Jethanand Betab Vs. The State of Delhi
 INSC 118 (15 September 1959)
IMAM, SYED JAFFER
CITATION: 1960 AIR 89 1960 SCR (1) 755
Repeal of Statute-Repealing and Amending Act,
object of- Enactment making Possession of wireless telegraphy apparatus without
licence punishable-Amending Act introducing new section making Possession of
wireless transmitter without licence liable to heavier Punishment-Repeal of
Amending Act- Whether amendment introduced by it survives-Indian Wireless
Telegraphy Act, 1933 (XVII of 1933), ss. 3, 6 and 6(1A)- Indian Wireless
Telegraphy (Amendment) Act, 1949 (XXXI of 1949), s. 5-Repealing and Amending
Act, 1952 (XLVIII of 1952), ss. 2 and 4--General Clauses Act, 1879 (X of 1879),
Section 3 of the Indian Wireless Telegraphy
Act, 1933 provided that no person shall possess wireless telegraphy apparatus
without a licence and s. 6 made such possession punishable. The Indian Wireless
Telegraphy (Amendment) Act, 1949, introduced s. 6(1A) in the 1933 Act, which
provided for a heavier sentence for possession of a wireless transmitter
without a licence. The Repealing and Amending Act, 1952, repealed the whole of
the Amendment Act of 1949, but by s. 4 provided that the repeal shall not
affect any other enactment in which the repealed enactment had been applied,
incorporated or referred to. The appellant was convicted under s. 6(1A) for
being, in possession of a wireless transmitter on July 31, 1953. He contended
6(1A) had been repealed and his conviction
and sentence there under could not be sustained.
Held, that s. 6(1A) was saved by s. 6A of the
General Clauses Act, 1897, though s. 4 of the Repealing and Amending Act, 1952,
did not save it.
756 The object of the Repealing and Amending
Act, 1952, was to strike out unnecessary Acts and to excise dead matter from
the statute book.
Khuda Bux v. Manager, Caledonian Press,
A.I.R. 1954 Cal. 484, referred to.
Section 4 of the Repealing and Amending Act,
1952, only saved other enactments in which the repealed enactment had been
applied, incorporated or referred to. It had no application to the case of a
later amending Act inserting a new provision in an earlier Act as it could not
be said that the earlier Act applied, incorporated or referred to the Amending
Secretary of State for India in Council v.
Hindusthan Co- operative Insurance Society, Ltd., L.R. 58 I.A. 259, followed.
Mohinder Singh v. Mst. Harbhajan Kaur, I.L.R.
625 and Darbara Singh v. Shrimati Karnail
Kaur, 61 P.L.R. 762, disapproved.
Section 6A of the General Clauses Act
provided that when any Central Act repealed any enactment by which the text of
any Central Act was amended then unless a different intention appeared the repeal
would not affect such amendment. The word " text " in s. 6A was
comprehensive enough to include the subject as well as the terminology used in
a statute, and the insertion of s. 6(1A) in the 1933 Act was an amendment in
the text. No different intention appeared either from the repealing Act or from
the history of the legislation and s. 6A applied to the repeal of the Amendment
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 185 of 1957.
Appeal by special leave from the judgment and
order dated the 6th December, 1955, of the Punjab High Court (Circuit Bench) at
Delhi, in Criminal Revision No. 122-D of 1955, arising out of the judgment and
order dated July 29, 1955, of the First Additional Sessions Judge, Delhi, in
Cr. A. No. 367/55.
Mohan Behari Lal and Eluri Udayarathnam, for
the appellant. N. S. Bindra and R. H. Dhebar, for the respondent.
1959. September 15. The Judgment of the Court
was delivered by SUBBA RAO J.-This appeal by special leave is directed against
the order of the High Court of Punjab (Circuit Bench), Delhi confirming the
conviction of the appellant and the sentence passed on him by the 757
Magistrate, First Class, Delhi, under s. 6(1-A) of the Indian Wireless
Telegraphy Act, 1933 (XVII of 1933) (hereinafter called " the Act ").
Jethanand, the appellant herein, was prosecuted, along with another, in the
Court of the Magistrate, First Class, Delhi, under s. 6(1-A) of the Act for
possessing a wireless transmitter in contravention of the provisions of s. 3 of
the Act, and was sentenced to six months rigorous imprisonment. On appeal, the
learned First Additional Sessions Judge, Delhi, upheld the conviction but
reduced the sentence to the period of imprisonment already undergone plus a
fine of Rs. 500. On revision, the High Court confirmed both the conviction and
the sentence. On an application filed for special leave, this Court gave the
same, but limited it to the question of sentence.
Learned Counsel raised before us the
following contentions: (1) s. 6(1-A) of the Act was repealed, and, therefore,
neither the conviction nor the sentence there under could be sustained; and (2)
if s. 6(1-A) of the Act was repealed, this Court in limiting the appeal to the
question of sentence only went wrong, for, if that section was not on the
statute book at the time of the alleged commission of the offence, not only the
sentence but also the conviction there under would be bad. Both the contentions
raised turn upon the same point. The different steps in the argument may be
stated thus: In the Act XVII of 1933, as it originally stood, there was no
specific provision making the possession of wireless transmitter an offence. By
the Indian Wireless Telegraphy (Amendment) Act, 1949 (XXXI of 1949)
(hereinafter called the " 1949 Act"), s. 6(1-A) was inserted in the
Act, where under the possession of a wireless transmitter was constituted a
The amending Act was repealed by the
Repealing and Amending Act, 1952 (XLVIII of 1952) (hereinafter called the
" 1952 Act "), with the result that on the date of the alleged
commission of the offence the said section was not on the statute book. If that
was the legal position, the limitation on the leave granted by this Court would
result in an 96 758 anomaly, namely, that the conviction would stand but the
sentence would be quashed. The argument so presented appears to be plausible,
but, in our view, not sound.
There is a real justification for this Court
limiting the scope of the special leave. The High Court by mistake cited in its
judgment the provisions of s. 6(1) of the Act instead of s. 6(1-A) thereof. If
the conviction was under s. 6(1), the maximum sentence permissible on the first
offence thereunder was only fine which may extend to Rs. 100.
Presumably on the assumption that the conviction
could be sustained under s. 6(1), even if s. 6(1 -A) was not on the statute
book-there may be justification for this view, as the words it wireless
telegraphy apparatus " in s. 6(1) are comprehensive enough to take in
" wireless telegraphy transmitter "-this Court gave leave limited to
the question of sentence. The inconsistency, if any, was the result of the
appellant's presentation of his case at that stage, and he cannot now be
allowed to take advantage of his default to enlarge the scope of the appeal.
That apart, there are no merits in the
contention. At the outset it would be convenient to read the relevant
provisions of the three Acts:
The Indian Wireless Telegraphy Act, 1933.
S. 3 : Save as provided by section 4, no
person shall possess wireless telegraphy apparatus except under and in
accordance with a licence issued under this Act.
S. 6(1): Whoever possesses any wireless
telegraphy apparatus in contravention of the provisions of section 3 shall be
punished in the case of the first offence, with fine which may extend to one
hundred rupees, and, in the case of a second or subsequent offence, with fine
which may extend to two hundred and fifty rupess.
The Indian Wireless Telegraphy (Amendment)
S. 5. Amendment of section 6, Act XVII of
1933. In section 6 of the said Act,- * * * 759 (ii) after sub-section (1), the
following sub-section shall be inserted, namely:- "(1A) whoever possesses
any wireless transmitter in contravention of the provisions of section 3 shall
be punished with imprisonment which may extend to three years, or with fine
which may extend to one thousand rupees, or with both." REPEALING AND
AMENDING ACT, 1952.
S. 2: The enactments specified in the First
Schedule are hereby repealed to the extent mentioned in the fourth column
thereof The First Schedule Year No. Short title Extent of repeal (1) (2) (3)
(4) 1949 XXXI The Indian Wireless Telegraphy The whole (Amendment) Act, 1949.
S. 4: The repeal by this Act of any enactment
shall not affect any other enactment in which the repealed enactment has been
applied, incorporated or referred to;
* * * The substance of the aforesaid
provisions may be stated thus: The Act of 1949 inserted s. 6 (1 -A) in the Act
of 1933. The 1949 Act was repealed by the 1952 Act, but the latter Act saved
the operation of other enactments in which the repealed enactment has been
applied, incorporated or referred to. The first question that arises for
consideration is whether the amendments inserted by the 1949 Act in the 1933
Act were saved by reason of s. 4 of the 1952 Act.
The general object of a repealing and
amending Act is stated in Halsbury's Laws of England, 2nd Edition, Vol. 31, at
p. 563, thus:
"A statute Law Revision Act does not
alter the law, but simply strikes out certain enactments which have become
unnecessary. It invariably contains elaborate provisos." In Khuda Bux v.
Manager, Caledonian Press Chakravartti, C.J., neatly brings out the purpose and
(1) A.I.R. 1954 Cal. 484.
760 scope of such Acts. The learned Chief
Justice says at p. 486:
" Such Acts have no Legislative effect,
but are designed for editorial revision, being intended only to excise dead
matter from the statute book and to reduce its volume. Mostly, they expurgate
amending Acts, because having imparted the amendments to the main Acts, those
Acts have served their purpose and have no further reason for their existence.
At times inconsistencies are also removed by repealing and 'amending Acts. The
only object of such Acts, which in England are called Statute Law Revision
Acts, is legislative spring-cleaning and they are not intended to make any
change in the law. Even so, they are guarded by saving clauses drawn with
elaborate care,. . .".
It is, therefore, clear that the main object
of the 1952 Act was only to strike out the unnecessary Acts and excise dead
matter from the statute book in order to lighten the burden of ever increasing
spate of legislation and to remove confusion from the public mind. The object
of the Repealing and Amending Act of 1952 was only to expurgate the amending
Act of 1949, along with similar Acts, which had served its purpose.
The next question is whether s. 4 of the Act
of 1952 saved the operation of the amendments that had been inserted in the Act
of 1933 by the repealed Act. The relevant part of s. 4 only saved other
enactments in which the repealed enactments have been applied, incorporated or
Can it be said that the amendments are
covered by the language of the crucial words in s. 4 of the Act of 1952,
namely, applied, incorporated or referred to". We think not. Section 4 of
the said Act is designed to provide for a different situation, namely, the
repeal of an earlier Act which has been applied, incorporated or referred to in
a later Act. Under hat section the repeal of the earlier Act does not affect
the subsequent Act. The said principle has been succinctly stated in Maxwell on
Interpretation of Statutes, 10th Edition, page 406:
Where the provisions of one statute are, by
reference, incorporated in another and the earlier 761 statute is afterwards
repealed the provisions so in- corporated obviously continue in force so far as
they form part of the second enactment." So too, in Craies on Statute Law,
3rd Edition, the sama idea is expressed in the following words, at p. 349:
" Sometimes an Act of Parliament,
instead of expressly repeating the words of a section contained in a former
Act, merely refers to it, and by relation applies its provisions to some new
state of things created by the subsequent Act.
In such a case the is rule of construction is
that where a statute is incorporated by reference into a second statute, the
repeal of the first statute by a third does not affect the second ".
The Judicial Committee in Secretary of State
for India in Council v. Hindusthan Co-operative Insurance Society, Ltd. (1)
endorsed the said principle and restated the same, at p. 267, thus:
" This doctrine finds expression in a
common-form section which regularly appears in the amending and repealing Acts
which are passed from time to time in India. The section runs: " The
repeal by this Act of any enactment shall not affect any Act.............. in
which such enactment has been applied, incorporated or referred to." The
independent existence of the two Acts is therefore recognized; despite the
death of the parent Act, its offspring survives in the incorporating Act.
Though no such saving clause appears in the General Clauses Act, their
Lordships think that the principle involved is as applicable in India as it is
in this country." It is, therefore, manifest that s. 4 of the 1952 Act has
no application to a case of a later amending Act inserting new provisions in an
earlier Act, for, where an earlier Act is amended by a later Act, it cannot be
said that the earlier Act applies, incorporates or refers to the amending Act.
The earlier Act cannot incorporate the later
Act, but can only be amended by it. We cannot, therefore, agree with the view
expressed by the Punjab High Court in Mohinder Singh v. Mst.
(1) L.R. 58 I.A. 259.
762 Harbhajan Kaur (1) and in Darbara Singh
v. Shrimati Karnail Kaur(2)that s. 4 of the Repealing and Amending Act of 1952
applies to a case of repeal of an amending Act.
This legal position does not really help the
appellant, for the case on hand directly falls within the four corners of s.
6-A of the General Clauses Act, 1897 (X of 1897). - The above section reads:
"Where any Central Act or Regulation
made after the commencement of this Act repeals any enactment by which the text
of any Central Act or Regulation was amended by the express omission, insertion
or substitution of any matter, then, unless a different intention appears, the
repeal shall not affect the continuance of any such amendment made by the
enactment so repealed and in operation at the time of such repeal." As, by
the amending Act of 1949, the text of the Act XVII of 1933, was amended by the
insertion of 6 (1-A) therein, the repeal of the amending Act by the 1952 Act
did not affect the continuance of the amendment made by the enactment so
repealed. It is said that for the application of s. 6-A of the General Clauses
Act, the text of any enactment should have been amended; but in the present
case the insertion of s. 6 (1-A) was not a textual amendment but a substantial
one. The text of an enactment, the argument proceeds, is the phraseology or the
terminology used in the Act, but not the content of that Act. This argument, if
we may say so, is more subtle than sound. The word " text ", in its
dictionary meaning, means " subject or theme ". When an enactment
amends the text of another, it amends the subject or theme of it, though
sometimes it may expunge unnecessary words without altering the subject. We
must, therefore, hold that the word " text " is comprehensive enough
to take in the subject as well as the terminology used in a statute.
Another escape from the operation of s. 6-A
of the General Clauses Act is sought to be effected on the basis of the words
" unless a different intention (1) I.L.R. 1955 Punj. 625.
(2) 61 P.L.R. 762.
763 appears ". The repealing Act does
not indicate any intention different from that envisaged by the said section.
Indeed, the object of the said Act is not to give it any legislative effect but
to excise dead matter from the statute book. The learned Counsel placed before
us the historical background of the amending Act with a view to establish that
the intention of the legislature in passing the said Act was to expurgate s. 6
(1 -A) from the statute as it was redundant and unnecessary. It is said that
the Indian Telegraph Act, 1885 (XIII of 1885) provided for the offence covered
by s. 6 (1-A), and, therefore, the legislature though, by the Act of 1948,
inserted the said section in the Act of 1933, removed it in the year 1952 as
the said amendment was unnecessary and redundant. There is no foundation for
this argument, and the entire premises are wrong. Section 20 of Act XIII of
S. 20 (1): If any person establishes, maintains
or works a telegraph within India in contravention of the provisions of section
4 or otherwise than as permitted by rules made under that section, he shall be
punished, if the telegraph is a wireless telegraph with imprisonment which may
extend to three years, or with fine, or with both, and in any other case, with
a fine which may extend to one thousand rupees.
Though the words are comprehensive enough to
take in a wireless transmitter, the section does not prohibit the possession of
a wireless apparatus. As the Act only gave power to control the establishment,
maintenance and working of wireless apparatus, in practice it was found that
the detection of unlicenced apparatus and the successful prosecution of the
offenders were difficult, with the result that the State was losing revenue. To
remove this defect, Act XVII of 1933 was passed to prohibit the possession
without licence of a wireless apparatus. Under s. 6, the penalty for such
illegal possession of a wireless telegraphy apparatus was made an offence, but
the sentence prescribed was rather lenient. Subsequently, the legislature
thought that the possession of a wireless transmitter 764 was a graver offence;
sometimes involving the security of the State, and so an amendment was
introduced in 1949 constituting the possession of such apparatus a graver
offence and imposing a more severe punishment. Therefore, it cannot be said
that s. 6(1-A), inserted in the Act XVII of 1933 by the amending Act of 1949,
is either covered by the provisions of the Indian Telegraph Act, 1885, or a
surplusage not serving any definite purpose. Even from the history of the
legislation we find it not possible to say that it disclosed an intention different
from that envisaged in s. 6-A of the General Clauses Act.
For the aforesaid reasons, we hold that s. 6
(1 -A) of the Act continued to be on the statute book even after the amending
Act of 1949 was repealed by Act XLVIII of 1952, and that it was in force when
the offence was committed by the appellant.
The appeal fails and is dismissed.