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

LegalCrystal Citation
SubjectInsurance
CourtChennai
Decided On
Reported in(1949)1MLJ605
AppellantIn Re: A.N.G. Sundararajulu Chetty
Cases ReferredManmohan Goswami v. Emperor
Excerpt:
- - gopalaswami 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 view already propounded by me in the case mentioned above. statutes, moreover, may be intended to be temporary as well as perpetual, and express words are not necessary to show whether parliament intended a particular statute to be one or the other. 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 30 in the general clauses act at all......the 30th september and the 1st october, 1945, sections 5, 5-a, 7, 8 and 15 of the war risks (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 seller of goods which were insurable under the ordinance and without taking out an insurance policy, was thereby revoked; but the offence in this case was committed prior to that date and if the prosecution had been started prior to the 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.....
Judgment:
ORDER

Govinda Menon, J.

1. The point arising in this revision petition has already been the subject of a pronouncement by me in the decisions reported in the Public Prosecutor v. Ramalingaswamy : (1948)2MLJ351 , but Mr. R. Gopalaswami 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 view 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) of the War Risks (Goods) Insurance Ordinance (IX of 1940) and sentenced to a fine of Rs. 500. On appeal, the learned Sessions Judge' of West Tanjore confirmed 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 goods belonging to the petitioner stored in various districts throughout India.

3. The prosecution in this case was instituted on 21st November, 1946, as a result of a sanction obtained on 7th November, 1946. Ordinance IX of 1940 continue to be in force till the duration of the war and six months thereafter, i.e., till the 30th September, 1946, but portions of the same had been repealed by Ordinance XXXIV of 1945, dated 14th September, 1945. The subsequent Ordinance repealed with effect, at and after the midnight between the 30th September and the 1st October, 1945, Sections 5, 5-A, 7, 8 and 15 of the War Risks (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 seller of goods which were insurable under the Ordinance and without taking out an insurance policy, was thereby revoked; but the offence in this case was committed prior to that date and if the prosecution had been started prior to the 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 of the Government of India Act, 1935, with all its later amendments, it cannot be said that the provisions of Section 6 of the General Clauses Act corresponding to Section 38(2) of the English Interpretation Act can have any application here. By Section 30 of the General Clauses Act, an Ordinance is equated to a Central Act and therefore for the interpretation of the provisions of an Ordinance, the principles enunciated in the General Clauses Act will have to be applied. Mr. Gopalaswami Ayyangar invited my attention to the passage in Halsbury's Laws of England, Second Edition, Volume 31, pages. 511 to 513. At pages 511 and 512, occur the following passage:

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

Again,

After the expiration of the 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 restrictions imposed and the duration of the provisions are matters of construction.

In Lemm v. Mitchell (1912) A.C. 400 , their Lordships of the Judicial Committee quote from the decision of Tindal, C.J., in Kay v. Goodwin (1830) 6 Bing. 576 : 130 E.R. 1403, 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 for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.

In Bansgopal v. Emperor I.L.R. (1933) All. 961, 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, Section 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. Aubrey 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 30 in the General Clauses Act at all. He further contends that the statement of the law contended for by Mr. Gopalaswami Ayyangar has not been accepted as one of absolute universal application because we find that in a very recent decision of the Mouse of Lords reported in Wicks v. Director of Public Prosecutions (1947) A.C. 362, 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 Regulation 2-A of the Defence (General) Regulations, 1939, made pursuant to the Act expired on the 24th February, 1946, the trial of a person for an offence committed when the regulation was in force was proper and since section II, 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. Tatton (1918) 118 L.T. 788 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) of the Interpretation Act is applicable. To the same effect is the view taken by this Court in Chockalingam, In re : (1945)2MLJ295 . 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) 2 M.L.J. 402 : 1947 F.L.J. 71 (F.C.), decided by the Federal Court were also against the provisions. of such temporary Acts or Ordinances which functioned only for 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. Ramalingaswamy (1947) Cri.L.J. 770, 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 Ordinances 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 inclined to accept the 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 urged that since the Ordinance worked itself out by the 30th September, 1946, there was no authority competent to grant the sanction on 7th November, 1946, to initiate the prosecution on 21st November, 1946, and therefore the whole proceedings are without jurisdiction. For this purpose reliance is placed on the decision in Manmohan Goswami v. Emperor : (1948)2MLJ351 . The answer to this contention is found in the fact that even if, after the expiry of the Act, a prose-cution can be launched by the application of Clauses (d) and (e) of Section 6 of the General Clauses Act, then the necessary 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. Gopalaswamy Aiyangar contended that since the value of the insurable goods exceeded Rs. 20,000 only in one district the criterion adopted by the lower Courts in fixing the premium is wrong, and therefore the fine of Rs. 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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