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Criminal Miscellaneous Petition No. 821 of 1954, decided on 18th November, 1954, under section 223‑A, Government of India Act and section 491, Criminal Procedure Code.

Criminal Procedure Code (V of 1898),

S. 401‑Provincial Government may cancel or recall order provided the latter had not yet been acted upon‑General Clauses Act (X of 1897), S. 21.

An order passed by the Provincial Government under section 401 of the Cr. P. C. is subject to modification or recall by virtue of section 21 of the General Clauses Act provided that the previous order has not yet been acted upon. If, however, the previous order has been given effect to, so that no locus poenitentiae is left, there will be no occasion for the exercise of the power mentioned in section 21 of the General Clauses Act,

Subsection (3) of section 401 of the Code does not neces sarily imply that the general provisions of section 21 of the General Clauses Act are pro tanto negatived. Such an inference should not be drawn unless it is inevitable and the language of the two statutes is absolutely irreconcilable. Subsection (3) of section 401 of the Cr. P. C. was inserted in this section ex abundanti cautela. It does not really conflict with the provi sions of section 21 of the General Clauses Act and can very well stand with it. The legislature apparently thought it fit to say in this section what would happen if a condition imposed on the suspension or remission of a sentence is not fulfilled, but to hold that the object was to do away with the power possessed by the Provincial Government under section 21 of the General Clauses Act in an indirect manner, only a year or so after its enactment, seems to be too big an assumption to make.

Venkatesh Yeshwant v. Emperor, A I R 1938. Nag. 513 ; Rangachari v. Secretary of State, A I R 1937 P, C. 27 ; Madan Mohanlal v. Emperor, 22 Cr. L J 153 (S. B.) ; Basanta Chandra

Ghos v. Emperor, A I R 1945 Pat. 44 (F. B.) and Subodh Chandra v. Jnanendra.Nath A I R 1937 Cal. 718, ref.

Abdul Hag, for Petitioner.

A. R. Changez, Advocate‑General, for Respondent.

S. A. RAHMAN, J.

‑This order will dispose of a petition filed on behalf of Shahbaz, son of Mubarik Ali, now confined in the Central Jail Multan, for the issue of a writ in the nature of habeas corpus under section 223‑A of the Constitution Act and section 491 of the Criminal Procedure Code. The facts of the case are not in dispute and may. be briefly summarised as follows. The petitioner Shahbaz was tried along with his brother, Ijaz Ahmad, and one, Nadir, for murder, by the learned Sessions Judge, Sialkot. . The trial Judge convicted the petitioner and his brother, Ijaz Ahmad, but Nadir was acquitted. On appeal to this Court, Ijaz Ahmad was also acquitted. The conviction of the petitioner was upheld, but his sentence was altered to one of transportation for life towards the end of 1953, Haq Nawaz, the brother of the petitioner, moved the Punjab Government for remission of the sentence of the petitioner, under section 401 of the Criminal Procedure Code. Early in August, 1954, the Punjab Government passed orders remitting the sentence of the petitioner unconditionally and directing that he may be released on Independence Day, namely, the 14th of August,1954. This order was, however, rescinded on the 13th of August, 1954. Consequently the petitioner was not released from custody by the jail authorities.

The main contention raised on behalf of the petitioner is that the unconditional order of remission of the sentence passed by the Provincial Government could not be recalled by them later and consequently, the detention of the petitioner in jail after the 14th August 1954, when his release was due under the remission order, became illegal. On the other hand, the position adopted by‑the Provincial Government is that it had ample power to rescind its previous order by virtue of section 2T of the General Clauses Act 1897 and that, therefore, the previous order of remission was legally recalled.

Mr. Abdul Haque, on behalf of the petitioner, has relied strongly on a Full Bench judgment of the Nagpur High Court reported as Venkatesh Yeshwant v. Emperor (A I R 1938 Nag. 513) in support of the petitioner's contention. In that case the petitioner was convicted of an offence punishable under section 120B, I. P. C.; and sentenced to two years rigorous imprisonment together with a fine of Rs. 1000 by the Sessions Judge, Amraoti. His appeal was dismissed by the High Court on the 14th June 1937. He surrendered to his bail on the 22nd June, 1937, and was recommitted to jail. Normally his date of release would have been the 21st of June, 1939. It appears that on an application made to the Local Government under section 401, Criminal Procedure Code, he succeeded in getting remission of one year by an order passed on the 24th of February, 1938. On the 24th of March, 1938, the Premier of the Province announced a general remission of two months respecting all the prisoners throughout C. P. and Berar in commemoration of the introduction of jail reforms. The applicant had also earned his usual remission for good conduct arid industry under the prison rules. Taking account of all the remissions, he was therefore entitled to be released on the 16th of April, 1938. He was, however, not released on that date. What had happened was that on the 14th of April, 1938, i.e., two days before the due date of release, a memorandum was sent to the jail authorities by the Assistant Legal Remembrancer to the Provincial Government on behalf of the Secretary of his Department, directing the detention of the prisoner until further orders. A formal order rescinding the previous order of remission was passed only on the 28th of May, 1938, long after the due date of release. The case came up for hearing before Niyogi J., who referred it to a larger Bench for decision in view of the importance of the questions involved. In his referring order the learned Judge expressed the opinion that section 21 of the General Clauses Act could only cover an order of a legislative or statutory kind, i.e., an order having the force of law, and could not cover an order of remission passed under section 401, Criminal Procedure Code. The case was then heard by a Full Bench composed of Stone C. J., Gruer J., and Vivian Bose J. The learned judges did not consider it necessary to give a finding as to whether section 21 of the General Clauses Act would cover an order of the type in question or not. Stone, C. J. and Gruer J. based their judgment in favour of the petitioner principally on the finding that the Provincial Government had only rescinded its order after the due date of release had passed and on a date subsequent to the launching of the petition in the nature of habeas corpus. The learned Judges pointed out that in such a case there was possible no locus poenitentiae left to the Local Government to amend its previous order. With this view Vivian Base J. agreed. The case, therefore, is not an authority for the proposition that section 21 of the General Clauses Act does not apply to orders passed under section 401 of the Criminal Procedure Code. Mr. Abdul Haque, however, invited my attention to certain observations made by the Full Bench in that case to the effect that even if section 21 of the General Clauses Act applied, the special provisions of section 401, Criminal Procedure Code, evinced an intention on the part of the legislature of not making an unconditional order passed under that section rescindable. This opinion was based on the fact that subsection (3) of section 401 provides for the cancellation, suspension or remission of a sentence, if such suspension or remission has been subject to certain conditions which the person concerned has failed to fulfil. It was pointed out that only in such a case express provision has been made in this section for the re‑arrest of that person and his detention to undergo the unexpired portion of his sentence. By implica tion the learned judges thought that an unconditional order of release or remission could not be modified or recalled. But as I have pointed out above, the learned .Judges finally rested their decision on the question of whether. any locus poenitentiae had been left to the Provincial Government on the relevant 'date or not. These observations, therefore, must be regarded as more or less in the nature of obiter dicta.

The only other authority cited on behalf of the petitioner is a judgment of the Privy Council in Rangachari v. Secretary of State (A I R 1937P C 27).That was a ‑case of a Government servant who had been allowed to retire on invalid pension by a competent authority, Subsequently the successor of that authority reviewed the previous decision and suspended the pension of the Government servant concerned. The Privy Council held that the second order purporting to remove the appellant from the service at a time when he had for some months duly and properly ceased to be in the service, was a mere nullity and could not be sustained. It follows, therefore, that in Their Lordships' view, the appellant had every right to complain of the stoppage of the pension as a breach of the rules relating to pensions. The authority is not directly in point in the present case, and this is conceded by learned counsel on behalf of the petitioner. I am unable to see that it affords any assistance in deciding the question for determina tion in the present case.

The learned Advocate‑General, on behalf of the Provincial Government, has on the contrary strenuously contended that section 21 of the General Clauses Act covers all kinds of orders whether legislative or otherwise. He has drawn my attention to section 15 of that Act, which deals with the power to appoint a person to fill any office or execute any function and section 22 which, inter alia, refers to orders of establishment of any Court or office or the appointment of any judge or officer. It is obvious that such orders could not be properly described as legislative in character, and they are all covered by section 21 of the Act. There appears to be authority available in favour of this view. Reference in this connection may be made to Madan Mohanlal v. Emperor (22 Cr. L J 1953 (S B)); Basanta Chandra Ghos v. Emperor (A I R 1945 Pat. 44 (F B)) and Subodh Chandra v. Jnanendra Nath (A I R 1937 Cal. 718). In the first of these cases it was held that where an Inspector of Factories approves a system of working of a particular factory, he has power under section 21 of the General Clauses Act to cancel his approval later. In the second case, an order passed under Rule 26 of the Defence of India Rules was cancelled and replaced by an order under the Restriction and Detention Ordinance (3 of 1944). The legality of the procedure was challenged in the High Court, but the cancellation of the order was upheld as legal. Reliance was placed in this connection on section 21 of the General Clauses Act 1897. The argument was advanced before the learned judges that as the proviso to subsection 3, Restriction and Detention Ordinance, 1944, which provides that the cancellation of an order purporting to be made under rule 26, by or in consequence of an order of a competent Court, shall not prevent the making, under the Ordinance, of a fresh order to the same effect as the order cancelled, there was no power reserved for passing such an order in the case of cancellation by executive authority. This view was not accepted as sound. In the third case it was ruled that the District Magistrate is not divested of his authority after he delegates his powers to a subordinate Magistrate under the Bengal Local Self Government Act, 1885, and therefore the District Magistrate has a continuing authority under section 5 of that Act to delegate his powers under rule 1‑A of the Election Rules and can alter, amend or recall any order made under section 5. Section 21 of the General Clauses Act was invoked in support of this view. I have no doubt, therefore, that an order passed by the Provincial Government under section 401 of the Criminal Procedure Code is subject to modification or recall by virtue of section 21 of the General Clauses Act provided that the previous order has not yet A been acted upon. If, however, the previous order has been given effect to, so that no locus poenitentiae is left, there will be no occasion for the exercise of the power mentioned in section 21 of the General Clauses Act.

The next question 'that calls for consideration is whether subsection (3) of section 401 of session 401of the Cr. P. C. by implication excludes the application of section 21 of the General Clauses Act. There are no express words in the section entailing such exclusion. It is contended, however, that the fact that provision was considered necessary in subsection (3) for cancelling the suspension or remission in cases where a condition imposed had not been fulfilled, should lead. to the inference that an unconditional order once passed, would be final. It is urged that subsection (3) would become redundant if sec tion 21 of the General Clauses Act applies and that the special provision of this subsection should be held to militate against section 21 of the General Clauses Act being pressed into service by the Provincial Government in respect of an uncondi tional order passed under section 401. This was the view which found favour with the learned judges in Venkatesh Yeshwant v. Emperor, cited above. The ratio decidendi of that authority however was that no locus poenitentiae was available to the Provincial Government in that case. The relevant observa tions on the point, therefore, were not necessary for the decision of that case. I am not persuaded that subsection (3) of section 401 of the Code necessarily implies that the general provisions of section 21 of the General Clauses Act are pro tanto negatived. Such an inference should not be drawn unless it is inevitable and the language of the two statutes is absolutely irreconcilable. I am disposed to hold that subsec tion (3) of section 401 of the Cr. P. C. was inserted in this section ex abundanti cautela. It does not really conflict with the provisions of section 21 of the General Clauses Act and can very well stand with it. The legislature apparently thought it fit to say in this section what would happen if a condition imposed on the suspension or remission of a sentence is not fulfilled, but to hold that the object was to do away with the power possessed by the Provincial Government under section 21 of the General Clauses Act in an indirect manner, only a year or so after its enactment, seems to be too big an assumption to make. I am fortified in this view by certain observations of the learned judges who decided Basanta Chandra. Ghose, case in dealing with a parallel argument. I consider, therefore, that the order of recall passed by the Provincial Government in the present case was not open to exception on any legal ground. It follows that the detention of the petitioner cannot be considered to be improper or illegal. The petition fails and is hereby dismissed.

A. H. Petition dismissed.

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