Kamalesh Chandra Mistri vs The State

Harries, C.J.—This is a petition for revision of an order of a learned Sessions Judge affirming a conviction of the Petitioner u/s 11(3) of the West Bengal Security Act, 1950. The learned magistrate sentenced the Petitioner to two years'' rigorous imprisonment and also to pay a fine of Rs. 300 but the learned Sessions Judge reduced the sentence to nine months'' rigorous imprisonment only.

It is contended on behalf of the Petitioner that the conviction of the Petitioner was unlawful having regard to the provision of Article 20(1) of the Constitution. That clause reads:

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 Petitioner was charged with making what was described as a prejudicial speech constituting an offence under the West Bengal Security Act, 1948. The speech was alleged to have been made on June 26, 1949, but it is contended that on that date there was no law in existence making such a speech criminal. The "West Bengal Security Act of 1948 was enacted by the State legislature and was to be in force for a period of one year, but, by the terms of the Act, it could be extended for a further period of a year by a resolution of the Assembly. The year expired on March 12, 1949, but, before that date, the Assembly, by a resolution purported to extend its life for a further year. On June 27, 1949, however, a Bench of this Court in the case of Badal Boze v. Chief Secretary, Government of West Bengal (1949) 53 C.W.N. 728., following a decision of the Supreme Court in Jatindra Kath Gupta v. Province of Bihar [1940-1950] F.C.R. 595. held that the West Bengal Security Act, 1948, could not be extended by a resolution of the Assembly and, therefore, was not extended beyond March 12, 1949. This decision of the High Court was a day after the day on which the prejudicial speech is said to have been made and, therefore, it is clear that when the prejudicial speech was made there was no law in existence in this State making such a speech criminal because that law had ceased to exist on March 12, 1949.

On July 3, 1949, the Petitioner was produced in court, but nothing seems to have been done. On July 8, 1949. the West Bengal Ordinance II of 1949 was passed, which substantially re-enacted the provisions of the West Bengal Security Act, 1948, which had, as I have said, ceased to exist. By Section 1(3) of the Ordinance, it was provided that the Ordinance was to be deemed to have come into force immediately on the expiry of the West Bengal Security Act, 1948, that is, on March 13, 1949. The provisions of the Ordinance having been made retrospective, the speech delivered by the Petitioner on June 26, 1949, might, therefore, offend against the Ordinance and be the subject-matter of criminal proceedings.

On September 17, 1949, a charge-sheet u/s 11(3) of the Ordinance of 1949 was presented in court, but nothing more seems to have occurred.

On March 31, 1950, the West Bengal Security Act, 1950, was passed and it was provided by Section 1(3) of the Act that it should be deemed to have come into force on January 26, 1950, that is, the date upon which the Constitution of India came into force.

It appears that, in the meantime, a Bench of this Court in Sunil Kumar Bose v. Chief Secretary to the Government of West Bengal (1950) 54 C.W.N. 394. had declared the provisions of the Ordinance to be ultra vires the Constitution of India and, therefore, the Ordinance became invalid when the Constitution came into force. It was for that reason that the 1950 Act was made retrospective as and from January 26, 1950.

On August 18, 1950, the learned magistrate framed a charge u/s 11 of the West Bengal Security Act, 1950, and, upon this charge, the Petitioner was convicted and sentenced as I have indicated.

It is clear that, at the time the prejudicial speech was made, there was no law prohibiting such a speech. An Ordinance, however, was passed which was made retrospective and the speech might amount to a criminal offence under that Ordinance. It must be remembered that, before the Constitution came into force, there was nothing in the Constitution of India which prevented criminal statutes being made retrospective in their operation. The prosecution, therefore, was perfectly lawful. But it is now conceded that, by reason of the terms of the Constitution and a decision of this Court, the Ordinance came to an end on January 25, 1950. Indeed that must have been so, because the West Bengal Security Act, 1950, is stated in terms to be deemed to have come into force on January 26, 1950.

The Ordinance was a piece of temporary legislation and, normally, when the Ordinance expired, all pending prosecutions under the Ordinance would terminate. This prosecution was of course pending when the Ordinance terminated.

The learned Advocate-General, however, contends that this prosecution did not in fact terminate by reason of the provisions of the second paragraph of Section 40 of the West Bengal Security Act, 1950, which is in these terms:

And any liability or penalty incurred or deemed to have been incurred, any punishment awarded or deemed to have been awarded, any action taken or deemed to have been taken, any prosecution or any proceeding commenced or deemed to have been commenced under any provision of the said Ordinance shall be deemed to have been incurred or awarded, taken or commenced as if this Act were already in force when such liability or penalty was incurred or was deemed to have been incurred, or when such punishment was awarded or deemed to have been awarded or when such action was taken or was deemed to have been taken or when such prosecution or such proceeding was commenced or was deemed to have been commenced.

It is clear from this provision that any liability incurred under the Ordinance and any proceeding commenced in respect of that liability was to be deemed a liability incurred under the 1950 Act and the proceeding was to he deemed to be a proceeding commenced under that Act. The liability was to be so deemed and the proceeding was to be deemed to have so commenced on the assumption that the Act was already in force when the liability was incurred or when the proceeding was commenced. In other words, this provision of Section 40 makes the Act of 1950 retrospective in respect of all proceedings pending when the Act came into force, namely, January 26, 1950. All proceedings commenced under the Ordinance were to be considered as proceedings under the 1950 Act because the 1950 Act was made retrospective to cover the date when the liability was incurred and when the proceeding was commenced.

It is, therefore, argued that, by reason of Section 40, the 1950 Act must be deemed to have been in force when this prejudicial speech was made and, therefore, the Petitioner could be convicted u/s 11 of the 1950 Act.

It appears to me quite clear that the Petitioner could only be convicted u/s 11 of the 1950 Act, if the 1950 Act was made retrospective. If the Act of 1950 can be deemed to have been in force in June of 1949, then an offence u/s 11 of the 1950 Act could be established. But, if the 1950 Act could not be deemed to be retrospective in its operation, then nothing done in June of 1949 could ever be an offence against an Act which admittedly did not come into force until January 26, 1950. If the Act is made retrospective, then an offence under the Act could have been committed.

It appears to me that the conviction here clearly offends against Article 20 of the Constitution. Section 11 of the 1950 Act was not in force when the act charged was committed. The prejudicial speech delivered on June 26, 1949, can never be regarded as an offence against the 1950 Act, unless that Act was made retrospective. Article 20 of the Constitution forbids a conviction by making the law retrospective.

The learned Advocate-General contended, however, that by reason of the Ordinance, which could validly have been made retrospective before the Constitution came into force, a law did exist which made this speech an offence. That may be so. But, unfortunately for the prosecution, the Petitioner was not prosecuted under that law-and indeed could not have been prosecuted-because that law came to an end on January 26, 1950, and all proceedings pending under that law also came to an end. The proceedings could only be continued as proceedings under the 1950 Act in respect of an offence under the 1950 Act and there could be no conviction except for breach of the Act made retrospective. That is what Article 20 of the Constitution forbids and that being so, this conviction cannot be maintained.

For these reasons the petition must be allowed, the conviction and sentence set aside and the Rule is made absolute. The State Government has already released the Petitioner and no further order need be made.