JUDGMENT

Madeley, J - This is a criminal reference made by the learned Sessions Judge of Unao against a conviction by a Magistrate of the owner of a lorry under Rule 18(2), Motor Vehicles Act, as amended by the Motor Vehicles Act,1 1935. The applicant has been sentenced to a fine of Rs. 50 or in default one month's simple imprisonment. The Act of 1935 was repealed when the new Act was passed which came into force on 1st July 1939. The learned Sessions Judge merely remarks:

I am surprised at the ignorance of the learned Magistrate in applying the Act of 1935 more than a year after the enforcement of the new Act. Anyhow in the circumstances of the case the conviction cannot be sustained.

2. The Magistrate explains:

The provisions of Section 134(2), Motor Vehicles Act of 1939 lay down that unless before the expiry of the period of nine months from the commencement of this Act (1st July 1939) the Provincial Governments do not cancel the rules made by them under Sub-section (2) of Section 11, Motor Vehicles Act of 1914, the old rules shall continue to be in force. In view of this provision coupled with the fact that the Provincial Government did not cancel the old rules within the aforesaid period of nine months and that they introduced the new, rules under the new Act with effect from 30th March 1940, and not earlier the accused's conviction by me for a breach of Rule 17 (sic), Motor Vehicles Act of 1935, was quite in order.

3. The applicant's learned Counsel tells me that he has not been fully instructed by his client, but he is willing to act as "amicus curiae" and he says that the point of the reference is that though the offence took place on 26th November 1939, which was earlier than the commencement of the new Act, the conviction was made on 18th April 1941, which was subsequent to the coming into force of the new Act. He cites Maxwell's Interpretation of '. Statutes at p. 342 (Edn. 7) to the effect that:

Where an act expired or was repealed, it was formerly regarded, in the absence of provision to the contrary, as having never existed, except as to matters and transactions past and closed. Where, therefore, a penal law was broken, the offender could not be punished under it if it expired before he was convicted, although the prosecution was begun while the Act was still in force.

4. He argues, therefore, that, though the applicant might have been legally convicted under the old rules, if not more than nine months had expired since the repeal of the Act of 1935 before the conviction, no conviction could be made when once those nine months had expired, much less when the new rales had come into force. It may be noted, however, that Maxwell says this is the rule which was formerly observed, and at p. 343 he says:

Now, under the provisions of Section 38(2), Interpretation Act, 1889, a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment, or anything duly done or suffered under it, and any investigation, legal proceeding, or remedy may be instituted, continued, or enforced, in respect of rights, liabilities and penalties under a repealed Act, as if the repealing Act had not been passed.

4. The Interpretation Act of 1889 is very similar to the provisions of the U.P. General Clauses Act, 1 of 1904, which contains in Section 6, Clause (e),

Where any United Provinces Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not...(e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such remedy may be enforced and any such investigation or legal proceeding may be continued and concluded and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed.

5. These provisions appear to m