M. Hidayatullah, C.J.
1. The order in this case shall also govern the disposal of Criminal Revisions Nos. 403 and 407 of 1957.
2. Criminal Revisions Nos. 402 and 403 of 1957 are references under Section 438 of the Code of Criminal Procedure by the Additional Sessions Judge, Hoshangabad, in two cases pending for trial in the criminal court below. Criminal Revision No. 407 of 1957 has been filed by one of the accused Hiralal Sutwala in whose favour also there is the reference in Criminal Revision No. 402 of 1957. As regards the last revision (Criminal Revision No. 407 of 1957), it is sufficient to say that Shri Chaturvedi of Allahabad, the learned counsel for Hiralal Sutwala did not press it. In view of this, the revision will have to be dismissed. I order accordingly.
3. The other two revisions, as has been stated above, involve consideration of a reference made by the Additional Sessions Judge, Hoshangabad, in which he has recommended the quashing of the charges framed against the accused who are shown as non-applicants in the two revisions. The facts of the case are as follows: On the 29th November, 1948 the accused, who are the non-applicants, were alleged to be travelling from Bombay to Kanpur. In their possession was found at Itarsi an excess quantity of textiles, which at that time were controlled. The prosecutions in respect of the alleged offences are the subject-matter of the charges and the references in question.
4. The history of the prosecution may now be given. The first challan was put up on 17th February, 1949. It appears that that challan was withdrawn and a fresh challan including more accused was filed on 29th May, 1949. No contention has been raised before me that the withdrawal of the challan or the addition of more accused in the subsequent challan is an infringement of any provisions of law. I need not therefore refer to it. Charges were framed on 19th January, 1957.
5. What is contended is that the prosecutions are in respect of offences under the Essential Supplies (Temporary Powers) Act, 1946, (hereinafter the Act), read with Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948. By the time the charges have been framed the Act under which these prosecutions are being conducted has ceased to be law because it was temporary,
No prosecution, it is urged, can be continued after the expiry of a temporary Act and reliance is placed on two rulings -- one of the Allahabad High Court reported in Jugmendar Das v. State, AIR 1951: AH 703 and the other by the Supreme Court in State of Uttar Pradesh v. Jagamandar Das, AIR 1954 SC 683. In the last mentioned case, Mahajan C. J, observed as follows :
'When a Statute is repealed or comes to an automatic end by afflux of time, no prosecution for acts done during the continuance of the repealed or expired Act can be commenced after the date of its repeal or expiry because that would amount to the enforcement of a repealed or a dead Act. In cases of repeal of statutes this rule stands modified by Section 6 of the General Clauses Act. An expiring Act however is not governed by the rule enunciated in that section,'
6. The learned counsel for the non-applicants rely upon this observation and say that no prosecutions for a breach of the Act can be initiated or continued after the expiry of the Act which was temporary.
7. I referred the learned counsel to a decision of the Nagpur High Court reported in Provincial Government, C.P. and Berar v. Sayad Ali, AIR 1946 Nag 106, where apparently a contrary view has been taken. In that case Steavenson v. Oliver, 151 ER 1024 was explained and it was pointed out in the penultimate paragraph of the judgment that offences do not become dispunishable by the expiry of a temporary Act. The passage in Craies on Statute Law is based on that case.
The matter appeared to be covered by conflicting authorities. Though my duty pointed it out to me that I should follow the Supreme Court ruling, I had to consider whether to overrule the earlier Division Bench decision even on the authority of the Supreme Court I needed a Full Bench, However, after hearing the rest of the arguments, I feel that it is not necessary to constitute a higher Bench because the matter is to be decided under the provisions of the Act as well as the Constitution.
8. Leaving out of account how the powers were exercised by the Central Legislature to enact the Defence of India Act, and the Act, which powers continued through the emergency and for six months thereafter, and also leaving out of account the English Parliamentary statute which gave further lease of life of one year, we come to the year 1955. Before that year the Act was given a further lease of life by the Governor-General and subsequently after the inauguration of the present Constitution by resolutions of Parliament.
The life of that Act was thus continued till 25th January, 1955. The power to enact the law or to continue it was derived from Article 369 of the Constitution which conferred, for a period of five years, a power on Parliament to enact laws for certain purposes not enumerated in the Concurrent List.
9. The argument of the non-applicants is that Article 369 limited the duration of such laws to five years and on the expiry of those five years the Act ceased to be in force in its entirety including Sub-sSection (3) of Section 1 of the Act which provided as follows :
'It shall cease to have effect on the expiration of the period mentioned in Section 4 of the India (Central Government and Legislature) Act, 1946, (9 and 10 Geo. 6, c. 39) except as respects things done or omitted to be done before the expiration thereof' 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.'
10. If the matter stood with the Act alone, the argument of the non-applicants would have had to be examined carefully in the light of the dictum of their Lordships of the Supreme Court. It would have been open to the non-applicants to argue that with the expiry of the powers of Parliament not only the Act itself but also the savings enacted in Sub-section (3) of Section 1 quoted above ceased. That argument is fallacious but need not be considered. As has been stated, that is not the end of the matter.
11. In Article 369 a power was conferred upon-Parliament to legislate on topics mentioned therein but not enumerated in the Concurrent List. Article 369 reads as follows:
'Notwithstanding anything in this Constitution, Parliament shall, during a period of five years from the commencement of this Constitution, have power to make laws with respect to the following matters as if they were enumerated in the Concurrent List, namely:--
(a) trade and commerce within a State in, and the production, supply and distribution of, cotton and woollen textiles, raw cotton (including ginned cotton and unginned cotton or kapas), cotton seed, paper (including newsprint) foodstuffs (including. edible oilseeds and oil), cattle fodder (including oilcakes and other concentrates), coal (including coke and derivatives of coal), iron, steel and mica;
(b) offences against laws with respect to any of the matters mentioned in Clause (a), jurisdiction and powers of all courts except the Supreme Court with respect to any of those matters, and fees in respect of any of those matters but not including fees taken in any court;
but any law made by Parliament, which Parliament would not but for the provisions of this article have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of the said period, except as respects things, done or omitted to be done before the expiration: thereof.'
The last 14 words of the article, therefore, preserved the continuity of laws made by Parliament beyond the prescribed five years for things done or omitted to be done. The argument of the learned counsel for the non-applicants is that the Act was not a law 'made by Parliament' in the exercise of powers conferred by Article 369 and further that the last 14 words of the article do not cover this case.
As regards the first matter, no doubt, the Act was passed by the Central Legislature but it was continued by Parliament by virtue of resolutions passed by it which resolutions have been declared by the Supreme Court to be intra vires. No question can, therefore, be raised that the Act was not properly enacted; and by the passing of the resolutions and the continuation of the life of the Act, Parliament must be deemed to have enacted the law in question. Being a law made by Parliament, it did come to an end after the expiry of five years; but there was a saving clause provided in the article itself in the last 14 words :
'except as respects things done or omitted to be done before the expiration thereof'.
12. The argument on these words is that a prosecution which has not been launched or a prosecution which has not been completed is neither a thing done nor anything omitted to be done before the expiry of the Act nor a combination of them. The argument is, if I may say so, somewhat ingenious, but nevertheless the phrase 'things done or omitted to be done' has now been expounded authoritatively by the Federal Court and the House of Lords.
In Wicks v. Director of Public Prosecutions, 1947 AC 362, Viscount Simon dealing with an identical phrase stated, accepting the decision of Lord Goddard, that the phrase was sufficiently wide to continue a prosecution not completed under a temporary Act. The words of Lord Goddard on the occasion are to be found in (R. v. Wicks) Weekly Notes, 1946, November 30, 1946 at page 205. The Lord Chief Justice, with whom Singleton, Denning, Lynskey and Sellers JJ. agreed, observed:
'While, no doubt, it covered completed acts or transactions, the language was 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 till afterwards; and there was not such ambiguity in the meaning of the words of the section, as to require the application of the doctrine, that the matter should be resolved in favour of the subject and against the legislature which had failed to explain itself. There was neither doubt nor ambiguity in the words if given their natural meaning, and the result would appear to be both just and reasonable.'
This observation of Lord Goddard was cited with approval by Viscount Simon and was accepted by Lord Thankerton, Lord Macmillan, Lord Wright, Lord Porter, Lord Simonds and Lord Du Parcq.
13. The authority of the House of Lords is great though not binding. But this case was considered and applied by the Federal Court in J.K Gas Plant Mfg. Co. v. Emperor, AIR 1947 FC 38 The same phrase was again expounded by Hemeon J. in Dhawanji Rawji v. Emperor, AIR 1949 Nag 134, as including a reference to pending proceedings including prosecutions not completed or about to be commenced. An analysis of this phrase is to be found in Jogendrachandra Ray v. The Superintendent of Dum Dum Special Jail, ILR 60 Cal 742 : (AIR 1933 Cal 280) by a Division Bench of the Calcutta High Court.
14. In my opinion, Article 369 contains its own saving clause and the full operation of that saving clause is to keep intact not only the savings enacted by Sub-section (3) of Section 1 of the Act, but, for purposes of prosecution -- both in continuation and to be commenced -- the entire Act. The non-obstante clause at the beginning of Article 369 excludes any consideration arising from any other part of the Constitution.
15. The result, therefore, is that I do not acceptthe references. They are returned as not accepted.