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1953 Supreme(Raj) 42
Rajasthan High Court
Wanchoo C.J. & Modi, J.
The State - Appellant
Versus
Magraj - Respondents
D.B. Criminal Appeal No. 5 of 1952
Decided On : February 26, 1953
Kansingh Assistant Government Advocate; Dashrathmal, for Opposite party
Headnote:Defence of India Act (1939), sec. 1(4) and Bikaner His Highness Notification No. 17 dated 5th Sept. 1939—Act came to end in Bikaner on 30th Sept. 1946—Words in Notification "till such time as His Highness orders" do not extend Act in Bikaner beyond 30th Sept. 1946Essential Supplies-Bikaner State Notification No. 4 of 16th Sept. 1943 applying Essential Supplies (Temporary Powers) Act 1946 to Bikaner—Scope — Notification did not revive Licensing Order of 1943.
The intention of the Ruler of the former Bikaner State, when he applied the Defence of India Act along with sec. 1(4) to the State, was the same as that of the Government of India, namely that the Defence of India Act and Rules there under should remain in force till the continuation of the war, and for a period of six months thereafter. But, as a matter of abundant caution, the Ruler provided that the Defence of India act and Rules, which he was applying to his State, would remain in force till such time as he otherwise directed. In this way, he reserved to himself the power to terminate the rules earlier, if he so desired. He had already expressed by adopting sec. 1(4) of the Act that the Act would come to an end six months after the war was over; but by the words used in Notification No. 17 he reserved to himself the power to bring the Act to an end earlier even though it remained in force in British India for the whole of the period mentioned in sec 1(4). It could hardly be the intention of the Ruler of Bikaner, when he provided for termination of the Act, to mean, by use of the words which we have in Notification No, 17, that in spite of that termination the Act was to continue. The reasonable interpretation, therefore, of the words in Notification No, 17 can only be that the Ruler intended to reserve to himself the power to bring the Act and the Rules framed thereunder to an end even earlier than what was contemplated by sec. 1(4). It must, therefore, be held that the Defence of India Act and the Rules, as applied to the former State of Bikaner, came to an end on the 30/09/1946. As admittedly no steps were taken to keep any part of the Act or the Rules alive later, as was done in British India, the Act and the Rules and orders passed thereunder must be held to have come to an end on the 30/09/1946. (Paras 9 & 20)
Notification No. 4 of 16/09/1948, only applied such rules as were made under the Essential Supplies Act, 1946, and did not apply the rules which were deemed to be made under that Act. The Bikaner Licensing Order of 1943 was not issued under the essential Supplies (Temporary Powers) Act, 4. 1946, and therefore this notification cannot be held to have revived what had come to an end on the 30/09/1946. The Rajasthan Essential Supplies (Temporary Powers) Ordinance, 1949 only continued those orders which had been passed under the laws repealed by it and which were in force on the date of the repeal. As the Cotton Cloth and Yarn Dealers Licensing Order, 1943, made by the former Bikaner State had come to an end an 30th September 1946 the same was not revived by the Rajasthan Ordinance. (Paras 7,11 and 12)
2. The case for the prosecution was that Bhanwarlal was the proprietor of a shop known as "Agarwal Brothers" which carried on the business of selling country made cotton cloth in Bikaner State. Maghraj was said to be the Munib of Bhanwarlal working at this shop. No license, as required by rule 3 of the licensing order already referred to, was taken for carrying on the business of selling such cloth, and therefore the two accused were prosecuted. They were convicted by a Magistrate, and sentenced to a fine. On appeal the learned Sessions Judge has acquitted them. He has held that the Licensing Order in question expired on the 16th Sept 1945, as Rule 81 of the Defence of India Rules, under which it was issued, itself ceased to be in force on that day. He further held that the Magistrate erred in trying the case as a summons case, and that it should have been tried as a warrant case. Lastly, he was of the view that on the facts the prosecution had failed to prove its case.
3. The present appeal has been filed by the State, and it is contended on its behalf that the Sessions Judge erred in holding that the Licensing Order of 1943 came to an end on the 16th Sep., 1945, and that the case could not be tried as a summons case. It has further been urged that the facts as proved by the prosecution clearly make out the case against the accused.
4. We shall first deal with the contention that the Magistrate was justified in trying the case as a summons case Reliance in this connection is placed on sec. 12, sub-sec. (2) of the Rajasthan Essential Supplies (Temporary Powers) Ordinance (No. XIII) of 1949. That sub-section reads as follows: —
"In the trial of all offences under this Ordinance, the procedure prescribed for the trial of summons cases by any law for the time being in force in the whole or any part of Rajasthan shall be adopted, subject, in the case of of fences tried summarily, to the procedure specified in sub-sec(1)."
This Ordinance however was repealed by the Essential Supplies (Temporary Powers) Act No. XXIV of 1946 which came into force in Rajasthan on 17.8.50. The case was decided by the Magistrate on 3.3.51. By that date, sub-sec. 2 of sec. 12 of the Rajasthan Ordinance which empowered the Magistrate to try the case as a summons case was not there. The offence was punishable with 3 years imprisonment, and should have been tried as a warrant case under the Code of Criminal Procedure, as there is no provision corresponding to sec. 12 (2) of the Rajasthan Ordinance in sec. 12 of Act XXIV of 1946. The conclusion of the trial therefore as a summons case was not justified under the repealing law and trial should have begun anew as a warrant case. Normally we would have to send the case back for retrial. But in view of what we are deciding on the other point of law raised in this case, that is not necessary.
5. We now turn to the main question in this appeal, namely whether the licensing order of 1943, for the breach of which the accused were prosecuted under sec. 6 of the Rajasthan Essential Supplies (Temporary Powers) Ordinance (No. XIII) of 1949 was in force on the day on which the breach was committed namely the 4th April, 1950. In order to determine this we have to go back to Sep. 1939, when the Defence of India Ordinance and Rules were passed by the Government of India on the 3rd Sep. 1939. This was followed by the Defence of India Act and Rules which came into force from the 29th Sep. 1939. Immediately after the promulgation of the Defence of India Ordinance and Rules, the Maharaja of Bikaner issued a Notification No. 17, dated 5th Sep. 1939 published in the Extraordinary Bikane
