TMI Blog1943 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... three month's rigorous imprisonment and a fine of ₹ 50 or in default a further one month's rigorous imprisonment by an Honorary Magistrate holding first class powers by his judgment dated 7th July 1943. An appeal against that conviction was dismissed by the Sessions Judge of Shahabad on 4th September 1943. 3. The validity of the order fixing the maximum price for rice, with which we are concerned in Case No. 939, and the validity of the notification of the Provincial Government in Case No. 982 at the dates they were made has not been impugned nor has it been disputed that the order and the notification respectively were still in force on the respective dates of occurrence in these two cases; nor has it been denied that the facts alleged against the petitioners and found against them by the lower Courts would, at the dates of occurrence, have rendered the petitioners in the two cases respectively liable to conviction under Rule 81(4), Defence of India Rules. The main contention on behalf of the petitioners in both cases has been that owing to a change in the law between the date of occurrence and the date of conviction they have been illegally convicted under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e export from any place in the Province to any place outside India of any articles or things. By the later Defence Department Notification No. 5-D.c. (28)/43 dated 18th May 1943, the following proviso was substituted for the proviso just mentioned: Provided that (i) no order made, whether before, on or after 18th May 1943, in exercise of the powers conferred by Clause (a) of this Sub-rule on a Provincial Government shall have effect so as to prohibit or restrict the export from any place in the Province to any place outside India of articles or things; (ii) no order made, whether before, on or after 18th May 1943, in exercise of the powers conferred j by Clause (a) of this Sub-rule on the Provincial Government of Assam, Bengal, Bihar or Orissa shall have effect so as to prohibit or restrict the movement, transport, distribution, disposal or acquisition of any f foodgrains or their products; (iii) the powers conferred by Clause (b) of this Sub-rule on the Provincial Government of Assam, Bengal, Bihar or Orissa shall not be exercisable in relation to any foodgrains or their products, and all orders made, whether before, on or after 18th May 1943, in exercise of those p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he effect of repealing a statute to be, to obliterate it as completely from the records of the parliament as if it had never been passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law. 9. This dictum is an expansion of a dictum delivered by Tenterdan C.J. the previous year (1829 A. D.) in Surtees v. Ellison (1829) 9 B. C. 750. The principle was not new then but one applied in 1764 in R. v. London Justice. (1764) 3 Burr. 1456. Kay v. Goodwin. (1830) 6 Bing. 576 and Surtees v. Ellison (1829) 9 B. C. 750 have been followed in a large number of subsequent cases, both civil and criminal, but most of the decisions in which they have been followed deal with cases in which the entire Acts had been repealed and the applicability of the principle laid down in those cases to the repeal of particular provisions as opposed to the repeal of entire Acts needs further consideration. The Privy Council followed the decision in Kay v. Goodwin. (1830) 6 Bing. 576 in Lemm v. Mitchell. 1912 A.C. 400, but their judgment affords no guidance as to the limits of applicabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuing trials or proceedings under any provision of any of the Ordinance specified in sub-Section (1) which were pending at the time of the expiry of the said Ordinance, and he pointed out that when Ordinance 10 was about to expire the Governor-Genera' did not issue a fresh Ordinance embodying any provision similar to Section 80(2)(c). In place of it the Criminal Law Amendment Act No. 23 of 1932 was paused which contained a somewhat similar provision in its Section 20, but that provision was very much restricted in its scope. It seems, therefore, that in actual fact Sulaiman C.J., did treat the question how far the terms of a temporary Ordinance might have effect after its expiry as a matter of construction in accordance with the dictum in Steavenson v. Oliver. (1841) 5 Jur. 1064. I notice that in that case Sulaiman C. J., used the words ceases to have any further effect with reference to a temporary Act after its expiry. We have to consider the words shall cease to have effect in Clause (iii) of the proviso now in question. On behalf of the Crown we have been referred in connexion with these words to the decision in Lewis v. Hughes (1916) 1 K.B. 831. The questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 81(2) of the Defence of India Rules on 18th May 1943, repealed the notification and the order, for contravention of which the petitioners have been convicted, in such a way as to attract the principle laid down in Kay v. Goodwin (1830) 6 Bing. 576. Even, however, if the conclusion I have reached in the preceding paragraph is incorrect, the decision in Attorney-General v. Lamplough (1878) 3 Ex. D. 214 Ex. shows that the application of the principle laid down in Kay v. Goodwin. (1830) 6 Bing 576 to the repeal of portions of an Act or Statute differs to some extent from its application in the cases where entire Statutes are repealed. 14. That decision was given before the passing of the English Interpretation Act, 1889, and a the facts were as follows. The statute 52 Geo. 3 C 150, imposed a stamp duty on a number of articles specifically named in a schedule, and, among others, on waters, videlicet, all artificial mineral waters, and all waters impregnated with soda or mineral alkali, or with carbonic acid gas, and all compositions in a liquid or solid state, to be used for the purpose, of compounding or making any of the said waters, and also by a general clause at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose articles had never been taxed. On appeal, the three Judges of the Court of appeal unanimously overruled the majority view of the Exchequer Division and supported the conclusion of Kelly, C.B., Bramwell, L.J. at page 227 stated: Then it is argued that you cannot look at the repealed portion oo?= the Act of Parliament to see what is the meaning of what remains of the Act. I know that is not the argument of the Solicitor-General, but that, opinion has been expressed. I, however, dissent from it, and Brett L.J., on page 231 stated: The judgments of the majority in the Exchequer Division lay down that the moment an Act of Parliament is partly repealed we cannot look at the repealed part for any purpose, but that the repealed part must be regarded as if it had never been enacted. I cannot help thinking that that part of the judgment is not sustainable, for what we have to consider is not what was the construction of the first statute, but what is the effect of the repealing statute. We cannot tell what is the effect of the latter without looking at the meaning of the statute which it has repealed. 16. Applying the principle of Attorney-General v. Lamplough (1878) 3 Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rigorous imprisonment being maintained. Manohar Lall, J. 18. I have had the advantage of reading the judgment prepared by my learned brother and have come to the same conclusion. But as I took a different view in the judgment delivered by me on 18th November 1943, in Bundeli Sao v. Emperor. Cri. Revn. No. 906 of 1943, I desire to state briefly why I think I was wrong in the earlier opinion which I then formed. The case was not fully and properly argued at that time and the learned Government Advocate did not draw my attention to the case in Lewis v. Hughes. (1916) 1 K.B. 831. The propositions of law which I then enunciated at p. 2 of my judgment in that case have been culled from various leading authorities. I drew attention to the concluding portions in the opinion of Alderson, B. in Steavenson v. Oliver (1841) 5 Jur. 1064: It appears to me, that those persons who, during the year the last Act was to continue in force, or, previous to that period, had obtained rights under that statute, had obtained rights which were not to cease by the determination of the statute no more than where a person commits an offence against an Act of a temporary nature, the party who disobey ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
