PETITIONER: STATE OF ORISSA Vs. RESPONDENT: <NAME> AND CO.(AND CONNECTED APPEAL) DATE OF JUDGMENT: 16/08/1963 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) <NAME>, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R. CITATION: 1964 AIR 1284 1964 SCR (4) 461 CITATOR INFO : D 1965 SC 117 (8) APL 1970 SC1436 (14,16) R 1975 SC 155 (16) RF 1976 SC1654 (5,24,31) RF 1979 SC 898 (33) RF 1980 SC1955 (41) RF 1981 SC 711 (1) RF 1990 SC 85 (26) RF 1990 SC2072 (44) E 1991 SC1676 (8,9,10,11,13,14,42,45,46,54) ACT: Constitution of India-<ORG> legislation under Seventh Schedule, List II, entry 23-Union Legislation tinder List I, entry 54-Effect of Union legislation- General Clauses Act , s. 6 , meaning of 'repeal'-Orissa Mining Areas Development Fund Act, 1952 (XXVII of 1952), ss. 4 , 5-Mines and Minerals (Regulation and Development) Act , 1957 , s. 18(1)(2) - General Clauses Act , 1897  s. 6- Constitution of India, Art, 246(1), Seventh Schedule, List II, Entry 23, List I, Entry 54. HEADNOTE: On a lease granted by the appellant under the Central Act 53 of 1948 the Respondent <ORG> was working a manganese mine. <ORG>, then passed the Orissa Mining Areas Development Fund Act, 1952 where under the <ORG> Government was empowered to levy a fee being intended for the development of the "mining areas" in the <ORG>. After bringing these provisions into operation, the appellant made demands on the respondent on August 1, 1960 for payment of the fees due for the period July,, 1957 to March, 1958. The respondent then, challenged the legality of the said demand before <ORG> under Art. 226 of the Constitution. The writ petition was allowed on the ground that on the coming into force of the Central Act , 1957 (Act 67 of 1957), as and from June 1, 1958, the Orissa Act should be deemed to be non-existent for every purpose. Thereafter, the appellant made an application to <ORG> to review its judgment on the ground that even if the Orissa Act of 1952 was superseded by Central Act 67 of 1957, the liabilities which had accrued to the <ORG> prior to June 1, 1958 could not be deemed to be wiped out because the Central Act was not retrospective. This application was dismissed. It was urged on behalf of the <ORG>, Inter alia, that the supersession of the Orissa Act by the Central Act was neither more nor less than a repeal. If it thus was a repeal, then s. 6 of the General Clauses Act, 1897 was attracted. Held, (1) that since the Central Act 67 of 1957 contains the requisite declaration by <ORG> under Entry 54 and that Act covers the same field as the Act of 1948 in regard to mines and mineral development, the decision of this Court in <CITATION> concludes this matter unless there were any material difference between the scope and ambit of Central Act 53 of 1948 and that of the Act of 1957. Besides, sub-ss. (1) and (2) of s. 18 of the Central Act of 1957 are wider in scope and amplitude and confer larger powers on <ORG> than the corresponding provisions of the Act of 1948: 462 <CITATION> ,  2 S. C. R. 537, followed. (2) that the test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case, having regard to the terms of s. 18(1) it must be held that the intention of <ORG> was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency, and no supersession of the <ORG> Act ; <CITATION> .  S.C.R. 393, inapplicable. (3)..that if by reason of the declaration by <ORG> the entire subject-matter of "conservation and development of minerals" has been taken over, for being dealt with by <ORG>, thus depriving the <ORG> of the power within it theretofore possessed, it would follow that the "matter" in the <ORG> List is, to the extent of the declaration, subtracted from the scope and ambit of entry 23 of the <ORG> List. There would, therefore, after the Central Act of 1957, be "no matter in the List" to which the fee could be related in order to render it valid; (4)..that a repeal may be brought about by repugnant legis- lation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. Where an intention to effect a repeal is attributed to a legislature then the same would attract the incident of the saving found in s. 6 of the General Clauses Act. If this were the true position about the effect of the Central Act , 67 of 1957 as the liability to pay the fee which was the subject of the notices of the demand had accrued prior to June 1, 1958 it would follow that these notices were valid and the amounts due thereunder could be recovered notwithstanding the disappearance of the Orissa Act by virtue of the superior legislation by <ORG>. <CITATION> ,  S.C.R. 228, <NAME> v. <NAME>, (1830) 6 <ORG>. 576, <NAME> v. <NAME>, (1829) 9 B & C 750 and <CITATION> .  1 S.C.R. 242, referred to. 463 JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals No. 561 and 562 of 1962.

Appeals from the judgment and order dated April 18, 1961, of <ORG> in O. J. Cs. Nos. 142 and 144 of 1960.

<NAME>, Advocate-General for the State of Andhra Pradesh, <NAME>, <NAME> and <NAME>, for the appellants (in both the appeals).

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the respondent (in C. A. No. 561 of 1962).

<NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the respondent (in C. A. NO. 562 of 1962).

<NAME> and <NAME>, for the Intervener. August 16, 1963. The judgment of the Court was delivered by <NAME> two appeals which are against a common judgment of <ORG> have been filed pursuant to a certificate of 'fitness granted by <ORG> under Art. 132(1) of the Constitution. They raise for consideration the question regarding the continued operation of the Orissa Mining Areas Development Fund Act (Orissa Act 27 of 1952) and the continued exigibility of the fees leviable from mine-owners under the said enactment. Each of the respondents in ,the two appeals filed a petition before <ORG> under Art. 226 of the Constitution praying for the issue of a writ of mandamus restraining the two appellants-The State of Orissa and the Administrator, Orissa Mining Areas Development Fund, from applying the provisions of the Orissa Mining Areas Development Fund Act (Orissa Act 27 of 1952) to the respective respondents and to direct the two appellants to cancel the notices of demand requiring the petitioners to Pay the fees assessed under the said Act issued by the second appellant and for an injuction etc. restraining them from taking any steps in pursuance of the said notice of demand.

The facts giving rise to these petitions were briefly these. There is not any material difference between the facts of the two cases and so it would be sufficient if we refer only to those in Civil Appeal 561 of 1962. The res- pondent <ORG> company incorporated under the Indian Companies Act , works a manganese mine in the State of Orissa under a lease granted by that State under the provision of the Mines & Minerals (Development & Regulation) Act , 1948 (Central Act 53 of 1948), and the rules made thereunder. While the respondent was. thus working these mines, <ORG> passed an Act called the Orissa Mining Areas Development Fund Act 1952 (which for shortness we shall refer to as the Orissa Act) where under certain areas were constituted as "mining areas" and under the powers Conferred under that enactment the State Government was empowered to levy a fee on a percentage of the value of the mined ore at the pit's mouth, the collections being intended for the development of the "mining areas" in the State. The necessary steps for bringing these provisions into operation were taken by the State Government who thereafter made demands on the respondent on August 1, 1960 for the payment of the said fees. The present appeal is concerned with the fees which became due for the period July, 1957 to March 1958. When a demand was made for the sum the respondent filed petition 142 of 1960 before <ORG> impugning the legality of the demand and claimed the reliefs we have set out earlier. The learned judges allowed the Writ Petition and issued directions to the second appellant in terms of the prayer in the petition. As the grounds on which the said demand of the fees was impugned raised substantial questions touching the interpretation of the Constitution the appellants applied to the <ORG> for a certificate of fitness under Art. 132(1) and (2) and this having been granted, the appeals are now before us.

We shall now proceed to set out briefly the grounds upon which the learned Judges of <ORG> allowed the petition of the respondents. <ORG>d shortly, the contention which the learned judges of <ORG> accepted was that the Orissa Act had been rended ineffective or superseded by a Central enactment-The Mines and Minerals (Regulation and Development) Act , 1957 (Act 67 of 1957), hereinafter called the Central Act , which was brought into force as and from June 1, 1953. The Orissa Act had been enacted by virtue of the legislative power conferred by entry 23 of the <ORG> Legislative List reading "Regulation of mines and mineral development subject to the provisions of List I with reference to regulation and development under the control of the <ORG>." The legislative entry under which the later Central Act was enacted was item 54 of the <ORG> List which ran "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the <ORG> is declared by <ORG> by law to be expedient in the public interest." The Central Act carried in its second section a declaration envisaged by the last words of the entry. Based on these facts the argument to which the learned Judges acceded was that on the coming into force of the Central Act the Orissa Act ceased to be operative by reason of the withdrawal of legislative competence by force of the entry in the <ORG> List being subject to the <ORG>ary declaration and the law enacted by <ORG>. They held that for this reason the Orissa Act should be deemed to be non--existent as and from June 1, 1958 for every purpose, with the consequence that there was lack of power to enforce and realise the demands for the payment of the fee at the time when the demands were issued and were sought to be enforced. It is the correctness of this judgment that is challenged by the <ORG> in these appeals. Before proceeding further it is necessary to specify briefly the legislative power on the relevant topic, for it is on the precise wording of the entries in the 7th Schedule to the Constitution and the scope, purpose and effect of the <ORG> and the Central legislations which we have referred to-earlier that the decision of the point turns. Article 246(1) reads:

"Notwithstanding anything in cls. (2) and (3), <ORG> has exclusive power to-make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List')", and we are concerned in the present case with the State power in the State field. The relevant clause in that context is cl. (3) of the Article which runs :

"Subject to clauses (1) and (2), the <ORG> of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 11 in the Seventh Schedule (in this Constitution referred to as the 'State List')."

Coming now to the Seventh Schedule, Entry 23 of the <ORG> List vests in <ORG> power to enact laws' on the subject of 'regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the <ORG>'. It would be seen that "subject" to the provisions of List I the power of the <ORG> to enact Legislation on the topic of "mines and mineral development" is plenary. The relevant provision in List I is, as already noticed, Entry 54 of the <ORG> List. It may be mentioned that this scheme of the distribution of legislative power between the <ORG> and the <ORG>s is not new but is merely a continuation of the state of affairs which prevailed under the Government of India Act 1935 which included a provision on the lines of Entry 54 of the <ORG> List which then bore the number item 36 of the Federal List and an entry corresponding to Entry 23 in the <ORG> List which bore the same number in the Provincial Legislative List. There is no controversy that the Central Act has been enacted by <ORG> in exercise of the legislative power contained in Entry 54 or as regards the Central Act containing a declaration in terms of what is required by Entry 54 for it enacts by s. 2 :

"It is hereby declared that it is expedient in the public interest that the <ORG> should take under its control the regulation of mines and the development of minerals to the extent hereinafter provided".

It does not need much argument to realise that to the extent to which <ORG> had taken under "its control" "the regulation and development of minerals" so much was withdrawn from the ambit of the power of <ORG> under Entry 23 and legislation of the <ORG> which had rested on the existence of power under that entry would to the extent of that "control" be superseded or be rendered ineffective, for here we have a case not of mere repugnancy between the provisions of the two enactments but of a denudation or deprivation of <ORG> legislative power by the declaration which <ORG> is empowered to make and has made.

It would, however, be apparent that the <ORG>s would lose legislative competence only to the "extent to which regulation and development under the control of the <ORG> has been declared by <ORG> to be expedient in the Public interest." The crucial enquiry has therefore to be directed to ascertain this "extent" for beyond it the legislative power of the <ORG> remains unimpaired. As the legislation by the <ORG> is in the case before us the earlier one in point of time, it would be logical first to examine and analyse the <ORG> Act and determine its purpose, width and scope and the area of its operation and then consider to what " extent" the Central Act cuts into it or trenches on it.

The object of the Orissa Act, as disclosed by its preamble, was "the constitution of' mining areas" and the creation of "<ORG>" in the State. Section 3 empowers <ORG> to constitute and alter the limits of these "mining areas". The object of the Constitution of these "mining areas" was Inter alia the provision of amenities like communications, water-supply and electricity and "the better development of areas wherein any mine was situated" as well as "to prove for the welfare of the residents or workers in any such area within which persons employed in a mine or group of mines reside or work". Section 4 is the provision empowering <ORG> to levy a cess or a fee on all extracted minerals from any mines in "a mining area" with a limit, however, that the rate of such levy should not exceed 5 per cent of the value of the minerals at the pit's mouth. The cess was to fall due quarterly every year oil 1st of January etc. and was to be computed on the value of the mineral extracted during the three months immediately preceding the dates specified. Section 5 makes provision for the constitution of <ORG> into which the cesses raised under s. 4 and other moneys received in that behalf might be paid and the section also specifies the purposes for which the Fund may be utilised. These were :

"5 (5). Without prejudice to the generality of the foregoing provisions, the fund may be utilised to defray-

(a) the cost of measures for the benefit of labour and other persons residing or working in the mining areas directed towards:-

(1) the improvement of public health and sanitation, the prevention of disease, and the provision and improvement of medical facilities;

(ii) the provision and improvement of water- supplies and facilities for washing;

(iii) the provision and improvement of educational, facilities;

(iv)the improvement of standards of living including housing and nutrition, the amelioration of social conditions and the provision of recreational facilities, and

(v) the provision of roads, tramways and railways and such other communications;

(b) the grant to any educational, <ORG> providing technical education in mining and such other allied subjects;

(c) the grant to <ORG>, a local authority or the owner, agent or manager of a mine, in aid of any scheme approved by <ORG> for any of the purposes of the Fund;

(d) the cost of administering the Fund, including the allowances, if any, of members of <ORG> constituted under section 6 and the salaries, provident funds,, pensions, gratuity and allowances, if any, of officers appointed under section 7 ; and

(e) any other expenditure which the State Government may direct to be defrayed from the Fund."

The other sections which follow are not relevant and so arc omitted.

We shall now turn to the Central Act . The long title of the Act specifies that the twin purposes of the Act are: (1) the Regulation of mines, and (2) the development of minerals, both under the control of the <ORG>. Section 2 we have already extracted. Section 3 contains definitions of terms used in the Act and thus may be omitted. Sections 4 to 10 form a group headed 'General Restrictions on Undertaking Prospecting and Mining Operations' and relate to the rules and regulations under which prospecting licences and mining leases might be granted, the period for which they may be granted or renewed, the royalties and fees that would be payable on them etc. The next group consists of three sections. 10 to 12-dealing with the procedure for obtaining prospecting licences or mining leases in respect of land in which minerals vest in the <ORG>. Sections 13 to 17 are grouped under a caption which reads: "Rules for regulating the grant of Prospecting Licences and Mining Leases".

Section 13 with which-this group starts empowers <ORG> by notification, to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for purposes connected therewith. Sub-s. (2) specifies in particular the matters for which such rules may provide and among them is head (i) reading "(i) The fixing and collection of dead rent, fines, fees or other charges and the collection of royalties in respect of-

(i) prospecting licences,

(ii) mining leases,

(iii) minerals mined, quarried, excavated or collected". Head (m) runs:

"(m) the construction, maintenance and use of roads, power transmission lines, tramways, railways, aerial ropeways pipelines and the making of passages for water for mining purposes on any land comprised in a mining lease ;"

Up to this point the Act was dealing with the first purpose viz "the Regulation of mines." Section 18 is the provision relating to the other object of the Act "The Development of minerals." It would be necessary to set out in some detail some of the terms of this section. Section 18(1) enacts:

"18 (1). It shall be the duty of <ORG> to take all such steps as may be necessary for the conservation and development of minerals in India, and for that purpose <ORG> may, by notification in the Official Gazette, make such rules as it thinks fit." and 18(2):

"18 (2). In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a)

(b)

(c)

(d) the development of mineral resources in any area;

Section 25 provides for the recovery of any rent, royalty, tax or other sum due to the <ORG> under this Act or the rules made thereunder, and these are to be recovered in the same manner as an arrear of land revenue.

The question for consideration is whether "the extent of control and regulation" provided by the Central Act takes within its fold the area or the subject covered by the Orissa Act.

Learned Counsel for the appellant raised 4 points: (1) that the object and purposes of the Orissa Act and its provisions were quite distinct and different from the object and purposes of the <ORG> Act , with the result that the two enactments could validly co-exist since they do not cover the same field. It was argued that the Orissa Act was concerned with the raising of a fund for providing amenities to labour and other residents in "mining areas" while the <ORG> Act was concerned not with any social purpose, as the Orissa Act, but merely with the development of the mineral resources of the country. The object to be attained by the two enactments being so dissimilar there was no common area covered by the two enactments and the "extent of control" which the <ORG> assumed by its law was therefore entirely outside the field occupied by the <ORG> Act and there being thus no encroachment the <ORG> Act continued to operate in full force. (2) Even if the <ORG> Act might cover the same field in the sense that it would be competent to the <ORG> Government to make rules under the <ORG> Act for the same purposes as the Orissa Act, and the rules when made would overlap the provisions of the Orissa Act, still there was no repugnance between the <ORG> Act and the Orissa Act until such rules were made for until then there is no effective and operative <ORG> legislation covering the field occupied by the Orissa Act. (3) The power to enact legislation to levy "fees" was an independent head of Legislative power under the Constitution under item 96 in the <ORG> list and item 66 in the <ORG> List and therefore there was no question of the supersession of the <ORG> power under item 66 of the <ORG> List by a <ORG> enactment whose source of legislative power is,entry 96 of List I and there- fore the demand for the fee competently enacted by the <ORG> was not superseded by <ORG> legislation even though the latter was covered by Entry 54 of the <ORG> List. (4) In any event, the <ORG> Act was not retrospective or retroactive and could not affect rights which accrued to the <ORG> prior to June 1, 1958 on which date the <ORG>. Act was brought into force. The fees in regard to which the demands impugned in the case were made had accrued long prior to- June 1, 1958 and the demands would therefore be enforceable notwithstanding the disappearance of the <ORG> Act subsequent to the date of the accrual of the fee. On the other hand, Mr. <NAME>-learned Counsel for the respondent-urged that the <ORG> Act covered the entire field of mineral development, that being the "extent" to which <ORG> had declared by law that it was expedient that the <ORG> should assume control. In this connection he relied most strongly on the terms of s. 18(1) which laid a duty upon the <ORG> Government "to take all such steps as may be necessary for the conservation and development of minerals in India" and "for that purpose the <ORG> Government may by notification, make such rules as it deems fit". If the entire field of mineral development was taken over, that would include the provision of amenities to workmen employed in the mines which was necessary in order to stimulate or maintain the working of mines. The test which he suggested was whether if under the power conferred by s. 18(1) of the <ORG> Act, the <ORG> Government had made rules providing for the amenities for which provision was made by the Orissa Act and if the <ORG> Government had imposed a fee to defray the expenses of the provision of these amenities, would such rules be held to be ultra vires of the <ORG> Government, and this particularly when taken in conjunction with the matters for which rules could be made under s. 13 to which reference has already been made. We consider there is considerable force in this submission of learned Counsel for the respondent, and this would require very detailed and careful scrutiny. We are, however, relieved from this task-of detailed examination and discussion of this matter because we consider that it is concluded by a decision of this Court in <CITATION> .(1). There, as here, it was the validity of the demand of the fee under the Orissa Act now under consideration that was the subject of debate. The appellants then before this Court challenged on various grounds the constitutional' validity of the Orissa Act and the rules made thereunder which empowered the <ORG> to levy the cess. One of the grounds urged before the- Court was that the Orissa Act was void,because the entire range of mineral development had been taken under <ORG> control by the Mines and Minerals (Regulation & Development) Act , 1948 (<ORG> Act 53 of 1948). The <ORG> Act of 1948 was a pre-constitution law, but the contention raised was that the declaration in the <ORG> enactment that it "was expedient in the public interest that the <ORG> Government should take under its control etc." in terms of entry 36 of the Federal List under the Government of India Act, 1935 was tantamount to a declaration by law by <ORG> of assumption of "control by the <ORG>" within Entry 54 of List I of the 7th Schedule to the Constitution. Before referring to the portion of the judgment dealing with this aspect of the matter, it would be convenient to refer to the <ORG> Act of 1948 on the basis of which the constitutional validity of the Orissa Act was impugned. <ORG> Act 53 of 1948 professes to be an Act to provide for the regulation of mines and oil fields and for the deve- lopment of minerals. Section 2 of that Act contained a declaration as we have in s. 2 of the present <ORG> Act 67 of 1957 and this read,:

"It is hereby declared that it is expedient in the public interest that <ORG> should take under its control the regulation of mines and oil fields and the development of mines to the extent hereinafter provided". It is a very short enactment consisting only of 14 sections of which it is only necessary to mention s. 6 which is headed "Power to make Rules as respects mineral deve- (1)  2 S.C. R. 537.

lopment" and this empowers <ORG> by notification to make rules for "the conservation and deve- lopment of minerals." By amendments effected in Central Act , 53 of 1948, by the later Act 67 of 1957, the provisions which related to "mines and minerals" and their development and the references to "mines and minerals" in provisions common to them and to oil fields were excised, so that thereafter while the earlier Act of 1948 was limited to the development of oil-fields, the entire range of the law relating to mines and mineral development was taken over and covered by Central Act 67 of 1957. Now, it was the existence of this enactment of 1948 when it applied to mines and mineral development and before it was amended by Act 67 of 1957 by confining it to oil-fields, with the declaration which is contained that it was expedient to " control mineral development to the extent provided" that was urged as having deprived <ORG> of competence to enact the Orissa Act. Dealing with this ground of challenge <NAME>, <NAME> speaking for the <ORG> observed:

"Its validity (the demand of the fee under the Orissa Act) is still open to challenge because the legislative competence of <ORG> under Entry 23 is subject to the provisions of List I with respect to regu-

lation and development under the control of the <ORG>; and that takes us to Entry 1. The effect of reading the two Entries together is clear. The jurisdiction of <ORG> under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If <ORG> by its law has declared that regulation and development of mines should in public interest be under the control of the <ORG>, to the extent of such declaration the Jurisdiction of <ORG> is excluded. In other words, if a Central Act has been passed which contains a declaration by <ORG> as required by Entry 54, and if the said declaration covers the field occupied by the impugned Act the impugned Act would be ultra wires, not because of any repugnance between the two statutes but because <ORG> had no jurisdiction to pass the law. The Limitation imposed by the latter part of Entry 23 is a limitation on the legislative compe 31-2 S C India/64 tence of <ORG> itself. This position is not in dispute.

It is urged by Mr. <NAME> that the field covered by the impugned Act has already been covered by the Mines and Minerals (Regulation and Development) Act , 1948, (LIII of 1948) and he contends that in view of the declaration made by s. 2 of this Act the impugned Act is ultra vires..... Section 2 of the Act contains a declaration as to the expediency and control by <ORG>. It reads thus : '......... Section 4 of the Act provides that no mining lease shall be granted after the commencement of this Act otherwise than in accordance with the rules made under this Act. Section 5 empowers <ORG> to make rules by notification for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. Section 6 of the Act, however, empowers <ORG> to make rules by notification in the official gazette for the conservation and development of minerals. Section 6(2) lays down several matters in respect of which rules can be framed by <ORG> It is true that no rules have in fact been framed by <ORG> in regard to the levy and collection of any fees; but, in our opinion, that would not make any difference. If it is held that this Act contains the declaration referred to in Entry 23 there would be no difficulty in holding that the declaration covers the field of conservation and development of minerals, and the said field is indistinguishable from the field covered by the impugned Act. What Entry 23 provides is that the legislative competence of <ORG> is subject to the provisions of List I with respect to regulation and develop- ment under the control of the <ORG>, and Entry 54 in List I requires a declaration by <ORG> by law that regulation and development of mines should be under the control of the <ORG> in public interest.

Therefore, if a Central Act has been passed for the purpose of providing for the conservation and development of minerals, and if it contains the requisite declaration, then it would not be com-

petent to <ORG> to pass an Act in respect of the subject-matter covered by the said declaration. In order that the declaration should be effective it is not necessary that rules should be made or enforced; all that this required is a declaration by <ORG> that it is expedient in the public interest to take the regulation and development of mines under the control of the <ORG>. In such a case the test must be whether the Legislative declaration covers the field or not. Judged by this test there can be no doubt that the field covered by the impugned Act is covered by the Central Act LIII of 1948."

It is only necessary to add that the validity of this impost was affirmed, however, for the reason that whereas the Orissa Act was a post-Constitution enactment, the Central Act of 1948 was a pre-Constitution law and as in terms of Entry 54 "<ORG>" had not made the requisite decla- ration, but only the previously existing Central Legisla- ture, it was held not to be within the terms of Entry 54 and the State enactment was held to continue to be operative. Since the Central Act 67 of 1957 contains the requisite declaration by the Union <ORG>; under Entry 54 and that Act covers the same field as the Act of 1948 in regard to mines and mineral development, we consider that the decision of this Court concludes this matter unless there were any material difference between the scope and ambit of Central Act 53 of 1948 and that of the Act of 1957. Learned Counsel for the appellant was not able to point to any matter of substance in which there is any difference between the two enactments. It was suggested that whereas s. 6 of the Act of 1948 empowered rules to be made for taxes being levied, there was no specific power to impose taxes under that of 1957. It is not necessary to discuss the materiality of this point because what we are concerned with is the power to levy a fee, and there is express provision therefore in s. 13 of the Central Act of 1957 apart from the implication arising from s. 25 thereof, which runs:

"25. Any rent, royalty, tax, fee or other sum due to the Government under this Act or the rules made thereunder or under the terms and conditions of any pros-

pecting licence or mining lease may,, on a certificate of such officer as may be specified by <ORG> in this behalf by general or special order, be recovered in the same manner as an- arrear of land revenue."

We ought to add that besides we see considerable force in Mr. <NAME>'s submission that sub-ss (1) & (2) of s. 18 of the Central Act of 1957 are wider in, scope and amplitude and confer larger powers on <ORG> than the corresponding provisions of the Act of 1948. The second point urged by the appellant is based on the fact that s. 18(1) of the Central Act merely lays a duty on <ORG> "to take steps" for ensuring the conservation and development of the mineral, resources of the country and in that sense is not self-acting. The submission is that even assuming that under the powers conferred thereunder read in conjunction with s. 13 and the other provisions in the Act, it would be competent for <ORG> to frame rules on the lines of the Orissa Act i.e., for the development at "mining areas" and for that purpose to provide for the imposition of fees and for the constitution of a fund made up of these monies, still no such rules had been framed and until such rules were made or such steps taken, the Central Act would not cover the field so that the Orissa Act would continue to operate in full force. In support of this submission reliance was placed on the decision of this Court in Ch. <NAME> & Ors. etc. v. The State of Uttar Pradesh & Ors.(1) and in particular on a passage at p. 432 reading :

"Even assuming that sugarcane was an article or class of articles relatable to the sugar industry within the meaning of section 18-G of Act LXV of 1951, it is to be noted that no order was issued by <ORG> in exercise of the powers vested in it under that section and no question of repugnancy could ever arise because, as has been noted above, repugnancy must exist in fact and not depend merely on a possibility. The possibility of an order under section 18-G being issued by <ORG> would not be enough. The existence of such an order would be the essential prerequisite before any repugnancy could ever arise,."

(1) [1956] S.C.R. 393.

We consider that this submission in relation to the Act before us is without force besides being based on a mis- apprehension of the true legal position. In the first place the point is concluded by the earlier decision of this Court in <CITATION> .(1) where this Court said : "In order that the declaration should be effective it is not necessary that rules should be made or enforced ; all that this required is a declaration by <ORG> that it was expedient in the public interest to take the regulation of development of mines under the control of the <ORG>. In such a case the test must be whether the legislative declaration covers the field or not."

But even if the matter was res integra, the argument cannot be accepted. Repugnancy arises when two enactments both within the competence of the two <ORG>s collide and when the Constitution expressly or by necessary implication provides that the enactment of one <ORG> has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case, having regard to the terms of s. 18(1) it appears clear to us that the intention of <ORG> was to cover the entire field and thus to leave no scope for the argument that until rules were framed, there was no inconsistency and no super- session of the State Act .

It was next urged that under the scheme of the legislative entries under the Constitution, as previously under the Government of India Act, 1935, the power to levy a fee was an independent head of legislative power under (1) [1961] 2 S.C.R. 537.

each of the three legislative Lists and not merely an inci- dental power flowing from the grant of power over the subject-matter in the other entries in the List. From this it was sought to be established that even if the <ORG> could levy a fee under the Central Act it would not affect or invalidate a <ORG> legislation imposing a fee for a similar service. This argument again proceeds on a fallacy. It is, no doubt, true that technically speaking the power to levy a fee is under the entries in the three lists treated....as a subject-matter of an Independent grant of legislative power, but whether it is an incidental power related to a legislative head or an independent legislative power it is beyond dispute that in order that a fee may validly be imposed the subject-matter or the main head of legislation in connection with which the fee is imposed is within legislative power. The material words of the Entries are: "Fees in respect of any of the matters in this List". It is, therefore, a prerequisite for the valid imposition of a fee that it is in respect of a "matter in the list". If by reason of the declaration by <ORG> the entire subject- matter of "conservation and development of minerals" has been taken over, for being dealt with by <ORG>, thus depriving the <ORG> of the power which it theretofore possessed, it would follow that the "matter" in the <ORG> List is, to the extent of the declaration, subtracted from the scope and ambit of Entry 23 of the <ORG> List. There would, therefore, after the Central Act of 1957, be "no matter in the List" to which the fee could be related in order to render it valid.

Lastly, it was urged that the fees, recovery of which was being sought by the <ORG> were those which had accrued prior to June 1, 1958 and as the Central Act was not retrospective it could not have operation so as to invalidate the demands for the payment of the fee made on the respondents. It was pointed out that s. 4 of the Orissa Act imposed a charge on the mine owners for the payment of the fee. The liability to pay the fee accrued quarterly and we are concerned in this appeal with the fee due in respect of six quarters from September 30, 1956 to March 31, 1958. The demands for the fee due for these quarters was served on the respondents on August 1, 1960. It was therefore submitted that even on the footing that the Orissa Act stood repealed, superseded or nullified on the enactment of the Central Act , the right to recover the past arrears of fees which had accrued due previous to the repeal or nullification would not be abrogated.

Pausing here it is necessary to mention that after the judgment was delivered by <ORG> in the two petitions which are the subject of these two appeals before us, setting aside even the notice of demand, applications were made by the <ORG> Government to <ORG> to review its judgment. The ground urged was that even on the footing that the Orissa Act of 1952 was superseded by Central Act 67 of 1957, the liabilities which had accrued to the <ORG> prior to June 1, 1958 could not be deemed to be wiped out because the Central Act was not rctrospectivc and that the <ORG> should modify its orders accordingly. The learned Judges, however, dismissed the applications for two reasons: (1) They had already granted certificates of fitness under Art. 132 of the Constitution and among the grounds raised by the <ORG> in its memoranda of appeal was this point about the effect of the Central. Act on the continued enforceability of the dues and thus the point was pending consideration by this <ORG>. (2) It had already been held by this <ORG> in a decision in <CITATION> (1) to which we shall make reference, that when an earlier Act is superseded or rendered null under Art. 13 of the Constitution, nothing done under the old Act would survive except in respect of past and closed transactions, and the present case was thus covered.

We shall now turn to the arguments urged before us in support of this contention. Learned Counsel for the <ORG> submitted that the supersession of the Orissa Act by the Central Act was neither more nor less than a repeal. If it thus was repeal, then s. 6 of the General Clauses Act 1897 was attracted. Section 6 reads :-

"6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not-

(a)..........................

(1) [1951] S.C.R. 228.

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) ..........................

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced ...... as if the repealing Act or Regulation had not been passed", and the argument on the interpretation of this section was two- fold: (1) that the word 'repeal' used in the opening paragraph was not confined to express repeals but that the word was comprehensive enough to include cases of implied repeals; (2) Alternatively it was submitted that even if the expression 'repeal' in s. 6 be understood as being confined to express repeals, still the principle underlying s. 6 was of general application and capable of being attracted to cases of implied repeals also.

Before proceeding further it will be convenient to clear the ground by adverting to two matters: (1) The effect of a Central Act under its exclusive legislative power which covers the field of an earlier <ORG> Act which was competent and valid when enacted is not open to doubt. The <ORG>ary enactment supersedes the <ORG> law and thus it virtually effects a repeal (2) The effect in law of a repeal, if it is not subject to a saving as is found in s. 6 !of the General Clauses Act is also not a matter of controversy. <NAME> stated this in <NAME> v. Goodwin(1): "I take the effect of repealing a statute to be to obliterate it as completely from the records of the <ORG> as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law". (1) ,6 Bing. 576 at p. 582 It was the same idea that was expressed by Lord <NAME> in, <NAME> v. Ellison(1) "It has long been established that, when an Act of <ORG> is repealed, it must be considered (except as to transactions past and closed) as if it had never existed". This laid down the law as it was prior to the U.K. Inter- pretation Act, 1890 which by s. 38(2) made provision for a saving of the type we now have in s. 6 of the Indian General Clauses Act, 1897 which we have extracted earlier. The submission of Mr. <NAME>-learned Counsel for the respondent-was very simple. He said that s. 6 on its terms applied only to express repeals.Here we have a case not of an express repeal but of the supersession of a <ORG> enactment by a law having bythe Constitution superior efficacy. it would, therefore, bea mere disapperrance or supersession of the <ORG> enactment or at the best a case of an implied repeal. In this connection he invited our attention to some observations to be found in the decision of this <ORG> in <CITATION> (2) already referred to. The <ORG> was there concerned with the legality of the prosecution of the appellant for contravention of the Indian Press (Emergency Powers) Act, 1931. The offence had been committed before the Constitution came into force and a prosecution launched earlier was pending after January 26, 1950. The enactment which created the offence was held to be void under Art. 19(1) (a) read with Art. 13 as being inconsistent with one of the Fundamental rights guaranteed by Part III of the Constitution. In the circumstances, the point that was debated before this <ORG> was whether the prosecution could be continued after the enactment became void. The majority of the <ORG> held that the Constitution was prospective in its operation and that - Art. 13(1) would not affect the validity of proceedings commenced under pre-Constitution laws which were valid up to the date of the Constitution coming into force, for to hold that the validity of these proceedings were affected would in effect be treating the Constitution as retrospective. They therefore considered that there was no legal objection -to the prosecution continuing. <NAME> J. who dissented (1)  9B. & C. 750 at 752. (2)  S.C.R. 228.

<NAME>

from the majority, after discussing the legal effect of a repealing statute in the absence of a saving clause and the history of the provision in regard to the matter in the successive General Clauses Act s in India, observed:

"The position therefore now in India as well as in England is that a repeal has not the drastic effect which it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this country. But this is due entirely to the fact that an express provision has been made in those enactments to counteract that effect. Hence, in those cases which are not covered by the language of the General Clauses Act , the principle already enunciated [<NAME> v. Goodwin(1) and <NAME> v. Ellison(2)] will continue to operate. The learned Attorney General had to concede that it was doubtful whether section 6 of that Act is applicable where there is a repeal by implication, and there can be no doubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because section 6 of the General Clauses Act and section 38(2) of the Interpretation Act have no application except where an Act is repealed".

Mr. <NAME> submitted that this was an express decision on the point in his favour. We are, however, not disposed to agree with the submission apart from its being the basis of a dissenting judgment. We might add that this point as to the effect of an implied repeal has arisen in a few other cases before this <ORG> but it has been left open [see for instance, the judgment in <CITATION> .(3)]. The question is res integra and has to be decided on principle.

We must at the outset point out that there is a difference in principle between the effect of an expiry of a temporary statute and a repeal by a later enactment and the discussion now is confined to cases of the repeal of a statute which until the date of the repeal continues in force. The first question to be considered is the meaning of the expression 'repeal' in s. 6 of the General Clauses Act-whether it is confined to cases of express repeal or whether the (1) [1830] 6 Bing. 576.

(2) [1819] 9 B. & C. 750.

(3) [1963] 1 S.C.R. 242.

expression is of sufficient amplitude to cover cases of implied repeals. In this connection there is a passage in Craies on Statute Law, Fifth Edition at pages 323 and 324 which appears to suggest that the provisions of the corresponding s. 38 of the English Interpretation Act were confined to express repeals. On page 323 occurs the following:

" In Act s passed in or since 1890 certain savings are implied by statute in all cases of express repeal, unless a contrary intention appears in the repealing Act", and on the next page:

"It had been usual before 1889 to insert provisions to the effect above stated in all Acts by which express repeals were effected. The result or' this enactment is to make into a general rule what had been a common statutory form, and to substitute a general statutory presumption as to the effect of an express repeal for the canons of construction hitherto adopted."

There is, however, no express decision either in England or, so far as we have been able to ascertain, in the United States on this point. Untrammeled, as we are, by authority, we have to inquire the principle on which the saving clause in s. 6 is based. It is manifest that the principle underlying it is that every later enactment which supersedes an earlier one or puts an end to an earlier state of the law is presumed to intend the continuance of rights accrued and liabilities incurred under the superseded enactment unless there were sufficient indications-express or implied-in the later enactment designed to completely obliterate the earlier state of the law. The next question is whether the application of that principle could or ought to be limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. The entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word 'repeal' in the later ,statute. Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in at- tributing to the later legislation the same intent which s. 6 presumes where the word 'repeal' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in in- tention or in Substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posted, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would in our opinion, attract the incident of the saving found in s. 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted. If this were the true position about the effect of the Central Act 67 of 1957 as the liability to pay the fee which was the subject of the notices of the demand had accrued prior to June 1, 1958 it would follow that these notices were valid and the amounts due thereunder could be recovered notwithstanding the disappearance of the Orissa Act by virtue of the superior legislation by <ORG>.

The appeals would, therefore, be allowed and the Writ Petitions would stand dismissed. As the appellants have failed in their main submissions, we make no order as to costs.

Appeals allowed.


JUDGMENT

1. This is an application for leave to appeal to His Majesty in Council under Clause 41 of the Letters Patent, which is in the following terms:

41. And We do further ordain that, from any judgment, order or sentence of the said <ORG> at Fort William in Bengal, made in the exercise of Original Criminal Jurisdiction, or in any criminal case where any point or points of law have been re-served for the opinion of the said <ORG> in manner hereinbefore provided, by any Court which has exercised Original Jurisdiction, it shall be lawful for the person aggrieved by such judgment, order, or sentence to appeal to Us, Our heirs or successors in <ORG>; provided the said <ORG> shall declare that the case is a fit one for such appeal and under such conditions as the said <ORG> may establish or require, subject always to such rules and orders as We may, with the advice of Our Privy <ORG>, hereafter make in that behalf.

2. The petitioner <NAME> was placed on his trial at the last <ORG>, before Mr. Justice <NAME> and a Special Jury, on charges under Sections 302 and 394. Indian Penal Code . The Jury returned a unanimous verdict of guilty on the charge of murder and Mr. justice <NAME> thereupon sentenced the prisoner to death. A certificate was then obtained on his behalf from the Advocate-General, under clause 26 of the Letters Patent, that in his judgment, whether an alleged direction and an alleged omission to direct the Jury did not in law amount to a misdirection should be further considered by <ORG>. The question was accordingly argued before <ORG>. On the 26th September, 1923, <ORG> delivered judgment and ordered that the application made by the prisoner under clause 26 do stand dismissed The present application was made on the 3rd October, 1923, for a certificate under clause 41 that the case is a fit one for appeal to His Majesty in Council. The matter has been exhaustively argued before us on behalf as well of the prisoner as of the <ORG> and our attention has been invited to the relevant authorities on the subject.

3. It is indisputable that as His Majesty the King is supreme over all persons and <ORG>s within his Dominions, a right of appeal in all cases, civil and criminal, to the King in Council, exists, from the highest <ORG> of each separate Colony, Province, State or Possession, whether it be a <ORG> of error or not, except so far as the prerogative in this behalf has been expressly surrendered; <NAME> v. <NAME> (1880) 5 App. Cas. 409 : 49 L.J.P.C. 63 : 42 L.T. 445, In Re: Wi Matua's Will (1908) A.C. 448 : 78 L.J.P.C. 17 : 24 T.L.R. 834. Criminal proceedings, however, are, in practice, reviewed, only if it is shown that by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done. <ORG> do not, as a rule, advise His Majesty to grant appeals in criminal cases, except where questions of great and general importance, likely to occur often, are raised, and where the due and orderly administration of the law is shown to be interrupted, or diverted into a new course, which might create a precedent for the future, and where there are no other means of preventing these consequences. Such appeals lie either by the right of grant, in pursuance of leave obtained by the appellant from the <ORG> appealed from, or by reason of special leave granted by <ORG>. The latter appeals arise, either where the <ORG> below does not possess power to grant leave to appeal, or where leave to appeal has been refused by the <ORG> below, or where the leave to appeal was granted on some special point and the appellant wishes to raise points not included in the leave to appeal: Rex v. <NAME> (1904) A.C. 412 : 73 L.J.P.C. 65 : 91 L.T. 210 : 20 T.L.R. 572, <ORG> v. <NAME> (1904) A.C. 776 : 73 L.J.P.C. 95 : 91 L.T. 233 : 20 T.L.R. 674, Victorian Railway Commissioners v. <NAME> (1906) A.C. 381 : 75 L.J.P.C. 65 : 95 L.T. 73 : 22 T.L.R. 644 and <NAME> v. <ORG> (1923) A.C. 167 : 92 L.J.P.C. 80 : 128 L.T. 513. But whether leave is granted by the <ORG> appealed from or by <ORG>, it is plain that the answer to the question,. whether the case is a fit one for appeal, must depend on the same considerations; the grant of the leave to appeal is a step ancillary to the determination of the appeal, and the principles which regulate the ultimate decision of the appeal cannot obviously be ignored when an application for leave; is examined: <NAME> v. Reg. (1914) A.C. 599 at p. 615 : 83 L.J.P.C. 185 : 111 L.T. 20 : 30 T.L.R. 383 : 24 Cox C.C. 174.

4. The judicial pronouncementson the subject fall broadly into two divisions, according as they were made in Indian cases or in Colonial cases. The decisions in Indian cases, again, may be conveniently considered in two groups, namely, first, those that had reference to sentences in original criminal trials governed by clause 41 of the Letters Patent or a provision of like import, and, secondly, those that arose out of appellate decisions not subject to the operation of clause 41 or a similar rule.

5. In the first group of Indian cases, the earliest decision which has been brought to our notice is that of <NAME> v. Reg. (1835) 3 Knapp 348 : 12 E.R. 684. The appellant had been convicted at a <ORG> held on the <ORG> Side of <ORG> on a charge of uttering a forged receipt for money, with intent to defraud <ORG>. The prisoner obtained leave to appeal from <ORG>. <ORG> considered the appeal on the merits, affirmed the conviction in respect of one offence, but reversed the judgment as erroneous in respect of another offence. Important questions of law including a question of jurisdiction were involved in the appeal. The next case in point of time is that of <CITATION> 3 M.I.A. 164 : 4 Moo. P.C. 239 : 1 Sar P.C.J. 261 : 18 E.R. 163 : 13 E.R. 293. The appellants were tried on charges of assault and battery, in <ORG> at Calcutta before Sir <NAME> and a Jury, and were convicted. A Rule was granted to set aside the verdict but was discharged, Sir <NAME>, C.J., dissenting. <ORG> at the same time gave leave to appeal to Her Majesty in Council. <ORG> heard the appeal on the merits and directed that the Rule for new trial be made absolute; and they also intimated their hope that the indictment would not be further prosecuted. It may be noted that when <ORG> (Lord <NAME>, Lord <NAME>, Knight <NAME>, <NAME> and Dr. <NAME>) heard the appeal, Sir <NAME> sat as Assessor. These two cases, as we shall presently see, stand in a class by themselves, and were not followed in the case of <NAME> v. <NAME> 3 M.I.A. 468 : 5 Moo. P.C. 276 : 1 Sar.P.C.J. 305 : 18 E.R. 577 : 13 E.R. 496. There the petitioners applied for leave to appeal from a conviction for felony at a trial held in <ORG> of Bombay before Sir <NAME>, C.J., and Sir <NAME>, J., and a Jury who returned a verdict of guilty. Dr. <NAME> who delivered the judgment of <ORG> ruled that there was no power reserved to the <ORG> by the Charter of <ORG>, 1823, which conferred on that <ORG> and that <ORG> alone full and absolute power and authority to allow or deny appeals in criminal causes. With this may be compared the decision of <ORG> in In the Matter of <NAME> (1844) 3 Moo.P.C. 409 : 13 E.R. 166, where leave granted on an ex parte application to appeal from a criminal proceeding in Jersey, was recalled. The same view was reiterated in <NAME> v. <NAME> 3 M.I.A. 488 : 5 Moo.P.C. 296 : 1 Sar.P.C.J. 310 : Perry's O.C. 551 : 18 E.R. 586 : 13 E.R. 504. We next come to the case of <NAME> v. <NAME> 7 M.I.A. 72 : 4 W.R. 109 : Boul. 189 : 1 Suth. P.C.J. 283 : 1 Sar.P.C.J. 598 : 19 E.R. 237 (P.C), where an appeal was allowed from a judgment on a conviction by <ORG> at Calcutta in a case of murder. The prisoner was tried before Sir <NAME>, C.J., and a Jury, who returned a verdict of guilty, A question of jurisdiction, which had been reserved, was argued before the Full <ORG>. The Chief Justice and <NAME>, J., held that the <ORG> had jurisdiction, while <NAME>, J., held that the <ORG> had no jurisdiction. The question turned upon the construction of Section 56 of Slat. 9, Geo. IV, c. 74. <ORG> held that the <ORG> had no jurisdiction and annulled the conviction. In In the Matter of <NAME> 20 I.A. 90 : (1893) A.C. 346 : 17 Cox C.C. 702 : 15 A. 310 : 6 Sar.P.C.J. 344 : 17 Ind. Jur. 430 : 7 Ind. Dec. (N.S.) 915 (P.C.), which was approved in In the matter of <NAME> 26 I.A. 242 : 22 A. 49 : 3 C.W.N. 736 : 1 Bom L.R. 708 : 7 Sar.P.C.J. 556 : 9 Ind. Dec. (N.S.) 1064 (P.C.) the prisoner was convicted of offences under sections 420 and 511 , <ORG> , and was sentenced to imprisonment. The High <ORG> of Allahabad refused to certify under Section 32 of the Letters Patent of 1866 that the case was a fit one for appeal to His Majesty in Council. <ORG> declined to grant special leave. Lord <NAME> observed that there were no doubt very special and exceptional circumstances in which leave to appeal was granted in criminal cases, but it would be contrary to the practice of the <ORG> and very mischievous, if any countenance were given to the view that an appeal would be allowed in every case in which it could be established that there had been a misdirection by the Judge who tried the case. In <NAME> v. <NAME>-Empress 25 I.A. 1 : 22 B. 528 : 7 Sar. P.C.J. 270 : 11 Ind. Dec. (N.S.) 933 (P.C.), <ORG> refused to grant leave to appeal. The question raised related to the true construction of Section 124A , <ORG> which, it was urged, had been erroneously interpreted by <NAME>, J., in his charge to the Jury. Lord <NAME> observed that taking a view of the whole of the summing up, there was nothing in that summing up which called upon their Lordships to indicate any dissent from it nor any necessity to correct what was therein contained looking at the summing up as a whole and looking at each part of what was said by the light of what else was said. In <NAME> v. King-Emperor 28 I.A. 257 : 25 M. 61 : 11 M.L.J. 233 : 3 Bom L.R. 540 : 5 C.W.N. 866 : 2 Weir 271 : 8 Sar.P.C.J. 160 (P.C), the appellant was tried in contravention of Section 234 , Criminal Procedure Code , on an indictment in which he was charged with no less than 41 acts extending over a period of two years. <ORG> annulled the conviction and sentence on the ground the trial was prohibited in the mode in which it was conducted. In In Re: <NAME> 2 Ind. Cas. 152 : 33 B. 221 : 10 Bom.L.R. 973 4 M.L.T. 45 : 9 Cr.L.J. 226, the accused was tried before <NAME>, J., and a Jury on charges under Section 124 A, <ORG> , and was convicted. Sir <NAME>, C.J., and <NAME>, J., declined to grant leave and ruled that before a certificate could be granted the <ORG> must be satisfied that there was reasonable ground for thinking that grave and substantial injustice might have been done by reason of some departure from the principles of natural justice. Reference was made to the decisions in <NAME> v. <NAME> Attorney-General (1889) 61 L.T. 740 : 16 Cox C.C. 735, Ex parte Carew (1897) A.C. 719 : 18 Cox C.C. 625 and In Re: Dillet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241. To the same effect are the decisions in <CITATION> 22 Ind. Cas. 496 : 40 I.A. 241 : 41 C. 568 : 19 C.L.J. 107 : (1914) M.W.N. 11 : 16 Bom.L.R. 1 : 12 A.L.J. 75 : 15 M.L.T. 84 : 18 C.W.N. 374 : 15 Cr.L.J. 144 : 7 Bur.L.T. 37 : 83 L.J.P.C. 152 (P.C.) and <CITATION> 23 Ind. Cas. 661 : 41 I.A. 149 : (1914) A.C. 644 : 83 L.J.P. 299 : 111 L.T. 324 : 30 T.L.R. 462 : 41 C. 1023 : 18 C.W.N. 785 : 26 M.L.J. 621 : 15 Cr.L.J. 309 : 1 L.W. 461 : 7 Bur.L.T. 167 : (1914) M.W.N. 506 : 16 M.L.T. 79 : 12 A.L.J. 1042 : 20 C.L.J. 161 : 16 Bom.L.R. 544 : 8 L.B.R. 16 (P.C.), where leave to appeal was refused. It is worthy of note that in the second case, there was a clear indication that even if <ORG> could sit as a <ORG> of criminal appeal, it was hardly doubtful that the appeal would fail. In the first case, Viscount <NAME> pointed out that it would be contrary to their constitutional duty, if the <ORG> were to assume the position and function of a <ORG> of Criminal Appeal, a <ORG> which could go into questions of evidence and procedure and could deal with the case on the same footing as an ordinary <ORG> of Appeal. In the same way, in <CITATION> 52 Ind. Cas. 209 : 46 I.A. 176 : 37 M.L.J. 139 : 17 A.L.J. 925 : 23 C.W.N. 986 : 21 Bom.L.R. 867 : (1919) M.W.N. 555 : 10 L.W. 451 : 20 Cr.L.J. 593 : 26 M.L.T. 408 : 1 U.P.L.R. (P.C.) 74 : (1919) 35 T.L.R. 500 : 43 M. 146 : 35 T.L.R 500 (P.C.), where important questions arose as to the scope and effect of the provisions of the Indian Press Act, 1910, the High <ORG> of' Madras refused to give a certificate. <ORG> granted special leave to appeal; the decision of the High <ORG> was however, ultimately affirmed on the merits and the appeal was dismissed.

6. In the second group of Indian cases, we have instances where, in the absence of a provision like that of clause 41 of the Letters Patent, application for special leave was made to <ORG>. It will be recalled in this connection that as pointed out in Reg. v. <NAME> 7 B.H.C.R. 77 Cr, <NAME> v. Emperor 21 Ind. Cas. 170 : 18 C.L.J. 119 : 14 Cr.L.J. 598, <NAME> v. Emperor 21 Ind. Cas. 912 : 18 C.L.J. 121 : 14 Cr.L.J. 672 and <CITATION> 82 Ind. Cas. 763 : 38 C.L.J. 406 : (1924) A.I.R. (C.) 338 : 25 Cr.L.J. 1371 where there is no provision like clause 41 applicable, <ORG> can grant leave to appeal to His Majesty in Council, and this was apparently overlooked by Wilson J., in <CITATION> 15 C. 608n : 7 Ind. Dec. (N.S.) 988n. In such cases, the remedy is by an application for special leave to His Majesty in Council. The earliest instance is "afforded by the case of Queen v. <NAME> 9 M.I.A. 168 at p. 172 : 1 W.R.P.C. 13 : 1 Ind. Jur. (o.s.) 61 : 1 Sar.P.C.J. 860 : 1 Moo P.C. (N.S.) 272 : 1 Suth. P.C.J. 481 : 19 E.R. 706. <ORG> came to the conclusion that justice had not been very well administered in the case and yet refused the application. Dr. <NAME> observed that the consequences of granting an appeal in cases of this description were so exceedingly strong, they were so entirely destructive of the administration of all criminal jurisprudence, that the <ORG> could not for a single moment doubt that they were of the greatest importance in guiding their Lordships to form a judgment. The application was thus refused, because, if it were granted, "not only would the course of justice be maimed, but in very many instances it would be entirely frustrated.' This standpoint was emphasised by Sir <NAME>, C.J., when he was invited to grant a certificate in the case of Reg. v. <NAME> 10 B.H.C.R. 75 at p. 92. The decision in In Re: Maharaja <NAME> 31 I.A. 239 : 32 C. 1 : 8 C.W.N. 84 : 8 Sar. P.C.J. 371 : 6 Bom. L.R. 763 : 1 A.L.J. 691 (P.C.) does not directly touch the question, because there the decision impeached was that of the Governor-General in Council which might be treated as a political act--an act of State--not a decision of a Court from which an appeal lay to His Majesty in Council. Similar observations apply to Ex parte Mgonini (1906) 21 Cox C.C. 154 : 94 L.T. 558 : 22 T.L.R. 413 where <ORG> declined to interfere with an act of the executive government of <ORG>, as later on in <NAME> v. Attorney-General of <ORG> (1907) A.C. 93 : 76 L.J.P.C. 29 : 95 L.T. 853 : 23 T.L.R. 21. On Appeal (1907) A.C. 461 : 76 L.J.P.C. 105 : 23 T.L.R. 668. The decisions of what were undoubtedly Criminal Courts were sought to be challenged before <ORG>, by special leave, in <NAME> v. King-Emperor 8 C.W.N. 63 (S.N.), Muhammad Yusuf-ud-Din Queen-Empress 24 I.A. 137 : 25 C. 20 : 2 C.W.N. 1 : 6 P.R. 1897 Cr : 7 Sar.P.C.J. 239 : 13 Ind. Dec. (N.S.) 14 ( <CITATION> 9 Ind. Cas. 581 : 13 C.L.J. 129 : 13 Bom.L.R. 9 : 8 A.L.J. 147 : 9 M.L.T. 200 : 21 M.L.J. 374 : 12 Cr.L.J. 100 : (1911) 2 M.W.N. 159 ( <CITATION> 21 Ind. Cas. 369 : 40 I.A. 193 : 36 M. 501 : 18 C.L.J. 365 : 17 C.W.N. 1110 : 14 M.L.T. 263 : (1913) M.W.N. 806 : 15 Bom.L.R. 910 : 25 M.L.J. 518 : 11 A.L.J. 881 : 14 Cr.L.J. 577 ( <CITATION> 29 Ind. Cas. 334 : (1915) A.C. 629 : 42 I.A. 133 : 42 C. 739 : 21 C.L.J. 522 : 19 C.W.N. 674 : 17 M.L.T. 441 : 17 Bom.L.R. 487 : 2 L.W. 602 : 16 Cr.L.J. 494 : 59 P.W.R. 1915 <CITATION> 39 Ind. Cas. 311 : 44 I.A. 137 : 26 C.L.J. 13 : 16 A.L.J. 475 : 1 P.L.W. 661 : 19 Bom.L.R. 510 : 21 C.W.M. 818 : 6 L.W. 71 : 22 M.L.T. 31 : (1917) M.W.N. 522 : 18 cr.L.J. 471 : 86 L.J.P.C. 140 : 33 M.L.J. 555 : 44 C. 876 : 11 Bur.L.T. 54 : 13 N.L.R 100 : 25 Cox C.C. 705 : 116 L.T. 621 : 61 S.J. 351 : 33 T.L.R. 249 ( <CITATION> 56 Ind. Cas. 440 : 47 I.A. 128 : (1920) M.W.N. 326 : 2 U.P.L.R. (P.C.) 50 : 24 C.W.N. 650 : 18 A.L.J. 455 : 22 Bom.L.R 609 : 39 M.L.J. 1 : 12 L.W. 296 : 1 L. 326 : 21 Cr.L.J. 456 : 5 P.W.R. 1920 <CITATION> 59 Ind. Cas. 641 : 48 I.A. 96 : 33 C.L.J. 124 : 19 A.L.J. 65 : 40 M.L.J. 101 : 13 L.W. 253 : (1921) M.W.N. 49 : 29 M.L.T. 142 : 22 Cr.L.J. 129 : 2 L. 34 : 25 C.W.N. 701 : 23 Bom.L.R. 709 : 10 P.W.R. 1921 <CITATION> 59 Ind. Cas. 926 : 33 C.L.J. 222 : 25 C.W.N. 514 : 19 A.L.J. 164 : 40 M.L.J. 194 : 13 L.W. 223 : (1921) M.W.N. 26 : 22 Cr.L.J. 174 : 3 U.P.L.R. (P.C.) 10 : 44 M. 297 : 23 Bom. 1 R. 705 : 30 M.L.T. 192 ( <CITATION> 69 Ind. Cas. 631 : 26 C.W.N. 57 : 14 L.W. 558 : 30 M.L.T. 180 : (1922) A.I.R. (P.C.) 162 : 1 P.L.R. 31 : 23 Cr.L.J. 743 (P.C.). <CITATION> 24 I.A. 137 : 25 C. 20 : 2 C.W.N. 1 : 6 P.R. 1897 Cr : 7 Sar.P.C.J. 239 : 13 Ind. Dec. (N.S.) 14 (P.C.), the appeal was allowed on the ground that the Magistrate who had taken cognizance of the alleged offence and had issued a warrant against a subject of the <ORG>, had acted without jurisdiction. <CITATION> 21 Ind. Cas. 369 : 40 I.A. 193 : 36 M. 501 : 18 C.L.J. 365 : 17 C.W.N. 1110 : 14 M.L.T. 263 : (1913) M.W.N. 806 : 15 Bom.L.R. 910 : 25 M.L.J. 518 : 11 A.L.J. 881 : 14 Cr.L.J. 577 (P.C.) which was an appeal by special leave in a murder case, the appeal was allowed and the conviction was set aside. <ORG> came to the conclusion that there was no evidence which could support a conviction for murder or abetment of murder. <CITATION> 59 Ind. Cas. 926 : 33 C.L.J. 222 : 25 C.W.N. 514 : 19 A.L.J. 164 : 40 M.L.J. 194 : 13 L.W. 223 : (1921) M.W.N. 26 : 22 Cr.L.J. 174 : 3 U.P.L.R. (P.C.) 10 : 44 M. 297 : 23 Bom. 1 R. 705 : 30 M.L.T. 192 (P.C.), the sentence of transportation for fourteen years was held to be illegal, and the case was remitted to <ORG> with instructions to pass a sentence according to law. In <NAME> v. Emperor 39 Ind. Cas. 311 : 44 I.A. 137 : 26 C.L.J. 13 : 16 A.L.J. 475 : 1 P.L.W. 661 : 19 Bom.L.R. 510 : 21 C.W.M. 818 : 6 L.W. 71 : 22 M.L.T. 31 : (1917) M.W.N. 522 : 18 Cr.L.J. 471 : 86 L.J.P.C. 140 : 33 M.L.J. 555 : 44 C. 876 : 11 Bur.L.T. 54 : 13 N.L.R 100 : 25 Cox C.C. 705 : 116 L.T. 621 : 61 S.J. 351 : 33 T.L.R. 249 ( <CITATION> 56 Ind. Cas. 440 : 47 I.A. 128 : (1920) M.W.N. 326 : 2 U.P.L.R. (P.C.) 50 : 24 C.W.N. 650 : 18 A.L.J. 455 : 22 Bom.L.R 609 : 39 M.L.J. 1 : 12 L.W. 296 : 1 L. 326 : 21 Cr.L.J. 456 : 5 P.W.R. 1920 <CITATION> 59 Ind. Cas. 641 : 48 I.A. 96 : 33 C.L.J. 124 : 19 A.L.J. 65 : 40 M.L.J. 101 : 13 L.W. 253 : (1921) M.W.N. 49 : 29 M.L.T. 142 : 22 Cr.L.J. 129 : 2 L. 34 : 25 C.W.N. 701 : 23 Bom.L.R. 709 : 10 P.W.R. 1921 Cr. (P.C.) and <CITATION> 69 Ind. Cas. 631 : 26 C.W.N. 57 : 14 L.W. 558 : 30 M.L.T. 180 : (1922) A.I.R. (P.C.) 162 : 1 P.L.R. 31 : 23 Cr.L.J. 743 (P.C.) special leave was granted, but the appeal in each instance ultimately failed on the merits. On the other hand in <NAME> v. King-Emperor 8 C.W.N. 63 ( <CITATION> 9 Ind. Cas. 581 : 13 C.L.J. 129 : 13 Bom.L.R. 9 : 8 A.L.J. 147 : 9 M.L.T. 200 : 21 M.L.J. 374 : 12 Cr.L.J. 100 : (1911) 2 M.W.N. 159 (P.C.) and Balmuicand v. Emperor 29 Ind. Cas. 334 : (1915) A.C. 629 : 42 I.A. 133 : 42 C. 739 : 21 C.L.J. 522 : 19 C.W.N. 674 : 17 M.L.T. 441 : 17 Bom.L.R. 487 : 2 L.W. 602 : 16 Cr.L.J. 494 : 59 P.W.R. 1915 Cr.(P.C.) the application for special leave to appeal was dismissed.

7. In the series of cases which came before <ORG> from <ORG>, the earliest is the decision in <ORG> v. Reg. (1863) 1 Moo. P.C. (N.S.) 299 : 9 Cox C.C. 351 : 10 Jur. (N.S.) 807 : 9 L.T. 103 : 12 W.R. 220 : 15 E.R. 713 : 138 R.R. 535 where Lord <NAME> quoted with approval the observations of Dr. <NAME> in <NAME> v. <NAME> 9 M.I.A. 168 at p. 172 : 1 W.R.P.C. 13 : 1 Ind. Jur. (o.s.) 61 : 1 Sar.P.C.J. 860 : 1 Moo P.C. (N.S.) 272 : 1 Suth.P.C.J. 481 : 19 E.R. 706. This set the tradition, as it were, and it came to be recognised that though it was the settled prerogative of the <ORG> to receive appeals in all Colonial cases : [In re Natal Bishop] (1864) 3 Moo.P.C. (N.S.) 115 at p. 156 : 11 Jur. (N.S.) 353 : 12 L.T. 188 : 13 W.R. 5 49 : 16 E.R. 43 : 146 R.R. 18 the inconvenience of entertaining such appeals in cases of a strictly criminal character was so great, the obstruction that it would offer to the administration of justice in the Colonies was so obvious, that it was 4 only on rare occasions, in exceptional circumstances, that applications of that description should be encouraged or entertained by <ORG>. This doctrine will be found to permeate the stream of later decisions. Amongst these may be mentioned <NAME> v. <NAME> (1867) 1 P.C. 536 : 36 L.J.P.C. 62 : 16 W.R. 159 : 4 Moo. (N.S.) 483 : 16 E.R. 400, <NAME> (1866) 1 P.C. 260 : 17 W.R. 352 : 4 Moo (N.S.) 110 : 16 E.R. 258, Reg: v. <NAME> (1867) 1 P.C. 520 : 4 Moo.P.C. (N.S.) 460 16 E.R. 391 : 36 L.J.P.C. 51 : 16 L.T. 762 : 16 W.R. 9 : 10 Cox C.C. 618, Reg. v. <NAME> (1868) 2 P.C. 35 : 5 Moo. P.C. (N.S.) 47 : 16 E.R. 432, R. v. <NAME> (1869) 2 P.C. 535 : 6 Moo. P.C. (N.S.) 177 38 L.J.P.C. 53 : 21 L.T. 598 17 W.R. 1047 : 11 Cox. C.C. 372 : 16 E.R. 693, Reg. v. <NAME> (1873) 4 P.C. 599 : 9 Moo. P.C. (N.S.) 463 : 42 L.J.P.C. 45 : 29 L.T. 111 : 21 W.R. 553 : 12 Cox. C.C. 557 : 17 E.R. 587, <NAME> v. Attorney-General for Jersey (1883) 8 A.C. 304 : 52 L.J.P.C. 26 : 48 L.T. 321, <NAME> v. Reg. (1885) 10 A.C. 675 : 55 L.J.P.C. 28 : 54 L.T. 339 : 16 Cox C.C. 48, In Re: Billet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241, <NAME> v. Zululand Attorney-General (1889) 61 L.T. 740 : 16 Cox C.C. 735, Macleod v. Attorney-General for New South Wales (1891) A.C. 455 : 60 L.J.P.C. 55 : 65 L.T. 321 : 17 Cox C.C. 341, Ex parte Deeming (1892) A.C. 422, <NAME> v. Attorney-General for New South Wales (1894) A.C. 57 : 63 L.T.P.C. 41 : 6 R. 373 : 69 L.T. 778 : 17 Cox C.C. 704 : 58 J.P. 148, Kops v. <NAME> (1894) A.C. 650 : 6 R. 522 : 70 L.T. 890 : 58 J.P. 668, Sprigg v. <NAME> (1897) A.C. 238 : 66 L.J.P.C. 44 : 76 L.T. 127, Ex parte Carew (1897) A.C. 719 : 18 Cox C.C. 625, <NAME> v. Attorney-General for <NAME> (1898) A.C. 234 : 67 L.J.P.C. 7 : 77 L.T. 414 : 18 Cox. C.C. 658, Reg. v. <NAME> (1902) A.C. 51 : 71 L.J.P.C. 32 : 85 L.T. 363, Ex parte Aldread (1902) A.C. 81 : 20 Cox C.C. 149 : 71 L.J.P.C. 27 : 86 L.T. 163, Nelson v. Reg. (1902) A.C. 250 : 71 L.J.P.C. 55 : 86 L.T. 164, Rex v. <NAME> (1904) A.C. 412 : 73 L.J.P.C. 65 : 91 L.T. 210 : 20 T.L.R. 572, <NAME> v. Attorney-General <NAME> (1907) 97 L.T. 621 : 21 Cox C.C. 539, <NAME> v. Attorney-General for Natal (1903) A.C. 248 : 77 L.J.P.C. 110 : 98 L.T. 601, Armstrong v. Reg. (1913) 30 T.L.R. 213, <NAME> v. Reg. (1914) A.C. 221 : 24 Cox C.C. 53 : 83 L.J.P.C. 116 : 110 L.T. 326 : 30 T.L.R. 53 and <NAME> v. Regam (1914) A.C. 599 at p. 615 : 83 L.J.P.C. 185 : 111 L.T. 20 : 30 T.L.R. 383 : 24 Cox C.C. 174. It is not necessary to set out here a detailed analysis of all the observations of their Lordships in the cases mentioned; their essence will be found concisely stated by Lord <NAME> in In re, Dillet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241 which has been repeatedly followed:

The rule has been repeatedly laid down, and has been invariably followed, that Her Majesty will not review or interfere with the course of criminal proceedings, unless it is shown that, by a disregard of the forms of legal process, or by some violation of the principles of natural justice, or otherwise, substantial and grave injustice has been done.

8. This principle was successfully invoked on behalf of the <ORG> in the cases of Reg. v. <NAME> (1867) 1 P.C. 520 : 4 Moo.P.C. (N.S.) 460 16 E.R. 391 : 36 L.J.P.C. 51 : 16 L.T. 762 : 16 W.R. 9 : 10 Cox C.C. 618, R. v. <NAME> (1869) 2 P.C. 535 : 6 Moo. P.C. (N.S.) 177 38 L.J.P.C. 53 : 21 L.T. 598 17 W.R. 1047 : 11 Cox. C.C. 372 : 16 E.R. 693 and Reg. v. <NAME> (1873) 4 P.C. 599 : 9 Moo. P.C. (N.S.) 463 : 42 L.J.P.C. 45 : 29 L.T. 111 : 21 W.R. 553 : 12 Cox.C.C. 557 : 17 E.R. 587 where <ORG> had, in each instance, set aside a conviction and granted a new trial in excess of its jurisdiction. There was no occasion to apply the doctrine in <NAME> v. <NAME> (1867) 1 P.C. 536 : 36 L.J.P.C. 62 : 16 W.R. 159 : 4 Moo. (N.S.) 483 : 16 E.R. 400 as the prisoner obtained a free pardon and was discharged from prison before his appeal could be heard; <ORG> held that as the prisoner had obtained the substantial benefit of a free pardon they would not enter upon the merits of the case or pronounce an opinion upon the legal objections to the conviction. But the principle was successfully invoked- on behalf of the accused in the cases of <ORG> v. Reg. (1863) 1 Moo.P.C. (N.S.) 299 : 9 Cox C.C. 351 : 10 Jur. (N.S.) 807 : 9 L.T. 103 : 12 W.R. 220 : 15 E.R. 713 : 138 R.R. 535, <NAME> (1866) 1 P.C. 260 : 17 W.R. 352 : 4 Moo (N.S.) 110 : 16 E.R. 258, In Re: Dillet (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241 Macleod v. Attorney-General for New South Wales (1891) A.C. 455 : 60 L.J.P.C. 55 : 65 L.T. 321 : 17 Cox C.C. 341 and Nelson v. Reg. (1902) A.C. 250 : 71 L.J.P.C. 55 : 86 L.T. 164. A noteworthy instance of successful appeal will be found in Lanier v. Reg. (1914) A.C. 221 : 24 Cox C.C. 53 : 83 L.J.P.C. 116 : 110 L.T. 326 : 30 T.L.R. 53 where the conviction was for embezzlement, and this may be taken along with <CITATION> . 21 Ind. Cas. 369 : 40 I.A. 193 : 36 M. 501 : 18 C.L.J. 365 : 17 C.W.N. 1110 : 14 M.L.T. 263 : (1913) M.W.N. 806 : 15 Bom.L.R. 910 : 25 M.L.J. 518 : 11 A.L.J. 881 : 14 Cr.L.J. 577 (P.C.) which was, as we have seen, a successful appeal against conviction for murder and sentence of death. In this connection, the following passage from the judgment of Lord <NAME> in <NAME> v. Re-gam (1914) A.C. 599 at p. 615 : 83 L.J.P.C. 185 : 111 L.T. 20 : 30 T.L.R. 383 : 24 Cox C.C. 174 may be usefully re-called:

Having regard to the particular position in which their Lordships stand to criminal proceedings, they do not propose to intimate what they think the rule of English Law ought to be, much as it is to be desired that the point should be settled by authority so far as a general rule can be laid down where circumstances must so greatly vary. That must be left to a <ORG> which exercises, as their Lordships do not, the revising functions of a general <ORG> of Criminal Appeal: <NAME> v. King-Emperor 22 Ind. Cas. 496 : 40 I.A. 241 : 41 C. 568 : 19 C.L.J. 107 : (1914) M.W.N. 11 : 16 Bom.L.R. 1 : 12 A.L.J. 75 : 15 M.L.T. 84 : 18 C.W.N. 374 : 15 Cr.L.J. 144 : 7 Bur.L.T. 37 : 83 L.J.P.C. 152 (P.C.). Their Lordships' practice has been repeatedly defined. Leave to appeal is not granted except where some clear departure from the requirements of justice' exists: Riel v. Reg. (1885) 10 A.C. 675 : 55 L.J.P.C. 28 : 54 L.T. 339 : 16 Cox C.C. 48; nor unless by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done: In Re: <NAME> (1887) 12 A.C. 459 : 56 L.T. 615 : 36 W.R. 81 : 16 Cox C.C. 241. It is true that these are cases of applications for special leave to appeal, but the <ORG> has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing-Riel v. Reg. (1885) 10 A.C. 675 : 55 L.J.P.C. 28 : 54 L.T. 339 : 16 Cox C.C. 48 and Ex parte Deeming (1892) A.C. 422. The <ORG> cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; and, conversely, it cannot allow an appeal on grounds that would not have sufficed for the grant of permission to bring it. Misdirection, as such, even irregularity as such, will not suffice: In the matter of MacCrea 20 I.A. 90 : (1893) A.C. 346 : 17 Cox C.C. 702 : 15 A. 310 : 6 Sar.P.C.J. 344 : 17 Ind. Jur. 430 : 7 Ind. Dec. (N.S.) 915 (P.C.). There must be something which, in the particular case, deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future: Reg. v. <NAME> (1867) 1 P.C. 520 : 4 Moo.P.C. (N.S.) 460 16 E.R. 391 : 36 L.J.P.C. 51 : 16 L.T. 762 : 16 W.R. 9 : 10 Cox C.C. 618:

9. The same principle was emphasised by Viscount Haldane in Dal Singh v. King-Emperor 39 Ind. Cas. 311 : 44 I.A. 137 : 26 C.L.J. 13 : 16 A.L.J. 475 : 1 P.L.W. 661 : 19 Bom.L.R. 510 : 21 C.W.M. 818 : 6 L.W. 71 : 22 M.L.T. 31 : (1917) M.W.N. 522 : 18 Cr.L.J. 471 : 86 L.J.P.C. 140 : 33 M.L.J. 555 : 44 C. 876 : 11 Bur.L.T. 54 : 13 N.L.R 100 : 25 Cox C.C. 705 : 116 L.T. 621 : 61 S.J. 351 : 33 T.L.R. 249 (P.C.):

It is well settled that the unwritten principles of the Constitution of the Empire restrain <ORG> from being used in general as a <ORG> of review in criminal cases. But while the Sovereign in Council does not interfere merely on the question whether the <ORG> below has come to a proper conclusion as to guilt or innocence, such interference ought to take place where there has been a disregard of the pro-per forms of legal process, grievous and not merely technical in character, or a violation of principle in such a fashion as amounts to a denial of justice. Their Lordships have now heard full arguments in the case before them, and have examined the procedure and evidence with some minuteness. Before considering the result, it is right that they should state what they conceive to be, in a case such as that before them, the character of the limitation of their function. The Constitution of the Empire is tending to develop in the direction of regarding as final decisions given in the local administration of criminal justice. The general principle is established that the Sovereign in Council does not act, in the exercise of the prerogative right to review the course of justice in criminal cases, in the free fashion of a fully constituted <ORG> of Criminal Appeal. The exercise of the prerogative takes place only where it is shown that injustice of a serious and substantial character has Dccurred. A mere mistake on the part of the <ORG> below, as, for example, in the admission of improper evidence, will not suffice if it has not led to injustice of a grave character. Nor do <ORG> advise interference merely because they themselves would have taken a different view of evidence admitted. Such questions are, as a general rule, treated as being for the final decision of the <ORG>s below.

10. The principles thus enunciated must be deemed well-settled, though there may be considerable room for refinement of argument and divergence of opinion in their application. This is amply indicated by the fact that cases are by no means rare where leave to appeal has been granted after full examination, and yet the appeal has not ultimately been sustained; two such instances are furnished by <NAME> v. <NAME> (1914) A.C. 599 at p. 615 : 83 L.J.P.C. 185 : 111 L.T. 20 : 30 T.L.R. 383 : 24 Cox C.C. 174 and <CITATION> 52 Ind. Cas. 209 : 46 I.A. 176 : 37 M.L.J. 139 : 17 A.L.J. 925 : 23 C.W.N. 986 : 21 Bom.L.R. 867 : (1919) M.W.N. 555 : 10 L.W. 451 : 20 Cr.L.J. 593 : 26 M.L.T. 408 : 1 U.P.L.R. (P.C.) 74 : (1919) 35 T.L.R. 500 : 43 M. 146 : 35 T.L.R 500 (P.C.). Here it may be recalled that as stated by Lord Watson in Robinson v. Canadian Pacific Ry. Co. (1892) A.C. 481 at p. 485 : 61 L.J.P.C. 79 : 67 L.T. 505 their Lordships of the Judicial Committee, when called upon to grant special leave to appeal in civil cases, do take into consideration the general importance of the question raised and the fact that it has evoked great difference of judicial opinion.

11. In the case before us, the legality of the conviction rests upon the correct construction of Section 34 of the Indian Penal Code. The judgments delivered by <ORG> establish that there has been a deep-seated divergence of judicial opinion in <ORG> in India as to the true interpretation of that section. The question not only goes to the root of the matter in the present case, but is of great and general importance and of frequent occurrence in the administration of Criminal Law wherever the Indian Penal Code is in operation. It is not the function of this Bench to pronounce an opinion upon the question of the construction of Section 34 : we cannot arrogate to ourselves the authority which belongs to their Lordships of <ORG> under clause 41 of the Letters Patent. But this is plain that if Section 34 has not been correctly interpreted by <ORG>, substantial and grave injustice has been done to the prisoner. In the view we thus take, we shall not express an opinion, whether there may not be other questions also in the appeal, such as the question of the true construction of clause 26 of the Letters Patent, which by themselves being the case within the limited category of criminal proceedings reviewable, according to established practice, by their Lordships of <ORG>. On anxious consideration of the character of the questions involved in this case and full recognition of the principles which regulate the functions of <ORG> in respect of criminal proceedings, we have come to the conclusion that we should declare that this case is a fit one for appeal to His Majesty in-Council under clause 41 of "the Letters Patent. We direct accordingly that a certificate be granted to this effect.

12. We further direct that as a certificate under clause 41 has been ordered, the execution of the sentence under appeal be stayed, subject to such orders as may be passed by their Lordships of <ORG>. We are not unmindful of the observations of their Lordships in <CITATION> 29 Ind. Cas. 334 : (1915) A.C. 629 : 42 I.A. 133 : 42 C. 739 : 21 C.L.J. 522 : 19 C.W.N. 674 : 17 M.L.T. 441 : 17 Bom.L.R. 487 : 2 L.W. 602 : 16 Cr.L.J. 494 : 59 P.W.R. 1915 Cr.(P.C.) made under different circumstances. In that case, an application for special leave to appeal from conviction and sentences of death, was made to <ORG>. The application was made a few days before the date fixed for the carrying out of the sentences. Counsel for the petitioners stated that they were not in a position to proceed with the petition for leave to appeal as the transcripts of the judgment of <ORG> and of the evidence had not reached them, and they asked the <ORG> to make an order or a recommendation to <ORG> for the postponement of the execution of the sentences pending the hearing of the petition. Viscount <NAME> intimated that their Lordships were unable to advise <NAME> to make any order on the petition for special leave to appeal at that stage or to interfere to stay execution. The attention of their Lordships was not drawn to the fact that in In the matter of <NAME> (1844) 3 Moo.P.C. 409 : 13 E.R. 166, when special leave to appeal was granted by <ORG> on the 7th July, 1838, the sentence against the petitioners was suspended; this is not affected by the fact that the leave granted ex parte was subsequently revoked. Be that as it may, the petitioners in <CITATION> 29 Ind. Cas. 334 : (1915) A.C. 629 : 42 I.A. 133 : 42 C. 739 : 21 C.L.J. 522 : 19 C.W.N. 674 : 17 M.L.T. 441 : 17 Bom.L.R. 487 : 2 L.W. 602 : 16 Cr.L.J. 494 : 59 P.W.R. 1915 Cr.(P.C.) were left to notify <ORG> that an application for special leave was pending before, <ORG>; this they did, and they were in fact reprived, pending the hearing of the petition, which was ultimately dismissed as no ground of appeal was shown to bring the matter within the limited - class of cases where <ORG> intervenes in criminal proceedings. In the case before us, a certificate has been directed under clause 41, and there is consequently an appeal pending from the sentence. Clause 42 ordains that this <ORG> shall, in all cases of appeal to <NAME> in Council, conform to and execute such judgments and orders as <NAME> in Council might think fit to make in the premises; and this has to be read along with Section 21 of <ORG> Act, 1833 (Stat. 3 & 4 Will. 4. c. 41) which renders it obligatory on every <ORG> of Justice to carry into effect the order or decree of his Majesty in-Council on any appeal from its order, sentence, or decree. In such circumstances, it is essential in this case that the sentence passed by this <ORG> should be suspended in order that the appeal to <NAME> in Council may not be frustrated. There is more than one instance where the <ORG> which had passed the sentence stayed execution thereof pending decision of the questions in controversy by their Lordships of <ORG>; see <NAME> v. <NAME> 7 M.I.A. 72 : 4 W.R. 109 : Boul. 189 : 1 Suth. P.C.J. 283 : 1 Sar.P.C.J. 598 : 19 E.R. 237 (P.C) decided by the Supreme <ORG> of Calcutta. In Re: <NAME> (1855) 10 Moor, P.C. 31 : 14 E.R. 400 decided by the Supreme <ORG> of Jamaica and <NAME> v. <NAME> (1914) A.C. 599 at p. 615 : 83 L.J.P.C. 185 : 111 L.T. 20 : 30 T.L.R. 383 : 24 Cox C.C. 174 decided by the Supreme <ORG> of Hongkong. Reference may in this connection be made to the decision in <NAME> v: <NAME> 18 Ind. Cas. 207 : 40 C. 955 : 16 C.L.J. 508 where this <ORG>, in exercise of its inherent power to stay proceedings pursuant to its own order, stayed proceedings in a civil matter in view of an application to <ORG> for special leave to appeal to <NAME> in Council. We may add that the applicability of the doctrine of inherent power to criminal cases was expressly recognised by a Special Bench of this <ORG> in <NAME> v. <NAME> 60 Ind. Cas. 325 : 48 C. 522 at pp. 531, 532 : 32 C.L.J. 270.

13. The prisoner will not be required to furnish security for the costs of the appeal. As Viscount <NAME> observed in <CITATION> 39 Ind. Cas. 311 : 44 I.A. 137 : 26 C.L.J. 13 : 16 A.L.J. 475 : 1 P.L.W. 661 : 19 Bom.L.R. 510 : 21 C.W.M. 818 : 6 L.W. 71 : 22 M.L.T. 31 : (1917) M.W.N. 522 : 18 Cr.L.J. 471 : 86 L.J.P.C. 140 : 33 M.L.J. 555 : 44 C. 876 : 11 Bur.L.T. 54 : 13 N.L.R 100 : 25 Cox C.C. 705 : 116 L.T. 621 : 61 S.J. 351 : 33 T.L.R. 249 (P.C.), where the appeal by special leave was ultimately dismissed, " there will, as hitherto has been usual in, such cases, be no order as to costs." The order for costs made in the case of <CITATION> 52 Ind. Cas. 209 : 46 I.A. 176 : 37 M.L.J. 139 : 17 A.L.J. 925 : 23 C.W.N. 986 : 21 Bom.L.R. 867 : (1919) M.W.N. 555 : 10 L.W. 451 : 20 Cr.L.J. 593 : 26 M.L.T. 408 : 1 U.P.L.R. (P.C.) 74 : (1919) 35 T.L.R. 500 : 43 M. 146 : 35 T.L.R 500 (P.C.) must consequently be deemed an exception to the ordinary rule, justifiable only in the special circumstances of that case. We observe that in <CITATION> 21 Ind. Cas. 369 : 40 I.A. 193 : 36 M. 501 : 18 C.L.J. 365 : 17 C.W.N. 1110 : 14 M.L.T. 263 : (1913) M.W.N. 806 : 15 Bom.L.R. 910 : 25 M.L.J. 518 : 11 A.L.J. 881 : 14 Cr.L.J. 577 (P.C.), Sir <NAME>, on behalf of the prisoner whose appeal had succeeded, asked for costs against the <ORG>; but Lord <NAME>, referring to Johnson v. Reg. (1904) A.C. 817 at. p. 824 : 73 L.J.P.C. 113 : 91 L.T. 234 : 53 W.R. 207 : 20 T.L.R. 697 stated that their Lordships were of opinion that the application should not be granted. This accords with <NAME> v. Reg. (1835) 3 Knapp 348 : 12 E.R. 684 and <NAME> v. Reg. (1902) A.C. 250 : 71 L.J.P.C. 55 : 86 L.T. 164. But in Lanier V. Reg. (1914) A.C. 221 : 24 Cox C.C. 53 : 83 L.J.P.C. 116 : 110 L.T. 326 : 30 T.L.R. 53, which was heard shortly afterwards before the <ORG> differently constitued, their Lordships, looking to the exceptional nature of the case, held that the <ORG> should pay to the appellant the costs of the appeal. A precedent for this course may be found in <NAME> v. Attorney-General for New South Walse (1891) A.C. 455 : 60 L.J.P.C. 55 : 65 L.T. 321 : 17 Cox C.C. 341, We cannot and do not express an opinion as to the costs of the present appeal before <ORG>; we merely hold that in view of the observation of Viscount <NAME> in <CITATION> 39 Ind. Cas. 311 : 44 I.A. 137 : 26 C.L.J. 13 : 16 A.L.J. 475 : 1 P.L.W. 661 : 19 Bom.L.R. 510 : 21 C.W.M. 818 : 6 L.W. 71 : 22 M.L.T. 31 : (1917) M.W.N. 522 : 18 Cr.L.J. 471 : 86 L.J.P.C. 140 : 33 M.L.J. 555 : 44 C. 876 : 11 Bur.L.T. 54 : 13 N.L.R 100 : 25 Cox C.C. 705 : 116 L.T. 621 : 61 S.J. 351 : 33 T.L.R. 249 (P.C.) as to the. usual practice in this class of cases, the prisoner be not required to furnish security for the costs of the <ORG>.

14. We finally direct, under clause 42, that a complete copy of the record (to be printed in the usual manner) be transmitted for the use of their Lordships of <ORG>. This will be prepared, as is done in capital cases, at the cost of the <ORG> and will include

(i) the record of the proceedings be-fore the Committing Magistrate;

(ii) the record of the proceedings at the <NAME>. An accurate copy must be obtained of the notes of the Trial Judge;

(iii) the record of the proceedings under clause 26 of the Letters Patent.

(iv) the record of the present proceedings under clause 41 of the Letters Patent.

15. We further direct that the memorandum furnished by Mr. Justice <NAME> to the members of <ORG> from which an extract was read out in open (<ORG>) be printed in its entirety as a confidential document and be transmitted in a sealed cover, to be placed before their Lordships for such use as their Lordships may determine. We consider it essential that all the materials available to this <ORG> should be placed at the disposal of their Lordships.

16. Let six copies of the Paper Book when printed be furnished free of charge to the prisoner.