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Rattan Lal Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1969CriLJ67
AppellantRattan Lal
RespondentState
Excerpt:
- .....the case, the argument of mr. inderdass grover was that under section 38 of the jammu and kashmir state constitution act of 1996, the life of an ordinance would be only six months from the date of its promulgation. therefore, he argued, this ordinance was no longer law; but the learned counsel's argument fails to see the force of an ordinance issued by his highness under section 5 of the j. & k. constitution act of 1996 and issued under section 38 of the same under section 5 of the jammu and kashmir constitution act 'all powers, legislative, executive and judicial, in relation to the state and its government are hereby declared to be and to have always been inherent in and possessed and retained by his highness and nothing contained in this or any other act shall affect or be deemed to.....
Judgment:

J.N. Bhat, J.

1. The petitioner was prosecuted under Section 3/7 of the Essential Supplies (Temporary Powers) Ordinance, 2003 before the Sub-Registrar, Magistrate, Jammu. An objection was raised on behalf of the petitioner before the learned Sub-Registrar that the prosecution was not maintainable. The Sub-Registrar-Magistrate rejected this contention of the petitioner on 11.7.1967 against which a revision petition was preferred before the learned Sessions Judge, Jammu, who also by means of his order dated 17th January 1968, rejected the revision petition, A further revision has been presented in this Court against the order of the two Courts below.

2. We have heard the learned counsel for the petitioner as well as the Additional Advocate-General.

3. The argument of Mr. Inderdass Grover is that the Essential Supplies (Temporary Powers) Ordinance, 2003, was promulgated by His Highness for a limited period. It was during the war that the promulgation of this Ordinance to control the Import, export, production, supply and distribution of and trade and commerce in food-stuffs, etc., became necessary. The war came to a close in the year 1946. As the Preamble of the Ordinance indicated, it was for a limited period, the Ordinance came to a close since the war was over. Therefore, the Ordinance having spent its force, no prosecution could be launched under it.

An alternative argument was advanced By Mr. Grover to the effect that even if the Ordinance was promulgated by His Highness under the Constitution Act of 1996, under Section 38 of the same, it could last only for six months and the Jammu and Kashmir Defence Act, 1996 (Act No. 21 of 1696) could remain in force during the continuance of the last war and for a period of six months thereafter. His further argument was that under Part XVIII of the Constitution of India, the power to declare an emergency vested in the President only. This Part XVIII of the Constitution of India was made applicable to the State of Jammu and Kashmir, excepting Articles 358, 357 and 360. There was a proviso added to Article 352 which shall be mentioned hereafter. Therefore, according to the learned Counsel for the petitioner, after the 14th day of May 1954, the power of emergency legislation vested in the President of India and will be deemed to have been taken away from the State Legislature or any other authority who could, before the introduction of the Constitution into the State of Jammu and Kashmir, promulgate such Ordinance.

4. We shall examine these arguments separately. The Essential Supplies (Temporary Powers) Ordinance, 2003, was promulgated by His Highness under Section 5 of the Jammu and Kashmir Constitution Act, 1996 No. 14 of 1996), and came into force the 15th day of Assuj 2003. The Preamble of this Ordinance says:

Whereas an emergency has arisen which makes it necessary to provide for the continuance during a limited period of powers of control, the import, export, production, supply and distribution of,.... Now, therefore, in exercise of the powers reserved under Section 5 of the Jammu and Kashmir Constitution Act, 1996, His Highness is pleased to make and issue the following Ordinance.

The emphasis of the argument of Mr. Grover is that admittedly this Ordinance was enforced or promulgated for a 'limited period', the limited period began from 15th Assuj 2003, which is equivalent to 1946 A.D. At the worst, the Ordinance could be held to be alive during the war or in the words of Jammu and Kashmir Defence Act, 1996, for six months after the war. The war came to an end in the year 1946 and therefore any prosecution under this Ordinance in the year 1966 would be meaningless because the Ordinance would have had spent its force. The introduction of Jammu and Defence Act, 1996, or Defence Rules in this argument is not at all warranted or called for. The prosecution is not launched under the Defence of Jammu and Kashmir Act or the Defence Rules of the State. This is a separate piece of legislation in the shape of an Ordinance promulgated by the erstwhile Ruler. While discussing this aspect of the case, the argument of Mr. Inderdass Grover was that under Section 38 of the Jammu and Kashmir State Constitution Act of 1996, the life of an Ordinance would be only six months from the date of its promulgation. Therefore, he argued, this Ordinance was no longer law; but the learned counsel's argument fails to see the force of an Ordinance issued by His Highness Under Section 5 of the J. & K. Constitution Act of 1996 and issued under Section 38 of the same under Section 5 of the Jammu and Kashmir Constitution Act 'all powers, legislative, executive and judicial, in relation to the State and its government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations, orders and ordinances by virtue of his inherent authority'. If His Highness issued any ordinance, it had the force of law as if it had been passed by the Legislature of the State and no Court or authority could question its legality or validity.

The Ordinance contemplated under Section 38 lays down that the Council may, in case of emergency or where immediate legislation is required in any matter affecting the peace and good government of the State submit to His Highness an Ordinance and such Ordinance on being assented to by His Highness shall have the force of law for a period not exceeding six months from the date of its promulgation. The plain reading of this section would make it clear that an ordinance issued under that section would be issued (1) on the recommendation of the Council; (2) when immediate legislation was required; (3) it must be pertaining to the peace and good government of the State; (4) after receiving the assent of His Highness it would be law for six months. But the Essential Supplies (Temporary Powers) Ordinance, 2003, was promulgated by His Highness under his inherent authority as contained in Section 5 and therefore it had the force of law, unless repealed by any competent authority which would be either His Highness himself or the State Legislature under the new Constitution of the State.

5. Then again we take up the words 'a limited period' so much emphasized upon by Mr. Inderdass Grover. His argument was that the Ordinance was promulgated for a limited period, which according to him should be construed as the period of war or at the most six months thereafter, which means that after October 1946 when the war came to an end, six months thereafter the Ordinance would be deemed to have spent its force. In support of this contention he cited two authorities: : AIR1951All703 . In fact the same case which was decided by the Allahabad High Court and reported as : AIR1951All703 , went in appeal to the Supreme Court and its decision was reported in : AIR1954SC683 . The relevant portion of that decision lays down that:

When a statute is repealed or comes to an automatic end by efflux 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 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.

So far as this proposition of law is concerned, there can be no dispute about it. When a certain piece of legislation has ceased to exist, any prosecution under the same would be making a dead horse gallop. When there is no life in the horse, how can it gallop? Therefore, any prosecution launched under a repealed Act or Ordinance is meaningless and cannot be maintained. What is the crux of the matter is that who can decide whether the limited period for which this Essential Supplies (Temporary Powers) Ordinance, 2003, was promulgated, has expired or not. In our opinion it is not the Courts which can say that a particular emergency has either arisen or has come to an end. It is for the authority in whom the power to declare the emergency is vested, to declare by any subsequent declaration that the emergency has ceased. The Courts cannot substitute their opinion when the emergency should be deemed to have come to an end. In this view we are supported by the following authorities: AIR 1964 SC 381 and AIR 1966 Raj 247. In the Supreme Court authority it has been held:.The fact that emergency may last for a long period and as a consequence citizens may be precluded from enforcing fundamental rights under Articles 14, 21 and 22 during the period of the order has no bearing on the validity of detention. How long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of the emergency, are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during the periods of grave crisis.

In the Rajasthan authority it has been laid clown that-

It cannot be said that there was no justification for the continuance of the proclamation of emergency at the date of the petitioner's detention in 1964 when, the proclamation was made at the time of the Chinese aggression in September 1962; because the question whether the proclamation of emergency should have been allowed to continue or remain in force has by the Constitution, been left exclusively to the discretion and judgment of the President or in the last resort, of the Parliament; these organs know the requirements of the situation and it is not for the Courts to interpose themselves in such matter.

Therefore, when once a legislation has been passed by a competent authority on the basis of an emergency, how long that emergency should continue is a matter entirely within the discretion of that authority. The Courts cannot place their own interpretation or judge the matter independently. Unless the emergency or, as in this case, the short period is expressly stated to have been over, the Ordinance will continue to be in force. It is for the executive or for the State Legislature to examine the local conditions, the conditions relating to the control, the import, export, production, etc., of food-grains in order to make and keep the effective supply of the same for the public at large; they have the power under this Act to control these factors. Therefore, this argument of Mr. Inderdass is of no avail to him. The State has two Houses of Legislature. If the Legislature feels that there is no necessity for continuing this power of control over the food-grains, it can very easily repeal this Ordinance by means of proper legislation. Till that is done, this Ordinance which was issued under the inherent powers of the erstwhile Ruler shall have the force of law and shall continue to remain on the statute book of the State. 6. The other argument under Part XVIII of the Constitution of India is also not well founded. This chapter of emergency was introduced in the Constitution of India to safeguard against the emergencies which arise on account of three factors, namely, (1) an emergency due to external aggression and internal disturbance; (2) an emergency due to failure of constitutional machinery in States; and (3) financial emergency. Under Article 352 of the Constitution, a proclamation of emergency may be made by the President when he is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance. Under Article 356 a proclamation of emergency may be issued on account of failure of constitutional machinery in any State, The President is empowered to make a proclamation under this article whenever he is satisfied that the Government of the State cannot be carried on in accordance with the provisions of the Constitution either on the report of the Governor of the State or otherwise. Under Article 360 a proclamation of financial emergency can be made by the President whenever he is satisfied that the financial stability or credit of India or of any part of the territory thereof is threatened. Articles 356 and 360 of the Constitution of India are not applicable to the State of Jammu and Kashmir. Under Article 352 there is a proviso which is in the shape of a new Clause (4) added in the case of State of Jammu and Kashmir and it reads as under:

No Proclamation of Emergency made on grounds only of internal disturbance or imminent danger thereof shall have effect in relation to the State of Jammu and Kashmir (except as respects Article 354) unless it is made at the request or with the concurrence of the Government of that State.

As would be clear from reciting the above Articles, this Essential Supplies (Temporary Powers) Ordinance, 2003 (Ordinance No, 1 of 2003), was not issued under any of the powers vested in the President under Part XVIII of the Constitution. In fact, when this Ordinance was promulgated, the Constitution of India was not enforced and even fetter the enforcement of the Constitution of India and its limited application to the (State of Jammu and Kashmir from 14th of May 1954, the matter covered by the Essential Supplies (Temporary Powers) Ordinance, 2003, is quite foreign to and is not within the purview of Part XVIII of the Constitution of India. Under Article 372 of the Constitution of India all laws in force in the territory of India immediately before the commencement of the Constitution shall {continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. In the application of this Article to the State of Jammu and Kashmir a reference to the laws in force in the territory of India shall include reference of 'Hidayats', 'Ailans, Ishtihars, Circulars, Robkars, Irshads, Yadashts, State Council Resolutions, Resolutions of the Constituent Assembly and other instruments having the force of law in the territory of the State of Jammu and Kashmir.

The Essential Supplies (Temporary Bowers) Ordinance, 2003, was law in force at the time of application of the Constitution of India to the State. This Ordinance has not up to the time of this decision been repealed by His Highness who promulgated it or after him by his successors, the State Legislature. Therefore, its operation is saved. Under the Constitution of Jammu and Kashmir, Section 157 after the repeal of the Jammu and Kashmir Constitution Act, 1996 (14 of 1996), all laws in force in the State immediately before the commencement of this Constitution shall continue in force until altered or repealed or amended by competent authority. Nothing of the sort has been done so far and therefore, the Essential Supplies (Temporary Powers) Ordinance, 2003, continues to be the law in force in the State and any person who contravenes any of its provisions can be properly and legally prosecuted under this Ordinance.

7. Therefore, there is no force in this revision petition, which is dismissed.

S. Murtaza Fazl Ali, C.J.

8. I agree.

Anant Singh, J.

9. I agree.


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