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Jethanand Betab Vs. the State of Delhi (Now Delhi Administration) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1960SC89; 26(1960)CLT533(SC); 1960CriLJ160; [1960]1SCR755
ActsIndian Wireless Telegraphy Act, 1933 - Sections 3, 6 and 6(1-A); Indian Wireless Telegraphy (Amendment) Act, 1949 - Sections 5; Indian Wireless Telegraphy (Amendment) Act, 1952 - Sections 2 and 4; General Clauses Act, 1879 - Sections 6-A
AppellantJethanand Betab
RespondentThe State of Delhi (Now Delhi Administration)
Cases ReferredMohinderSingh v. Mst. Harbhajan Kaur I.L.R.
Excerpt:
.....sound - order of sentence upheld without fine. - - 6(1-a) of the act wasrepealed, this court in limiting the appeal to the question of sentence onlywent wrong, for, if that section was not on the statute book at the time of thealleged commission of the offence, not only the sentence but also theconviction thereunder would be bad. we must, therefore, hold that the word'text' is comprehensive enough to take in the subject as well as theterminology used in a statute......no further reason for their existence. at times,inconsistencies are also removed by repealing and amending acts. the onlyobject of such acts, which in england are called statute law revision acts, islegislative spring-cleaning and they are not intended to make any change in thelaw. even so, they are guarded by saving clauses drawn with elaboratecare,.......'. 9. it is, therefore, clear that the main object of the 1952 act was only tostrike out the unnecessary acts and excise dead matter from the statute book inorder to lighten the burden of even increasing spate of legislation and to removeconfusion from the public mind. the object of the repealing and amending act of1952 was only to expurgate the amending act of 1949, along with similar acts,which had served its purpose. 10. the next.....
Judgment:

Subba Rao, J.

1. This appeal by special leave is directed against the order of the HighCourt of Punjab (Circuit Bench), Delhi confirming the conviction of theappellant and the sentence passed on him by the Magistrate, First Class, Delhi,under s. 6(1-A) of the Indian Wireless Telegraphy Act, 1933 (XVII of 1933)(hereinafter called 'the Act').

2. Jethanand, the appellant herein, was prosecuted, along with another, inthe Court of the Magistrate, First Class, Delhi, under s. 6(1-A) of the Act forpossessing a wireless transmitter in contravention of the provisions of s. 3 ofthe Act, and was sentenced to six months rigorous imprisonment. On appeal, thelearned First Additional Sessions Judge, Delhi, upheld the conviction butreduced the sentence to the period of imprisonment already undergone plus afine of Rs. 500. On revision, the High Court confirmed both the conviction andthe sentence. On an application filed for special leave, this Court gave thesame, but limited it to the question of sentence.

3. Learned Counsel raised before us the following contentions : (1) s.6(1-A) of the Act was repealed, and, therefore, neither the conviction nor thesentence thereunder could be sustained; and (2) if s. 6(1-A) of the Act wasrepealed, this Court in limiting the appeal to the question of sentence onlywent wrong, for, if that section was not on the statute book at the time of thealleged commission of the offence, not only the sentence but also theconviction thereunder would be bad. Both the contentions raised turn upon thesame point. The different steps in the argument may be stated thus : In the ActXVII of 1933, as it originally stood, there was no specific provision making thepossession of wireless transmitter an offence. By the Indian WirelessTelegraphy (Amendment) Act, 1949 (XXXI of 1949) (hereinafter called the'1949 Act'), s. 6(1-A) was inserted in the Act, whereunder thepossession of a wireless transmitter was constituted a separate offence. Theamending Act was repealed by the Repealing and Amending Act, 1952 (XLVIII of1952) (hereinafter called the '1952 Act'), with the result that onthe date of the alleged commission of the offence the said section was not onthe statute book. If that was the legal position, the limitation on the leavegranted by this Court would result in an anomaly, namely, that the convictionwould stand but the sentence would be quashed. The argument so presentedappears to be plausible, but, in our view, not sound.

4. There is a real justification for this Court limiting the scope of thespecial leave. The High Court by mistake cited in its judgment the provisionsof s. 6(1) of the Act instead of s. 6(1-A) thereof. If the conviction was unders. 6(1), the maximum sentence permissible on the first offence thereunder wasonly fine which may extend to Rs. 100. Presumably on the assumption that theconviction could be sustained under s. 6(1), even if s. 6(1-A) was not on thestatute book - there may be justification for this view, as the words'wireless telegraphy apparatus' in s. 6(1) are comprehensive enoughto take in 'wireless telegraphy transmitter' - this Court gave leavelimited to the question of sentence. The inconsistency, if any, was the resultof the appellant's presentation of his case at that stage, and he cannot now beallowed to take advantage of his default to enlarge the scope of the appeal.

5. That apart, there are no merits in the contention. At the outset it wouldbe convenient to read the relevant provisions of the three Acts :

The Indian Wireless TelegraphyAct, 1933.

S. 3 : Save as provided bysection 4, no person shall possess wireless telegraphy apparatus except underand in accordance with a licence issued under this Act.

S. 6(1) : Whoever possesses anywireless telegraphy apparatus in contravention of the provisions of section 3shall be punished in the case of the first offence, with fine which may extendto one hundred rupees, and, in the case of a second or subsequent offence, withfine which may extend to two hundred and fifty rupees.

The Indian Wireless Telegraphy(Amendment) Act, 1949.

S. 5. Amendment of section 6, ActXVII of 1933.

In section 6 of the said Act, -

* * *

(ii) after sub-section (1), thefollowing sub-section shall be inserted, namely :-

'(1A) whoever possesses anywireless transmitter in contravention of the provisions of section 3 shall be punishedwith imprisonment which may extend to three years, or with fine which mayextend to one thousand rupees, or with both.'

REPEALING AND AMENDING ACT, 1952.

S. 2 : The enactments specifiedin the First Schedule are hereby repealed to the extent mentioned in the fourthcolumn thereof.

The First Schedule

---------------------------------------------------------

Year No. Short title Extent of repeal

(1) (2) (3) (4)

---------------------------------------------------------

1949 XXXI The Indian Wireless Telegraphy The whole

(Amendment) Act, 1949.

---------------------------------------------------------

S. 4 : The repeal by this Act ofany enactment shall not affect any other enactment in which the repealedenactment has been applied, incorporated or referred to;

* * *

6. The substance of the aforesaid provisions may be stated thus : The Act of1949 inserted s. 6(1-A) in the Act of 1933. The 1949 Act was repealed by the1952 Act, but the latter Act saved the operation of other enactments in whichthe repealed enactment has been applied, incorporated or referred to. The firstquestion that arises for consideration is whether the amendments inserted bythe 1949 Act in the 1933 Act were saved by reason of s. 4 of the 1952 Act.

7. The general object of a repealing and amending Act is stated inHalsbury's Laws of England, 2nd Edition, Vol. 31, at p. 563, thus :

'A statute Law Revision Act does not alter the law,but simply strikes out certain enactments which have become unnecessary. Itinvariably contains elaborate provisos.'

8. In Khuda Bux v. Manager, Caledonian Press : (1954)IILLJ13Cal , Chakravartti,C.J., neatly brings out the purpose and scope of such Acts. The learned ChiefJustice says at p. 486 :

'Such Acts have no legislative effect, but aredesigned for editorial revision, being intended only to excise dead matter fromthe statute book and to reduce its volume. Mostly, they expurgate amending Act,because having imparted the amendments to the main Acts, those Acts have servedtheir purpose and have no further reason for their existence. At times,inconsistencies are also removed by repealing and amending Acts. The onlyobject of such Acts, which in England are called Statute Law Revision Acts, islegislative spring-cleaning and they are not intended to make any change in thelaw. Even so, they are guarded by saving clauses drawn with elaboratecare,.......'.

9. It is, therefore, clear that the main object of the 1952 Act was only tostrike out the unnecessary Acts and excise dead matter from the statute book inorder to lighten the burden of even increasing spate of legislation and to removeconfusion from the public mind. The object of the Repealing and Amending Act of1952 was only to expurgate the amending Act of 1949, along with similar Acts,which had served its purpose.

10. The next question is whether s. 4 of the Act of 1952 saved the operationof the amendments that had been inserted in the Act of 1933 by the repealedAct. The relevant part of s. 4 only saved other enactments in which therepealed enactments have been applied, in corporated or referred to. Can it besaid that the amendments are covered by the language of the crucial words in s.4 of the Act of 1952, namely, 'applied, incorporated or referred to'.We think not. Section 4 of the said Act is designed to provide for a differentsituation, namely, the repeal of an earlier Act which has been applied,incorporated or referred to in a later Act. Under that section the repeal ofthe earlier Act does not affect the subsequent Act. The said principle has beensuccinctly stated in Maxwell on Interpretation of Statutes, 10th Edition, page406 :

'Where the provisions of one statute are, byreference, incorporated in another and the earlier statute is afterwardsrepealed the provisions so incorporated obviously continue in force so far asthey form part of the second enactment.'

So too, in Craies on Statute Law, 3rd Edition, the sama ideas is expressedin the following words, at p. 349 :

'Sometimes an Act of Parliament, instead ofexpressly repeating the words of a section contained in a former Act, merely refersto it, and by relation applies its provisions to some new state of thingscreated by the subsequent Act. In such a case the 'rule of construction isthat where a statute is incorporated by reference into a second statute, therepeal of the first statute by a third does not affect the second'.

The Judicial Committee in Secretary of State for India in Council v.Hindusthan Co-operative Insurance Society, Ltd. I.L.R. 58 IndAp 259, endorsedthe said principle and restated the same, at p. 267, thus :

'This doctrine finds expression in a common-formsection which regularly appears in the amending and repealing Acts which arepassed from time to time in India. The section runs : 'The repeal by thisAct of any enactment shall not affect any Act............in which suchenactment has been applied, incorporated or referred to.' The independentexistence of the two Acts is therefore recognized; despite the death of theparent Act, its offspring survives in the incorporating Act. Though no suchsaving clause appears in the General Clauses Act, their Lordships think thatthe principle involved is as application in India as it is in thiscountry.'

11. It is, therefore, manifest that s. 4 of the 1952 Act has no applicationto a case of a later amending Act inserting new provisions in an earlier Act,for, where an earlier Act is amended by a later Act, it cannot be said that theearlier Act applies, incorporates or refers to the amending Act. The earlierAct cannot incorporate the later Act, but can only amended by it. We cannot,therefore, agree with the view expressed by the Punjab High Court in MohinderSingh v. Mst. Harbhajan Kaur I.L.R. 1955 Punj. 625, and in Darbara Singh v.Shrimati Karnail Kaur 61 P.L.R. 762, that s. 4 of the Repealing and AmendingAct of 1952 applies to a case of repeal of an amending Act.

12. This legal position does not really help the appellant, for the case onhand directly falls within the four corners of s. 6-A of the General ClausesAct, 1897 (X of 1897). The above section reads :

'Where any Central Act or Regulation made after thecommencement of this Act repeals any enactment by which the text of any CentralAct or Regulation was amended by the express omission, insertion orsubstitution of any matter, then, unless a different intention appears, therepeal shall not affect the continuance of any such amendment made by theenactment so repealed and in operation at the time of such repeal.'

13. As, by the amending Act of 1949, the text of the Act XVII of 1933, wasamended by the insertion of 6 (1-A) therein, the repeal of the amending Act bythe 1952 Act did not affect the continuance of the amendment made by theenactment so repealed. It is said that for the application of s. 6-A of theGeneral Clauses Act, the text of any enactment should have been amended; but inthe present case the insertion of s. 6(1-A) was not a textual amendment but asubstantial one. The text of an enactment, the argument proceeds, is thephraseology or the terminology used in the Act, but not the content of thatAct. This argument, if we may say so, is more subtle than sound. The word'text', in its dictionary meaning, means 'subject ortheme'. When an enactment amends the text of another, it amends thesubject or theme of it, though sometimes it may expunge unnecessary wordswithout altering the subject. We must, therefore, hold that the word'text' is comprehensive enough to take in the subject as well as theterminology used in a statute.

14. Another escape from the operation of s. 6-A of the General Clauses Actis sought to be effected on the basis of the words 'unless a differentintention appears'. The repealing Act does not indicate any intentiondifferent from that envisaged by the said section. Indeed, the object of thesaid Act is not to give it any legislative effect but to excise dead matterfrom the statute book. The learned Counsel placed before us the historicalbackground of the amending Act with a view to establish that the intention ofthe legislature in passing the said Act was to expurgate s. 6(1-A) from thestatute as it was redundant and unnecessary. It is said that the IndianTelegraph Act, 1885 (XIII of 1885) provided for the offence covered by s. 6(1-A), and, therefore, the legislature though, by the Act of 1948, inserted thesaid section in the Act of 1933, removed it in the year 1952 as the saidamendment was unnecessary and redundant. There is no foundation for thisargument, and the entire premises is wrong. Section 20 of Act XIII of 1885reads;

15. S. 20(1) : If any person establishes, maintains or works a telegraphwithin India in contravention of the provisions of section 4 or otherwise thanas permitted by rules made under that section, he shall be punished, if thetelegraph is a wireless telegraph with imprisonment which may extend to threeyears, or with fine, or with both, and in any other case, with a fine which mayextend to one thousand rupees.

16. Though the words are comprehensive enough to take in a wirelesstransmitter, the section does not prohibit the possession of a wirelessapparatus. As the Act only gave power to control the establishment, maintenanceand working of wireless apparatus, in practice it was found that the detectionof unlicenced apparatus and the successful prosecution of the offenders weredifficult, with the result that the State was losing revenue. To remove thisdefect, Act XVII of 1933 was passed to prohibit the possession without licenceof a wireless apparatus. Under s. 6, the penalty for such illegal possession ofa wireless telegraphy apparatus was made an offence, but the sentenceprescribed was rather lenient. Subsequently, the legislature thought that thepossession of a wireless transmitter was a graver offence; sometimes involvingthe security of the State, and so an amendment was introduced in 1949constituting the possession of such apparatus a graver offence and imposing amore severe punishment. Therefore, it cannot be said that s. 6(1-A), insertedin the Act XVII of 1933 by the amending Act of 1949, is either covered by theprovisions of the Indian Telegraph Act, 1885, or a surplusage not serving anydefinite purpose. Even from the history of the legislation we find it notpossible to say that it disclosed an intention different from that envisaged ins. 6-A of the General Clauses Act.

17. For the aforesaid reasons, we hold that s. 6(1-A) of the Act continuedto be on the statute book even after the amending Act of 1949 was repealed byAct XLVIII of 1952, and that it was in force when the offence was committed bythe appellant.

18. The appeal fails and is dismissed.


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