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1973 Supreme(All) 181
Allahbad High Court
SATISHCHANDRA,AMITAVBANERJI
M.M. Sales and Exports (India) (Pvt.)Ltd. - Appellant
Versus
The State of UP - Respondent
Decided On : 09/04/1973
T.P. Asthana, for Petitioners; Standing Counsel, for Opposite Parties.
Headnote:
CRIMINAL LAW AMENDMENT ORDINANCE - CONTINUANCE IN FORCE - CRIMINAL LAW AMENDMENT ORDINANCE, 1944 - WHETHER LAPSED AFTER 15TH AUGUST, 1947 - INDIA (PROVISIONAL CONSTITUTION) ORDER, 1947 - INDIA (ADAPTATION OF EXISTING INDIAN LAWS) ORDER, 1947 - INTERPRETATION.
Fact of the Case:
The petitioner challenged the validity of an ex parte order attaching their bank account under the Criminal Law Amendment Ordinance, 1944, arguing that the Ordinance had lapsed after 15th August 1947 due to the India (Provisional Constitution) Order, 1947 and the India (Adaptation of Existing Indian Laws) Order, 1947.
Finding of the Court:
The Court held that the Criminal Law Amendment Ordinance, 1944 continued to be in force even after 15th August 1947. The India and Burma (Emergency Provisions) Act, 1940, which had temporarily amended Section 72 of the 9th Schedule of the Government of India Act, 1935 to allow for Ordinances of unlimited duration, had ceased to have effect after 1st April 1946. However, the Ordinances promulgated during the specified period, including the Criminal Law Amendment Ordinance, continued to operate until repealed.
Issues: 1. Whether the Criminal Law Amendment Ordinance, 1944 lapsed after 15th August 1947 due to the India (Provisional Constitution) Order, 1947 and the India (Adaptation of Existing Indian Laws) Order, 1947? 2. Whether the Ordinance lapsed with the commencement of the Constitution of India because it was not laid before the Parliament constituted under the Constitution of India, as provided by Article 123 of the Constitution?
Ratio Decidendi: 1. The India and Burma (Emergency Provisions) Act, 1940, which had temporarily amended Section 72 of the 9th Schedule of the Government of India Act, 1935 to allow for Ordinances of unlimited duration, had ceased to have effect after 1st April 1946. However, the Ordinances promulgated during the specified period, including the Criminal Law Amendment Ordinance, continued to operate until repealed. 2. The India (Provisional Constitution) Order, 1947 repealed the 9th Schedule of the Government of India Act, including Section 72 thereof, but Section 38(2)(b) of the Interpretation Act, 1889, which applies to the interpretation of the Order, provides that the repeal shall not affect the operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed. 3. Article 366(10) of the Constitution defines an 'existing law' to mean any law, ordinance, order, bye-law, rule or regulation passed on made before the commencement of this Constitution by any Legislature, authority or per son having power to make such a law, ordinance, order, bye-law, rule or regulation. The Criminal Law Amendment Ordinance was promulgated by the Governor-General who had the power to pass or make such an Ordinance and was thus an 'existing law' on 26th January, 1950. 4. Article 372 of the Constitution expressly provides for the continuance in force of existing laws, unless the said law is altered or repealed or amended by a competent legislature or other competent authority. Nothing has been shown that the Criminal Law Amendment Ordinance has been repealed or rescinded by the Parliament of India or by any competent authority. 5. Article 123 of the Constitution, which requires Ordinances promulgated by the President of India to be laid before both Houses of Parliament, does not apply to pre-existing Ordinances framed under the Government of India Act.
Final Decision: The Court dismissed the writ petition, holding that the Criminal Law Amendment Ordinance, 1944 was in force on 27th July, 1973 when the District Judge, Kanpur passed an ex parte order attaching the petitioners' bank account under the provisions of the aforesaid Ordinance.
SATISH CHANDRA, J. :- The principal question, raised by this writ petition was whether the Criminal Law Amendment Ordinance, No. 38 of 1944 was in force on 27th July, 1973 when the District Judge, Kanpur passed an ex parte order attaching the petitionersandapos; Bank account under the provisions of the aforesaid Ordinance. A Bench of this Court while admitting the writ petition directed that since the involved question was of general importance it may be heard and decided by a Division Bench. That is how this writ petition has been listed for hearing before this Bench.
2. Learned counsel for the petitioners urged that the Criminal Law Amendment Ordinance, 1944 ceased to have force or effect after 15th August 1947 because of the operation of the India (Provisional Constitution) Order, 1947 as well as the India (Adaptation of Existing Indian Laws) Order, 1947. In order to appreciate these submissions we have to notice certain provisions.
3. Part II of the Government of India Act, 1935 envisaged the establishment of the Federation of India. Section 317 of the Government of India Act, 1935 continued the provisions of the Government of India Act, 1915 with certain amendments mentioned in Schedule 9 of 1935 Act until the establishment of the Federation. Section 72 of the 9th Schedule conferred upon the Governor-General powers to issue Ordinances in cases of emergency. It provided :
"The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature : but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws : and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Acts."
The British Parliament passed the India and Burma (Emergency Provisions) Act, 1940 on 27th June, 1940. Section 1(3) of that Act stated :
"Section seventy-two of the Government of India Act (which as set out in the Ninth Schedule to the Government of India Act, 1935 confers on the Governor General power to make Ordinances in cases of emergency) shall, as respects Ordinances made during the period specified in Section 3 of this Act, have effect as if the words "for the space of not more than six months from its promulgation were omitted : ............"
Section 3 referred to in this provision provided :
"The period referred to in the preceding section is the period beginning with the date of the passing of this Act and ending with such date as His majesty may by Order in Council declare to be the end of the emergency which was the occasion of the passing of this Act."
As already seen, this Act was passed on 27th June, 1940. On 1st April, 1946 His Majesty's order in Council was published in the Gazette of India terminating the period of emergency with effect from 1st April, 1946. Thus the period specified under Section 3 of this Act extended from 27th June, 1940 to 1st April, 1946. The Criminal Law Amendment Ordinance No. 38 of 1944 was promulgated on 23rd October, 1944, that is to say in between the specified period.
4. In Hahsraj Moolji v. The State of Bombay, AIR 1957 SC 497 it was held that the effect of the temporary amendment of Section 72 of the 9th Schedule by Sub-Section (3) of Section 1 of the India and Burma (Emergency Provisions) Act, 1940 was that during the specified period, namely, 27th June, 1940 to 1st April, 1946 the Governor-General had the power to promulgate Ordinances within unlimited duration. In other words, the qualification that such Ordinances shall cease to have effect after the expiry of six months from its promulgation were non-applicable to Ordinances made during the specified period. If on their
