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Dhawanji Rawji and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in1949CriLJ332
AppellantDhawanji Rawji and ors.
RespondentEmperor
Excerpt:
- .....3, military stores (unlawful possession) ordinance no. xxxiii [33] of 1913 and under defence of india rule 81 (41 read with the pipes control order, 1942, and a preliminary objection was-entered in their behalf to have the proceedings' dropped on the ground that the aforesaid ordinance and the defence of india act and the rules-thereunder had lapsed. this objection was rejected by the trial court, and in revision, the sessions judge, jubbulpore, who held that the proceedings under the ordinance could not continue as it had lapsed, found that the prosecution under the pipes control order could continue in virtue of the provisions of section 2 (a) (vii), and s 5, ordinance xvi ii [18] of 1946. the applicants have now come up in revision to this-court.2. the pipes control order was.....
Judgment:
ORDER

Hemeon, J.

1. The applicants, Dhanwanji, Moolji and Bhanji, all of Jubbulpore are being prosecuted in the Court of the first Class Magistrate, Sugar under Section 3, Military Stores (Unlawful Possession) ordinance No. XXXIII [33] of 1913 and under Defence of India Rule 81 (41 read with the Pipes Control Order, 1942, and a preliminary objection was-entered in their behalf to have the proceedings' dropped on the ground that the aforesaid Ordinance and the Defence of India Act and the rules-thereunder had lapsed. This objection was rejected by the trial Court, and in revision, the Sessions Judge, Jubbulpore, who held that the proceedings under the Ordinance could not continue as it had lapsed, found that the prosecution under the Pipes Control Order could continue in virtue of the provisions of Section 2 (a) (vii), and s 5, ordinance XVI ii [18] of 1946. The applicants have now come up in revision to this-Court.

2. The Pipes Control Order was issued under Defence of India Rule 81 (2), but the fact that the Defence of India Rules and Defence of India Act expired on 30th September 1946 did not con-note that the prosecution, which began on 9th November 1945, could not be continued, as in /. K. Gas Plant Manufacturing Co. v. Emperor 1D.L. Rule 438 : A.I.R. 1947 P.O. 38 their Lordships of the Federal Court had held that proceedings in respect of offences under Defence of India Rule 31 (4) can be continued even after 30th September 1946.

3. It was, however, contended that as the Pipes Control Order was cancelled on 30th November 1944, it could not be kept alive by Ordinance XVIII 118] of 1946 and Act XXIV [24] of 1916, Section 17 (3) (a) of which runs a follows:. for the purpose of the said Ordinance and this Act an order of the nature referred to in Section 5 of the said Ordinance made before the commencement of the said Ordinance and not previously rescinded shall be deemed to be, and always to have been, an order in force immediately before such commencement, notwithstanding that such order or parts of it, may not then have been in operation, either at all or in particular areas.

4. The 'said Ordinance' is ordinance XXIV [18] of 1916 and the relevant part of Section 5 of that Ordinance runs:

Until other provisions are made under thin Ordinance, any order, whether notified or not, made by whatever authority under B 30-B, or sub-r. (2) or sub-r (3) of Section 81 of the Defence of India Rules, in respect of any matter specified in Section 3, which was in force immediately before the commencement of this Ordinance shall, notwithstanding the expiration of the said rules continue in force so far as consistent with this Ordinance and be deemed to be an order made under Section 3 . ..

5. The title of that Ordinance which came into force on 1st October 1946 wag the Essential Supplies (Temporary Powers) 'Ordinance, 1946 ; and Section 3 empowered the Central Government to provide by notified order for the regulation or prohibition of the production, supply and distribution of essential commodities and trade and commerce therein. Essential commodities were defined in Section 2 and one of the item in that section was 'Iron and Steel' which would necessarily cover the galvanised iron pipes in respect of which the alleged offence wag committed.

6. When that offence was allegedly committed on 20fch October 1944, the order was in force, but the prosecution did not begin until 9th November 1945 and, as shown the Order had been cancelled on 30th November 1944. It had prior to its cancellation, however, become just as integral a part of the law as Defence of India Rule 81 (2) under which it was promulgated: Bhagwan Das Kamlapat v. King-Emperor 1946 N. L. J 257 : A.I.R. 1946 Nag 263. It follows that, whatever the effect of Ordinance XVIII [18] of 1940 and Act XXIV [2i] of 1940, proceedings can continue against the applicants if there is provision for it in the Defence of India Act and rules which were in force proprio vigore, when the prosecution was launched, or elsewhere. On 30th March 1946, i. e., prior to their expiry, Ordinance XII [12] of 1946 amended Section 1 (4), Defence of India Act in order inter alia to save prosecutions against breaches of Orders for acts or omissions committed before the expiration of that Act.

7. The Defence of India Act was itself subject to the Government of India Act, 1035, and under Section 102 (l) of that Act the provisions of the Defence of India Act ceased to have effect from 30th September 1946 'except as respects things done or omitted to be done' before that date. These words in the view of their Lordships of the Federal Court in K. Gas Plant Manufacturing Go. v. King-Emperor ID Ii. R, 438 : A.I.R. 1947 P. 0. 38 supra, authorised the continuation of a prosecution in respect of offences under Defence of India Rule 81 (4). In that case their Lordships relied on Wicks v Director of Public Prosecutions, (1946) 6a T. L. E. 6 in which the House of Lords held that prosecution could be validly launched in respect of offences committed between a April 1943 and January 1944 by a person who was arrested on 3lst March 1946, although the Defence (General) Regulations, 1939, made under the Emergency Powers (Defence) Act, 1939, expired on 24th February 1946.

8. In the circumstances the application is dismissed.


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