TMI Blog1947 (4) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the Appellants and record the decisions of the Court and the reasons therefor in Criminal Appeal No. I of 1947. Thereafter we shall apply the results or such decisions to each of the other appeals. Criminal Appeal No. I of 1947. This appeal arises out of the initiation of proceedings on the 19th February, 1946, against five accused before a special tribunal known as the Second Lahore Tribunal, in respect of certain acts of the accused alleged to have been committed during the month of November, 1943, in contravention of the provisions of clauses 5 and 8 of the Iron and Steel (Control of Distribution) Order, 1941. Such contraventions were alleged to, constitute offences punishable under certain of the Defence of India Rules, and in respect of them the said Tribunal on the 14th October, 1946, despite previous lengthy arguments submitted on behalf of the accused against the legal existence of the Tribunal and of any jurisdiction in the matters, proceeded to frame charges against the accused. The accused are: 1. Juggilal Kamlapat, Gas Plant Manufacturing Company, Limited, Rampur, through Kailashpat Singhania, Kamla Tower, Cawnpore. 2. Juggilal Kamlapat (Rampur) Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conferred by Sub-rule (2) of Rule 81 of the Defence of India Rules, which authorised the Central Government to provide by order for certain matters including, without doubt, control of the user and disposal of iron and steel. At the time when the Distribution Order was made the words or the Provincial Government had. not been introduced into Sub-rule (2). of Rule 81. Rule 81 was itself made under the rule-making powers conferred by Section 2 of the Defence of India Act, 1939, upon the Central Government . The Defence of India Act, 1939, was a Central Act to which the provisions of the General Clauses Act (X of 1897). applied. By Rule 3 (1) of the Defence of India Rules it is provided that the General Clauses Act, 1897, shall apply to the interpretation of the Defence of India Rules as it applies to. the interpretation of a Central Act. 5. By, the General Clauses Act (X of 1897) as modified by. the Government of India (Adaptation of Indian Laws) Order, 1937, it is provided that 3 (8ab) 'Central Government' shall- (a) in relation to anything done or to be done after the commencement of Part III of the Government of India Act, 1935, mean the Federal Government ; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question in any legal proceedings on the ground that they were not duly made by the Governor-General in Council. (2) The Governor-General may make rules and orders for the more convenient transaction of business in his Executive Council, and every order made or act done, in accordance with such rules and orders, shall be treated as being the order or the act of the Governor-General in Council. 8. The Distribution Order on the face of it purports to be made by the Central Government . It has been signed by a Secretary to the Government of India. It was therefore argued that while the condition as to signature may have been fulfilled, the condition about the order being expressed to be made by the Governor-General in Council has not been complied with. 9. In support of this contention strong reliance was placed on the wording of Sections. 17 and 59 of the Constitution Act. Counsel drew attention to Section 175 of the Constitution Act corresponding to Section 30 of the Government of India Act of 1915, with reference to orders passed by the Provincial Governors. It was pointed out that the old Section 30 has been construed to he imperative. It has been held that a contract ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction be put upon any provisions of the old or present Constitution Act of India. Such Acts must be given a large and liberal construction. 10. In further support of their contentions numerous other cases in the reports of the United Kingdom and of British India were cited to us on behalf of the Appellants. We do not propose to deal with such other cases on other statutes and in respect of other statutory bodies. The general principles on which courts have to decide such cases as this, where a statute requires that something shall be done in a particular manner without expressly declaring what shall be the consequences of non-compliance, are in our judgment accurately and conveniently set out in Section 3- Imperative or Directory - on pages 372 to 374 of Maxwell. It is to be noted that the question whether the provision is affirmative or negative has a material bearing. If it is in the affirmative, it is a weaker case for reading the provisions as mandatory, Vita Food Products, Inc. v. Unus Shipping Company, Ltd. [1939] A.C. 277 . Further according to this passage in Maxwell, we are in our judgment entitled ; to consider certain questions: First, would the whole aim and object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the Governor-General in Council does not define how orders are to be made but only how they are to be expressed. It appears to imply that the process of making an order precedes, or is something different from, the expression of it. It does not say that orders can only be made by being , or if , expressed to be made by the Governor-General in Council. Secondly, it must be noticed that these provisions are not confined to orders only. They also include proceedings . In the case of proceedings it is still more clearly a method of recording proceedings which have a]ready taken place which is being prescribed rather than any form in which proceedings must take place if they are to be valid. Thirdly, there is the addition of the provision relating to the signature by a Secretary to the Government of India or other person indicated, which clearly indicates that it is a provision as to the manner in which a previously made order should be embodied in publishable form. Lastly, there is the result indicated in the last words of the Sub-section, that if the previous directions, either both the direction as to the expressing of orders and proceedings and that as to signature or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the construction and effect claimed by the Appellants. 13. We would further add this, that in any event we are prepared to hold that Section 40 (1) has in substance been complied with. It is the Distribution Order that has in this case to be construed, to determine whether it adequately complies with the provisions of Section 40 (1). By virtue of the provisions of Section 2 of the Defence of India Act, 1939, and Rule 81 and of the application thereto of the General Clauses Act (X of 1897), the expression Central Government in the Distribution Order has to be construed as the equivalent of the Governor-General in Council. In the circumstances there is no substantial difference in such an order, which has to be construed in the courts of British India, in accordance with the General Clauses Act (X of 1897), whether the phrase Governor-General in Council is used or the phrase the Central Government. The latter phrase has to be construed as meaning the former. 14. In our judgment there is therefore no force in this first contention urged on behalf of the Appellants. 15. Some attempt was then made on behalf of the Appellants to suggest that on some evidence tendered to the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to time by notification in Official Gazette allot cases for trial to each Special Tribunal, and by Ordinance XXII of 1945 by which the Tribunals were invested with jurisdiction to try offences committed under the Defence of India Rules. By virtue of the provisions of the original Ordinance, as so amended from time to time, the Second Lahore Tribunal was thus constituted and given jurisdiction to try casts including such offences so allotted to it by notification in the official Gazette, By a notification in the Gazette of the 21st November, 1945, the Central Government purported to allot for trial to the Second Lahore Tribunal at Lahore the case to which this appeal refers. 17. Ordinance I of 1946, promulgated on the 5th January, 1946, repealed a number of Ordinances, including Ordinance LII of 1944, which was the Ordinance amending the original Ordinance XXIX of 1943 so as to authorise, as stated, the constitution of the Second Special Tribunal at Lahore. A submission, somewhat tentatively advanced, that after the repeal of Ordinance LII of 1944 the Second Lahore Tribunal ceased to exist, could not be maintained and was not persisted in, having regard to the saving provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Governor-General was recognised as temporary only. In our opinion, the emergency on the happening of which an Ordinance can be promulgated is separate and distinct from and must not be confused with the emergency which occasioned the passing of the Act and the clear effect of the words of the Act on Section 72 is that Ordinances promulgated under that Sub-section during the period specified in Section 3 of the Act are subject to no time limit as regards their existence and validity, unless imposed by the Ordinances themselves, or other amending or repealing legislation, whether by Ordinance or otherwise. In our judgment, it is clear that the Second Lahore Tribunal did not cease to exist or to have jurisdiction in the case under appeal by reason of the expiration on the 1st April, 1946, of the period specified in Section 3 of the Act in question. 20. On the other hand, it must be remembered that the constitution and jurisdiction vested in the Second Special Tribunal at Lahore and the subject matters of the Distribution Order were prima facie. matters which would come within List II-Provincial Legislative List -in the Seventh Schedule and in particular within items Nos. 1, 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India (Central Government and Legislature) Act, 1946, (9 and 10 Geo. 6, Chapter 39), which came into force on the 26th March, 1946, provided as follows: Duration of Laws passed by virtue of a Proclamation of Emergency:-A law made by the Indian Legislature whether before or after the passing of this Act, during the continuance in force of the Proclamation of Emergency being a law which that Legislature would not, but for the issue of such a Proclamation, have been competent to make, shall not cease to have effect as required by Sub-section (4) of section one hundred and two of the Government of India Act, 1935, except to the extent to which the said Legislature would not, but for the issue of that Proclamation, have been competent to make it, and accordingly, in the said Sub-section (4) for the words 'shall cease to have effect' there shall be substituted the words 'shall, to the extent of the incompetency, cease to have effect'. 23. So far therefore as the constitution and jurisdiction of the Second Lahore Tribunal in respect of the alleged-offences by the Appellants against the provisions of the Distribution Order is concerned, it may well be that they might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e continuance of the present war and for a period of six months thereafter. By Ordinance X of 1946 promulgated on the 5th February, 1946, it was declared that for the purposes of any provision made after the 2nd September, 1939, in any enactment the present war should be deemed to continue and to end on the day on which the Proclamation of Emergency made on the 3rd September, 1939, under Section 102 of the Constitution Act is revoked. As previously stated that Proclamation was revoked on the 1st April, 1946. The Defence of India Act therefore expired on the 30th September, 1946, and with it all rules and orders made thereunder; likewise, all offences, proceedings and prosecutions thereunder, unless authority is to be found to save them in some provision in the Act itself or elsewhere. 26. By Ordinance XII of 1946 promulgated on the 30th March, 1946, Sub-section (4) of Section 1 of the Defence of India Act, 1939, was amended by the addition of the following saving provisions: but its expiry under the operation of this Sub-section shall not affect- (a) the previous operation of, or anything duly done or suffered under, this Act or any rule made thereunder or any order made u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, shall cease to have effect on the 30th September, 1946, except as respects things done or omitted to be done before that date. The ultimate question therefore is whether these words do authorise a continuation of the prosecution in this case. On behalf of the Appellants it was argued that the scope of these words was only to protect or indemnify officials in respect of acts or omissions on their part. It is difficult to see why they should be given such a restricted meaning in any event. But any doubts which the Court might have felt in the matter are fortunately dispelled as a result of the consideration of reports of a recent case in England of a very similar nature under the English Emergency Powers (Defence) Act, 1939. The case is Wicks v. Director, of Public Prosecutions. At present this Court has only received the reports published in 62 T.L.R. 674 (Court of Criminal Appeal) and 63 T.L.R. 6 (House of Lords). The decision is not binding on this Court but, of course must be considered by us with deep respect, particularly having regard to the fact that the Lord Chief Justice and four Judges in the Court of Criminal Appeal and Viscount Simon and six others of their Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Emergency Powers (Defence) Act, 1939. I need not read it, because we have gone through it, with the help of counsel, very carefully. 30. It is pointed out that the Interpretation Act, 1889, does not apply to the case of a statute, or a regulation which has the power of a statute, when it expires by effluxion of time. The section in the Interpretation Act is addressed to Acts which have been repealed, and not to Acts which expire owing to their purely temporary validity. It is, I apprehend, with this distinction in mind, which is quite well known, and certainly quite well known to the authorities who frame statutes, that the draughtsman inserted the words used in Section 11. Section 11 begins with the words 'Subject to the provisions of this section,' and those introductory words are enough to warn anybody that the provision which is following immediately is not absolute, but is going to be qualified in some way by what follows. It is therefore not the case that, at the date chosen, the Act expires in every sense; there is a qualification. Without discussing whether the intermediate words are qualifications, Sub-section (3), in my opinion, is quite plainly a qualificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and at the same time as the offences in Criminal Appeal No. I of 1947 to the Second Special Tribunal at Lahore to be dealt with by that Tribunal. 34. The complaint was lodged, on the same date as that in Criminal Appeal No. I and arose out of the same transactions. It was based on alleged infringements by the accused of Clause 2 of the Iron and Steel (Movement by Rail) Order, 1942, in that the Appellants and the two accused, who have not appealed, between the 1st and 18th August, 1943, and during September and October, 1943, offered for transport by rail to the railway authorities at Rampur and at Moradabad railway stations certain consignments of the iron and steel, acquired by the accused as set out in the judgment in Criminal Appeal No. I, without a valid permit and without a valid priority certificate, and procured the movement of these commodities by rail to Wadi Bunder, Bombay thus rendering themselves liable to punishment under Rule 81 (4) of the Defence of India Rules. 35. The Iron and Steel (Movement by Rail) Order, 1942 (hereafter referred to as the Movement Order ), was comprised in Government Notification No. 914 of the 17th September, 1942, which was publishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anti-Corruption Branch of the Bombay C.I.D. on various dates in June, 1946, for an alleged contravention of Clause 12 (1) of the Cotton Cloth and Yarn (Control) Order, 1945, read with the Government of India, Department of Industries and Civil Supplies Notification No. TC (12) 22, dated the 14th October, 1944. The order purported to be made by the Central Government exercising the powers conferred by Sub-rule (2) of Rule 81 of the Defence of India Rules. A complaint was made on the 27th August, 1946, before the Presidency Magistrate, 6th Additional Court, Bombay, in which the facts alleged where that the Appellants had sold or abetted the sale of 31 yards of velveteen, imported cloth, at the rate of ₹ 20 per yard against its landed cost of ₹ 3/15/5 and had thus committed an offence as regards Appellant No. 1 punishable under Rule 81 (4), and as regards the rest of the Appellants under Rule 81s (4) read with Rule 121 of the Defence of India Rules. Evidence was taken and on the 18th September, 1946, charges were framed. The case was adjourned to the 2nd October, 1946, on which date the Appellants raised objections against the continuance of the trial and upon this objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the powers conferred upon the Governor-General under Section 72 as amended by the India and Burma (Emergency Provisions) Act, 1940. It deals with goods and offences which, but for the provisions of Section 102 of the Constitution Act, would be matters for provincial legislation. The only point, therefore, which counsel for the Appellants attempted to submit on this appeal Was that raised in Criminal Appeal No. 1 of 1947 as to the true construction and effect of the saving provision in Sub-section (4) of Section 102 of the Constitution Act as amended by Section 5 of the India (Central Government and Legislature) Act, 1946. 44. Our decision on this point in Criminal Appeal No. I of 1947 disposes of. this appeal. The appeal fails and is dismissed Criminal Appeal No. IV of 1946. 45. The Appellants are the managing agents of Sree Meenakshi Mills Ltd., Madura, and in the course of business used to hand out yarn manufacture by the mills to weavers outside the mill premises for conversion into cloth and upon conversion took possession of the cloth for their own purpose after paying wages to the weavers for the labour involved. 46. On the 7th February, 1946, the Provincial T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purporting to act under the powers conferred on the Provincial Government by Rule 81 (2) of the Defence of India Rules; The offence is punishable under Rule 81 (4) of the Defence of India Rules. 51. The offence is alleged to have been committed on the 18th. July, 1946, and the complaint was filed by the authorities on the 8th September, 1946, in the Court of the Additional First Class Magistrate, Salem. No formal proceedings took place in that Court before the Appellant filed in the High Court an application under Sections 439 and 561A, Criminal Procedure Code, praying for the quashing of the proceedings. Criminal Appeal No. VI of 1946. 52. Srinivasan and Annamalai, merchants at Salem, are alleged to have sold sugar at rates above the control rates being abetted therein by Narayanaswami Chettiar, their shop assistant, on the 18th July, 1946. Srinivasan and Annamalai are also accused of having failed to issue a proper receipt for the price charged. 53. The complaint was filed by the authorities on the 8th September, 1946, in the Court of the Additional First Class Magistrate, Salem. The offence alleged is the contravention of a notification issued on the 25th March, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the Appellant filed on the 17th October, 1946, an application in the High Court praying for an order quashing the proceedings. Criminal Appeal No. IX of 1946. Rangaraju Naidu, the same accused as in Criminal Appeal No. VIII, was charged with having an excess stock of kerosene in his possession and was therefor complained against by the authorities in the Court of the Additional First Class Magistrate, Salem, Madras. The offence alleged is the contravention of Clause 10 of the Madras Kerosene Control Order, 1945, an offence punishable under Rule 81 (4) of the Defence of India Rules. In this case the summons only was served on the accused person. This was on an unspecified date prior to the 30th September, 1946. No formal proceedings were started in the Court. On the 18th October, 1946, the accused filed an application in the High Court praying for the quashing of the proceedings under Sections 439 and 561A of the Criminal Procedure Code. 57. These applications under Sections 439 and 561 A, Criminal Procedure Code, to quash the respective proceedings in the cases, now the subject of Appeals Nos. v. to IX inclusive, were all heard together with the case, the subject of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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