The State of Bihar Vs. Hiralal
Kejriwal & ANR [1959] INSC 116 (14 September 1959)
SUBBARAO, K.
IMAM, SYED JAFFER
CITATION: 1960 AIR 47 1960 SCR (1) 726
CITATOR INFO :
R 1961 SC 304 (10) R 1974 SC 366 (25) R 1978
SC 933 (18) D 1980 SC 126 (4)
ACT:
Repeal of Statute-Saving
clause-Interpretation of-Cotton Textiles (Control of Movement) Order, 1948,
whether continues in force-Essential Supplies (Temporary Powers) Act, 1946
(XXIV of 1946), ss. 1(3) and 3(1)-Essential Commodities Ordinance, 1955,
(Ordinance 1 of 1955), s. 16- Essential Commodities Act, 1955 (X of 1955), s.
16.
Appeal by special leave-Interference
in-Constitution of India, Art. 136.
HEADNOTE:
In exercise of the powers under s. 3 of the
Essential Supplies (Temporary Powers) Act, 1946, the Central Government made
the Cotton Textile (Control of Movement) Order, 1948. The 1946 Act was to
expire on January 26, 1955, but before that, on January 21, 1955, the Essential
Commodities Ordinance was promulgated which conferred on the Central Government
a power similar to that conferred by s. 3 of the 1946 Act. Section 16 of the
Ordinance provided that all Orders made under the 1946 Act in so far as such
Orders could be made under the Ordinance shall continue in force and that accordingly
any appointment made, license or permit granted or direction issued under any
such Order shall continue in force. The Essential Commodities Act, ,955 by s.
16(i)(a) repealed the Ordinance and by s. 16(i)(b) 727 repealed any other law
in force in any State in so far as such law controlled the production, supply
and distribution of, and trade, and commerce in any essential commodity. The
savings clause s. 16(2) of the 1955 Act was a repetition of s. 16 of the
Ordinance. The respondent contended that the amplitude of the first part of s.
16 of the Ordinance was cut down by the second part and consequently s. 16 did
not save the Order but only the acts done under the Order, and that even if the
Order was saved by s. 16 of the Ordinance it was repealed by s. 16(i)(b) of the
1955 Act and was not continued under that Act.
Held, that the Cotton Textiles (Control of
Movement) Order, 1948 was saved by s. 16 of the Ordinance and was continued by
s. 16(2) of the Essential Commodities Act, 1955, and was in force on August 30,
1955, when the offence was committed.
The first part of s. 16 of the Ordinance
saved the order and the acts done under the Order subsequent to the coming into
force of the Ordinance and the second part of s. 16 saved past acts done under
the Order before the coming into force of the Ordinance. The words " any
other law " in s. 16(i)(b) of the 1955 Act meant any law other than the
Ordinance and an order made or deemed to be made under the Ordinance was not
repealed by s. 16(i)(b). Such an order was saved by s. 16(i)(a) of the Act.
Held, further, that this was not a fit case
for interference under Art. 136 of the Constitution with the order of the High
Court discharging the respondent. The offence was committed more than four
years ago; the application by the appellant to the High Court for a certificate
of fitness to appeal to the Supreme Court was belated ; there was plausible
justification for the belief of the accused that the Order did not survive the
expiry of the 1946 Act in view of the varying views expressed by the Courts;
the State filed the appeal presumably to get the legal position clarified ; in
such circumstances public interest did not require that the stale matter should
be resuscitated.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 36 of 1958.
Appeal by special leave from the judgment and
order dated May 9, 1957, of the Patna High Court, in Criminal Reference No. 51
of 1957 and Criminal Revision No. 323 of 1957, arising out of the judgment and
order dated March 20, 1957, of the First Additional Sessions Judge, Patna in
Criminal Revision No. 14 of 1957. K. P. Varma and R. C. Prasad, for the
appellant.
H. J. Umrigar and B. P. Maheshwari, for the
respondents.
728 1959. September 14. The Judgment of the
Court was delivered by SUBBA RAO J.-This is an appeal by special leave by the
State of Bihar against the judgment of the High Court of Judicature at Patna
quashing the criminal proceedings launched against the respondents in the Court
of Munsif- Magistrate, Patna.
The two respondents were the proprietors of a
firm called M/s. Patna Textiles doing business in cotton at Patna. On August
30, 1955, they despatched two bales of saries to M/s. Hiralal Basudev Prasad,
cloth merchants of Balia, from Patna Ghat without obtaining a permit from the
Textile Controller, Bihar. They were prosecuted under s. 7 of the Essential
Commodities Act, 1955 (X of 1955), hereinafter called the Act, read with s. 3
of the Cotton Textiles (Control of Movement) Order, 1948, hereinafter called
the Order, in the Court of the Munsif-Magistrate, Patna. The respondents filed
a petition before the said Munsif-Magistrate praying for their discharge on the
ground that the Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946),
hereinafter called the 1946 Act, whereunder the said Order was made, had been
repealed, and, therefore, the Order ceased to have any legal force thereafter,
and consequently they could not be prosecuted under the expired Order. The
Munsif-Magistrate rejected that petition. The Additional Sessions Judge, Patna,
after perusing the records transmitted the same to the High Court under s. 438
of the Code of Criminal Procedure with his opinion that the order of the
Munsif-Magistrate was wrong and, therefore, it might be set aside with the
direction to the Munsif-Magistrate to discharge the accused. The respondents
also filed a revision to the High Court against the order of the Munsif-
Magistrate. The reference as well as the revision were heard together by Imam,
J., of the High Court at Patna, and the learned Judge accepting the reference
and the revision set aside the order of the Munsif-Magistrate and directed the
accused to be discharged. Hence the appeal.
729 The learned Counsel appearing for the
state contended that the Order made under the 1946 Act was saved under s. 16 of
the Essential Commodities Ordinance of 1955, hereinafter called the Ordinance,
and s. 16 (2) of the Act, and, therefore, the accused were validly prosecuted
under the provisions of the Order. The learned Counsel for the respondents
argued that the order was not saved under either of the said two sections.
To appreciate the contention of the parties,
it is necessary to notice the relevant provisions of the 1946 Act, the Order,
the Ordinance and the Act.
Essential Supplies (Temporary Powers) Act,
1946.
S. 1 (3) : It shall cease to have effect on
the twenty- sixth day of January, 1955, except as respects things done or
omitted to be done before that date, and section 6 of the General Clauses Act,
1897 (X of 1897), shall apply upon the expiry of this Act as if it had then
been repealed by a Central Act.
S. 3 (1): The Central Government, so far as
it appears to it to be necessary or expedient for maintaining or increasing
supplies of any essential commodity, or for securing their equitable
distribution and availability at fair prices, may by order provide for
regulating or prohibiting the production, supply and distribution thereof and
trade and commerce therein.
Cotton Textiles (Control of Movement) Order,
1948.
S. 3: No person shall transport or cause to
be transported by rail, road, air, sea or inland navigation any cloth, yarn or
apparel except under and in accordance with- (i) a general permit notified in
the Gazette of India by the Textile Commissioner; or (ii) a special transport
permit issued by the Textile Commissioner.
The Essential Commodities Ordinance, 1955.
Preamble: " Whereas the Essential
Supplies (Temporary Powers) Act, 1946 (XXIV of 1946), which confers powers to
control the production, 730 supply and distribution of, and trade and commerce
in, certain commodities, expires on the 26th day of January, 1955;.............................................
the President in pleased to promulgate the following Ordinance:" S. 16:
Any order made or deemed to be made under the Essential Supplies (Temporary
Powers) Act, 1946 (XXIV of 1946), and in force immediately before the
commencement of this Ordinance shall, in so far as such order may be made under
this Ordinance, be deemed to be made under this Ordinance and continue in
force, and accordingly any appointment made, licence or permit granted or
direction issued under any such order and in force immediately before such
commencement shall continue in force unless and until it is superseded by any
appointment made, licence or permit granted or direction issued under this
Ordinance.
This Ordinance was published in the Gazette
of India on January 21, 1955, and came into force on January 26, 1955.
The Essential Commodities Act, 1955.
S. 3 (1): If the Central Government is of
opinion that it is necessary or expedient so to do for maintaining or
increasing supplies of any essential commodity or for securing their equitable
distribution and availability at fair prices, it may, by order provide for
regulating or prohibiting the production, supply and distribution thereof and
trade and commerce therein.
S. 7 (1): If any person contravenes any order
made under section 3- (a) he shall be punishable- (i) in the case of an order
made with reference to clause (h) or clause (i) of sub-section (2) of that
section, with imprisonment for a term which may extend to one year and shall
also be liable to fine, and (ii) in the case of any other order, with
imprisonment for a term which may extend to three years and shall also be
liable to fine:
731 Provided that if the Court is of opinion
that a sentence of fine only will meet the ends of justice, it may, for reasons
to be recorded, refrain from imposing a sentence of imprisonment;......
S. 16 (1): The following laws are hereby
repealed :- (a) the Essential Commodities Ordinance, 1955;
(b) any other law in force in any State
immediately before the commencement of this Act in so far as such law controls
or authorizes the control of the production, supply and distribution of, and
trade and commerce in, any essential commodity.
(2): Notwithstanding such repeal, any order
made or deemed to be made by any authority whatsoever, under any law repealed
hereby and in force immediately before the commencement of this Act, shall, in
so far as such order may be made under this Act, be deemed to be made under
this Act and continue in force, and accordingly any appointment made, licence
or permit granted or direction issued under any such order and in force
immediately before such commencement shall continue in force until and unless
it is superseded by any appointment made, licence or permit granted or
direction issued under this Act.
(3): The provisions of sub-section (2) shall
be without prejudice to the provisions contained in section 6 of the General
Clauses Act, 1897 (X of 1897), which shall also apply to the repeal of the
Ordinance or other law referred to in sub-section (1) as if such Ordinance or
other law had been an enactment.
The said provisions may be briefly summarized
thus: Under the Act of 1946, the Central Government had the power to make an
order for regulating or prohibiting the production, supply and distribution of
essential commodities. That Act itself provided that it would cease to have
effect on January 26, 1955. In exercise of the powers conferred under s. 3 of
the said Act, the Central Government made the Cotton Textile (Control of
Movement) Order, 1948, prohibiting any person 732 from transporting cloth,
among others, without the permit of the Textile Commissioner. Before the Act
ceased to have effect, i.e., on January 26, 1955, the Ordinance was promulgated
on January 21, 1955, conferring on the Central Government a power similar to
that conferred upon it under s. 3 of the 1946 Act. The said Ordinance also
provided for saving clauses in respect of certain things done under the 1946
Act. On April 1, 1955, the Act was passed practically reenacting the same
provisions of the Ordinance, and there under the same power exercised by the
Central Government under s. 3 of the 1946 Act and s. 3 of the Ordinance was
preserved. The Act also provided for repeals and savings. The question,
therefore, is whether, on the date of commission of the offence, the Order
where under the prosecution was launched was subsisting or whether it ceased to
exist. It is common case that an Order made under an Act ceases to have any
legal force after the expiry of the term for which the Act is made. But it is
contended that the Order survived the expiry of the 1946 Act by reason of the
saving clauses provided by the Ordinance and the Act.
Ordinarily, the Order should have expired on
January 26, 1955. Unless it was saved by s. 16 of the Ordinance the saving
clause of the Act could not operate on it. We shall, therefore, consider the
question from two aspects: (i) whether s. 16 of the Ordinance saved the
operation of the Order; and (ii) if it saved it, whether s. 16(2) of the Act
gave it a further lease of life.
Section 16 of the Ordinance is in two parts.
Under the first part,, "any order made or deemed to be made under the
Essential Supplies (Temporary Powers) Act, 1946, and in force immediately
before the commencement of this Ordinance shall, in so far as such order may be
made under this Ordinance, be deemed to be made under this Ordinance and
continue in force." The necessary condition for the operation of this part
of s. 16 is admittedly complied with.
The Order made under s. 3 of the 1946 Act can
be made under s. 3 of the Ordinance; and, if so, by reason of the express words
of the section, the Order must be deemed to be made under the Ordinance and
continue to be in force 733 after its promulgation. But it is said that the
second part of the section cuts down the wide amplitude of the phraseology used
in the first part. After stating that the said Order shall continue to be in
force, the second part proceeds to state " and accordingly any appointment
made, licence or permit granted or direction issued under any such order and in
force immediately before such commencement shall continue in force unless and
until it is superseded by any appointment made, licence or permit granted or
direction issued under this Ordinance ". If the Order continues in force,
the argument proceeds, the second part of the section becomes otiose, for the
appointment made, licence or permit granted or direction issued under the Order
automatically continues in force, and, therefore, there is no necessity for
enacting the second part of s. 16. The anomaly occurs even if the argument be
accepted, for, in that event the first part becomes unnecessary: The same
result can be achieved by enacting only the second part of s. 16 and omitting
the first part altogether. To ascertain the meaning of a section it is not
permissible to omit any part of it: the whole section should be read together
and an attempt should be made to reconcile both the parts. There is no
ambiguity in the provisions of the first part of the section. In clear and
unambiguous terms it posits the continuation in force of the Order
notwithstanding the repeal of the Act ; thereafter, it proceeds to enumerate
certain past acts done under the Order, and in force immediately before the
commencement of the Ordinance and says that they will continue in force in
consequence of the continuance of the Order. The word " accordingly
", which means consequently, indicates that the enumerated acts will not
continue in force but for the continuance of the Order itself: they depend upon
the continuation of the Order. It is said that this interpretation imputes
tautology to the legislature, and, therefore, should not be accepted. A scrutiny
of the section shows that the second part is not really redundant, as at the
first blush it appears to be.
Under s. 16 of the Ordinance, the Order made
under the Act of 1946 continues to be 93 734 in force till another Order is
made under the Ordinance. It covers two periods: (i) the period up to the date
of the commencement of the Ordinance; and (ii) the period thereafter. The first
part gives life to that Order, and, therefore, the acts authorised under that
Order can be done subsequent to the coming into force of the Ordinance. But a
question may be raised whether the past acts done under that Order are saved by
the continuance of the Order, or whether the acts already done are covered by
the words that the "Order shall continue in force ". The second part
appears to have been enacted for the purpose of avoiding this difficulty or, at
any rate, to dispel the ambiguity. Under the section both the Order and the
acts previously done under the Order are saved. If so, it follows that the
Order was saved and the prosecution authorized by the Order could legitimately
be launched after the Ordinance came into force.
Even so, it is contended that the Order saved
by s. 16 of the Ordinance fell with the repeal of that Ordinance and was not
continued under the Act. This argument is based upon the provisions of s. 16(1)
and (2) of the Act. Section 16 has three sub-sections. For the present argument
we are concerned only with sub- ss. (1) and (2) of s. 16. Sub- section (2) is a
repetition of s. 16 of the Ordinance. But it is said that s. 16(1)(b) of the
Act indicates that the Order was not saved under that section. Under s.
16(1)(a), the Essential Commodities Ordinance, 1955, is repealed, and under s.
16(1)(b) "any other law in force in any State immediately before the
commencement of this Act in so far as such law controls or authorizes the
control of the production, supply and distribution of, and trade and commerce
in, any essential commodity " is also repealed.
The argument is that the Order is
comprehended by the words " any other law " in cl. (b) of s., 16(1),
and, therefore, when that Order is repealed under cl. (b) of s. 16(1), it is
unreasonable to hold that it is restored under sub-s. (2) of s. 16. To put it
in other words, an intention cannot be imputed to the legislature to repeal an
order under one sub- section and restore it by another sub-section. If we may
say 735 so, there is a fallacy underlying this argument. The words " any
other law " in s. 16(1)(b) can only mean any law other than the Essential Commodities
Ordinance, 1955, mentioned in s. 16(1)(a). It is admitted that there are laws
other than the said Ordinance in force in many States controlling the
production, supply and distribution of essential commodities. An order made or
deemed to be made under the Commodities Ordinance, 1955, cannot be described as
a law other than Essential Commodities Ordinance where under it is made. Such
an order is comprehended by cl. (a) of s. 16(1) itself, and, therefore, cl. (b)
thereof has no application to it. In this view, 'an interpretation different
from that we have put on the provisions of s. 16 of the Ordinance cannot be
given to sub-s. (2) of s. 16 of the Act. For the reasons we have given in
interpreting the provisions of s. 16 of the Ordinance, we hold that under s.
16(2) both the order and the acts enumerated in the second part of it survived
the expiry of the Ordinance and continued in force under the Act. For the above
reasons, we hold that the prosecution was validly launched against the accused
under s. 3 of the Order.
Even so, the learned Counsel for the
respondents contends that it is not a fit case for this Court to interfere
under Art. 136 of the Constitution. The offence was alleged to have been
committed on August 30, 1955, i.e., more than four years ago. The varying views
expressed by the Courts indicate that there was a plausible justification for
reasonable belief on the part of the accused that the Order did not survive the
expiry of the life of the 1946 Act. The order of the High Court dismissing the
'application for leave to appeal to the Supreme Court shows that it was filed
in contravention of the provisions of r. 28 of the Patna High Court Rules.
Under the said Rules the application should have been filed immediately after
the judgment was delivered. In the affidavit filed in support of that
application the only reason given for not doing so was that the appellant did
not give the necessary instructions. The learned Judge of the High Court
rightly did not accept that reason as a sufficient 736 ground for permitting
the application to be filed at a later stage. In the application for special
leave filed in this Court, though it was stated that the application filed in
the High Court for certificate was rejected, the reason for the rejection was
not disclosed. Further, the State, presumably, filed this appeal to get the
legal position clarified. We also believe that public interest does not require
that the stale matter should be resuscitated. In the circumstances, we would be
justified not to exercise our discretionary jurisdiction, and we accordingly
dismiss the appeal.
Appeal dismissed.
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