1. The petitioner was convicted under Section 21, Ordinance 2 of 1932, on 12th March 1932 for having disobeyed or neglected to comply with an order that had been made by the District Magistrate of Bakargunj under Section 4 of that Ordinance and that had been duly served on the petitioner on 4th March 1932. He was sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of Rs. 150 and in default to undergo a further term of imprisonment for three months: he is now serving out his sentence in the Dum Dum Special Jail. By this Rule the Superintendent of the Jail has been called on to show cause why the petitioner should not be set at liberty on the ground that the provisions of Section 21, Ordinance 2 of 1932, authorizing the Court to pass sentences of imprisonment which would continue beyond the date of expiry of the said Ordinance are ultra vires of Section 72, Government of India Act of 1919, and also on the ground that the sentence of rigorous imprisonment for 18 months passed on him ceased to have effect after the said date. It appears that Ordinance 2 of 1932 came into force on 4th January 1932 and that it remained in force up to and including 3rd July 1932, on which date it expired under the provisions of Section 72, Government of India Act, which limit the duration of an Ordinance under that section to a period of six months. It further appears that before the expiry of Ordinance 2 of 1932 another Ordinance (Ordinance 10 of 1932) was made by the Governor-General in Council under Section 72, Government of India Act, and that it came into force on 30th June 1932. This Ordinance, among other things, reenacted the provisions of Section 4, Ordinance 2 of 1932, and also the provisions of Section 21 of that Ordinance, while Section 80 contained a saving clause to the effect that anything done in pursuance of any provision of Ordinance 2 should be deemed to have been done in pursuance of the corresponding provision of Ordinance 10.
2. Now Section 72, Government of India Act, lays down that an Ordinance made under that section shall for the space of six months from the date of its promulgation have the like force of law as an Act passed by the Indian legislature, and that the power of making such Ordinances is subject to the like restrictions as the power of the Indian legislature to make laws. That being so the two Ordinances with which we are now concerned may, for the purposes of the present case, be regarded as standing on precisely the same footing as if they had been temporary Acts passed by the Indian Legislature. Sections 4 and 21, Ordinance 2, are perfectly clear and unambiguous, as are also the corresponding provisions of Ordinance 10, and this being so, it must I think be held that Section 80, Ordinance 10, provides a complete answer to the petitioner's contention that at any rate since 3rd July 1932, (the date on which the Ordinance 2 expired), he has been illegally detained in custody. It has been urged on his behalf that if, apart from the provisions of Ordinance 10, he would have been entitled to be released from custody on the expiry of Ordinance 2, the terms of Section 80 of the former Ordinance are not sufficiently clear and precise to justify his further detention. It is contended that if the intention of the legislature, (the legislature in the present instance being the Governor-General), was that sentences imposed under the expiring Ordinance should continue to have effect even after the date of its expiry, it should have expressed its intention with greater clearness and should not have left it to be gathered by inference; that the words of Section 80 do not make it at all clear that such was the intention; and in particular that the words 'anything done,' as used in that section, do not include penalties. I do not agree with these contentions: I cannot imagine any more comprehensive expression than 'anything done in pursuance of any provision' of such and such Ordinances, and it seems to me to be perfectly clear that this expression covers, and was intended to cover, the case of penalties inflicted under Ordinance 2 and the other expiring Ordinances referred to in Ordinance 10.
3. The conclusion stated above is of itself sufficient for the disposal of this Rule, but as the question of the competence of the Governor-General to authorize the Courts by means of an Ordinance to pass sentences of imprisonment for terms extending beyond the date of expiry of such Ordinance has been raised-by this Rule and has been fully discussed before us, I think it is desirable that this question should be decided. If the Ordinance had been expressly repealed, the question would probably have presented very little difficulty in view of the provisions of Section 38, Clause (2), Interpretation Act of 1889 and of Sections 6 and 30,. General Clauses Act of 1897, but although these provisions do not apply in terms to the case of a temporary statute the term of which has expired, it may very reasonably be contended that they merely give statutory expression to a rule of construction which was already in existence and which applied with equal force to statutes that had been expressly repealed and to temporary statutes the terms of which had expired. This rule of construction was recognized in England as far back as the year 1841 in Steavenson v. Oliver (1841) 8 M & W 234, in which a question similar to the one now under consideration arose with reference to the effect of the expiry of an Act on rights acquired while the Act was in force.
4. The learned Judges who dealt with that case were of opinion that not only rights acquired under a temporary Act, but also penalties imposed thereunder, would survive its expiration. The principle underlying their decision appears) to have been that transactions that have been completed, rights that have been acquired and penalties that have been incurred while a statute is in force, are not (in the absence of an express provision to the contrary), affected by the mere fact of the statute having ceased to be in force, a principle which has since received statutory recognition in the Interpretation Act of 1889 in the case of express repeal, though not as yet in the case of expiration by effluxion of time. This rule seems to me to be founded not only on considerations of convenience, but also of reason and justice, and it ought in my opinion to be kept prominently in mind in endeavouring to decide the question now under consideration.
5. The question is really one of construction, and relates mainly to the construction of Section 72, Government of India Act. Section 21, Ordinance 2 of 1932, authorizes the imposition of sentences of imprisonment that may extend to two years, and is clearly within the competence of the Indian legislature to create offences by statute and to make them punishable in this manner: it was therefore prima facie within the competence of the Governor-General to make and promulgate an Ordinance containing provisions of this character. The question is whether it was the intention of Parliament in limiting the duration of an Ordinance to six months, to limit also the sentences of imprisonment that might be imposed under any such Ordinance to sentences that would expire with the expiry of the Ordinance. There is nothing in the wording of Section 72 to justify such a conclusion, and in my opinion Parliament cannot possibly have intended anything so unreasonable. To hold otherwise would be to hold that Parliament intended not only to prevent the Governor-General from authorizing the Courts to impose such sentences of imprisonment as might be necessary for the purpose of dealing effectively with the emergency the existence of which the promulgation of an Ordinance pre-supposes, but also that the maximum sentences of imprisonment that the Courts might be authorized to impose should vary from six months rigorous imprisonment in the case of convictions on the date on which the Ordinance came into force, to imprisonment till the rising of the Court, or something equally futile, in the case of convictions on the date on which the Ordinance was due to expire. The consequences of such an interpretation have only to be stated for its absurdity to become apparent, and I have no hesitation in holding that the interpretation that the petitioner would have us put on Section 72 cannot possibly be the correct interpretation.
6. It is true that a penal statute should be strictly construed, but it is nonetheless true that every statute, whether penal or not, should be construed in a manner consistent with common sense, and that if the intention of the legislature is not apparent from the words of the statute itself, it ought to be presumed to have been such as is consistent with reason and justice. If the test be applied to the provisions of Section 72, it is clear that the legislature can never have intended that sentences authorized by an Ordinance should not extend beyond the term of the Ordinance, or that such sentences should automatically expire with the expiration of the Ordinance. The section will not bear the interpretation sought to be put on it by the petitioner, and that interpretation cannot be accepted as correct. It was also suggested on behalf of the petitioner that as an Ordinance is necessarily based on the existence of a state of emergency it ought to cease to have effect as soon as the emergency is over, and that sentences imposed under the provisions of an Ordinance ought logically to terminate with the termination of the Ordinance. The argument is clearly fallacious for the reasons already indicated, and does not call for further comment.
7. Before leaving the case I ought perhaps to refer to another argument that was urged by the learned advocate appearing on behalf of the petitioner. It was pointed out that the Defence of India Act of 1915 and the Emergency Powers Act of 1920 were temporary statutes which, like Ordinance 2 of 1932, contained provisions by which offences were created and made punishable with imprisonment and that both these Acts contained special provisos to the effect that penalties imposed thereunder should not be affected by the expiry of the Acts, or (in the case of the Emergency Powers Act) of the regulations framed thereunder. It was contended that the fact that such provisos were considered necessary in the case of those two Acts show that if it is intended that punishments inflicted under the provisions of temporary statutes should be given effect to after the expiry of those statutes, it is necessary that this should be specifically stated. I do not agree with this contention, for having regard to the rule of construction indicated in Steavenson v. Oliver (1841) 8 M & W 234 and already referred to in the earlier portion of this judgment, I am of opinion that the provisos in question were not really necessary and that they were merely inserted (as is frequently done in the case of provisos and saving clauses) as a precaution against misinterpretation of the intention of the legislature. Moreover I find that out of some 12 Ordinances promulgated between 1922 and 1932 by which inter alia offences were created and penalties provided, only two, (viz.: Ordinances 4 and 8 of 1930), contain provisos of the nature indicated above. These two Ordinances related to martial law and empowered the military authorities to frame regulations creating offences and imposing penalties, but I have been unable to discover any possible reason why the provisos in question were inserted in these two Ordinances and not in the others. In these circumstances I do not think it is possible to draw any such inference as the learned advocate for the petitioner would have us draw from the fact that the Emergency Powers Act and the Defence of India Act contain provisos of the nature indicated above.
8. The petitioner has in my opinion failed to show that the sentence of imprisonment passed on him was illegal or that it ceased to have effect on the expiry of the term of the Ordinance. The rule ought therefore to be discharged.
9. I agree.