was not empowered by the Constitution to exercise the special authority required to approve the extension of the period mentioned in section 4 of the India Act, 1946, and that the creation of the provisional parliament on 26 November 1949 could not be characterized as an “other provision” made by the Constituent Assembly within the meaning of section 4 of the India Act. Further, the Court found that the resolution extending the Act beyond 26 January 1950 was not invalid because it took immediate effect, rather than becoming operative on 1 April 1950 when the previous extension would have lapsed. Consequently, the Act, with its duration extended by virtue of the resolution, remained valid and enforceable.

In this case the Court observed that the Act had been placed in force immediately before the Constitution came into operation and that it was thereby preserved by Article 372(1) together with Explanation III. The matter before the Supreme Court was an appeal in criminal appellate jurisdiction bearing case number 275 of 1951, filed under Article 132(1) of the Constitution of India. The appeal challenged the judgment and order dated 11 April 1951 of the High Court of Judicature at Calcutta, rendered by Justices Das Gupta and Mookerjee, in Criminal Revision Case 1028 of 1950, which itself arose from an order dated 23 November 1950 issued by the Presidency Magistrate, Eighth Court, Calcutta, in P.R. Case 2107 of 1950. Counsel for the appellant was N.C. Chakravarti, counsel for the respondent was B. Sen, and counsel for the intervener was M.C. Setalvad, Attorney-General for India, assisted by P.A. Mehta. The judgment was delivered on 5 December 1952 by Justice Bose.

The appeal concerned a conviction under section 7(1) of the Essential Supplies (Temporary Powers) Act 1946 for an alleged offence committed on 24 October 1950. The conviction rested on two counts: first, the sale of cloth at a price exceeding the rate fixed by the government, and second, the failure to issue a cash memorandum for the transaction. The trial was conducted before the Eighth Presidency Magistrate at Calcutta, who proceeded by way of summary procedure. The magistrate sentenced the appellant to rigorous imprisonment for three months and imposed a fine of Rs 200, with a default provision of an additional three months’ imprisonment for non-payment of the fine. An application for revision before the Calcutta High Court was dismissed. Subsequently, an application for leave to appeal to this Court was filed and was granted on a ground that had not been raised before either the magistrate or the High Court: that the Essential Supplies Act 1946 was not in force on 24 October 1950, and consequently the conviction could not stand.

The validity of the Essential Supplies Act had previously been examined in Joylal Agarwala v. State, where this Court held that the Act remained valid up to 31 March 1950, which was the period of its life relevant to that earlier case. It is necessary to note that the Act was enacted as a temporary measure, and its period of operation had been extended repeatedly from its original expiry, each extension being for a period of one year. At the time of the earlier case the most recent extension had carried the Act’s life only to 31 March 1950, and therefore the Act was unquestionably effective up to that date. However, a further resolution dated 20 December 1949 had extended the Act’s life to 31 March 1951. The present challenge was directed against this latter extension, on the contention that no legislative body existed on 20 December 1949 with the authority to prolong the Act for an additional year. The Gazette notification containing the text of the resolution was referenced, and the Court proceeded to determine whether the body that passed the resolution possessed the requisite power to effect the extension.

In this case the Court reproduced the full text of the resolution that had been adopted by the Constituent Assembly (Legislative) at its meeting on 20 December 1949. The resolution, dated 22 December 1949 and issued from New Delhi, was published for general information and stated: “In pursuance of the proviso to section 4 of the India (Central Government and Legislature) Act, 1946, as adapted by the India (Provisional Constitution) Order, 1947, this Assembly hereby approves the extension of the period mentioned in sections 2 and 3 of the said Act for a further period of twelve months commencing on the first day of April, 1950.” The Court then examined whether the body that passed this resolution possessed the authority to extend the Essential Supplies Act. It observed that, according to the earlier decision in Joylal Agarwala v. State, the Constituent Assembly had been vested with authority on 25 February 1948 and again on 23 March 1949 to make two successive one-year extensions of the Essential Supplies Act. Consequently, the only remaining issue was whether, on the material dates, any entity retained the power to effect such an extension. The Court explained that the extensions in question were effected on the basis of section 4-A of the India (Central Government and Legislature) Act, 1946. That British statute originally gave the British Houses of Parliament the power to approve, by resolution, the extension of the period fixed by section 4. After the passage of the Indian Independence Act, 1947, the Governor-General, exercising the powers conferred by sections 9 and 19 of that Act, issued an Adaptation Order that replaced the words “Houses of Parliament” with “Dominion Legislature,” thereby enabling the Dominion Legislature to exercise the same parliamentary powers. In the same adaptation the Governor-General introduced section 4-A into the 1946 Act and consequently conferred upon the Constituent Assembly the powers of the Dominion Legislature. As a result, the Constituent Assembly became empowered to extend the period fixed in section 4 by passing a resolution, and such a resolution had the effect of extending the life of the Essential Supplies Act, 1946, because section 1(3) of that Act provided that it would cease to have effect upon the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946. The Court further noted that section 4-A stipulated that the Constituent Assembly would retain the powers of the Dominion Legislature under the British Act “until other provision is made by or in accordance with a law made by the Constituent Assembly under sub-section (1) of section 8 of the Indian Independence Act, 1947.” The Court then turned to examine sub-section (1) of that provision.

In section 8 it was observed that the British Parliament had given the Constituent Assembly the full powers of the Dominion Legislature “for the purpose of making provision as to the constitution of the Dominion.” The Assembly used those powers to draft the Indian Constitution. While doing so it chose to bring the Constitution into force in two stages. It effected this by enacting article 394, which provided that article 394 itself and certain other articles, including article 379, would become operative “at once”. The term “at once” was defined as 26 November 1949, whereas the remainder of the articles were scheduled to become operative on 26 January 1950. Article 379(1) then states: ``Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the Provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament.'' The appellant contended that, because of this provision, the Constituent Assembly ceased to be a law-making body on and after 26 November 1949, its functions having been transferred to the Provisional Parliament. Accordingly, the resolution dated 20 December 1949, which was described as a resolution of the Constituent Assembly (Legislative) rather than of the Provisional Parliament, was argued to have been passed by a body that no longer possessed the authority to enact legislation or to pass a resolution affecting the law of the land. The learned Attorney-General, however, maintained that the Constituent Assembly continued to operate in its dual capacity of constitution-making and law-making until the very last moment of 25 January 1950, midnight. At the moment the clock struck midnight and a new day began, the Assembly ceased to exist as the Constituent Assembly and its place was taken by the Provisional Parliament of India. The Court indicated that it need not resolve this precise question, because even assuming that the Provisional Parliament was intended to function from 26 November 1949 rather than from 26 January 1950, it was evident that the Constituent Assembly was intended to remain in existence up to “the commencement of the Constitution”, which article 394 fixes as 26 January 1950. Consequently, the power that had been vested in the Assembly by the English statute, as adapted by the Governor-General, could validly be exercised on 20 December 1949, and it was in fact exercised when the Assembly passed the resolution of that date. The Provisional Parliament was not a body authorised to exercise the special power of approving the extension of the period mentioned in section 4 of the English statute as that was not one of “the …”

In this case, the Court explained that the powers granted by the Constitution to Parliament did not include the authority to treat the creation of the Provisional Parliament on 26 November 1949, even if that date were assumed correct, as an “other provision” made by the Constituent Assembly within the meaning of section 4-A of the English Act. Consequently, the Court held that the Constituent Assembly had not been stripped of those specially designated powers on the date of the resolution. The next issue before the Court was whether the Constituent Assembly possessed the power to extend the life of the Essential Supplies Act beyond 26 January 1950. The question was framed by noting that the Act had already been validly extended up to 31 March 1950. The resolution that sought to prolong its existence for an additional year was passed on 20 December 1949; the Government argued that its effect could not commence until after the earlier extension expired, that is, from 1 April 1950. By that time, the Constitution had already come into force, and under Explanation III to article 372, neither the Constituent Assembly nor the Provisional Parliament could lawfully extend a temporary Act after its expiry on 31 March 1950. The Court rejected this contention, holding that the resolution of 20 December 1949 took immediate effect and altered the expiry date fixed in section 4 of the English statute from 31 March 1950 to 31 March 1951. Because the Essential Supplies Act stipulated that its own termination would occur on the same date as the expiry of the period mentioned in section 4, the Act was therefore alive immediately before 26 January 1950 and, by operation of article 372(1) and Explanation III, continued in force until its new expiry date of 31 March 1951. The Court therefore concluded that a competent body existed at all material times to extend the Act’s life up to 31 March 1951, and that the extension was indeed effected on 20 December 1949. Accordingly, the Act remained in force after the Constitution’s commencement and was therefore a living statute on the date of the offences, 24 October 1950. The Court noted that counsel attempted to challenge the conviction on additional grounds, but the leave to appeal had been limited to the constitutional questions, and therefore those further arguments could not be pursued in this appeal.

In this case, the Court observed that the petitioner could have filed a separate petition seeking special leave to appeal on the remaining issues. Had he chosen to do so, the petition would have proceeded through the ordinary procedural route, and the petitioner would have been required to obtain special leave in the normal manner prescribed by law. Consequently, the Court treated the arguments presented on those residual points as a request for special leave to appeal. The Court listened to the petitioner’s submissions in full and then formed the view that the issues raised did not satisfy the criteria for granting special leave to appeal. Accordingly, the Court dismissed the irregular petition for special leave on its merits because it did not meet the necessary standards. In addition, the Court rejected the appeal that had been filed under article 132(1), holding that it also lacked merit. As a result, the appeal was dismissed. The Court recorded the names of the parties’ representatives, noting that the appellant was represented by S. C. Banerjee, the respondent by P. K. Bose, and the intervener by G. H. Rajadhyaksha.