Kandasami Pillai and Another vs Emperor

Napier, J.—In this petition we are asked to revise the judgment of the Sessions Judge of Madura upholding the conviction of the accused

for an offence under Rule 29 of the rules framed under the Defence of India Act (IV of 1915), for having dissuaded one Ramu Pillai from entering

into military service. It was contended by Mr. A. Subbarama Ayyar in the course of his able argument, first, that there was no such offence in the

Madras Presidency and secondly, that if it was an offence the Court of the Subdivisional Magistrate of Melur had no jurisdiction to try the charge

in that (1) the ordinary courts of the country have no jurisdiction, (2) there was no previous consent of the District Magistrate as required by the

Act. After hearing the Advocate-General in reply we bad no doubt that the petition must be dismissed, but thought it advisable to give our reasons

in a written judgment in view of the importance of the questions raised.

The first argument is based on the peculiar arrangement of the Act. u/s 1, Sub-section (3) it is provided that Sections 1 and 2 shall come into

operation at once, and that as for the rest of the Act it shall only come into operation in any province on notification by the Governor-General in

Council in the Gazette of India. Section 2 empowers the Governor-General in Council to make rules for various general purposes and in particular

for certain specified purposes, one of which is to prevent any attempt to dissuade persons from entering into the military or police service of His

Majesty (Clause H). Sub-section (2) of the same section says that rules made under this section may provide that any contravention thereof should

be punished with imprisonment up to a term of seven years or with fine, etc. Sub-section (3) provides that all rules made under this section shall be

published in the Gazette of India and shall thereupon have effect as if enacted in this Act. The whole of these rules were admittedly published in the

Gazette of India. It is argued before us that the words ''enacted in this Act'' must be read to mean that the rules become an additional section to the

Act and that as only Sections 1 and 2 come into operation at once, the rules being treated as the rest of the Act, can only come into operation after

notification as provided in Section 1, Sub-section (3), This argument will of course reduce the Act to an absurdity. The scheme of the Act is to

provide for the creation of rules and offences to apply at once to the whole of India and also to create in certain special conditions tribunals for the

purpose of ousting the jurisdiction of the ordinary criminal courts in any province or part thereof to which the Governor-General by notification has

made the remaining provisions of the Act applicable. To give effect to the contention would be to render the whole Act nugatory in spite of Section

1, Sub-section (3), which provides that Sections 1 and 2 shall come into operation at once. It is of course our duty to construe an Act in such a

manner as to give effect to its provisions if it is possible to do so, and this can be done by reading the rules, as part of the section under which they

are framed and not as part of the rest of the Act. It is quite clear that where Section 1, Sub-section (3) was speaking of the rest of the Act coming

into operation, it was referring to the subsequent sections and not to the rules which are to be framed u/s 2 and to have effect as if enacted in this

Act.

An argument was addressed on the construction of Section 22 of the General Clauses Act (X of 1897) which provides that where by any Act

which is not to come into force immediately on the passing thereof, a power is conferred to make rules, such rules shall not take effect till the

commencement of the Act: and it was sought to introduce into this section words which would make it read ''where by any Act part of which is not

to come into force immediately on the passing thereof, a power is conferred to make any rules, etc., such rules shall not take effect until the whole

of the Act shall come into force.'' It is not permissible to make any such addition to the section which would have the effect of negativing the

purpose of the section which is simply to provide power to make the rules although the Act has not come into force, but to reserve their

application. In addition to this there is the direct authority of the House of Lords against the contention. It is to be found in the case of Institute of

Patent Agents v. Lockwood (1894) A.C. 347 . In that case Lord Herschell clearly laid down that where the section gives power to make rules,

the rules are to be read as part of the section, his language being (page 358)

every rule which is intra vires at all events...is to be read into the section and have just the same effect as if it had been contained in the Act itself;

For these reasons we are satisfied that the rules came into force directly they were published in the Gazette and therefore that the offence is

created.

The argument that such offence can only be tried by a special tribunal fails entirely unless it is shown that Sub-sections (3) to (11) have been

applied to the Madras Presidency. As it has been conceded that they have not been so applied, and the whole of the first argument has been based

on that assumption, there is no foundation for this contention. We prefer therefore to leave the consideration of the effect of Sections 3 and 4 of the

Act until such a time as these sections are so applied, or to the Courts of the provinces where they are in force. Section 4, Clause (o) of the Code

of Criminal Procedure defines offence as ''any act or omission made punishable by any law for the time being in force'' and Section 29 provides

that any offence under any other law which means any law other than the Indian Penal Code shall, when no Court is mentioned in this behalf in

such law, be tried by the High Court or by any Court constituted under this Code by which such offence is shown in the eighth column, second

schedule, to be triable. Sections 3 to 11 of the Special Act not being in force in this Presidency, there is no Court mentioned in this behalf. The

second schedule provides under the heading ''Offences against other laws'' for the trial of an offence punishable as this is by a Court of Session,

Presidency Magistrate or a Magistrate of the first class. There can therefore be no doubt that the trying Court had jurisdiction, if the case was put

before it in a proper manner.

The point is taken, however, that there was no previous consent by a District Magistrate as required by Rule 30. It was somewhat faintly argued

that as neither the Defence of India Act nor the General Clauses Act define the words ''District Magistrate,'' there was nothing to show what was

meant by those words. We are clear however that where the procedure for the trial of an offence is that under the Code of Criminal Procedure,

we must look to the provisions of that Code for the meaning of the words used. District Magistrates were created by the Code of Criminal

Procedure, and Section 10 of the Code provides that in every district outside the Presidency town the local Government shall appoint a Magistrate

of the first-class who shall be called the District Magistrate. The point really pressed on us was that Mr. Reilly who gave the consent was net the

actual District Magistrate. It appears however from the Gazette of the Government of Madras of 25th April 1916 that he was appointed to act as

District Magistrate from the 1st June 1916. Then Section 17, Clause (1) of the General Clauses Act provides that in any Act it shall be sufficient

for the purpose of indicating the application of the law to every person for the time being executing the functions of an office to mention the official

title of the officer at present executing the functions. The result of this provision is that the words of Rule 20 of the Defence of India Act must he

read as if they contained after the words ''District Magistrate'' the words ''Acting District Magistrate or Magistrate executing the functions of a

District Magistrate.'' There can be no doubt therefore that Mr. Reilly was competent as Acting District Magistrate to give the consent, and this

point therefore fails. In the result, the petition is dismissed.