Leonard Stone, Kt., C.J.
1. The historical background from which these applications in revision spring, is set in the Ordinances, Notifications and Orders for regulating' the life of the Community, the preservation and distribution of supplies and the efficient prosecution of the war created under emergency legislation of War.
2. The matters with which we are concerned depend upon two Notifications for regulating the distribution and transportation of raw materials in the iron and steel industry, the rules for the punishment of offences, and a group of Ordinances designed for setting up Special Tribunals for the trial of offenders against the control Notifications. Except for prolongation, all the Orders made under the Defence of India Act, 1939, and the Rules would have expired on September 30, 1946, being the date fixed, as being six months after the cessation of hostilities against the enemy.
3. The applicants are two companies incorporated outside British India, and three persons who hold responsible positions in one or other or both these companies, and the offences alleged against them are said to have occurred in the latter half of the year 1943, though the trial of them by the Second Special Tribunal at Lahore was far from being completed by September 30, 1946, indeed, the stage reached is that the charges have only recently been formulated.
4. The submissions of the applicants fall under three principal heads: (1) that the Notifications were bad ah initio, because they were not made according to law; (2) that in the events which have happened the alleged offences have ceased to exist and cannot now be tried or punished; and (3) that the Second Tribunal at Lahore has itself ceased to exist. If any of these submissions was to succeed, it would of necessity follow that the applicants could not be tried by the Second Special Tribunal at Lahore.
5. At the outset, be it observed, that these applications are made to this Court in revision, and that by virtue of Section 439 of the Criminal Procedure Code, it rests in our discretion whether to interfere or not. In any event such discretionary power can only be exercised in respect of proceedings in an inferior Court situated within the local limits of the jurisdiction of this Court, but in view of Bombay Act XXI of 1946. If the Special Tribunal is in esse at all, it is such an inferior Court.
6. Our attention has been invited to the fact, that these revisional applications are in the nature of test cases, and that there are many other pending proceedings depending upon the outcome of our decision. That is undoubtedly the case, and as we have had the benefit of hearing very full arguments by Mr. Setalvad on behalf of the applicants, and by the Advocate General on behalf of Government, we think it expedient to take this matter up, as it is one which unquestionably is of considerable public importance.
7. We find ourselves in entire agreement on all the points raised before us, and as I have had the advantage of reading the judgment which my learned brother is about to deliver, and which expresses my own opinions in a full and exhaustive manner, I feel constrained to add a few observations of my own, only, on the first point, which is, that the two Notifications in question are bad ab initio. If they are bad, it would mean that the whole structure of the numerous Notifications and Orders made by the Governor-General in Council by virtue of the Defence of India Act, 1939, and the rules made thereunder, would fall to the ground: a result which would be surprising, to say the least of it, since many of the Notifications made by the Governor-General in Council have been before the Privy Council, the Federal Court and all the High Courts of India. But it seems that the point which is now raised by Mr. Setalvad has never been taken before, and although it has been presented, apparently for the first time, at this late date, it is a point which on the able arguments submitted to us cannot be brushed aside.
8. By Rule 81(2) of the Defence of India Rules
The Central Government, or the Provincial Government, so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the Community may by order provide;
and then, are set out in a number of sub-paragraphs the various matters in respect of which an order for the purposes aforesaid may be made by the Central Government. By Rule 3(1), the General Clauses Act, 1897, is made to apply to the interpretation of the Defence of India Rules. Turning to the definition section of that Act, Section 3, it will be found that in Sub-clause 8(ab) 'Central Government' in relation to anything done after the commencement of Part III of the Government of India Act, 1935, mean 'the Federal Government' which by Sub-clause 18(a) shall:
In relation to anything done or to be done after the commencement of Part III of the Government of India Act, 1935, but before the establishment of the Federation, mean, as respects matters with respect to which the Governor General is by and under the provisions of the said Act for the time being in force required to act in his discretion, the Governor-General, and as respects other matters, the Governor-General in Council.
It follows that, in the events which have happened, every Order to be made by the Central Government under Sub-rule 81(2) of the Defence of India Rules must be made by the Governor-General in Council. The provisions with regard to the Governor-General in Council are contained in Sections 36 to 43 (both inclusive) of the IX Schedule to the Government of India Act, 1935, and the gravamen of Mr. Setalvad's attack is that this group of sections which is headed 'Governor-General's Executive Council' are mandatory in terms and provide inter alia an inflexible method of procedure for regulating the business transacted by the Governor-General in his Executive Council. An examination of the scheme of these sections is therefore necessary. Section 36 provides that the members of the Governor-General's Executive Council shall be appointed by His Majesty by warrant under the Royal Sign Manual, and further provides that the members of the Council shall be such as His Majesty thinks fit to appoint and the remaining sub-sections of this section have regard to qualification of the members. Section 37 provides for the position of the. Commander-in-Chief in the Council, Section 38 for the appointment of a Vice-President, Section 39, the places at which the Council is to assemble and for the quorum, and then comes Section 40, upon which the whole attack depends. It is headed 'Business of the Governor-General in Council' and is as follows:-
(1) All orders and other proceedings of the Governor-General in Council shall be expressed to be made by the Governor-General in Council, and shall be signed by a Secretary to the Government of India, or otherwise as the Governor-General in Council may direct, and, when so signed, shall not be called into question in any legal proceeding on the ground that they were not duly made by the Governor-General in Council.
(2) The Governor-General may make rules and orders for the more convenient transaction of business in his Executive Council, and every order made or act done, in accordance with rules and orders, shall be treated as being the order or the act of the Governor-General in Council.
9. Section 41 lays down the procedure which is to be followed in cases of a difference of opinion within the Council, including a provision that a dissentient majority may require the fact of such dissent to be reported to the Secretary of State. Section 42 makes provision as to what is to happen, if the Governor General is absent from a meeting of the Council, and Section 43 gives certain powers to the Governor General when he is absent from the Council.
10. In my judgment Sub-section 40(1) is a procedural section. It is not even concerned with such important matters as the personnel of the Council, or with what is to happen in the event of disagreement, or with the methods by which conclusions are to be arrived at. It concerns only with the manner in which orders and other proceedings when made or have taken place are to be expressed, that is to say, to be represented in language, so that the order may be promulgated, in the sense of being published. To do this, two formalities are required. The orders are to be expressed to be made by the Governor-General in Council and they are to be signed by a Secretary to the Government of India 'or otherwise as the Governor-General in Council may direct'. When so signed, the orders and other proceedings 'shall not be called in question in any legal proceeding on the ground that they were not duly made by the Governor-General in Council'. So it is clear, that the signature of the Secretary is a formality of an evidential character. There is in my opinion no scope in this sub-section for a construction which would vitiate an order actually made by the Governor-General in Council, but which was not expressed to be made according to the letter of the sub-section. In the events which had happened at the material dates, the Governor-General in Council was the Central Government and in my judgment the defect, if defect it be, of describing these notifications as being made by the 'Central Government' is one of form only and not of substance; it is an irregularity and not a nullity, since it is not and could not be suggested that the notifications were not in fact made by the Governor-General in Council.
11. These four applications for revision arise out of two cases (Criminal cases Nos. 2 and 3 of 1946) pending before the Second Special Tribunal at Lahore, In revision applications Nos. 605 and 606 of 1946, the petitioners are accused Nos. 1, 2 and 3 in criminal cases Nos. 2 and 3 of 1946 and in revision applications Nos. 689 and 690 of 1946 the petitioner is accused No. 4 in the said cases respectively. Charges have been framed against all the five accused in both the eases. Stated in brief, the charge against the accused in criminal case No. 2 of 1946 is that in the month of November and December 1943 they disposed of 25 tons of iron and steel in Bombay in contravention of Clauses 5 and 8 of the Iron and Steel (Control of Distribution) Order of 1941, and in ease No. 3 of 1946 that they, between August 1 and 18, 1943, offered for transport by rail to the railway authorities at the Rampur railway station and at Moradabad, a consignment of iron and steel without a valid and effective permit and procured the movement by rail of the said consignment from the Rampur railway station and Moradabad to 'Wadi Bunder, Bombay, in contravention of Clause 2 of the Iron and Steel (Movement by Rail) Order, 1942, both the offences being punishable under Rule 81(4) of the Defence of India Rules. In both the eases charges were framed against all the five accused on October 14, 1946, and in these revision applications they request that the proceedings be quashed on various grounds, which I now proceed to consider one by one.
12. The first ground urged is the illegality of the constitution of the tribunal by which the two eases are being tried. In order to provide for a more speedy and more effective punishment of certain offences, the Governor-General made and promulgated the Criminal Law Amendment Ordinance (XXIX of 1943), on September 11, 1943. Section 3 of that Ordinance empowered the Central Government to constitute two special tribunals, one to sit at Calcutta and the other at Lahore, and under Section 5, such tribunals were given jurisdiction to try eases allotted to them in the first schedule to the Ordinance. By Ordinance III of 1944 promulgated on December 2, 1944, Section 3 was amended and five special tribunals were allowed to be created, two at Lahore, two at Calcutta and one at Amraoti, and some more cases were added to the First Schedule. The two tribunals at Lahore constituted under this Ordinance were called the First and the Second Special Tribunals and the latter is the tribunal which is now trying the two cases against the petitioners. By Ordinance XII of 1945, promulgated on May 12, 1945, the first schedule was deleted and a general power was given to the Central Government to constitute any number of tribunals by a notification, to try such cases as would be specified in a notification in the official Gazette from time to time. The five tribunals constituted by Ordinance III of 1944 were continued and by a notification dated November 21, 1945, these two cases against the petitioners were specifically allotted for trial to the Second Special Tribunal at Lahore.
13. These Ordinances were issued under Section 72 of the ninth schedule to the Government of India Act, 1935, which says:
The Governor General may, in cases of emergency, make and promulgate ordinances, for the peace and good government of British India or any part thereof, and any ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature;
14. The existence of emergency had been declared when these Ordinances were made and promulgated and ordinarily they would have remained effective only for a period of six months. But that restriction was removed by the India and Burma (Emergency Provisions) Act, 1940, (3 & 4 Geo. VI, c. 33). The pertinent part of Sub-section (3) of Section 1 of that Act says:-
Section seventy-two of the Government of India Act (which as set out in the Ninth Schedule to the Government of India Act, 1935, confers on the Governor General power to make Ordinances in cases of emergency) shall, as respects ordinances made during the period specified in section three of this Act, have effect as if the words 'for the space of not more than six months from its promulgation' were omitted;
15. The period specified in Section 3 is 'the period beginning with the date of the passing of the Act and ending with such date as His Majesty may by Order in Council declare to be the end of the emergency which was the occasion of the passing of the Act.
16. The Act was passed on June 27, 1940, and the emergency was notified to have come to an end on April 1, 1946. Hence all the Ordinances promulgated between these two dates are not limited to the period of six months, but will remain in force until they are specifically repealed.
17. A second restriction placed on the making of Ordinances under Section 72 of the ninth schedule to the Government of India Act, 1935, is contained in the second part of that section which says:
The power of making ordinances under this section is subject to the like restrictions as the power of the Indian legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian legislature, and may be controlled or superseded by any such Act.
18. Under Section 99 of the Government of India Act, 1935, the Federal Legislature can make laws for the whole or any part of British India or for any Federated State, and a Provincial Legislature may make laws for the Province or any part thereof. But Sub-section (3) of Section 100 says that the Provincial Legislature has not, and the Federal Legislature has, power to make laws for the Province or any part thereof with respect to any of the matters enumerated in List II called the 'Provincial Legislative List') in the seventh Schedule to the Act.
19. Until the establishment of the Federation contemplated by Part II of the Government of India Act, 1935, the transitional provisions contained in Part XIII of the Act are applicable, and under Section 316 appearing in that part, the powers conferred on the Federal Legislature by the Act shall be exereisable during the transitional period by the Indian Legislature, and all references to the Federal Legislature shall be construed as references to the Indian Legislature. It follows, therefore, that the Indian Legislature has no power to legislate upon matters enumerated in the Provincial Legislative List. But Sub-section (1) of Section 102 enables the Governor General to declare in his discretion by proclamation that a grave emergency exists whereby the security of India is threatened, whether by war or internal disturbance, and if such a proclamation of emergency is made, then the Federal Legislature (that is to say, the Indian Legislature at present) is empowered to make laws for a province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List. A proclamation of emergency was made by the Governor General on September 3, 1939. Thereafter the Indian Legislature passed the Defence of India Act, 1939, and the Governor General made and promulgated various ordinances under Section 72 of the Ninth Schedule to the Government of India Act, 1935, several of which were with respect to matters enumerated in the Provincial Legislative List.
20. Under Sub-section (4) of Section 102 of the Government of India Act, 1935, a law made by the Indian Legislature, which that Legislature would not but for the issue of proclamation of emergency have been competent to make shall cease to have effect on the expiration of a period of six months after the proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.
21. The power to revoke the proclamation of emergency is reserved to the Governor General under Sub-section (3)(a) of Section 102 and in exercise of that power lierevoked the proclamation of emergency made on September 3, 1939, by a proclamation dated April 1, 1946.
22. The effect of all these provisions may be thus summarised:-
(A) In normal times
(1) The Indian Legislature can make no laws, and the Governor General can make no ordinances, with respect to any of the matters enumerated in the Provincial Legislative List.
(2) The laws made by the Indian Legislature with respect to matters enumerated in either the Federal or the Concurrent Legislative List will remain in force until repealed, unless there is a provision to the contrary in the law itself, as in Sub-section (4) of Section 1 of the Defence of India Act, 1939.
(3) Ordinances made by the Governor General with respect to such matters will remain in force only for six months, unless repealed earlier or otherwise limited to a shorter period.
(B) After a proclamation of emergency
(1) Indian Legislature can make laws and the Governor General can make ordinances even with respect to matters enumerated in the Provincial Legislative List.
(2) An ordinance made by the Governor General with respect to matters enumerated in the Federal Legislative List and Concurrent Legislative List between June 27, 1940, and April 1, 1946, remains in force, until repealed, unless there is a provision to the contrary in the ordinance itself.
(3) Laws and ordinances made with respect to matters enumerated in the Provincial Legislative List would remain in force for six months after the revocation of the proclamation of emergency, that is to say, up to September 30, 1946, unless repealed earlier, or otherwise limited to a shorter period.
23. Mr. Setalvad, the learned counsel for the petitioners, takes exception to proposition B(2), and contends that the ordinances regarding matters enumerated in the Federal and Concurrent Legislative Lists cease to be operative six months after the revocation of the proclamation of emergency. His contention finds some support in a recent (still unreported) decision of the Madras High Court in Karumutlu Thiagarayan Chettiar, (1946) Decided by Happell and Shahabuddin JJ., on November 19, 1946, in Mis. Appeals Nos. 1568, 1578, 1581, 1584, 1589 and 1601 of 1946 (Mad. Unrep.) In that case the learned Advocate General contended that the powers of the Governor General to make ordinances were in fact greater than the powers of the Indian Legislature to make laws and that Ordinance XII of 1946, which was a separate ordinance, was still in force and did not expire with the Defence of India Act on September 30, 1939. With reference to that contention Happell J. observed:
No doubt an ordinance promulgated by the Governor-General before the 1st of April 1046, is, by virtue of the provisions of the India and Burma (Emergency Provisions) Act, 1940, not restricted to six months, but will continue to have effect for the period provided in the ordinance, or if no period is provided, until emergency is declared by the Governor-General to have ceased to have effect.
24. The view expressed by Happell J. appears to have been induced by the use of the expression 'in eases of emergency' in Section 72 in the ninth schedule to the Government of India Act, 1935. The reasoning seems to be that under that section all ordinances are made and promulgated 'in cases of emergency' and they must lapse on the termination of the emergency, and that as the proclamation of emergency has now been revoked, all ordinances must be deemed to have been revoked. With all respect, such a construction is not, in my opinion, warranted by the wording of Section 72. The expression 'in cases of emergency' relates only to the making and promulgating of ordinances, and restricts the Governor General's power to make ordinances by laying it down as a condition that there should be a case of emergency at the time of making them. But when once the power is duly exercised and an ordinance is made and promulgated, its duration has nothing to do with the continuation or termination of the emergency. Its duration was limited to the maximum period of six months by Section 72 itself, but that limitation was removed by Sub-section (3) of Section 1 of the India and Burma (Emergency Provisions) Act, 1940. With profound respect, I am unable to see anything in that Act to suggest that an ordinance made by the Governor General between the passing of that Act and the declaration of the end of the emergency would be in force only until the revocation of the proclamation of emergency by the Governor General. All that Sub-section (3) of Section 1 says is that the restriction of the six months' period contained in Section 72 in the ninth schedule to the Government of India Act, 1935, will not apply to such ordinances.
25. Moreover, Happell J.'s above remark was obiter, since he was only refuting the contention of the learned Advocate General, by pointing out that Ordinance XII of 1946 was not promulgated as an independent ordinance, but as an amendment to Sub-section (i) of Section 2 of the Defence of India Act, and it was not intended that it should have an existence independent of the other part of the amended sub-section or the other sections of the Act which ceased to have effect on October 1, 1946.
26. Mr. Setalvad has drawn our attention to the following remarks made by the Lord Chancellor in King-Emperor v. Benoari Lal Sarma 47 Bom. L.R. 260 (p. 64) :-
The Governor-General purported to make and promulgate the ordinance under a power conferred on him by Section 72 of sched. IX to the Government of India Act, 1935, which must, of course, be read in the light of the India and Burma (Emergency Provisions) Act, 1940 (whereunder the operation of the words 'for the space of not more than six months from its promulgation' was suspended during the period therein specified).
27. Mr. Setalvad argues from this that as the operation of the limitation clause in Section 72 was only 'suspended' during the period of emergency, an ordinance passed during the emergency expired when the emergency came to an end. The question what would happen to the ordinance after the period of emergency did not arise in that case. The ease was decided when the emergency was still existing, and the only question was whether Ordinance II of 1942 was ultra vires; and his Lordship was referring to the power of the Governor General to make ordinances under Section 72. The word 'suspended' was used only to show that the restrictive clause was to be revived after the period specified, but Sub-section (3) of Section 1 of the India and Burma (Emergency Provisions) Act, 1940, expressly says that the clause would not apply to 'ordinances made during the period specified,' and his Lordship must not be understood to have intended to go beyond the plain meaning of these words.
28. It follows that Ordinance XXIX of 1943, as amended by Ordinance LII of 1944 and Ordinances XII and XXII of 1945, is still in force. It is true that Ordinance III of 1914, under which the present Second Special Tribunal at Lahore was created, was repealed by the Repealing Ordinance I of 1946, but the repeal did not affect the tribunal already constituted, Ordinance LII of 1944 merely amended Ordinance XXIX of 1943 and the amendment was fully effected by the constitution of the Additional tribunals. Section 3(a) of the Repealing Ordinance says:
Nor shall the repeal by this Ordinance of any Ordinance by which the text of any law was amended by the express omission, insertion or substitution of any matter, affect the continuance of any such amendment in operation at the commencement of this Ordinance, unless a different intention was expressly stated in the Ordinance by which the amendment was made.
29. By this saving clause the amendment effected was retained in spite of the amending Ordinance. Hence the Second Special Tribunal at Lahore did not cease to exist after September 30, 1946, but is still competent to try offences lawfully made over to it.
30. It will be convenient at this stage to consider the nature of the offences for which the petitioners are being tried by that tribunal. In exercise of the powers conferred by Sub-rule (2) of Rule 81 of the Defence of India Rules, 1939, the Central Government issued two Orders-the Iron and Steel (Control of Distribution) Order in 1941 and the Iron and Steel (Movement by Rail) Order in 1942, and the petitioners are charged with the contravention of the provisions of both the Orders. These two orders require to be dealt with separately.
31. Production, supply and distribution of goods is a Provincial subject, enumerated as item No. 29 in the Provincial Legislative List, and offences against laws with respect to any of the matters in that list are comprised in item No. 39 of that list. So the offence of contravening the provisions of the Iron and Steel (Control of Distribution) Order, 1941, is a Provincial subject. Hence under Sub-section (4) of Section 102 of the Government of India Act, 1939, the notification issued under Ordinance XXIX of 1943, as amended by Ordinance XII of 1945, in so far as it allotted the trial of this offence to the tribunal ceased to have effect after September 30, 1946. The Provincial Legislature, therefore, passed Bombay Act XXI of 1946 on September 30, 1946, empowering the tribunal to try both the cases.
32. Movement by rail is a federal subject comprised in item No. 20 of the Federal Legislative List and could, therefore, be dealt with by an Ordinance issued by the Governor General. The offence of the contravention, of the Iron and Steel (Movement by Bail) Order, 1942, being, therefore, a federal subject, the notification issued by the Central Government on November 21, 1945, in exercise of the powers conferred by Sub-section (1) of Section 5 of the Criminal-Law Amendment Ordinance XXIX of 1943, allotting the trial of the offence to the Second Special Tribunal at Lahore, has not ceased to be operative by reason of the provisions of Sub-section (3) of Section 1 of the India and Burma (Emergency Provisions) Act, 1940, as that ordinance and the notification under it were issued 'during the period specified in section three of the Act.'
33. The contravention of the provisions of the Iron and Steel (Movement by Rail) Order, 1942, was complete as soon as steel was offered to the railway authorities for transport; and in this case such offer was made at Rampur railway station and at Moradabad, which are outside the Bombay Province, Mr. Setalvad contends that the Bombay Provincial Legislature had no jurisdiction to deal with such offence by its Act XXI of 1946. This is undoubtedly so and that part of the schedule to that Act which purports to allot to the tribunal the trial of the offence committed outside this province is ultra vires. But in fact that was superfluous. The preamble to the Bombay Act shows that it was thought necessary by reason of the mistaken assumption that Ordinance XXIX of 1943 would wholly expire on September 30, 1946, and the Act was intended to clear the doubts on the point. But as already pointed out the Ordinance has continued to be in force with respect to matters enumerated in the Federal Legislative List.
34. It is, however, obvious that Rampur railway station being outside British India, the Governor General could not constitute a tribunal to try an offence committed there and the allotment of the trial of that part of the case to the Second Special Tribunal at Lahore is ultra vires. The learned Advocate General has candidly conceded this. Hence in case No. 3 of 1946, the tribunal can try the petitioners only for the offence alleged to have been committed at. Moradabad.
35. We, therefore, hold that the Second Special Tribunal at Lahore is competent to try both the cases except with regard to the offence said to have been committed at Rampur railway station.
36. The next question raised by Mr. Setalvad is whether the trial of those cases can be proceeded with after September 30, 1946. Both the Iron and Steel (Control and Distribution) Order, 1941, and the Iron and Steel (Movement by Rail) Order, 1942, were made under Sub-section (2) of Rule 81 of the rules made under the Defence of India Act, 1939. Sub-section (4) of Section 1 of that Act provides that the Act 'shall be in force during the continuance of the present war and for a period of six months thereafter'. By an Order-in-Council dated March 20, 1946, the India and Burma (Termination of Emergency) Order, 1946, the end of the emergency, that is to say the war, was declared to be April 1, 1946. Hence the Defence of India Act and the rules and orders made thereunder ceased to be in force after September 30, 1946. Moreover, the Act deals with many matters enumerated in the Provincial Legislative List, and hence in the preamble to the Act it is expressly recited that it was being passed in view of the proclamation of emergency under Sub-section (1) of Section 102 of the Government of India Act; and Sub-section (4) of that section also provides for the expiry of the Act on the expiration of six months after the proclamation has ceased to operate, but this will be applicable only to Provincial subjects dealt with by the Government of India Act.
37. It is a well recognised principle in the construction of statutes that, when an Act is repealed or expires by lapse of time, the rules and orders made thereunder also are repealed or expire, unless they are saved or continued by the repealing or subsequent enactment. Hence the Defence of India Rules, and the two Orders in question likewise expired on September 30, 1946.
38. Where an Act expired or was repealed, it was formerly regarded, in the absence of provision to the contrary, as having never existed except as to matters and transactions past and closed (Maxwell on the Interpretation of Statutes, Eighth edition, p. 347). In Kay v. Goodwin, (1830) 6 Bing. 576 :
I take the effect of repealing a statute to be, to obliterate it as completely from the records of the Parliament 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.
39. Now under the provisions of Sub-section (2) of Section 38 of the Interpretation Act, 1889 (52 & 53 Vic. c. 63), a repeal, unless a contrary intention appears, does not affect the previous operation of the repealed enactment, or anything duly done or suffered under it, and any investigation, legal proceeding, or remedy may be instituted, continued or enforced, in respect of rights, liabilities and penalties under a repealing Act, as if the repealing Act had not been passed. As regards repealed enactments of the Indian Central Legislature similar provisions are contained in Section 6 of the General Clauses Act, 1897.
40. The effect of the expiry of a temporary statute is very similar and is thus stated in Craies on Statute Law (Fourth edition, p. 347) :
As a general rule, and unless it contains some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it, and it ceases to have further effect.
41. In Miller's case (1764) 1 B W. 431 it was held that where a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although prosecution was begun while the Act was still in force.
42. In Steavenson v. Oliver (1841) 5 Jur. 1064 Parke B. drew a distinction between temporary and repealed statutes in that (p. 1065) :-.the latter, except so far as they relate to transactions already completed under them, become as if they never had existed; but, with respect to the former, the extent of the restrictions imposed by them becomes a matter of construction, and it becomes necessary to determine which of their provisions are to be considered limited to the duration of the temporary law, and which are not to be so considered.
43. This principle has been considered and applied in several cases decided by the Indian High Courts. In Mody & Co. v. Mahomedbhai & Co. : AIR1925Bom378 , Macleod C.J., relying upon Miller's case, (1764) 1 Black. W. 451 held that proceedings taken under a temporary statute, if not terminated before the expiry of the period of the statute, are determined ipso facto on the expiration of the statute. The same principle was applied also in Kundalmul Dalmia v. W. Dyer I.L.R.(1924) Cal. 551 and the ruling in Spencer v. Hooten (1920) 37 T.L.R. 280 was foolowed, where Roche J. held that he had no jurisdiction to hear appeals from Munitions Tribunals in proceedings taken under the Wages (Temporary Regulations) Act by reason of the Act giving him jurisdiction, which was a temporary Act, having expired before the appeals came for hearing.
44. Mr. Setalvad has relied also upon the ruling of a full bench of the Allahabad High Court in Emperor v. Bans Gopal. I.L.R.(1938) All. 961. There although Sulaiman C.J. stated the rule of the English law as set out by Macleod C.J., he finally treated the question how far the terms of a temporary ordinance might have effect after its expiry as a matter of construction, in accordance with the dictum of Parke B. in Steavenson's ease cited above. Sub-section (4) of Section 1 of the Defence of India Act which has to be construed, says that the Act 'shall be in force during the continuance of the present war and for a period of six months thereafter'. The expression 'shall be in force' is distinguishable from the expression 'shall cease to have effect,' used in Sub-section (4) of Section 302 of the Government of India Act, in which an exception has expressly been made 'as respects things done or omitted to be done before the expiration of the said period'. Referring to the expression 'shall be in force' Alderson B. observed in Steavenson v. Oliver (p. 1066) :-
It appears to be that those persons who, during the year the last act was to continue in force, or, previous to that period, had obtained rights under that statute, had obtained rights which were not to cease by the determination of the statute, no more than where a person commits an offence against an act of a temporary nature, the party who disobeyed the act, when it was law, should become dispunishable on its ceasing to exist as such.
45. Construing the effect of the sentence 'The Act shall continue in force till 1st August next.' Rolfe B. asked,
Does that mean that what is enacted there is to have no effect after that day ?
If that be so, the Act would be productive of the greatest injustice.
46. The force of this reasoning will be appreciated if we refer to Sub-section (6) of Section 114 of the Criminal Procedure Code, which provides that subject to certain exceptions, no order made under that section shall 'remain in force' for more than two months from the making thereof. This cannot be construed to mean that, a prosecution under Section 188 of the Indian Penal Code for disobedience to an order passed under that section must be concluded within the two months during which the order is in force, and that if it is not so concluded, the offender must be acquitted. In such a case Beaumont C.J. observed in Emperor v. Rajendrasing Ramsing (1939) 42 Bom. L.R. 356 :. in my opinion it is clear that a person can be charged with committing an offence against the order at the time when it was in operation. The fact that he was tried after the order had ceased to be in operation seems to me to be entirely irrelevant.
47. This case was approved of and followed recently by the Nagpur High Court in Provincial Government v. Sayad Ali Sayad Munir. A.I.R . Nag. 106 The Patna High Court also adopted this principle in Madho Singh v. King-Emperor. I.L.R.(1943) Pat. 240
48. The case of disobedience to a temporary order under Section 144 of the Criminal Procedure Code may be distinguished on the ground that although the order had expired, Section 188 of the Indian Penal Code which made the disobedience penal was still in force. In the Nagpur and Patna cases also, which were decided before the expiry of the Defence of the India Act on September 30, 1946, a distinction was made between cases where entire Acts had expired and those where particular provisions of an Act had expired. As regards the passages from Steavenson v. Oliver, quoted above, the Lord Chancellor considered them in the recent case of Bex v. Wicks (1946) 62 T.L.R. 674 and thought that the dicta of the Chief Baron and Baron Alderson went further than the dictum of Baron Parke, and his Lordship observed (p. 676) :-
They 'appear to say in any case where a man offends against a temporary statute he can be convicted and punished after its expiration, but in our opinion this is contrary to the older cases which were not cited to the Judges, in particular Miller's (1764)1 Wm. Bl. 451 case and M'Kensie's (1820) Russ. & Ry. 429 Case.'
49. His Lordship then proceeded to point out that Section 38(2) (c) and (d) of the Interpretation Act, 1889, provided for such a contingency in the ease of repealed Acts and observed (p. 676) :-
This section...has no application to statutes which have expired, and the question must therefore remain one of construction whether the provisions as to expiry are such as to make it mpossible for a prosecution or other proceeding to be either instituted or brought to conviction, or whether on a true construction of the Act Parliament has provided that legal proceedings, whether of a civil or criminal character, can be prosecuted in relation to matters connected with the Act after it has expired.
50. This may be taken to be the law today, and in order to set all doubts at rest the Governor General made the position clear by promulgating on March 30, 1946, the Defence of India (Second Amendment) Ordinance (XII of 1946) by adding the following words to Sub-section (4) of Section 1 of the Defence of India Act:-
but its expiry under the operation of this sub-section shall not affect-
(a) the previous operation of, or anything duly done or suffered under, this Act or any rule made thereunder or any order made under any such rule, or
(b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or
(c) any penalty, forfeiture or punishment incurred in respect of any contravention of any rule made under this Act or of any order made under any such rule, or
(d) 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, any such penalty, forfeiture or punishment may be imposed as if this Act had not expired.'
51. This affords a complete answer to the petitioners' contention. In the words of the Lord Chancellor in Bex v. Wicks (at p. 676), but for this provision
it could...hardly be contended that a person could be convicted for an offence against the Act after its expiration, and accordingly, the whole question is the construction which ought to be placed on Sub-section (3) of Section 11.
Mr. Setalvad argues that as the Act itself expired on September 30, 1946, even the amendment of any section of the Act expired along with it. It is true that, as pointed out by Happell J. in the recent unreported Madras case cited above, this Ordinance was not promulgated as an independent ordinance, but only as an amendment of Sub-section (4) of Section 1 of the Defence of India Act, 1939, and its intention was, substantially, to apply to that Act, on its expiration, the like provisions under Section 6 of the General Clauses Act, 1897, which automatically apply to an Act on its repeal, in the absence of provisions to the contrary. This was necessitated by the difference between the effects of the expiry of a temporary enactment and the repeal of a permanent enactment, (see Kalyan Das v. The Crown I.L.R.(1934) Lah. 782The result of the amendment effected by Ordinance XII of 1946 is that the expiry of the Defence of India Act on September 30, 1946, was not absolute and did not wipe out the, effect of what had happened before its expiry. This ordinance having been passed during the period mentioned in Section 3 of the India and Burma (Emergency Provisions) Act, 1940, its effect will, for the reason already stated, remain in force until it is repealed, and the expiry of the Defence of India Act under Sub-section (4) of Section 1. will be subject to the amendment effected by this ordinance.
52. In this connection it must further be borne in mind that one of the two orders said to have been contravened by the petitioners relates to a Provincial matter, but could be made by the Central Government, as the Governor General could deal with it in exercise of the powers conferred by Sub-section (1) of Section 102 of the Government of India Act, 1985. Those powers also came to an end on September 30, 1946, and the order ceased to be in force under the provisions of Sub-section (4) of that section. Even that sub-section makes an exception in respect of 'things done or omitted to be done before the expiration of the said period,' that is to say the Defence of India Act and the rules and orders made thereunder in respect of Provincial matters will continue to apply after September 30, 1946, to 'things done or omitted to be done', to which they applied before that date. The meaning of the words 'things done or omitted to be done' was considered in Bex v. Wicks (cited above), where similar words in Sub-section (3) of Section 11 of the Emergency Powers (Defence) Act, 1939 (2 & 3 Geo. VI, c. 62) had to be construed, and the Lord Chancellor concluded by saying
While, no doubt, it does cover completed acts or transactions, we think that the language is wide enough to make the provisions of the Act apply, or, in the language of the section, 'operate,' in respect of any act done before the expiration even though not perfected or completed by prosecution or conviction until afterwards.
53. The other order deals with a federal subject and was within the competence of the Central Government, so that Sub-section (4) of Section 102 of the Government of India Act, 1935, has no application to it. This is made still more clear by Section 5 of India (Central Government and Legislature) Act, 1946 (9 & 10 Geo. VI, Section 39), passed on March 26, 1946, by which the words 'shall, to the extent of the incompetency, cease to have effect' were substituted for the words 'shall cease to have effect' in Sub-section (4) of Section 102 of the Government of India Act, 1935.
54. All these amendments had to be made since Sub-section (2) of Section 38 of the Interpretation Act, 1889, and Section 6 of the General Clauses Act, 1897, relate to repealed Acts and not to temporary Acts which have expired or ceased to have force by efflux of time. The result is that offences against the Defence of India Rules and the orders made thereunder committed before September 30, 1946, can be tried thereafter, and prosecutions started before that date in respect of such offences can be proceeded with to their conclusion. It may be noted that the complaints in both the cases were filed on February 19, 1946, that is to say before the proclamation of emergency was revoked, and the tribunal took cognizance of them under sub-r, (1) of Rule 130 of the Defence of India Rules, and is proceeding with the trial since then.
55. It is further urged by Mr. Setalvad that both the orders are invalid as they are expressed to have been issued by the 'Central Government'. Orders under Sub-rule (2) of Rule 81 the Defence of India Rules can be made by the Central Government. Sub-rule (1) of Rule 3 says that the General Clauses Act, 1897, shall apply to the interpretation of the Defence of India Rules. 'Central Government,' in relation to anything done or to be done after the commencement of Part III of the Government of India Act, 1935, is defined in Sub-section (Sab) of Section 3 of the General Clauses Act, 1897, to mean the Federal Government, which before the establishment of the Federation is defined in Sub-section (18a) to mean
As respects matters with respect to which the Governor-General is by and under the provisions of the Government of India Act, 1935, for the time being in force required to act in his discretion, the Governor General, and as respects other matters, the Governor-General in Council.
56. Hence in the present case every order made by the Central Government under Sub-rule (2) of Rule 81 of the Defence of India Rules must be made by the Governor-General in Council. Sub-section (1) of Section 40 in the ninth schedule to the Government of India Act, 1935, provides that 'all orders and other proceedings of the Governor-General in Council shall be expressed to be made by the Governor-General in Council, and shall be signed by a Secretary to the Government of India or otherwise as the Governor-General in Council may direct'. The orders with the contravention of which the petitioners are charged purport to have been made under Sub-rule (2) of Rule 81 of the Defence of India Rules, and are signed by a Secretary to the Government of India, but are expressed to have been made by 'the Central Government' and not by 'the Governor-General in Council'. On that account, it is urged that the orders are invalid and inoperative.
57. We understand that all the rules and orders made under the Defence of India Act, 1939, are expressed to have been made and issued by 'the Central Government' and not 'the Governor-General in Council'. If Mr. Setalvad's objection is sound, as it apparently seems to be, then it goes to the root of their validity and it is surprising that this point was never taken till now, although there have been numerous convictions for breach of those rules and orders, and the validity of several of the rules and orders was frequently challenged on various other grounds. But that is no reason for not upholding the objection, if it is really sound. But we think that it is not. The orders of the Governor-General in Council are made at a meeting of his Executive Council under Sub-section (2) of Section 39, and Sub-section (1) of Section 40 merely prescribes the language in which they are to be expressed and the mode in which they are to be authenticated. They are to be signed by a Secretary to the Government of India or otherwise as the Governor-General in Council may direct, and, 'when so signed, they shall not be called into question in any legal proceeding on the ground that they were not duly made by the Governor-General in Council'. The two Orders in question are signed by a Secretary to the Government of India, but the language in which they are expressed does not conform to the requirement of Sub-section (1) of Section 40. Although the sub-section says that the orders 'shall' be expressed to be made by the Governor-General in Council, we do not think it to be so mandatory as to invalidate the orders, if it is not strictly complied with. Sub-rule (2) of Rule 81 of the Defence of India Rules empowers the Central Government to make such orders, and the orders are expressed to have been made by the Central Government. What that means is to be ascertained by reference to the General Clauses Act, 1897. With regard to such orders, Central Government is equivalent to Governor-General in Council, and if the Orders be expressed to be made by the Central Government, the departure from the strict letter of Sub-section (1) of Section 40 cannot be regarded as fatal to the validity of the Orders.
58. In Krishnaji v. Secretary of State : AIR1937Bom449 relied upon by Mr. Setalvad, it was held that in order to constitute a valid contract which could be enforced against the Secretary of State for India in Council, the mandatory provisions of Section 30 of the Government of India Act, 1915, must be strictly complied with. That section requires that the contract must be by a formal deed executed on behalf of and in the name of the Secretary of State by such person and in such manner as the Governor-General in Council by resolution directs or authorises. Similarly, in the other case cited by Mr. Setalvad, viz. Secretary of State v. Bhagwandas Goverdhandas (1937) 40 Bom. L.R. 19 an agreement to lease certain Government lands was contained in the correspondence with the Collector and it was held that the correspondence did not create a valid contract and was not binding against Government as it did not amount to a contract on behalf of and in the name of the Secretary of State in Council executed by the Collector, as required by the said Section 30. Both these cases were concerned with the competence to make a contract on behalf of Government, and not the mere form of drawing up the contract. But as regards the formality, although Section 30 required that a contract in order to be binding against Government must be executed by a person authorised by the Governor-General in Council, it was held in the latter case that a contract would be complete and could be enforced even without a document so executed, 'provided it was plain that the correspondence was carried on behalf of and in the name of the Secretary of State'. In other words the validity of the contract did not depend on the formality of the execution of a document by the person authorised by resolution in that behalf. If such person did not execute it, he could be compelled to do so by a suit for specific performance of the contract.
59. In this way the distinction between the making of a contract and the execution of the document of the contract was clearly pointed out. Likewise there is a distinction between the making of an Order by the Governor-General in Council, and its being 'expressed' to have been made by the Governor-General in Council. A defect in the former would be fatal to the validity of the Order, but not a defect in the latter.
60. In In re Lord Thurlow,  1 Q.B. 724 Lopes L.J. observed (p. 731):
It is clear that the word 'shall' is not always used in a mandatory sense. There is abundance of authority to the contrary in cases where it has been held to be directory only.
61. As explained in Stroude's Judicial Dictionary,
Whenever a statute declares that a thing 'shall' be done, the natural and proper meaning is that a peremptory mandate is enjoined, But where the thing has reference to
a The time or formality of completing any Public act, not being a step in a litigation, or accusation, or...the enactment will generally be regarded as merely directory, unless there be words making the thing done void if not done in accordance with the prescribed requirements.
62. By way of illustration I may refer to Section 16 of the Marriage Act (4 Geo. IV, c. 76), which requires the consent of the father or guardian to the marriage of a minor, and in The King v. The Inhabitants of Birmingham, (1828) 8 B. & C. 29 the requirement was held to be directory only. Lord Tenterden, in giving judgment, said (P. 35) :
The language of this section is merely to require consent, it does not proceed to make the marriage void, if solemnized without consent.
63. Citing this with approval in Cole v. Green, (1843) 6 Man. & G. 872 Tindal C.J. observed (p. 890) :
So, here the statute says that contracts shall be signed by the commissioners, or by any three of them, or by their clerk : it does not say that they shall be void unless so signed. It appears, therefore, that this part of the...section is directory only.
64. Similarly, the provision in Sub-section (1) of Section 40 of the ninth schedule to the Government of India Act, 1935, regarding the mode of expressing an order made by the Governor-General in Council is directory, and there is no further provision that if that mode is not adopted, the order itself is void.
65. The Orders really contain two parts; the first part is the preamble, and the second part is the Order itself; the former is procedural and the latter operative. There are numerous authorities to show that in matters of procedure mandatory words are construed as directory (Krishnasami Pannikondar v. Muthukrishna Pannikondar I.L.R.(1901) Mad. 364 . In this case both the Orders closely follow the wording of Sub-rule (2) of Rule 81 of the Defence of India Rules, which confers on 'the Central Government' the power to make these Orders, and their validity cannot be assailed on the ground that they are not expressed to have been made by the Governor-General in Council.
66. In this view it is not necessary to consider the learned Advocate General's argument that Sub-section (1) of Section 40 of the ninth schedule of the Government of India Act, 1935, applies only to executive orders and not to legislative orders, although that argument is not without merit.
67. Accused Nos. 1 and 2 are limited companies incorporated in Rampur State, and accused Nos. 3 and 4 are directors of both companies. It is the two companies which are alleged to have contravened the two Orders, and the directors also are sought to be held liable for the contravention under the provisions of r. 122 of the Defence of India Rules. Hence the charges framed by the tribunal against them mention that they have committed offences punishable under Sub-rule (4) of Rule 81 read with Rule 122 of the Defence of India Rules. In the Schedule to Bombay Act XXI of 1946 and in the notification of the Government of India, which allotted the two cases to the tribunal, Rule 122 is not mentioned in the column describing the offences for which the petitioners are to be tried. Mr. Setalvad, therefore, contends that the charges framed by the tribunal are unauthorised, and that in the absence of Rule 122, accused Nos. 3 and 4 cannot be tried by the tribunal for offences committed by accused Nos, 1 and 2. This argument, however ingenious, is not tenable. Rule 122 does not create any offence or prescribe any penalty for an offence. It merely says:
If the person contravening any of the provisions of these Rules, or of any order made thereunder, is a company or other body corporate, every director, manager, secretary or other officer or agent thereof shall, unless he proves that the contravention took place without his knowledge, or that he exercised all due diligence to prevent such contravention, be deemed to be guilty of such contravention.
68. Thus this merely sets out in what circumstances directors and other officers of a company may be held liable for acts done by the company. A company acts through its directors and officers, and hence the: rule throws upon them the burden of proving their innocence if the company is found to have committed an offence. To borrow the language of Courtney Terrell C.J. in Hari Lal v. King-Emperor, I.L.R.(1934) Pat. 225 (where the necessity of specifically mentioning Section 34 of the Indian Penal Code in a charge was considered and negatived),-there is in law no distinction between a charge under Sub-rule (4) of Rule 81 of the Defence of India Rules, and a charge under that sub-rule read with Rule 122. Rule 122 is a mere statement or explanation to be attached to any section or rule which deals with a criminal offence. It was, therefore, not necessary to specify it in the schedule to Bombay Act XXI of 1946 or the notification of the Government of India. The offences to be tried are set out and the parties who are to be tried are mentioned. Why they are to be held liable for those offences need not be stated in the Act or the notification intended to empower the tribunal to try them for those offences. We do not think that there is any substance in Mr. Setalvad's contention on this point.
69. Two more objections are raised by Mr. Setalvad, namely, that the two orders which the petitioners are alleged to have contravened were not published as required by Sub-rule (1) of Rule 119 of the Defence of India Rules, and that in any event accused Nos. 1 and 2 being companies incorporated in a Native State and having no branches in British India, British Indian Courts have no jurisdiction to try them. As these involve questions of fact, they cannot be considered at this stage in these revision applications, and we leave the points open for being decided by the tribunal, if urged before it.
70. The result is, subject to the defect in the charge in case No. 3 of 1946 regarding the offence committed at Rampur railway station, the rules granted in all the four revision applications must be discharged.