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Raghunath Krishna Ghanekar Petitioner, (Original Accused) v. Imperator
Summary of Opinion by Sen, J.
Factual and Procedural Background
The applicant was tried and convicted for hoarding a large quantity of foodgrains without a licence and for making incorrect returns of his stock in contravention of clause 3 of the Foodgrains Control Order, 1942, issued under r. 81(2) of the Defence of India Rules, 1939.
The trial Magistrate, instead of making a direct order about disposal of the attached property, ordered under section 518 of the Code of Criminal Procedure (CrPC) that the property be delivered to the District Magistrate to be dealt with under that section. The Sessions Court did not disturb that part of the order.
A revision application to this Court (Criminal Revision Application No. 324 of 1944) resulted in a prior judgment (Dec. 18, 1944) in which Lokur J. observed that clause 7A of the Foodgrains Control Order empowered the District Magistrate to pass an order for confiscation. Following that, the District Magistrate ordered under s. 523 CrPC that a small specified quantity be restored to the applicant for family use and that the remaining quantity be forfeited to His Majesty. An appeal to the Sessions Court against the District Magistrate's order was summarily dismissed.
Legal Issues Presented
- Whether forfeiture of the respondent's stocks could be ordered under clause 7A of the Foodgrains Control Order, 1942, and if so, by which authority (the Court "trying the offence" or the District Magistrate acting under CrPC provisions).
- Whether the specific provision in clause 7A of the Foodgrains Control Order supersedes or limits the general forfeiture powers in sections 517 and 518 of the CrPC (and the consequence of Hansraj's case on that question).
- Whether clause 7A could be applied to the applicant given that it was inserted after the grant of the applicant's licence and whether the insertion was lawfully brought to the applicant's attention in the manner required by r. 119 of the Defence of India Rules (the applicability of the principle in Gwilt's case).
- Whether the District Magistrate's use of s. 523 CrPC (and the trial Magistrate's initial reliance on s. 518) was legally proper in the circumstances.
Arguments of the Parties
Applicant's (Mr. Coyajee) Arguments
- First: Clause 7A, by its wording, limits forfeiture to the "Court trying the offence" and thereby supersedes ss. 517 and 518 CrPC per the principle in Hansraj's case; thus the District Magistrate's order under s. 523 was improper because the trying Court should have ordered forfeiture under the specific clause.
- Second: Clause 7A was inserted on February 5, 1943, after the applicant's licence was granted in 1942; there is no evidence that the insertion was published in the manner required by r. 119 of the Defence of India Rules, so the principle in Imperator v. Leslie Gwilt applies and clause 7A cannot be invoked against the applicant.
- Third: The District Magistrate's order purportedly under s. 523 CrPC was at least an improper procedure because s. 523 primarily concerns property seized by the police under s. 51 of the CrPC, whereas s. 518 permits the District Magistrate to deal with property "as if it had been seized by the police" only where the statutory scheme is appropriate.
Government Pleader's Argument
- The Government Pleader urged that the Court should set aside the order of the trial Magistrate under s. 518 CrPC and the District Magistrate's forfeiture order and remit the matter to the trial Magistrate to pass proper orders according to law.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Imperator v. Hansraj Astaji…Accused (Hansraj's case) | Holds that the phrase "if the order so provides" limits the Court's power to order confiscation under r. 81(4) of the Defence of India Rules; where no provision exists in the Order, s. 517 CrPC cannot be used to order forfeiture. | The court relied on Hansraj to explain that where a specific provision (here cl. 7A) exists, forfeiture must be exercised under that provision and not under ss. 517/518 CrPC; Hansraj also supported the proposition that r. 81(4) can impliedly supersede s. 517 to the extent of inconsistency. |
| Imperator v. Leslie Gwilt…(Original Accused No. 1) (Gwilt's case) | Establishes that where an order (or a provision) is inserted or altered after an individual's rights have accrued, and there is no evidence of publication in the manner required by the relevant rule (r. 119 here), the new provision may not be invoked against that person. | The court applied the principle of Gwilt to conclude that, because there is no evidence the applicant was informed of the insertion of cl. 7A in the manner required, cl. 7A could not lawfully be applied to him; this ground made it unnecessary to decide other procedural objections. |
| Purshottam Devjibhai Patel…Petitioner v. Imperator | States that where a statute specifies a particular mode of enforcing an obligation created by it, that mode generally must be followed and wider powers (such as s. 517 CrPC) are to be regarded as impliedly limited by the specific rule (r. 81(4) here). | The court relied on this reasoning to support the view that r. 81(4) and the specific clause (cl. 7A) restrict the general confiscation powers of the CrPC, so that forfeiture must be ordered under the specific provision rather than under ss. 517/518. |
Court's Reasoning and Analysis
The court began by setting out the text of clause 7A of the Foodgrains Control Order, 1942, which expressly authorises a Court trying an offence under the Order to order forfeiture of stocks of foodgrains in respect of which it is satisfied that the offence has been committed.
The court analysed r. 81(4) of the Defence of India Rules, which contemplates that Courts trying contraventions may order forfeiture "if the order so provides." The court reviewed Hansraj's case to show that the words "if the order so provides" were intended to limit the general discretion of criminal courts under s. 517 CrPC: where the authority issuing the Defence order does not provide for confiscation, the general CrPC power of confiscation should not be exercised.
Applying that line of authority, the court held that when a specific clause (cl. 7A) exists in the Foodgrains Control Order providing for forfeiture, the Court's power of forfeiture must be exercised under that specific provision and not under the general powers of ss. 517 or 518 CrPC. Consequently, the trial Court should not have made its initial order under s. 518 CrPC; if forfeiture were to be ordered, it should have been ordered under cl. 7A by the Court trying the offence.
The court then examined the applicant's contention based on Gwilt: cl. 7A was inserted after the applicant's licence date and there was no evidence of publication in the manner required by r. 119 of the Defence of India Rules. Although the Order appears to have been published in Official Gazettes, there was no evidence that the applicant subscribed to or actually knew of those publications. The court concluded that the principle of Gwilt applied and therefore cl. 7A could not lawfully be applied to the applicant.
Because the court accepted the Gwilt-based objection, it found it unnecessary to decide the applicant's third contention concerning whether the District Magistrate's use of s. 523 CrPC was procedurally proper. The court also considered the Government Pleader's submission (that the matter should be remitted to the trial Magistrate for proper orders), but explained that if Gwilt prevents the application of cl. 7A to the applicant, the trial Magistrate could not validly act under cl. 7A; thus remittal would not cure the substantive invalidity.
Holding and Implications
Holding: The Court made the rule absolute and set aside the District Magistrate's order forfeiting the applicant's property. The Court ordered that the property ordered to be forfeited to His Majesty should be returned to the petitioner, or, if it has already been sold, the net proceeds of such sale should be refunded to him.
Implications: The direct consequence is the restoration to the applicant of the property (or refund of net proceeds). The Court's reasoning confirms that forfeiture in offences under the Foodgrains Control Order must be considered in light of the specific provision (cl. 7A) and the requirement of lawful publication (per Gwilt) before such a provision can be invoked against an accused; however, the opinion does not announce or attempt to establish a broader new precedent beyond the application of existing authorities to the facts of this case.
Order: Rule made absolute. The District Magistrate's forfeiture order is set aside and restitution or refund ordered.
Reported opinion excerpt ends with the notation "J.G.R".
Sen, J.:—
The applicant was tried for the offences of hoarding a large quantity of foodgrains without a licence and making incorrect returns of his stock in contravention of cl. 3 of the Foodgrains Control Order, 1942, issued under r. 81(2) of the Defence of India Rules, 1939. He was convicted and sentenced for the said offences. The learned Magistrate, instead of passing an order regarding the disposal of the attached property, ordered under s. 518 of the Criminal Procedure Code that the property should be delivered to the District Magistrate for being dealt with in the manner provided in the said section. There was an appeal to the Sessions Court which did not disturb this part of the order. Thereafter there was a revision application (Criminal Revision Application No. 324 of 1944, decided by Divatia and Lokur JJ. on December 18, 1944) to this Court and Mr. Justice Lokur who gave the judgment observed as follows:
“The ruling of the Full Bench in Imperator v. Hansraj Astaji…Accused*(2) has no application to the facts of this case since there is a special provision in s. 7A of the Foodgrains Control Order, 1942, empowering the Court trying an offence under r. 81(4) of the Defence of India Rules for contravention of any of the provisions of the Foodgrains Control Order to forfeit to His Majesty the property in respect of which the offence is committed. It is, therefore, open to the District Magistrate, if he thinks it proper, to pass an order for confiscation under that clause. All that the learned Magistrate has done is to send the property to the District Magistrate in order that he might pass such order as he might deem proper under s. 523 of the Criminal Procedure Code. We, therefore, see no reason to interfere with that order. It will be open to the petitioner to urge before the District Magistrate that an order of confiscation cannot or should not be passed.”
The District Magistrate took a serious view of the main offence and he made an order under s. 523 of the Criminal Procedure Code that a small quantity of grain which was specified, should be restored to the applicant for the use of his family and that the remaining quantity should be forfeited to His Majesty. There was an appeal to the Sessions Court which was summarily dismissed.
2. Clause 7A of the Foodgrains Control Order, 1942, reads as follows:
“If any person contravenes the provisions of clause (3) or clause (6) of this Order then without prejudice to any other punishment to which he may be liable, any Court trying the offence may order that any stocks of foodgrains together with packages and covering thereof in respect of which the Court is satisfied that the offence has been committed shall be forfeited to His Majesty.”
Under r. 81(4) of the Defence of India Rules if any person contravenes any order made under the said rule, he is liable to punishment with imprisonment for a term which may extend to three years or with fine or with both, and “if the order so provides any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty”. It was held in Imperator v. Hansraj Astaji…Accused* that the provision that an order for forfeiture can be passed “if the Order so provides” shows the clear intention of the Legislature that no order for forfeiture can be made if the Order made under r. 81(2) does not provide for it and that the words “if the Order so provides” limit the Court's power to order confiscation under the general provisions of s. 517 of the Criminal Procedure Code. Here there is a distinct provision for forfeiture in cl. 7A of the Foodgrains Control Order and there can, therefore, be no question that forfeiture could be ordered in the present case.
3. Mr. Coyajee on behalf of the applicant has contended, firstly, that the said provision supersedes ss. 517 and 518 on the principle of Hansraj's case which dealt no doubt with a case in which there was no such provision, and where, accordingly, it was held that in the absence of such provision no forfeiture could be ordered. His further contention is that the wording of cl. 7A of the Foodgrains Control Order shows that it is only the Court “trying the offence” which may order forfeiture. In the present case the learned District Magistrate, though he has referred to cl. 7A of the Foodgrains Control Order, has actually passed the order of forfeiture under s. 523 of the Criminal Procedure Code. Mr. Coyajee's second contention is that as cl. 7A was inserted into the Order on February 5, 1943, by Government of India Notification, Finance Department, No. A.I.E 43, dated February 5, 1943, that is, on a date after the grant of the licence in this case (in 1942) and as there is no evidence that the authority making the said provision published notice thereof “in such a manner as in the opinion of such authority was best adapted for informing persons whom the Order concerned” (r. 119 of the Defence of India Rules) the principle enunciated in Imperator v. Leslie Gwilt…(Original Accused No. 1), Applicant* applies and that, therefore, no order could properly be passed under cl. 7A even supposing the order in question was passed under the said clause. Thirdly, Mr. Coyajee has contended that the order which was actually passed under s. 523 of the Criminal Procedure Code was at least an improper order, as the said section primarily concerns property seized by the police under s. 51 of the Code and not property in a case in which an offence has been proved. Under s. 518 the District Magistrate is empowered to deal with the property “as if it had been seized by the police and the seizure had been reported to him in the manner hereinafter mentioned.”
4. In Hansraj's case Divatia J. observed (p. 537):
“The words, ‘if the order so provides’ which cannot be regarded as redundant, must be given their plain meaning, and that meaning, in my view, is that although an order of confiscation can be made by the Court in its discretion under s. 517, that discretion is not to be exercised in those cases in which the appropriate authority issuing the Order did not think it desirable that such discretion should be used.”
Lokur J. observed (p. 539):
“Orders issued under r. 81 of the Defence of India Rules are aimed at curtailing the natural rights of the subject in respect of free trade, contracts, transport of goods, and the like, as a measure of war emergency, in order to secure the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war or to maintain supplies and services essential to the life of the communities. Hence to avoid unnecessary hardships involved in such emergency measures, r. 81(4) of the Defence of India Rules does not empower confiscation of property in every case, but has expressly restricted it only to such cases as are provided for by the Order contravened. This is undoubtedly a curtailment of the power of confiscation conferred upon criminal Courts by s. 517 of the Criminal Procedure Code and is to that extent inconsistent with that section. But s. 3 of the Defence of India Act provides that any rule made under s. 2 and any order made under such rule shall have effect notwithstanding anything inconsistent therewith contained in any other enactment. Hence the amended r. 81(4) of the Defence of India Rules must be deemed to have impliedly superseded the provisions of s. 517 of the Criminal Procedure Code regarding the power of forfeiture.”
Rajadhyaksha J. agreed with the view expressed in Purshottam Devjibhai Patel…Petitioner (Original, Accused); v. Imperator wherein it had been observed (p. 454):
“Where a statute specifies a particular mode of enforcing a new obligation created by it, such obligation can as a general rule be enforced in no other manner than that provided by the statute. The wider power of confiscation conferred by s. 517 of the Code of Criminal Procedure must be regarded as impliedly limited by r. 81(4) of the Defence of India Rules.”
The effect of this decision seems to us to be this that if the Court wishes to exercise its power of forfeiture, it must be exercised under the specific provision to be found in cl. 7A of the Foodgrains Control Order and not under s. 517 or s. 518 of the Code of Criminal Procedure. That being so, the trial Court should not have made an order under s. 518 in this case and it was the trying Court which should have passed the order of forfeiture. It is true that in the last order of this Court it was said that it saw no reason to interfere with the order made by the trying Magistrate, but the specific point under consideration not having been argued, the view then expressed must be regarded as tentative. In fact the last sentence in the passage quoted above shows that the question was expressly kept open.
3. The point raised by Mr. Coyajee in his second contention was not raised in the Courts below, but there is no evidence as to the manner of publication which in the opinion of the authority making the Foodgrains Control Order, 1942, was best adapted for informing persons whom the Order concerned within the meaning of r. 119 of the Defence of India Rules. The said Order appears to have been published in the Official Gazettes of the Government of India and the Provincial Government, but there is no evidence that the applicant is a subscriber to either of those Gazettes, or that he came to know of the new cl. 7A, which came into operation after the date of his licence, in any other way. We think that the principle of Gwilt's case clearly applies to this case and that, therefore, even supposing that the order complained against was one passed under cl. 7A, it could not lawfully have been passed against the applicant in this case. That being our view, it is unnecessary to consider the third argument of Mr. Coyajee.
4. The learned Government Pleader has urged that this Court should set aside the order of the learned trial Magistrate under s. 518 of the Criminal Procedure Code and the District Magistrate's order forfeiting the property, and that the matter should now be sent back to the trial Magistrate for passing proper orders according to law. But if Mr. Coyajee's second contention based on Gwilt's case is valid, as we think it is, it would not be possible for the trial Magistrate to act under cl. 7A of the Food Grains Control Order. The rule must, accordingly, be made absolute and the order passed by the District Magistrate set aside. The property which has been ordered to be forfeited to His Majesty should be returned to the petitioner, or if it has already been sold, the nett proceeds of such sale should be refunded to him.
Rule made absolute.
J.G.R
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