Shaukat Ali Khan Vs. the State of Punjab - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....order(1) this petition has arisen from my order dated the 1st may, 1958, in criminal revision no. 835 of 1957.(2) to appreciate the points agitated, it is necessary to set out the relevant facts. a first information report under section 408, indian penal code, was lodged at the instance of fida ahmed, private secretary to the nawab iftikhar ali khan of malerkotla, alleging commission of criminal breach of trust by the accused (shaukat ali khan) who was at one time in the service of the nawab. during the proceedings in the trial court (magistrate 1st class malerkotla) the prosecution wanted to examine nawab iftikhar ali khan as a witness and, it appears, at the instance of the counsel of the state a letter of request was issued to the nawab for appearing in court on or about 3rd october,.....

Judgment:
ORDER

(1) This petition has arisen from my order dated the 1st May, 1958, in Criminal Revision No. 835 of 1957.

(2) To appreciate the points agitated, it is necessary to set out the relevant facts. A first information report under section 408, Indian Penal Code, was lodged at the instance of Fida Ahmed, Private Secretary to the Nawab Iftikhar Ali Khan of Malerkotla, alleging commission of criminal breach of trust by the accused (Shaukat Ali Khan) who was at one time in the service of the Nawab. During the proceedings in the trial Court (Magistrate 1st Class Malerkotla) the prosecution wanted to examine Nawab Iftikhar Ali Khan as a witness and, it appears, at the instance of the counsel of the State a letter of request was issued to the Nawab for appearing in Court on or about 3rd October, 1956. An application was moved on behalf of the Nawab representing that he was immune from the ordinary process of the Court, exemption from appearance in Court accordingly was sought and it was prayed that he should be examined on commission.

The prayer was allowed and the Nawab was on 8th October, 1956, ordered to be examined on the commission. The said order directing examination on commission was attacked by the accused in revision before Session Judge, Barnala. The learned Sessions Judge, while affirming the order of the trail Magistrate, dismissed the revision. From the order of the learned Sessions Judge, the accused came up to the High Court in Criminal Revision No. 835 of 1957. Nawab Iftikhar Ali Khan was not impleaded as a party either before the learned Sessions Judge or in the High Court. On the grounds that no immunity attached to the Nawab, which was conceded by the counsel for the State and that provisions of section 503 of the Code of Criminal Procedure did not protect him, the revision was allowed and the order of the learned Magistrate was set aside. In the result, the Nawab was directed to appear in Court for giving evidence as a prosecution witness.

(3) The learned appearing for the applicant Nawab Iftikhar Ali Khan in the present proceedings raised two-fold contentions, namely, that the order of this Court dated the 1st May, 1958, in Criminal Revision No. 835 of 1957 was an ex parte order as respects the Nawab, for he was never before this Court, nor had he been made a party to the proceedings; and since the order affected his privileges vitally and was prejudicial to his rights and interests, the order be recalled, re-opened and the applicant be heard on merits. It was otherwise urged that complete immunity attached to the Nawab, in view of the convenient executed at the time Malerkotla integrated into Patiala and East Punjab States Union, and the learned counsel for the State appearing in Criminal Revision No. 835 of 1957 had not properly defended the interest of the Nawab, having erroneously conceded the point. Apart from the question of immunity, it was contended that provisions of section 503 of the Code of Criminal Procedure also afforded protection.

(4) At some earlier stages of the hearing, the learned counsel appearing for the State suggested that the order dated the 1st May, 1958, being a judgment in a criminal matter could not be reviewed, but the Advocate-General, who on the directions of the Court in view of the importance of the matter had appeared, conceded that the questioned order is not a judgment and the same could be recalled without involving any considerations relating to review of a judgment in criminal cases.

(5) The question that remains to be determined thus is whether any immunity attached to the Nawab as respects the matter in question, and that apart, whether provisions of section 503 of the Code of Criminal Procedure independently extended protection necessitating issuance of a commission.

(6) The learned counsel for the applicant urged that the immunity had been guaranteed by the Constitution of India. Submission was that at the time of the integration of the Patiala and East Punjab States Union, the Rulers of the integrating States, the Nawab of Malerkotla being one of them, had entered into a covenant with the Union of India by which their integrity and privileges since enjoyed including immunity from the ordinary process of Courts of law had been safeguarded. Reference was invited to the contents of Article 13 of the Covenant and para 240 of the White Paper and para 21 of memorandum of personal privileges of the Rulers of the integrated States. Article 13 of the White Paper reads:

'13. The Ruler of each covenanting State, as also members of his family, shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territories of the State, immediately before the 15th day of August, 1947.'

Para 240 referred to above was worded:

'240. Guarantees regarding rights and privileges--Guarantees have been given to the Rulers under the various Agreements and Covenants for the continuance of their rights, dignities and privileges. The rights enjoyed by the Rulers vary from State to State and are exercisable both with in and without the states. They cover a variety of matters ranging from the use of red plates on cars to immunity from Civil and Criminal Jurisdiction and exemption from customs duties etc. Even in the past it was neither considered desirable nor practicable to draw up an exhaustive list of all these rights. During the negotiations following the introduction of the scheme embodied in the Government of India Act, 1935, the Crown Department had taken the position that no more could be done in respect of the rights and privileges enjoyed by the Rulers than a general assurances of the intention of the Government of India to continue them. Obviously it would have been a source of perpetual regret if all these mattes had been treated as justifiable. Article 363 has, therefore, been embodied in the Constitution which excludes specifically the Agreements of Merger and the Covenants from the jurisdiction of courts except in cases which may be referred to the Supreme Court by the President. At the same time the Government of India considered it necessary that constitutional recognition should be given to the guarantees and assurances which the Government of India have given in respect of the rights and privileges of Rulers. This is contained in article 362, which provides that in the exercise of their legislative and executive authority, the legislative and executive organs of the Union and States will have due regard to the guarantees given to the Rulers with respect to their personal rights, privileges and dignities.'

Clause 21 of the memorandum of personal privileges of the aforesaid rulers is in the following terms:--

'(21) Immunity from the process of courts of law--It would be for the courts to decide whether a Ruler is immune from Civil and Criminal Process and if so to what extent and under what circumstances. The Government of India have no doubt that such immunity as the Rulers enjoyed before the 15th of August, 1947 in British Indian Courts would be regarded as a personal privilege of the Rulers and in view of the express provision in the merger Agreements and Covenants, it will continue to be granted to them by all courts in India. The Government of India do not consider that any statutory provision is necessary.'

(7) Attention was also called to the provision of Article 362 of the Constitution which says:

'362. In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.'

(8) These provisions unmistakenly show that the signatory Rulers to the covenant in their own territories enjoyed sovereign power before integration and could not, in view of the provisions set out, be subjected to the ordinary process of the municipal courts. Article 362 of the Constitution of India clearly furthered the protection guaranteed under covenant or agreement as respects the personal rights, privileges of the Rulers of the integrated States.

(9) Article 363 of the Constitution was still a step one further in the scheme envisaging protection of all those rights and privileges, for nothing arising from or relating to the covenants or agreements was made justiciable.

(10) Article 363(1) of the Constitution provides:

'363. (1) Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Government was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument.'

(11) It is indeed plain, and I have little doubt, that the sovereign power at the time of integration extend solemn assurances which later received constitutional recognition guaranteeing the personal privileges and rights including protection from ordinary process of Courts to the Rulers of the integrating States.

(12) For the opposite side the learned Advocate-General, while seeking support from decision in Parshotam Vijaya v. Dilip Singhji, AIR 1953 Madh B. 254, contended that the covenant was a mere agreement and not a statute and could not, therefore, be given effect to. For the view I have taken, and if I am right, the covenant does not stand alone, it has the backing of constitutional provisions as above observed.

(13) As regards the second alternative ground raised on behalf of the applicant, namely, that section 503 of the Code of Criminal Procedure also afforded protection, I am still of the opinion that the matter did not strictly fall within the purview of the provisions of the said section, the learned Magistrate's powers to issue commission to examine a witnesses are circumscribed and there is no discretion exercisable outside the said provisions. The instant matter did not answer to the requirements of the term 'inconvenience' either as already observed.

(14) For the conclusion that there was constitutional immunity as respects the applicant, I have no hesitation in recalling my order dated 1st May, 1958, in Criminal Revision No. 835 of 1957. I would order accordingly

(15) Criminal Miscellaneous No. 594 of 1958 must succeed. While allowing the same, I would hold that the applicant Nawab Malerkotla was entitled to immunity from appearance in Court and that the trial Magistrate was right in directing commission to record his statement.

(16) In the result, order dated the 1st May 1958, in Criminal Revision NO. 835 of 1957 is set aside and the order of the trial Court dated the 8th October, 1956, is resorted and affirmed.

(17) Application allowed.