Rao Shiv Bahadur Singh And Another vs The State Of Vindhya Pradesh

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 7 of 1951

Decision Date: 22 May, 1953

Coram: B. Jagannadhadas, M. Patanjali Sastri, B.K. Mukherjea, Vivian Bose, Ghulam Hasan

In the matter titled Rao Shiv Bahadur Singh and Another versus the State of Vindhya Pradesh, the Supreme Court of India delivered its judgment on 22 May 1953. The opinion was authored by Justice B. Jagannadhadas and was pronounced by a bench comprising Justices B. Jagannadhadas, M. Patanjali Sastri, B. K. Mukherjea, Vivian Bose and Ghulam Hasan. The petitioners, identified as Rao Shiv Bahadur Singh and a co-accused, were opposed by the State of Vindhya Pradesh as the respondent. The formal citation of this decision is 1953 AIR 394 and 1953 SCR 1188, and it has been referenced subsequently in numerous reports, including RF 1953 SC 404, RF 1954 SC 322, R 1955 SC 123, D 1960 SC 266, E 1961 SC 838, R 1962 SC 1737, RF 1963 SC 255, RF 1966 SC 1206, R 1975 SC 902, F 1975 SC 1234, R 1979 SC 478, R 1979 SC 602, R 1979 SC 898, RF 1981 SC 1946, R 1987 SC 1364, and F 1989 SC 1614. The case concerned the application of the Constitution of India, 1950, specifically Articles 14 and 20, to proceedings that arose from acts committed in Rewa State in 1949 before the incorporation of that territory into Vindhya Pradesh under Ordinance No. XLVIII of 1949. The petitioners were charged under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance, No. V of 1949, for alleged violations of sections 120-B, 161, 465 and 466 of the Indian Penal Code as adapted by the same state ordinance. The factual allegations were that the two officials, who during the relevant period served respectively as the Minister for Industries and the Secretary to the Government of Vindhya Pradesh, conspired in February 1949 at Rewa to obtain illegal gratification for the revocation of a prior government order. The second appellant is said to have demanded the gratification on 8 March 1949 at Rewa, and the first appellant is alleged to have received a sum of Rs. 25,000 on 11 April 1949 in New Delhi, thereafter forging documents presented as official orders. The Special Judge acquitted both appellants, but on further appeal the Judicial Commissioner convicted the first appellant on all counts and the second appellant on sections 120-B and 161 of the Indian Penal Code. The petitioners challenged the validity of the trial and the convictions before the Supreme Court, arguing that the proceedings violated Articles 14 and 20 of the Constitution and that no statutory right of appeal existed to the Judicial Commissioner from the order of the Special Judge. The Court held that Section 5(2) of the Vindhya Pradesh Ordinance 1949 provided that the provisions of the Criminal Procedure Code applied to the proceedings of a Special Court and that the Special Judge was to be deemed a Court of Session, thereby making the appeal to the Judicial Commissioner permissible under the normal right of appeal conferred by sections 410 or 417 of the Criminal Procedure Code.

The Court observed that the Vindhya Pradesh Ordinance of 1949 described the proceedings of a Special Court and declared that the Special Judge was to be treated as a Court of Session. Consequently, the ordinary right of appeal provided by section 410 or, as appropriate, section 417 of the Criminal Procedure Code was deemed to have been expressly incorporated by reference, and therefore the order issued by the Special Judge was appealable to the Judicial Commissioner. The Court distinguished this conclusion from the authority in Attorney-General v. Herman James Sillem, reported at 11 H.L.C. 704. The Court then held that the trial of the appellants did not infringe article 14 of the Constitution because, at the time the trial began on 2 December 1949, the Vindhya Pradesh Criminal Procedure Code, as amended, contained no requirement that trials before Courts of Session be conducted by a jury or with assessors. Furthermore, the later extension of the entire Criminal Procedure Code, including section 268, to Vindhya Pradesh on 16 April 1950 by the Part C States (Laws) Act, 1950 could not undermine the validity of the trial after that date, since section 4 of the same Act expressly states that the repeal of earlier law shall not affect pending proceedings. The Court emphasized that pending proceedings constitute a distinct class, and a saving provision for such proceedings cannot be said to violate article 14, citing Syed Qasim Razvi v. State of Hyderabad ([1952] S.C.R. 710). Regarding article 20, the Court explained that the constitutional bar on convictions and penalties imposed under ex post facto laws applies not only to laws enacted after the Constitution but also to pre-Constitution statutes when they are applied to proceedings that are pending. The Court noted the distinction between Indian and American law on this point. However, the Court clarified that article 20 prohibits only the conviction or sentence handed down under an ex post facto law, not the trial itself; a trial conducted under a procedure different from that in effect at the time of the offence, or before a court that did not then have jurisdiction, cannot automatically be declared unconstitutional. The Court further defined the phrase “law in force” in article 20 as a law that actually existed and was operative at the time the offence was committed, and it excluded any law that, by later legislation, is deemed retroactively applicable. Finally, the Court observed that although the charges against the appellants were framed in reference to offences under Ordinance No. XLVIII of 1949, the underlying acts were offences under the law that prevailed when they were committed; therefore, the convictions could not be characterized as violations of a law that was not in force at the relevant time.

By virtue of the Orders issued by the Regent of Rewa in 1921 and 1922, the Indian Penal Code together with the Criminal Procedure Code, suitably adapted, were operative in Rewa State. The Court observed that these statutes either became applicable to the whole of Vindhya Pradesh State from 9 August 1948 by virtue of Ordinance No IV of 1948, or they continued to operate in the Rewa portion of the State on the basis of the principle articulated in Mayor of Lyons v. Bast India Co. (1 M.I.A. 175). Accordingly, the penal law in force at the time the alleged offences were committed was the IPC and the CrPC, as they stood under the aforementioned Orders and Ordinances.

The amendment introduced by Ordinance No XLVIII of 1949, which altered the definition of “public servant” in Section 21 of the Penal Code, was held not to have brought about any material change in the status of the first appellant as a public servant. The Court further noted that, prior to 1947, the Ruler of Rewa State possessed the authority to enact extra-territorial legislation concerning offences committed by his own subjects and to vest jurisdiction to try such offences in his courts. This authority was not diminished by either the integration covenant or the Instrument of Accession. Moreover, Sections 3 and 4 of the Indian Penal Code and Section 188 of the Criminal Procedure Code, insofar as they pertained to the subjects and courts of the State, fell within the legislative competence of the State. Consequently, the convictions of the appellants for all the charges framed against them—including the extra-territorial offence alleged to have been committed by the first appellant in New Delhi—were held not to be unconstitutional under Article 20 on the ground that they were not based on an ex post facto law.

The matter before the Court was Criminal Appeal No 7 of 1951, filed under Article 134(1)(c) of the Constitution of India. The appeal challenged the judgment and order dated 10 March 1951 of the Judicial Commissioner of Vindhya Pradesh, Rewa, in Criminal Appeal No 81 of 1950, which itself arose from the judgment and order dated 26 July 1950 of the Special Judge, Rewa, in Criminal Case No 1 of 1949. Counsel for the first appellant was G S Pathak, assisted by K B Asthana; counsel for the second appellant was K B Asthana; and the respondent was represented by M C Setalvad, Attorney-General for India, assisted by G N Joshi. The judgment was delivered on 22 May 1953 by Justice Jagannadha Das. The appeal contested the judgment of the Judicial Commissioner. At the relevant period, the first appellant served as the Minister for Industries, while the second appellant held the position of Secretary to the Government in the Commerce and Industries Department of the United State of Vindhya Pradesh. The prosecution’s case, as outlined, involved allegations relating to actions taken in the State of Panna, one of the constituent units of the United State of Vindhya Pradesh.

There were certain diamond mines in the State of Panna. By an agreement dated 11 August 1936 between the Panna Durbar on one side and the Panna Diamond Mining Syndicate on the other side, the Syndicate obtained a lease to carry out diamond-mining operations for a period of fifteen years. It appears that on or about 31 October 1947 the Panna Durbar directed that mining work be stopped, on the ground that the Syndicate was not conducting the operations properly. From that date the Syndicate began to make strenuous efforts to obtain cancellation of the stoppage order. It was alleged that, during those efforts, the two appellants, who at that material time held the offices of Minister for Industries and Secretary to the Government, Commerce and Industries Department respectively, entered into a conspiracy in early February 1949 at Rewa, within the United State of Vindhya Pradesh. The purpose of the alleged conspiracy was to obtain illegal gratification in order to have the earlier order of stoppage revoked. In pursuance of the alleged conspiracy the second appellant is said to have demanded, on 8 March 1949 at Rewa, an illegal gratification from Mr Nagindas Mehta, who was a representative of the Panna Diamond Mining Syndicate. Subsequently, on 11 April 1949, the first appellant is said to have actually received a sum of Rs 25,000 at Constitution House in New Delhi. It is further alleged that the first appellant forged certain documents purporting to be official orders that were intended to confer advantages or benefits on the Syndicate. On the basis of these allegations the two appellants were charged with criminal conspiracy, with taking illegal gratification by a public servant for doing an official act, and with the commission of forgery in connection with those acts. The charges were framed under sections 120-B, 161, 465 and 466 of the Indian Penal Code, as adapted by the Vindhya Pradesh Ordinance No XLVIII of 1949, and the trial was conducted by a Special Judge appointed under the Vindhya Pradesh Criminal Law Amendment (Special Court) Ordinance No V of 1949. At the trial both appellants were acquitted of all charges.

Following the acquittal, the State filed an appeal before the Judicial Commissioner. The appeal resulted in the conviction of both appellants under sections 120-B and 161 of the Indian Penal Code, as adapted. In addition, the first appellant was convicted under sections 465 and 466 of the Indian Penal Code, as adapted. The first appellant received a sentence of rigorous imprisonment for three years and a fine of Rs 2,000 under section 120-B, and a further sentence of rigorous imprisonment for three years under section 161, with both sentences to run concurrently. No separate sentence was awarded for the convictions under sections 465 and 466. The second appellant was sentenced to one year of rigorous imprisonment and a fine of Rs 1,000 under section 120-B; no separate sentence was imposed for the conviction under section 161. The validity of these convictions and the sentences imposed has been challenged on the ground that they infringe Articles 14 and 20 of the Constitution. In addition, a further point has been raised regarding the jurisdiction of the Judicial Commissioner to entertain an appeal from the acquittal rendered by the Special Judge.

Before us, the matter was presented on the basis that no appeal could be made to the Judicial Commissioner from an acquittal rendered by the Special Judge, and it was deemed appropriate to address this point at the outset. The issue raised required an interpretation of the provisions contained in the Vindhya Pradesh Criminal Law Amendment (Special Court) Ordinance No. V of 1949, dated 2 December 1949. Under section 2 of that Ordinance, the Government of Vindhya Pradesh was authorised, by way of a notification, to establish Special Courts possessing criminal jurisdiction within the State, and section 3 empowered the Government to appoint a Special Judge to preside over each such Special Court. Section 4 further permitted the Government to issue notifications from time to time assigning particular cases for trial before the Special Judge, where the charges involved offences listed in the Schedule to the Ordinance. Sections 5(1), 7 and 8 introduced specific departures from the ordinary procedure or evidentiary rules, while section 9 dealt with special punishments. Section 5, sub-section (2) stated: “Save as provided in sub-section (1) the provisions of the Code of Criminal Procedure, as adapted in Vindhya Pradesh, shall, so far as they are not inconsistent with this Ordinance, apply to the proceedings of a Special Court, and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a Jury or without the aid of Assessors, and a person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor.” Section 6 provided: “The High Court may, subject to the provisions of section 7 regarding transfer of cases, exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, as adapted in Vindhya Pradesh, on a High Court as if the Court of the Special Judge were a Court of Session trying cases without a Jury within the local limits of the High Court’s jurisdiction.” Counsel for the appellants argued that the quoted provision in section 6 merely conferred appellate powers on the High Court for appeals that were already permissible, but that the Ordinance contained no explicit provision granting an aggrieved party a right of appeal from the Special Judge’s judgment or order to the High Court. They contended that the absence of such a right might represent a lacuna, yet asserted that because the Ordinance did not expressly provide for an appeal, the right could not be implied merely from the existence of appellate powers. They admitted that if their interpretation were accepted, it would result in the lack of any appeal, even against a conviction, and argued that this outcome was an inevitable consequence of the alleged lacuna. However, after careful consideration, the Court concluded that no such lacuna existed and that sub-section (2) of section 5, when properly construed, expressly conferred a right of appeal to any aggrieved party, whether the accused or the State, against the Special Judge’s decision.

In its analysis, the Court observed that the Vindhya Pradesh Ordinance, when read in a reasonable manner, contained an explicit provision granting any aggrieved party—whether the accused or the State—the right to appeal against a judgment rendered by a Special Judge. The language of the section expressly declared that the provisions of the Code of Criminal Procedure, insofar as they had been adapted and were not inconsistent with the Ordinance, were to apply to the proceedings of a Special Court, and that for the purposes of those adapted provisions the court of a Special Judge was to be treated as a Court of Session. The Court noted that the provisions of the Criminal Procedure Code dealing with the right of appeal are contained in sections 410 and 417, and that nothing in the Vindhya Pradesh Ordinance conflicted with the application of those two sections to the proceedings of a Special Court that was deemed a Court of Session. Consequently, the Court concluded that the proceedings before a Special Judge were indeed subject to appeal. The appellant’s counsel argued that the Criminal Procedure Code provisions attracted by sub-section (2) of section 5 of the Ordinance were limited only to those provisions governing the procedure before the Special Court itself, and did not extend to every provision connected with or related to those proceedings. The Court rejected that narrow construction, stating that there was no basis for limiting the sub-section in such a manner. The only restriction on the application of the Criminal Procedure Code to the Special Court’s proceedings, the Court held, was the existence of any provision in the Ordinance that was expressly inconsistent, and not any reference to the conduct of the proceedings before that court. Once the Special Court was deemed a Court of Session, the normal right of appeal provided by section 410 or section 417, as appropriate, had to be regarded as expressly conferred by reference to those sections rather than as a mere implication. The Court noted that the appellant’s counsel had heavily relied on Attorney-General v. Herman James Sillem to argue that the provision in question was intended only to regulate the proceedings within the four walls of the court. However, the Court distinguished that authority, observing that the statutory provision examined in Sillem was worded differently and was meant to regulate “the process, practice, and mode of pleadings,” i.e., the procedural aspects inside the court, and not the “proceeding” of the court as a whole. While the Court acknowledged that it was not permissible to fill a clear statutory lacuna by implying a right of appeal, it also emphasized its duty to avoid a construction, when the language permitted, that would render any part of the statute meaningless or inapplicable. The construction advocated by the appellant, the Court said, would make section 6 ineffective and would leave even a convicted person without any avenue of appeal. Accordingly, the Court expressed no hesitation in rejecting the appellant’s argument and affirmed that the Ordinance did indeed provide an express right of appeal.

In considering the constitutional challenges, the Court found that the allegation of a breach of article fourteen lacked any real foundation. Relying on Lakshmidas Ahuja’s case, the petitioners argued that although the trial under Ordinance No V of 1949 concerned offences committed before the Constitution came into force, the continuation of the trial under the special procedure prescribed by that Ordinance was discriminatory and therefore unconstitutional. The Court observed that the trial began on 2 December 1949, the Sessions Judge acquitted the accused on 26 July 1950, and the Judicial Commissioner affirmed the conviction on 10 March 1951. In light of the later Supreme Court decision in Syed Qasim Razvi v the State of Hyderabad, it was clear that such a contention was without merit unless the petitioners could demonstrate a material procedural prejudice.

The Attorney-General pointed out that before the Criminal Law Amendment (Special Court) Ordinance No V of 1949 was enacted on 2 December 1949, the Code of Criminal Procedure Adaptation (Amendment) Ordinance No XXVIII of 1949, dated 3 May 1949, had already removed section 268 of the Criminal Procedure Code— which required all trials before a Court of Session to be conducted either by jury or with assessors— from the Vindhya Pradesh Criminal Procedure Code as adapted. Consequently, when the present case commenced before the Special Court, the accused did not suffer any substantial prejudice, and the continuation of that procedure after the Constitution’s commencement made no material difference. The petitioners later relied on a change introduced by section 3 of Central Act No XXX of 1950 (Part C States (Laws) Act, 1950), which extended statutes listed in the Schedule to the Merged States (Laws) Act, 1949, to Vindhya Pradesh; among those statutes was the entire Code of Criminal Procedure. This extension revived section 268 of the Criminal Procedure Code for Vindhya Pradesh, repealing the earlier amendment by virtue of section 4 of the Act. The petitioners argued that any trial persisting under the old procedure after 16 April 1950 necessarily involved discrimination and prejudice. However, this argument overlooked the saving clause contained in the repealing provision of Act No XXX of 1950, which stipulated that the repeal would not affect (a) the prior operation of any such law, or (b) any penalty, forfeiture or punishment incurred under any offence committed against such law. This saving clause, therefore, preserved the effect of the earlier procedural regime for proceedings already underway, negating any claim of discrimination.

The Court observed that clause (c) of the saving provision permitted any investigation, legal proceeding or remedy concerning a penalty, forfeiture or punishment to be instituted, continued or enforced, and allowed the penalty, forfeiture or punishment to be imposed as though the repealing Act had never been enacted. It pointed out that this saving provision applied in the same manner to proceedings that had already been commenced and were still pending, irrespective of whether those proceedings were before a special court or an ordinary court. Consequently, for two persons who were similarly situated—one being tried in an ordinary court and the other in a special court—the legal position remained exactly as it had been before the repeal, meaning that the continuation of the trials did not create any substantial discrimination or a procedurally unfair situation. Counsel for the respondents attempted to argue that the saving clause itself was discriminatory, unconstitutional and therefore invalid. The Court rejected that contention, stating that the legislature was free to treat pending proceedings as a distinct class, taking into account the exigencies created by the pendency of those cases. The Court further held that there could be no violation of article 14 of the Constitution so long as the saving provision left no room for additional discrimination between persons affected by those pending matters.

The Court then identified the next and only serious question in the case as arising from objections founded on article 20 of the Constitution. The issue stemmed from the fact that the charges against the two appellants were framed under sections of the Indian Penal Code as adapted to the United States of Vindhya Pradesh by Ordinance No XLVIII of 1949. That Ordinance was enacted on 11 September 1949, whereas the alleged offences were said to have occurred in February, March and April 1949, i.e., before the Ordinance came into force. Consequently, it was contended that the convictions, which were rendered after the Constitution became operative, were based on an ex post facto law that created offences after the acts had been committed, and were therefore unconstitutional. This contention raised two important points for consideration: first, the proper construction of article 20 of the Constitution; and second, whether the acts for which the appellants were convicted became offences only from the date the Ordinance was passed or were already offences beforehand. The Court recalled the text of article 20(1), which provides that 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, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The Court noted that the purpose of this provision is to prohibit convictions and sentences that rely on ex post facto legislation.

The Court explained that the prohibition of ex post facto laws has been examined in depth in the judgment of Justice Willes in the renowned case of Phillips v. Eyre(1) and also by the Supreme Court of Virginia in Calder v. Bull(2). In the English decision, ex post facto statutes were described as laws that nullify and punish conduct that was lawful at the time it was performed. The Court emphasized that there is no doubt about the supreme importance of the principle that statutes which retrospectively create offences and impose punishment are fundamentally inequitable and unjust. Under English jurisprudence, the undesirable character of such statutes is regarded not as a ground for declaring the statutes void, but rather as a reason to interpret them benevolently whenever the language of the enactment permits a more favourable construction.

In contrast, the Court noted that the American constitutional scheme expressly declares ex post facto statutes invalid under Article I, Sections 9 and 10. The learned Attorney-General contended that Article 20 of the Indian Constitution was intended only to render post-Constitutional ex post facto laws ineffective, without affecting the validity of pre-Constitutional enactments. To support this contention, reliance was placed on the decision in Keshavan Madhavan Menon v. The State of Bombay(1), which held that fundamental rights guaranteed by the Constitution have no retrospective operation and that Article 13(1) invalidates only the future operation of pre-Constitution statutes that infringe those rights. On that basis, it was argued that even if the convictions under review arose from offences created by Ordinance No. XLVIII of 1949 after the acts were committed, the protection in Article 20 would not apply to overturn those convictions. The Court rejected this argument after a careful comparison of the relevant constitutional provisions. It observed that the language of the American Constitution merely forbids the enactment of ex post facto laws, whereas Article 20 of the Indian Constitution employs broader terminology that expressly prohibits the conviction of any person or the imposition of any penalty on the ground that the law is ex post facto. Consequently, the prohibition in Article 20 extends beyond the mere passage or validity of the law to cover the conviction and sentencing themselves, based on the law’s retrospective character.

The Court explained that the words used in article 20 must be given their fullest effect, and that this construction does not give the fundamental right a retrospective operation. It meant only that the future operation of the right could, in certain cases, arise from acts and situations that began before the Constitution. The Court referred to The Queen v. St. Mary Whitechapel (1) where Lord Denman C.J. observed that a statute whose direct operation is prospective cannot properly be called retrospective, because part of its effect is drawn from a time before its enactment. Accordingly, the general principle that fundamental rights do not operate retrospectively was not altered by a strict reading of article 20. The Court held that article 20 must therefore be interpreted to prohibit any conviction or imposition of penalty after the Constitution on the basis of an ex post facto law, whether that law was enacted after the Constitution or before it. This intention of the wording was confirmed by the similar language used in articles 20(2) and 20(3). For example, under article 20(2) it could not be reasonably argued that the bar on double jeopardy applied only when both occasions occurred after the Constitution, and similarly, article 20(3) did not allow the suggestion that a person accused before the Constitution could be compelled to be a witness against himself if the case continued after the Constitution. The Court noted that article 20 prohibited only convictions or sentences under an ex post facto law, not the trial itself. A trial conducted under a different procedure or before a different competent court could not automatically be deemed unconstitutional. An accused person had no fundamental right to be tried by a particular court or under a particular procedure, except where a constitutional objection based on discrimination or another fundamental right arose. In this connection, the Court observed that the Vindhya Pradesh Ordinance XLVIII of 1949, although enacted on 11 September 1949—after the alleged offences—contained a retrospective clause in section 2 stating that the Act “shall be deemed to have been in force in Vindhya Pradesh from the 9th day of August 1948,” a date preceding the commission of the offences. It was therefore suggested that, because the law was valid at the time it was passed, it could be applied retrospectively.

In this case the Court observed that because the Ordinance was given retrospective effect from 9 August 1949, it could not be said that the convictions were based on a “law in force” at the time the offences were committed. The Court explained that to accept such a view would be to impose an unduly technical meaning on the expression “law in force” contained in article 20 of the Constitution. The phrase, the Court held, must refer to the law that was actually operating at the relevant moment, not to a law that is merely deemed to be in force because the legislature has exercised its power to make a provision retrospective. If the latter approach were adopted, the entire purpose of article 20 would be defeated, for any ex post facto law could be rendered retrospective and thereby be treated as the law in force at the time of the act, nullifying the constitutional protection. The Court therefore rejected any construction that would nullify article 20 and affirmed that “law in force” should be understood in its natural sense – the law that existed and was operative at the time of the commission of the offence, as distinct from a law “deemed” to have become operative through a retrospective provision. Consequently, if the appellants could demonstrate that the acts for which they were charged became offences only by virtue of Ordinance No XLVIII of 1949, which was enacted after the acts had been committed, they would be entitled to rely on article 20 of the Constitution and have their convictions set aside. The Court noted that this led to an examination of the pre-existing law, but first addressed the repeated contention that the convictions could not be sustained on the basis of the earlier legal state because (1) the charges were specifically framed under Ordinance No XLVIII of 1949 and (2) that Ordinance had repealed the previous law. The Court found this argument without merit, stating that a review of the law existing at the time of the offence was not undertaken for the purpose of converting the convictions under the 1949 Ordinance into convictions under the earlier statute. The convictions, the Court affirmed, were clearly and lawfully referable only to Ordinance No XLVIII of 1949, which had become applicable to the offences through its valid retrospective operation as authorized by section 2 of the Ordinance.

Section 2 of the Ordinance had given a retrospective effect to that law. The Court explained that the factual situation concerning the law that existed before the Ordinance needed to be examined solely for the purpose of assessing the constitutional validity of the convictions. This issue arose from the appellants’ own contention and was not an objection to the wording of the charge or to the legality of the conviction on any ground other than constitutional invalidity. The Court further observed that there was no question of prejudice, because the appellants themselves had raised this point before the trial court, and the burden of establishing the facts necessary to demonstrate constitutional invalidity rested on them.

The appellants argued that, according to the terms of Ordinance No. XLVIII of 1949, there was no pre-existing law against which the constitutionality of the convictions under Article 20 could be measured. They based this argument on Sections 2 and 3(1) of the Ordinance, which read as follows:

Section 2: “The Indian Penal Code as in force generally in the Provinces of India immediately before the commencement of this Ordinance shall apply, and shall be in force in Vindhya Pradesh, subject to the adaptation and modifications set out in the Schedule, and the said Code as so applied shall be deemed to have been in force in Vindhya Pradesh from the 9th day of August, 1948.”

Section 3(1): “If immediately before the commencement of this Ordinance there is in force in Vindhya Pradesh or any part thereof any law corresponding to the Indian Penal Code, such law is hereby repealed.”

On the basis of these two provisions, the appellants maintained that any pre-existing law would have been repealed as of 9 August 1948. Consequently, they argued that the interval between 9 August 1948 and 11 September 1949 – the date on which Ordinance No. XLVIII of 1949 became operative – should be regarded as a period in which no penal law existed in the territory. They further contended that this supposed vacuum should be taken into account when judging the constitutionality of any conviction after 11 September 1949 for an offence alleged to have been committed during that interval.

The Court found this argument to be self-contradictory and based on a misconception. It clarified that, for the application of Article 20, the relevant consideration was not the legal situation created by the repeal and its retrospective effect, but the factual state of the law as it existed before the repeal came into operation. The repeal itself presupposed the existence of a prior law, and that prior law was the one that mattered for the present analysis. Accordingly, the Court deemed it necessary to examine in detail the criminal law that was in force during February, March and April 1949 – the months when the acts alleged against the appellants were committed – and to determine whether that law differed in any respect from the provisions introduced by Ordinance No. XLVIII of 1949.

In order to understand the legal arguments that rely on the administrative structure and the legislative authority existing at the relevant time, it was necessary to obtain a precise appreciation of the events that led to the creation of the United State of Vindhya Pradesh. The United State of Vindhya Pradesh was formed from a collection of five pre-existing native entities that were commonly referred to as the Bundelkhand-Baghlielkand States, the largest of which was the State of Rewa. Immediately after the Indian Independence Act of 1947 came into force, section 7 of that Act causing the termination of British suzerainty over India, each of these native States executed Instruments of Accession in favour of the Government of India. The Instruments were executed under section 6 of the Government of India Act and followed the form reproduced on pages 165 and 169 of the White Paper on Indian States that the Government of India published in March 1951. At practically the same time the States also executed standstill agreements using the form shown on page 173 of the same White Paper, thereby preserving their existing administrative arrangements pending further integration.

Subsequent to those actions, and in line with the policy pursued by the Government of India, all thirty-five States (including the five mentioned above) entered into an inter-State covenant dated 18 March 1948, with the concurrence of the Government of India. The covenant provided for the creation of a United State of Vindhya Pradesh that would comprise the territories of the thirty-five States and would operate under a common executive, legislature and judiciary. It also established common administrative arrangements and prescribed the election of a Rajpramukh. Under Article 9 of the covenant, the Rajpramukh was vested with the entire legislative authority of the United State of Vindhya Pradesh until such time as a Constitution, to be framed by an appropriate body for the United State, might provide otherwise. The Maharajah of Rewa was appointed the first Rajpramukh. Although the covenant specified that each State should transfer its administration to the Rajpramukh by 1 May 1948, several States failed to do so, and consequently the integrated administration under the Rajpramukh became effective for all States only on 9 August 1948. It was later deemed expedient to replace the individual Instruments of Accession that had been executed in August, September, October and November 1947 with a single fresh Instrument of Accession executed by the Rajpramukh on behalf of the United State of Vindhya Pradesh. That fresh Instrument was executed on 20 July 1948 and was accepted by the Governor-General of India on 13 September 1949. An important distinction between the earlier individual Instruments and the later Instrument executed by the Rajpramukh is that the former limited accession solely to the matters enumerated in the earlier forms, whereas the later Instrument broadened the scope of accession.

Under the Instrument of Accession that was executed by the Rajpramukh on 20 July 1948, the scope of legislative competence was considerably broadened. While the earlier instruments had limited the accession of the various princely states to only three subjects – defence, external affairs and communications – the later instrument expressly accepted that all matters listed in Lists I and III of the Seventh Schedule to the Government of India Act, 1935, would fall within the jurisdiction of the Dominion Legislature, then known as the Dominion Legislature, for the purpose of making laws applicable to the United State of Vindhya Pradesh. Subsequently, on 25 November 1949, the Rajpramukh issued a proclamation declaring that the Constitution of India, which the Constituent Assembly was about to adopt, would become the constitution for Vindhya Pradesh, just as it did for the rest of the country. The proclamation further stated that this constitution would expressly supersede and abrogate any existing constitutional provisions in the State that were inconsistent with it. These measures resulted in an integrated United State of Vindhya Pradesh within the framework of the Dominion of India, although the integration was initially achieved solely through accession. Later developments effectively merged the United State into the territory of India, but a detailed discussion of those later steps is unnecessary for the present inquiry because they lie beyond the period under consideration.

The matter before the Court was to determine which criminal law was operative in the months of February, March and April 1949. From the narrative it is clear that, at that time, the Government of the United State of Vindhya Pradesh was the body created by the integration covenant dated 18 March 1948. This government functioned under the authority of the Rajpramukh of Vindhya Pradesh and was subject to the Instrument of Accession with the Dominion of India that the Rajpramukh had executed on 20 July 1948. Although the covenant had been signed on 18 March, the unified administration under these arrangements did not become effective for the whole of the United State until 9 August 1948.

Having noted that the component states merged to form the United State on 18 March 1948, the Court observed that, in the ordinary course of events and absent any legislative effort to create uniform statutes for the entire State, the pre-existing laws of each component state would continue to operate. This principle rests on the well-settled decision of the Privy Council in Mayor of Lyons v. East India Company, which affirms that existing local statutes remain in force until they are expressly repealed or replaced. The first legislative step toward achieving legal uniformity across the new State was taken by the Rajpramukh on 31 July 1948, when he promulgated an ordinance titled the “Vindhya Pradesh Application of Laws Ordinance No. IV of 1948.” Section 2 of that ordinance declared:

“All Acts, Codes, Ordinances and other laws, and rules and regulations made thereunder, which have, by publication in the Rewa Raj Gazette, been enforced in the Rewa State, and continue to be in force, are extended so as to be applicable to the whole of Vindhya Pradesh, Provided that nothing in this clause shall apply to any local law, rules, regulation or custom having the force of law, which relates to matters connected with land revenue or tenancy.”

The Court observed that the Ordinance stipulated that any Act, Code, Ordinance or other law, together with the rules and regulations made under it, which had been published in the Rewa Raj Gazette, had been enforced in the Rewa State and remained in force, were to be extended so that they applied throughout the whole of Vindhya Pradesh, subject to the qualification that the clause would not apply to any local law, rule, regulation or custom having the force of law which related to matters of land revenue or tenancy. The Court noted that this Ordinance was intended to apply to the entire territory of Vindhya Pradesh and that it was to become effective on 9 August 1948 by virtue of section 1 of the Ordinance. Subsequently, the Ordinance was amended by another enactment identified as Ordinance No. XX of 1949, which removed from section 2 of the original Ordinance the wording “by publication in the Rewa Raj Gazette”. In the view of the Court, the combined effect of the original Ordinance of 1948 and its amendment in 1949 was to extend to the whole of Vindhya Pradesh the criminal law that had previously been in force in the Rewa State. The Court traced that criminal law to Orders No. IV of 1921 and No. VI of 1922, issued by the Regent of Rewa acting for the Maharajah on 18 February 1921 and 9 March 1922 respectively. On examining those Orders, and particularly paragraph 10 of the 1921 Order as interpreted by the 1922 Order, the Court found it unmistakable that the Indian Penal Code and the Code of Criminal Procedure had been introduced into the Rewa State “in the letter and in the spirit with due adaptation to local conditions.” The Court affirmed that there was no dispute that this legal situation continued to obtain in Rewa State until the formation of the United State of Vindhya Pradesh. Consequently, the Court held that the Indian Penal Code and the Code of Criminal Procedure, suitably adapted, were brought into operation throughout the newly formed United State of Vindhya Pradesh shortly after the integrated administration was established under the Rajpramukh. However, the Court also recorded that counsel contended that, although the intention was to give effect to that extension, the intention had not become operative for reasons that would be explained. Counsel pointed out that section 2 of Ordinance No. IV of 1948, while extending Rewa State laws to Vindhya Pradesh, required that those laws had first been published in the Rewa Gazette. Counsel further observed that the Rewa Gazette itself had only come into existence in October 1930, as shown on page 386 of the printed paper book, whereas the Penal Code and the Criminal Procedure Code had been brought into operation in Rewa State in 1921 and 1922. Counsel also noted that the removal of the requirement of prior publication in the Rewa Gazette by Ordinance No. XX of 1949 only became effective when that Ordinance was itself published in the Vindhya Pradesh Gazette on 15 May 1949, which was after the alleged offence in the present case had been committed. To support the position that only those Rewa laws which had previously been published in the Rewa Gazette were deemed to have been extended to Vindhya Pradesh, counsel relied on this line of reasoning.

In the matter before the Court, reference was made to a decision of the Vindhya Pradesh High Court dated 29 October 1949 in Criminal Appeal No 27. That decision was presented to the Court and it took the view that the Prisoners’ Act, although operative throughout India, was not operative in Vindhya Pradesh because there had been no earlier publication of the Act in the Rewa Gazette. On the opposite side, the Court considered a notification issued by the Vindhya Pradesh Government on 19 March 1949, which was subsequently published in the Vindhya Pradesh Gazette on 30 March 1949. The notification expressly listed all statutes that were in force in Vindhya Pradesh at that time and identified, as item 86, the “Indian Penal Code – mutatis mutandis – with necessary adaptations.” The parties relying on this notification argued that the inclusion of the Indian Penal Code in the Gazette demonstrated that the Code had previously been published in the Rewa Gazette before the integration of the territories. Their argument was further supported by the observation that the Gazette enumerated several Rewa State statutes, some of which dated back to periods before 1930, as having been brought into force in Vindhya Pradesh. From this, they inferred that a prior publication in the Rewa Gazette must have occurred sometime after 1930. Moreover, they contended that neither Ordinance No XX of 1949 nor the High Court decision concerning the Prisoners’ Act, which was not among the statutes listed in the Gazette, could invalidate the presumption of earlier publication. The Court found this line of reasoning persuasive and was prima facie inclined to accept that the Indian Penal Code, as it existed in Rewa, had been extended to the whole of Vindhya Pradesh by Ordinance No IV of 1948.

Nevertheless, even assuming that section 2 of Ordinance No IV of 1948 had not succeeded in its purpose because of a mistaken belief about the necessity of a prior Rewa Gazette publication, the Court noted that the Rewa law would nevertheless have remained in force in the Rewa portion of the United State of Vindhya Pradesh. This conclusion was drawn on the basis of the principle established in Mayor of Lyons v. East India Company (1), which holds that when sovereignty over an inhabited territory changes, the existing laws of that territory continue to operate until they are duly altered by the new authority. Because the offences under consideration in the present case occurred in the area that formerly comprised Rewa State, there was no difficulty in holding that the criminal law applicable at the relevant time was the Indian Penal Code and the Criminal Procedure Code, each adapted mutatis mutandis to the local conditions. This law was deemed to have been the governing law on the date of integrated administration, namely 9 August 1948. The Court then noted that subsequent modifications to the substantive penal law were effected by later ordinances of the Rajpramukh. In particular, the Anti-corruption Ordinance No XII of 1948, dated 16 December 1948, and the Indian Penal Code (Application to Vindhya Pradesh) Ordinance No XLVIII of 1949, dated 11 September 1949, were identified as the relevant legislative interventions that followed the initial extension of the Code.

The Court observed that the statutes which were in force prior to the dates on which the alleged offences were committed required no additional notice. Regarding the Criminal Procedure Code, the Court identified two specific Ordinances: the Criminal Procedure Code Adaptation Ordinance No. XV of 1948, dated 31 December 1948, and the Criminal Procedure Code Adaptation (Amendment) Ordinance No. XXVII of 1949, dated 3 May 1949. The Court then recalled its earlier finding that, by virtue of the Orders of the Regent of Rewa issued in 1921 and 1922, the Indian Penal Code and the Criminal Procedure Code, with the necessary adaptations mutatis mutandis, were applicable in Rewa State. The Court further noted that these codes either became expressly extended to the whole of Vindhya Pradesh State on 9 August 1948 by Ordinance No. IV of 1948, or they continued to operate in the Rewa portion of Vindhya Pradesh by reason of the principle laid down in the case of Mayor of Lyons. Consequently, the Court held it was prima facie correct to state that the penal law in force, referred to as I M. I. A. 175, was essentially the same in the relevant area both before and after the amendments introduced by the Rajpramukh. Nevertheless, the Court recorded that counsel urged two important differences. First, counsel pointed out that there was an amendment affecting the definition of “public servant” introduced by Ordinance No. XLVIII of 1949. Second, counsel argued that sections 3 and 4 of the Indian Penal Code and section 188 of the Criminal Procedure Code, which have extra-territorial effect, could not have been brought into force in Rewa or Vindhya Pradesh by adaptation or legislation because of a lack of legislative competence at the relevant times. The Court considered these points significant because the first appellant, who held the position of Minister, was charged in his capacity as a public servant, and one of the charges related to conduct that occurred in New Delhi, a location wholly outside Vindhya Pradesh. The Court acknowledged that Ordinance No. XLVIII of 1949 had indeed amended the Indian Penal Code by replacing the original first clause of section 21, which dealt with the definition of a “public servant”, with the wording “Every Minister of State”. However, the Court stated that this substitution did not mean that a Minister of State was not already a public servant under the pre-existing definition in section 21. The Court referred to clause 9 of section 21 of the Indian Penal Code, which declares that every officer in the service or pay of the Crown performing any public duty qualifies as a “public servant”. The Court further cited the Privy Council decision in King-Emperor v. Sibnath Banerji, which established that a Minister appointed under the Government of India Act is an “officer” subordinate to the Governor. Applying the same reasoning, the Court concluded that a Minister of Vindhya Pradesh would likewise be an “officer” of the State of Vindhya Pradesh. Accordingly, the Court concluded that prior to the passage of Ordinance No.

The Court observed that Ordinance No. XLVIII of 1949, together with the view that the Indian Penal Code, suitably adapted mutatis mutandis, was in operation at least in the Rewa part of Vindhya Pradesh, rendered the first appellant a public servant as defined in section 21 of the Indian Penal Code as adapted, citing the authority (1) [1945] F. C. R. 1915 at 222. The amendment effected by that ordinance therefore did not bring any material alteration to the legal status of the first appellant as a public servant.

The Court rejected a faint suggestion that, even before the ordinance, the definition of “public servant” could have applied only to an officer of the Rewa State and that the ordinance merely added the Minister of Vindhya Pradesh to that class. It held that such an argument was fallacious because the continued operation of Rewa law after the integration implicitly transformed it into the law of Vindhya Pradesh for the Rewa territory, with the necessary adaptations consonant with the new constitutional arrangement. Consequently, there was no substance to the claim that the amendment of section 21 by Ordinance No. XLVIII of 1949 altered the first appellant’s position as a public servant.

The remaining issue, according to the Court, was whether, under Vindhya Pradesh law, acts committed outside the State were offences triable by Vindhya Pradesh courts, and whether any such law was in factual operation at the time the alleged offences were committed in New Delhi in April 1949. The Court noted that, in ordinary Indian law, the relevant statutory provisions are sections 3 and 4 of the Indian Penal Code and section 188 of the Criminal Procedure Code, and the question was whether, by express or implied adaptation mutatis mutandis, these provisions could be said to have been validly in force in Vindhya Pradesh during the relevant period.

The Court rejected the contention that the rulers of native States lacked authority to enact extra-territorial legislation and therefore such adaptations could not be implied or, if expressly made, could not be valid. It affirmed that the provisions of the Penal Code and the Criminal Procedure Code are, by their nature, extra-territorial legislation, and that every sovereign legislative authority possesses the power to enact such laws, referring to the precedent in Macleod v. Attorney-General for New South Wales (1). In the present case, the Court clarified that it was concerned only with that portion of the extra-territorial law which makes an act committed by a subject of the State outside its limits an offence that may be tried by the State’s courts.

The Court further observed that, during the arguments, it was suggested that, to the limited extent concerned, the question of territoriality of the legislation did not arise. However, the Court held that the concept of extra-territorial legislation does encompass such cases, subject to the passages relied upon by the parties.

In this case, the Court referred to the passages in Pitt-Cobbet’s International Law, fifth edition, page 216 and also pages 225 and 226, paragraphs 101 and 102, and treated those passages as correct. Assuming, without deciding, that those statements are correct, the argument was advanced that no ruler of the Indian princely states before 15 August 1947, and certainly not the Rajpramukh of Vindhya Pradesh, possessed a full sovereign capacity to enact extraterritorial legislation. It is well-known that the princely rulers lacked external sovereignty because that power had been removed from them and exercised by the suzerain British authority. For internal or municipal matters, however, the rulers were generally regarded as having full sovereign status, except to the degree that the British suzerain assumed any function of internal sovereignty, either on particular occasions or generally but only for specified limited purposes. In their relationship with the native rulers, the British suzerain applied the juristic theory propounded by Sir Henry Maine that “sovereignty is divisible, though independence is not.” That theory is cited in Ilbert’s Government of India, page 425, and was accepted in the Butler Committee Report on Indian States (1928-29), page 25, paragraph 44. The passages at pages 398, 399 and 426 of Ilbert’s Government of India illustrate that the fragment of internal sovereignty that might remain with a particular ruler could, in exceptional cases, be merely titular. The general position of the native states before 15 August 1947 is further clarified by the passages on pages 422 and 423 of Ilbert, which correspond with the actual exercise of British jurisdiction within those states, as shown in the following excerpts: “In point of fact the jurisdiction of the Governor-General in Council within the territories of native states is exercised—(a) over European British subjects in all cases; (b) over native Indian subjects in certain cases; (c) over all classes of persons, British or foreign, within certain areas.” The policy of the Government of India was not to permit native courts to try European British subjects, requiring instead that such persons be tried by British courts established in the native state or be sent to a court in British India. The Government did not claim similar exclusive jurisdiction over native Indian subjects of His Majesty when they were within native states, although it would assert jurisdiction where it deemed necessary. Moreover, except in specified areas or special circumstances such as the minority of a native prince, the Government of India did not take over or interfere with the jurisdiction of native courts in cases affecting only the subjects of that state, leaving those matters to be decided by the native courts according to native law. Lee Warner, in his work “Protected Princes of India,” further describes this position.

The Court referred to pages 351 and 352 of the report and extracted the passage found in paragraph 143 on page 351. The passage explains that, unlike European British subjects, native Indian subjects of Her Majesty do not possess material distinctions in religion, education, and social habits that would separate them from the native community. Consequently, the special rights of extraterritoriality that are granted to European British subjects through capitulations and agreements with foreign non-Christian nations are not extended to native Indian subjects. The Court observed that the native systems of justice, although not identical to those in British territory, are largely assimilated. When a native Indian subject is tried before the ordinary tribunals of the State whose laws have been violated, the trial is supervised by the British political agent. Under this arrangement, the general rule is to leave the jurisdiction over such subjects to the native States, even when the offence is also cognizable under Indian law.

The passage further states that the British Government goes beyond that rule by extraditing a native Indian subject who, after committing an extraditable offence within the native principality, seeks refuge in British territory. This extradition occurs only when the political agent is satisfied that the offence can be properly tried in the courts of the native State. The passage then classifies the powers of the sovereigns of the native States with respect to the trial of native Indian subjects. Some chiefs are empowered to try any person, whether a native subject or a foreigner, for a capital offence without needing express permission. Other chiefs may try a native Indian subject for such an offence only with permission, and a further category of chiefs cannot impose a death sentence unless the sentence is confirmed by the British Government.

The Court noted that these excerpts illustrate that the actual extent of internal sovereignty exercised by each ruler is a question of evidence when challenged. However, the passages indicate that full jurisdiction over a ruler’s own subjects was never denied in principle; it was generally acknowledged, except in cases involving a death sentence. Accordingly, the Court found no reason to conclude that the rulers lacked authority to enact laws binding their own subjects and to regulate their own courts for acts committed outside their territories, assuming such laws are intended to be extraterritorial.

In support of this view, the Court referred to an old treaty of 1813 between Reja State and the British Government and to a recent judgment of the Rewa High Court dated 1945. Both were introduced to demonstrate that, at least with respect to Reja State, the contrary proposition was not established. The treaty, reproduced on page 255 of Volume V of Aitchison’s Treaties, Engagements and Sanads, contains an Article 6 that merely provides for the suzerain Government to pursue into Reja State offenders who, having committed offences in British India, escape into the State. The Court emphasized that this provision does not negate Reja State’s authority to enact legislation concerning its own subjects when those subjects commit offences outside the State.

In the judgment reported in 1945 Rewa Law Reports at page 84, the High Court expressed the view that it possessed no jurisdiction to try an offence committed outside the State by a subject of that State. The judgment did not contain any discussion of the underlying question, and that single occurrence cannot be taken as proof that the native State lacked legislative authority to enact extra-territorial laws or that the relevant law did not exist. Consequently, the Court held that, prior to 1947, the rulers of the native States retained the power to pass extra-territorial statutes concerning offences committed by their own subjects and to vest in their own courts the authority to try such offences, unless evidence specific to a particular State demonstrated the contrary. Regarding Rewa State, no evidence was found that would show a limitation on this authority. The next issue raised concerned the actions of the Rajpramukh of Vindhya Pradesh, who attempted to extend the extra-territorial scope of any Rewa law to Vindhya Pradesh through Ordinance No. IV of 1948 and Ordinance No. XX of 1949, and who also tried to introduce the extra-territorial portions of the Indian Penal Code and the Criminal Procedure Code by Ordinances No. XLVIIII of 1949 and No. XXVIII of 1949. The Court found that the Rajpramukh lacked the power to enact such extra-territorial legislation because his authority derived from the basic covenants governing integration and accession. Those covenants comprised the inter-state integration agreement dated 18 March 1948, signed by all the rulers of the component States of Vindhya Pradesh, and the Instrument of Accession dated 20 July 1948, executed by the Rajpramukh in favour of the Dominion of India. Under the integration agreement, article IX, clause (3) vested the Rajpramukh with the authority to make and promulgate Ordinances for the peace and good government of the United State of Vindhya Pradesh or any part thereof. Under the Instrument of Accession, clause (3) indicated that the Rajpramukh accepted all matters enumerated in Lists I and III of the Seventh Schedule to the Government of India Act, 1935, as subjects on which the Dominion Legislature could legislate for the United State. It was vigorously submitted that, in view of these provisions, the Rajpramukh’s legislative power was essentially equivalent to that of a Provincial Legislature within the framework of the Constitution of India as it then stood. Reliance was placed on Section 6, subsection (1), of the Indian Independence Act and on section 99(2) as amended to demonstrate that a Provincial Legislature possessed no authority to make extra-territorial laws. Accordingly, it was argued that the Rajpramukh, at least after the execution of the Instrument of Accession, had no power to amend or adapt the Indian Penal Code or the Criminal Procedure Code so as to bring into effect sections 3 and 4 of the Indian Penal Code and section 188 of the Criminal Procedure Code, with the necessary modifications, in the State of Vindhya Pradesh.

The Court observed that the claim that, after the Instrument of Accession was executed, the Rajpramukh lacked authority to amend or adapt the Indian Penal Code or the Criminal Procedure Code in order to give effect to sections 3 and 4 of the Indian Penal Code and section 188 of the Criminal Procedure Code, with the necessary modifications for the State of Vindhya Pradesh, was at first glance plausible. However, the Court held that a thorough examination of the integration and accession agreements, together with the relevant provisions of the Government of India Act and the Indian Independence Act, demonstrated that this argument could not be sustained. The Court explained that the provisions of the Government of India Act under which the Instrument of Accession was executed maintained a clear distinction between the status of the Provinces and that of the acceding States. Section 5(1) of the Government of India Act listed both the provinces and the acceding States as components of the Dominion of India, but placed them in separate categories identified as clauses (a) and (b). Further, subsection (2) of section 6 expressly required that an Instrument of Accession specify the matters which the ruler accepted as subjects on which the Federal Legislature could legislate for his State, and also set out any limitations on the Federal Legislature’s power to make laws for the State and on the exercise of the Federation’s executive authority within the State. Section 101 of the Government of India Act clarified that nothing in the Act should be interpreted as giving the Federal Legislature power to make laws for a Federated State except in accordance with that State’s Instrument of Accession and any limitations contained therein. The Court noted that if the argument advanced by the appellant’s counsel were accepted—that the mere reference to the legislative subjects listed in the Dominion Legislature’s competence, namely Lists I and III, automatically implied that only the Dominion Legislature could enact extra-territorial laws for Vindhya Pradesh and thereby restricted the Rajpramukh’s legislative authority—it would amount to importing all the restrictions of sections 99 to 104 into the Instrument of Accession, which would directly conflict with section 101 of the Government of India Act. The Court rejected any justification for such a view merely on the basis that the enumerated items were listed as Lists I and III, suggesting that this was only a convenient reference. Conversely, the Court pointed out that clause 9 of the Instrument of Accession expressly stated that, except as provided for in the Instrument, nothing therein should affect the exercise of any power, authority or rights enjoyed by the Rajpramukh, nor the validity of any law then in force in the United State or any part thereof. The Court concluded that the authority of the Rajpramukh referred to in this clause encompassed not only the unfettered legislative power to make and promulgate ordinances for the peace and good government of the United State, as vested by Article IX of the integration covenant dated 18 March 1948, but also the powers granted under Article VI of the same agreement, which conferred on him all rights, authority and jurisdiction belonging to the ruler of each covenanting State and incidental to its government.

The Court observed that the Rajpramukh possessed an unfettered legislative power “to make and promulgate Ordinances for the peace and good government of the United States or any part thereof” which was conferred on him by Article IX of the Integration Covenant dated 18 March 1948, and that he also held authority under Article VI of the same agreement. Article VI, the Court noted, granted him “all rights, authority, and jurisdiction belonging to the ruler of each Covenanting State and incidental to the government thereof.” Consequently, the Court held that, as previously explained, the Covenanting States—particularly the State of Rewa—had the competence to enact extra-territorial legislation that could define acts committed outside the State by its subjects as offences and could vest the State courts with jurisdiction to try those offences. Neither the Integration Covenant nor the Instrument of Accession limited that competence. The Court therefore concluded that Sections 3 and 4 of the Indian Penal Code and Section 188 of the Criminal Procedure Code, insofar as they concerned the subjects and courts of the State, fell squarely within the legislative competence of the concerned States for purposes of adaptation or amendment. Regarding Sections 3 and 4 of the Indian Penal Code, the Court said that the amendment effected by Ordinance No. XLVIII of 1949 was merely an adaptation of those sections to the new constitutional arrangement and, as demonstrated, reproduced the law that was already operative without a formal amendment. On that basis, the Court found that the convictions of the appellants for all the charges—including the extra-territorial offence alleged to have been committed by the first appellant in New Delhi—could not be attacked under Article 20 on the ground of being an ex post facto law. Turning to the changes in the Criminal Procedure Code brought about by Ordinance No. XV of 1948 dated 31 December 1948 and Ordinance No. XXVII of 1949 dated 3 May 1949, the Court held that a detailed analysis was unnecessary because, as earlier determined, Article 20 does not extend to procedural modifications or changes of court. The Court noted that Items 62 and 63 of Section 2 of Ordinance No. XV of 1948 appeared to withdraw the jurisdiction previously enjoyed by the criminal courts of Vindhya Pradesh to try extra-territorial offences. If that withdrawal indeed occurred, the Court explained that the jurisdiction was revived by the amendment of those items under Ordinance No. XXVII of 1949, thereby aligning them with Section 188 of the Criminal Procedure Code and incorporating the required adaptations. Accordingly, the power of the Vindhya Pradesh courts to conduct trials for extra-territorial offences, which may have been suspended from 31 December 1948, was restored on 3 May 1949, i.e., before the commencement of the trial in the present case.

In this case the Court observed that the amendment contained in the Ordinance of 1949 operated retrospectively, that is, it applied from the date of the earlier Ordinance of 31 December 1948. Accordingly the Court made several determinations. First, it held that the appeal filed before the Judicial Commissioner against the acquittal rendered by the Special Judge was legally competent. Second, the Court found that the trial of the appellants conducted under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance No V of 1949 could not be challenged on the ground of violation of article 14 of the Constitution. Third, the Court observed that the criminal law in force at the time the offences were committed was substantially identical to the law that existed at the time of the appellants’ convictions and sentences by the appellate court, and this similarity applied both to offences committed within the territory of Vindhya Pradesh and to those committed outside its limits. Fourth, the Court concluded that the statute governing the offence alleged to have been committed by the first appellant outside Vindhya Pradesh, namely in New Delhi, fell squarely within the legislative competence of the appropriate authority at the relevant time. Fifth, relying on the conclusions expressed in points three and four, the Court ruled that the challenge to the convictions and sentences of the appellants under article 20 of the Constitution could not be sustained. Having reached these conclusions, the Court directed that the appeal be listed for further consideration to determine whether it should be heard on its merits, and it issued an order accordingly. The agents representing the parties were recorded as Rajinder Narain for the appellants and O H Rajadhyaksha for the respondent.