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In Re: A.N.G. Sundarajalu Chetty - Court Judgment

LegalCrystal Citation
Decided On
Reported in1950CriLJ87
AppellantIn Re: A.N.G. Sundarajalu Chetty
Cases ReferredMonmohan Goswami v. Emperor
.....contends, that if section 6 is not intended to apply to a temporary piece of legislation like an ordinance, there was no necessity to insert section 80 in the general clauses act at all......act, 1935, with all its later amendments, it cannot be said that the provisions of section 6, general clauses act corresponding to section 88 (s), english interpretation act can have any application here. by section 80, general clauses act, an ordinance is equated to a central act and there, fore for the interpretation of the provisions of an ordinance, the principles enunciated in the general clauses act will have to be applied. mr. gopalaswami aiyangar invited my attention to the passage in halsbury's laws of england, edn. 2, vol. 31, pp, 511 to 518. at pp. 511 and 612, occur the following passage:statutes, moreover, may be intended to be temporary as well a8 perpetual, and express words are not necessary to show whether parliament intended a particular statute to be one or the.....

Govinda Menon, J.

1. The point arising in this revision petition has already been the subject of a pronouncement by me in the decision reported in The Public Prosecutor v. Eamalingeswara. swami, 1948 M. W. N. 684 : A.I.R. 1949 Mad. 271; but Mr. E. Gopalaawami Aiyangar for the petitioner in his interesting and able argument has sought to question the correctness of that decision and out of deference to his learned arguments I shall state briefly the reasons why I adhere to the views already propounded by me in the case mentioned above.

2. The petitioner was convicted by the Additional First Class Magistrate of Kumbakonam of an offence Under Section 7 (2), War Risk (Goods) Insurance Ordinance IX [9] of 1940 and sentenced to a fine of Es. 500. On appeal, the learned Sessions Judge of West Tanjore con-firmed the conviction and sentence and this revision petition is a further attempt by the petitioner to canvass the correctness of his conviction and sentence. There is no dispute regarding the circumstances which led to the prosecution and as regards the fact, that the petitioner did not take out an insurance policy as contemplated by Section 7 (1) of the Ordinance. Various points were raised in the lower appellate Court of which, in addition to the question regarding the sustainability of the prosecution, the only other point that was argued was about the necessity of taking out an insurance policy for the entire good belonging to the petitioner stored in various districts throughout India.

3. The prosecution in this case was initiated on 21st November 1946 as a result of a sanction obtained on 7th November 1946. Ordinance IX [9] of 1940 continued to be in force till the duration of the war and six months thereafter, i. e., till 30th September 1946, but portions of the same had been repealed by Ordinance xxxiv [84] of 1945 dated 14th September 1945. This subsequent Ordinance repealed with effect, at and after midnight between 30th September and 1st October 1945, Sections 5, 5A, 7, 8 and 15, War Bisk (Goods) Insurance Ordinance of 1940. Such being the case, from the date of the promulgation of the later Ordinance, Section 7 of the earlier Ordinance ceased to have any operation and was wholly effaced with the result that from that date the prohibition against carrying on any business in British India as a seller of goods which were insurable under the Ordinance and without taking out an insurance policyi was thereby revoked; but the offence in this case was committed prior to that date and if the prosecution had been started prior to 1st October 1945, there could have been no question whatever about the maintainability of it.

4. The argument is now put forward that since the Ordinance of 1940 itself was a temporary piece of legislation which would automatically have expired at the end of the period contemplated by Section 72, Government of India Act, 1935, with all its later amendments, it cannot be said that the provisions of Section 6, General Clauses Act corresponding to Section 88 (s), English Interpretation Act can have any application here. By Section 80, General Clauses Act, an Ordinance is equated to a Central Act and there, fore for the interpretation of the provisions of an Ordinance, the principles enunciated in the General Clauses Act will have to be applied. Mr. Gopalaswami Aiyangar invited my attention to the passage in Halsbury's Laws of England, Edn. 2, vol. 31, pp, 511 to 518. At pp. 511 and 612, occur the following passage:

Statutes, moreover, may be intended to be temporary as well a8 perpetual, and express words are not necessary to show whether Parliament intended a particular statute to be one or the other.


After the expiration of a statute, In the absence of provision to the contrary, no proceedings can be taken on it, and proceedings already commenced ipso facto determine ... A statute which is repealed differs from a temporary statute in that the former, except in so far as it relates to transactions already completed under it, becomes as if it had never existed, while with respect to the latter the extent of the restriction imposed and the duration of the provisions are matters of construction.

In Lemm. v. Mitchell, 1912 A. c. 400 : 81 L.J. P.O. 173,their Lordships of the Judicial Committee quote from the decision of Tindal C. J. in Kay v. Goodwin (1830) 6 Bing. 576 : 31 E. R. 500, as follows:

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 lot the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.

In Bansgopal v. Emperor, 56 ALL. 961 : A.I.R. 1938 ALL. 669 : (1938) Cri.L.J., 1030., Sulaiman C. J. delivering the judgment of the Full Bench has laid down that as a general rule, unless there is some special provision to the contrary after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect. An offence, therefore, committed against a temporary Act must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate. It is further observed that even though the General Clauses Act would Ordinarily apply to ordinances under the Government of India Act, 8. 6 of the Act is applicable only to a case where a previous Ordinance has been repealed by a subsequent Ordinance or a subsequent Act; and would not necessarily apply to a case where a temporary Ordinance automatically expires after the period during which it is in operation and, therefore, even though Section 30 makes the Act applicable to the-Ordinances, Section 6 has no application to such temporary Ordinances. This decision has been followed by a single Judge of the Lahore High Court in F. C. Aulrey v. K. M. Aubrey A.I.R. 1947 Lah. 414.

5. On the other hand, Mr. N. T. Raghunathan appearing for the Public Prosecutor contends, that if Section 6 is not intended to apply to a temporary piece of legislation like an Ordinance, there was no necessity to insert Section 80 in the General Clauses Act at all. He further contends that the statement of the law contended for by Mr. GopalaBwami Aiyangar has not been ac cepted as one of absolute universal application because we find that in a very recent decision of the House of Lords reported in Wicks v. Director of Public Prosecutions, 1947 A. Section 862, the unanimous opinion of the House of Lords was that under the Emergency Powers (Defence) Act, 1939, which by Section 11, Clause (3) provided that 'the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done' and that although Eegulation 2A of the Defence (General) Eegulationa, 1989, made pursuant to the Act expired on 24th February 1946, the trial of a person for an offence committed when the regulation was in force, was proper and since Section 11, Sub-section (3) did not expire with the rest of the Act, being designed to preserve the right to prosecute after the date of expiry, there was nothing wrong in proceeding with the prosecution after the expiry of the regulation. Bennett v. Tattan (1918) 118 L. T. 788 : 88 L. J. K. B. 313, was a case of a similar kind where, after the repeal of a certain temporary Regulation, offences committed against that Regulation were tried. It is also mentioned there that for the interpretation of such Regulations, Section 38 (2), Interpretation Act is applicable. To the same effect is the view taken by this Court in In re Chockalingam, 1945 2 M. L, J. 296 : A.I.R. 1945 Mad. 521. It is noteworthy that such a point was not raised or discussed in similar cases arising out of temporary Acts and Ordinances for it is seen that the offences committed in the case reported in Gas Plant , v. Emperor, 1947 M. W. N. 85 : A.I.R. 1947 P. 0. 38 : (1947) Cri.L.J. 886, decided by the Federal Court were also against the provisions of such temporary Acts or Ordinances which functioned only fox a definite period of time. It is unnecessary for me to discuss the other aspects at great length because I have already stated in my judgment in the Public Prosecutor v. Bamalinge. swaraswami, 1048 M. W. N. 684 : A.I.R. 1949 Mad. 271, that the repeal of Section 7 would not prevent the initiation and trial of offences against it while it was in force. But Mr. Gopalaswami Aiyangar contends that the retention of Section 12 of the Ordinance was necessitated not by the circumstance that future prosecutions were permissible, but by the fact that Section 10 had been allowed to continue and with the existence of Section 10, there is a necessity to continue Section 12. I am not in. clined to accept this contention for Section 10, Clauses (a) and (b) are necessary even after the repeal of Section 7 for the purpose of investigation of offences which were committed while Section 7 was in force.

6. It is next urgod that since the Ordinance worked itself out by 30th September 1946, there was no authority competent to grant the sanction on 7th November 1946 to initiate the proseoution on 21st November 194G and, therefore, the whole proceedings are without jurisdiction. For this purpose, reliance is placed on the decision in Monmohan Goswami v. Emperor, Cri.L.J. 770 : 231 1.0. 350 (Oal,), The answer to this contention is found in the fact that even if, after the expiry of the Act, a prosecution can be launched by the application of els. (d) and (e) of 8. 6, General Clauses Act, then the neces-sary pre.requisite for such a prosecution must also be deemed to exist after the expiry of the Act. That there was an authority competent to grant sanction Under Section 12 of the Ordinance before its expiry is not disputed and it is the same authority that has now granted the sanction, I am, therefore, of opinion that this contention should also be overruled.

7. Lastly Mr. Gopalaswami Aiyangar contended that since the value of the icsurable goods exceeded Rs, 20,000 only in one district the criterion adopted by the lower Courts in fix. ing the premium is wrong, and, therefore, the fine of Es. 500 is excessive. I am inclined to hold that the prosecution initiated more than a year-after the repeal of Section 7 does not require the imposition of a fine of Rs. 500. It is reduced to-Rs 100 which, if collected, will be credited to the War Risks (Goods) Insurance Fund. With this. modification the revision petition is dismissed.

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