Sankar Saran, J.
1. This application in revision has been filed by Munshi Lal who was convicted of an offence under Section 13 read with Sections 9(2)(a) and 17 of the Hoarding and Profiteering Prevention Ordinance, 35 of 1943. The learned Magistrate who convicted him passed a sentence of fine of Rs. 1000. In appeal the learned Sessions Judge upheld the conviction but reduced the sentence of fine from Rs. 1000 to Rs. 750 only. With this modification he dismissed the appeal. This application came up before a Single Judge of this Court who passed the following order:
The sole question in this application is whether the Hoarding and Profiteering Prevention Ordinance of 1943 is ultra vires the Governor-General, let this application be laid before a Bench.
2. In this Court, however, the arguments were not confined only to the point which was pressed before the learned Single Judge but certain other points were also raised to which we shall presently refer.
3. The facts of this case are simple. On 25th March 1945, two Deputy Magistrates Messrs. C.B.L. Dube and Jagram Singh, who were stationed at Aligarh, went to certain shops in that city with a view to checking black marketing. They gave themselves out as purchasers of articles of necessity. Their real purpose, however, was, as mentioned above, to discover whether the shop-keepers were indulging in black marketing. They arrived at the firm of Piarey Lal Har Ballabh Das, Iron and Steel Merchants. At that time the applicant Munshi Lal, who happens to be one of the proprietors of the firm, was present and was himself conducting the sale. The two Magistrates demanded iron bars (sarias) from Munshi Lal who refused to sell the same to them. He said he did not have sarias in the stock either at his shop or in his go-down, but offered to supply the bars after the purchasers registered their names and addresses with him.
4. Under the Ordinance every Magistrate of the 1st class was not authorised to search the premises of the shop-keepers. Therefore these two Magistrates went to the District Supply Officer, Mr. Bhagwan Sarup who along with Siddic Husain, head constable, and a Hoarding and Profiteering Inspector along with the two Magistrates went to the hop at about 6 or 7 in the evening. From the godown of the applicant they were able to recover 57 bars. Upon these facts the District Magistrate sanctioned the prosecution of the applicant.
5. The defence set up by the applicant was that he had not refused to sell the bars but had asked the Magistrates for their names and addresses and that the bars that had been recovered from his go down were really meant for the construction of culverts on the cement road.
6. The procedure adopted for the trial of this case was that o a warrant case although under the amendment of the Ordinance it should have been a summary trial unless otherwise authorised by the District Magistrate. The case for the prosecution was accepted by the learned Magistrate and he convicted the applicant and, as has been mentioned above, the conviction was upheld in appeal.
7. The first point that has been taken in this Court is that the procedure followed in the trial should have been summary and not the usual procedure prescribed in the Criminal Procedure Code. The Ordinance of 1943 had the following provision before the amendment of 1944:
Notwithstanding anything contained in Section 260 in Chap. 22, Criminal P.C. (5 of 1898), a Magistrate empowered to act under that section may try any offence punishable under this Ordinance in a summary way under the provisions of that chapter, unless the District Magistrate directs that the case should not be so tried.
8. By Ordinance 53 of 1944 an amendment was made to this section and instead of the word 'may' the word 'shall' was substituted for trial of offences in a summary manner. Mr. Misri Lal Chaturvedi who appears for the applicant has emphasized the fact that inasmuch as the amendment of 1944 left no option to a Magistrate but to try a case summarily and inasmuch as the learned Magistrate in this case had not adopted that procedure, it was an illegality which could not be cared by any of the provisions of the Criminal Procedure Code, particularly Section 537. Thus, it was not necessary, in view of the mandatory nature of the provisions of the amending Ordinance, to examine the question whether or not there had been any prejudice to the applicant by the non-observance of the provisions of that Ordinance.
9. Our attention was drawn to three judgments of their Lordships of the Privy Council, namely, Subrahmanya Ayyar v. Emperor ('02) 25 Mad. 61, Rahman v. Emperor and Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67. Reliance was placed on the observations of their Lordships of the Privy Council in Subrahmanya Ayyar v. Emperor ('02) 25 Mad. 61 wherein it was laid down that the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by Section 537, Criminal P.C., such a phrase as 'irregularity' was not appropriate to the illegality in the trial of an accused person by a procedure which was definitely barred by the terms of the statute. This view was expressed after a consideration of the object behind the terms of S.234, Criminal P.C. This well known case has been considered on numerous occasioned by the Courts in this country as also, by their Lordships of the Privy Council, themselves.
10. In Rahman v. Emperor their Lordships after considering the terms of Sections 35 and 537, Criminal P.C., and the authorities cited before them summed up the legal position to the effect that an omission on an irregularity unaccompanied by any probable suggestion of any failure of justice having been thereby occasioned, is not enough to warrant the quashing of a conviction which may be supported by the curative provisions of Sections 635 and 537. In Kotayya v. King-Emperor 34 A.I.R. 1947 P.C. 67 their Lordships expressed themselves on this subject in the following terms:
When a trial is conducted in a manner different from that prescribed by the Code as in a Subrahmanya Ayyar v. Emperor ('02) 25 Mad. 61 the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs In the course of such conduct, the irregularity can be cured under Section 537, and nonetheless BO because the irregularity involves, as must nearly always he the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind This view finds support in the decision of their Lordships' Board in 5 Rang. 532 where failure to comply with Section 360, Criminal P.C., was held to be cured by Ss.535 and 537. The present case falls under Section 537, and their Lordships hold the trial valid notwithstanding the breach of Section 162.
11. It would thus appear that their Lordships lay emphasis on the fact that if the trial is con-ducted substantially in the manner prescribed by the Code then the irregularity is curable and they have made it clear by pointing out that the distinction between illegality and irregularity is one of degree rather than of kind.
12. In the circumstances of the present case it is clear that the irregularity, if any, was curable by Section 537, Criminal P.C. The trial was undoubtedly not a summary one. The ordinary procedure was adopted, but the circumstances in which the ordinary procedure was continued is worthy of notice. After the prosecution evidence had been given the Prosecuting Inspector made an application in the Court of the Magistrate praying that the procedure adopted in the case be summary as laid down by the amendment of 1944 to Ordinance 35 of 1943. This application was resisted on behalf of the applicant and his submission was that it would be unnecessary harassment for him to have the case tried de novo according to the procedure prescribed for the trial of summary cases. It is because of that apparently that the sanction of the District Magistrate was not obtained. The learned Magistrate who was trying the applicant in the course of the order made the following observations:
As much of the proceedings have finished and the accused has Consented to the trial of the case according, to the ordinary procedure and objects to the trial of the case by summary procedure and the trial of the case under the ordinary procedure would neither prejudice the accused nor the prosecution and the case would now be finished, the trial of the case would continue under the t ordinary and the regular procedure.
13. We are satisfied that at worst this is at case of irregularity and that the irregularity is curable by the provisions of 537, Criminal P.C. We are fortified in the view that we take by a decision of this Court in Emperor v. Bishan Sahai : AIR1937All714 , where it was laid down that even though there was a violation of statutory provision against a particular mode of trial, and the trial was illegal for misjoinder, it could be held to be vitiated only if it was found that the accused were prejudiced in their defence or there had been other-wise a failure of justice. For the purpose of Section 537, Criminal P.C., there is no distinction between an illegality and an irregularity; both are curable under that section, the sole criterion being whether the defect had or had not occasioned a failure of justice.
14. The next point that was urged before us is that the Hoarding and Profiteering Provention Ordinance was ultra vires the Governor-General. The argument was advanced that it was necessary for the Governor-General first to proclaim that an emergency had arisen for the promulgation of an Ordinance. The Governor-General should then have proceeded to promulgate the Ordinance and the mere fact that mention was made of the emergency in the Ordinance itself was insufficient and did not comply with-the provisions of the Government of India Act. The answer to this argument is conclusive and is to be found in Emperor v. Benoari Lal Sarma wherein their Lordships of the Privy Council observed as follows:..the paragraph does not require the Governor-General to state that there is an emergency, or what the emergency is, either in the text of the Ordinance: or at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists.
15. The third and the last point taken was that the two Magistrates who went to purchase the iron bars were not bona fide purchasers, and as such, the applicant was not bound to supply the goods to them. Reliance was placed on Santosh Das Gupta v. Emperor : AIR1947Cal179 . That is a Calcutta case where there was a Notification by the Controller General of Civil Supplies authorizing retail dealers to refuse to sell a spare part of a gramophone unless the intending purchaser returned a used part in its place. The intending purchaser had not brought the spare part of the gramophone and the dealer refused to sell the new part to him. That case is entirely different from the case before us. There is no order calling upon the dealers of iron bars to refuse to sell to unauthorized persons. The Hoarding and Profiteering Prevention Ordinance does not contemplate the selling of goods only to bona fide purchasers. Any one who goes to a shop and asks for a certain thing to be supplied to him must receive the proper answer, i.e., whether or not that article is available in the shop for sale. If the article is available and the shop-keeper refuses to sell, he would clearly be offending against the Ordinance aforesaid.
16. Accordingly we dismiss this revision. It appears that the learned Magistrate had ordered the forfeiture of the iron bars that were re-covered from the godown of the applicant. Mr. Chaturvedi contended that that was a hard order considering that a substantial fine had been imposed. In our judgment the order was not hard especially because we consider that black marketing must be put down and sympathy with this class of people would be entirely misplaced.