Madho Singh v. King-Emperor

Beevor, J.:— The petitioners in these two cases have all been convicted under rule 81(4) of the Defence of India Rules. Madho Singh and Lakhi Sahu, the petitioners in case no. 939, have been convicted for having, on the 15th April, 1943, sold rice of standard medium quality at 3 seers to the rupee in contravention of an order fixing the maximum price for such rice at the rate of 3 seers 9 chhataks per rupee. They were convicted by a Magistrate with 1st Class powers on the 23rd July, 1943, and they were sentenced to three months' rigorous imprisonment each. An appeal against that conviction was dismissed by the Sessions Judge of Saran on the 31st August, 1943.

Tulsi Kandu, the petitioner in case no. 982, has been convicted for having, on the 9th February, 1943, attempted to export paddy from Shahabad district to Gazipur district in the United Provinces in contravention of an embargo placed by the Provincial Government on such export by their notification no. 954-P.C.-34 P.C, dated the 23rd January, 1943. He has been sentenced to three months' rigorous imprisonment and a fine of Rs. 50 or in default a further one month's rigorous imprisonment by an Honorary Magistrate holding 1st Class powers by his judgment, dated the 7th July, 1943. An appeal against that conviction was dismissed by the Sessions Judge of Shahabad on the 4th September, 1943.

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) of the 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 81(4) of the Defence of India Rules and that their convictions should, therefore, be set aside.

The point taken on behalf of the petitioners arises in the following way. Under rule 81(2) of the Defence of India Rules, as it stood at the dates of the order and the notification with which we are concerned and on the dates of occurrence in the two cases, the Provincial Government was empowered to provide by order for various matters including, under clause (a) of this sub-rule, the regulating or prohibiting of movement, transport, distribution and disposal of articles or things of any description whatsoever, and, under clause (b), controlling the price or rates at which articles or things of any description whatsoever might be sold.

The Defence of India Rules are made by the Central Government under powers conferred by section 2(1) of the Defence of India Act. By section 2(5) it is provided that the Provincial Government may by order direct that any power which by rule made under sub-section (1) is conferred on the Provincial Government shall in such circumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged by any officer or authority not being (except in the case of a Chief Commissioner's Province) an officer or authority subordinate to the Central Government. This sub-clause explains how the order fixing the maximum price of rice, with which we are concerned in case no. 939, was made not by the Provincial Government direct but by an officer subordinate to the Provincial Government.

At all times material to the present cases, rule 81(4) of the Defence of India Rules ran as follows:—

“If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both; and, if the order so provides, any Court trying such contravention may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to His Majesty.”

By Defence Department notification no. 5-DC(19)/43, dated the 1st May, 1943, the following proviso was inserted after sub-rule (2) of rule 81:—

“Provided that no order made, whether before or after the 1st 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 any articles or things.”

By the later Defence Department notification no. 6-DC(28)/43, dated the 18th May, 1943, the following proviso was substituted for the proviso just mentioned:—

“Provided that—

(i) no order made, whether before, on or after the 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 the 18th May, 1943, in exercise of the powers conferred 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 food-grains 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 the 18th May, 1943, in exercise of those powers, shall cease to have effect in so far as they relate to any foodgrains or their products.”

We are concerned in the present cases with clauses (ii) and (iii) of the proviso inserted by the notification of the 18th May, 1943. Clause no. (ii) affects case no. 982 and clause no. (iii) affects case no. 939. It may be mentioned that clauses (ii) and (iii) of this proviso were again omitted by a later notification (Defence Department notification no. 1427-OR/42, dated the 14th August, 1943). Neither party, however, contended that this subsequent omission of these two clauses had any bearing on the present cases.

It is contended on behalf of the petitioners that clauses (ii) and (iii) of the proviso inserted at the end of rule 81(2) of the Defence of India Rules by the notification of the 18th May, 1943, having withdrawn the powers of the Provincial Government, under which the order and the notification for contravention of which the petitioners have been convicted were made, that order and notification were entirely abrogated, annulled or repealed with effect from the 18th May, 1943, and, therefore, there could not be any conviction after that date for contravention of that order or notification even though the contravention took place before that date.

Section 6 of the General Clauses Act, 1897, provides that where any Central Act or Regulation repeals any enactment then, unless a different intention appears, the repeal shall not affect any penalty or punishment incurred in respect of any offence committed against any enactment so repealed or affect any legal proceeding or remedy in respect of such penalty or punishment and such penalty or punishment may be imposed as if the repealing Act or the Regulation had not been passed. The Defence of India Rules, however, are not a Central Act or a Regulation within the meaning of that section and nothing in that Act nor rule 3(1) of the Defence of India Rules, which applies the General Clauses Act, 1897, to the interpretation of the Defence of India Rules, can extend the scope of section 6 of the General Clauses Act, 1897. Other sections of the General Clauses Act, 1897, have no bearing on the question now in dispute. The question would, therefore, be determined on general principles irrespective of the provisions of that Act.

The petitioners have relied on the dictum of Tindal, C.J in Kay v. Goodwin where he stated:—

“I take the effect of repealing a statute to be; to obliterate it as completely from the records of the parliament as if it had never 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.”

This dictum is an expansion of a dictum, delivered by Tenterden C.J the previous year (1829 A.D) in Surtees v. Ellison. The principle was not new then but was applied in 1764 in R. v. London Justices. Kay v. Goodwin and Surtees v. Ellison 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 Kay v. Goodwin in John Lemm v. Thomas Alexander Mitchell, but their judgment affords no guidance as to the limits of applicability of the main principle because they specifically stated that the exception mentioned in Kay v. Goodwin covered the facts of the case before them.

In Steavenson v. Oliver, Parke, B. drew a distinction between temporary and repealed statutes in that “the latter, except so far as they relate to transactions already completed under them, become as if they never had existed; but, with respect to the former, the extent of the restrictions imposed by them becomes a matter of construction, and it becomes necessary to determine which of their provisions are to be considered limited to the duration of the temporary law, and which are not to be so considered”.

This distinction was noticed by Sulaiman, C.J in B. Bansgopal v. Emperor, but he found it unnecessary to consider the distinction in detail and did not specifically refer to the case Steavenson v. Oliver. The charge that their Lordships of the Allahabad High Court were considering was one under section 17 of Ordinance X of 1932 read with section 21 of Ordinance II of 1932 and section 80(2) of Ordinance X of 1932.

It is clear from a passage in the judgment of Mukerji, J. in that case that Ordinances II and X of 1932 had both expired though this does not appear to have been so clearly expressed in the judgment of Sulaiman, C.J There is a printer's error in this passage of the judgment of Mukerji, J. at the top of page 673, first column, in the All India Reporter where the Ordinances are mentioned as nos. XI and X, but the equivalent reports in 145 I.C, page 674 at page 683, 1933 A.L.J, page 875 at page 881, and 34 Criminal Law Journal, page 1030 at page 1033 show that he referred to Ordinances II and X of 1932.

Sulaiman, C.J: stated:—

“According to the English law, as a general rule, unless there is some special provision to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect. It would follow that an offence committed against a temporary Act must be prosecuted and punished before the Act expires, and as soon as the Act expires any proceedings which are being taken against a person will ipso facto terminate.”

At a later stage of his judgment, however, Sulaiman, C.J discussed the effect of section 80(2)(c) of Ordinance X of 1932 which had the effect of continuing trials or proceedings under any provision of any of the Ordinances 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 X was about to expire “the Governor-General 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. XXIII of 1932 was passed 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.

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 connection with these words to the decision Lewis v. Hughes. The question before the Court in that case was whether the defendant had, under section 2 of the Finance Act, 1912, right to recover from the plaintiff a proportionate part of the increase of the license duty or to deduct it from the rent due. The plaintiff contended that the defendant had lost that right by reason of the repeal of section 2 of the Act of 1912 by section 18 of the Finance Act, 1915, which stated that section 2 of the earlier Act

“shall cease to have effect and is hereby repealed”.

That case was decided with reference to section 38 of the English Interpretation Act, 1889, which is evidently equivalent to section 6 of the Indian General Clauses Act, 1897, and provided that

“unless the contrary intention appears, the repeal shall not ‘(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed’”.

It was urged for the plaintiff that the words

“shall cease to have effect”

indicated such contrary intention. This contention was overruled. As that case was decided with reference to the Interpretation Act, it can have no direct authority in cases to which neither the Interpretation Act nor the General Clauses Act, 1897, is applicable. It is true that Swinfen Eady, L.J stated in his judgment that “when an Act is repealed it ceases to have effect”. It does not, however, follow that whenever an Act ceases to have effect it is repealed. This is shown by the words of Sulaiman, C.J quoted above with reference to a temporary Act after its expiry.

In order to show that an order may cease to have effect without being “repealed” in such a way as to attract the principle of Kay v. Goodwin relating to repealed Acts reference may be made to section 144 of the Code of Criminal Procedure. Sub-section (6) of that section provides that subject to certain exceptions

“no order under this section shall remain in force for more than two months from the making thereof”.

It follows, in my opinion, that in ordinary circumstances an order made under that section ceases to have effect after two months from the making thereof. It never, however, seems to have been suggested that a prosecution under section 188, Indian Penal Code, for disobedience to an order passed under section 144, Code of Criminal Procedure, must be concluded within the two months during which the order is in force.

I, therefore, do not consider that the proviso inserted at the end of rule 81(2) of the Defence of India Rules on the 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.

Even, however, if the conclusion I have reached in the preceding paragraph is incorrect, the decision—Attorney-General v. Lamplough—shows that the application of the principle laid down in Kay v. Goodwin 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.

That decision was given before the passing of the English Interpretation Act, 1889, and the facts were as follows. The statute 52 Geo. III, 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 end of the schedule on

“all other … waters”

to be used as medicines made by any person, and by public notice or advertisement held out to the public by the makers, vendors, or proprietors thereof, as beneficial to the prevention, cure, or relief of any disorder or complaint affecting the human body. The statute 3 and 4 Wm. IV, c. 97, section 20, repealed so much of the schedule to the former Act as it contained in the words commencing “waters, videlicet”. The question for determination was whether, after the passing of the latter statute, a preparation known as Lamplough's Pyretic Saline was liable to duty. This involved first the decision on the mixed question of fact and law whether this preparation was previously liable to duty under that portion of the schedule which was repealed, and secondly, if the first question were answered in the affirmative, the question of law whether after the repeal the preparation in question was liable to duty under the general clause at the end of the schedule. A majority of the Judges of the Exchequer Division held that it was liable to duty even after the repeal. Huddleston, B., answered the first question in the negative but held that even if the answer were in the affirmative the preparation would be liable to duty under the general clause of the schedule, and he based his decision specifically on the cases of Kay v. Goodwin and Surtees v. Ellison. Cleasby, B., appears to have agreed with Huddleston, B., on both questions. Kelly, C.B, however, dissented on both questions and on the second question, the pure question of law, it is clear that he drew a distinction between the repeal of a statute and the repeal of a particular clause as is shown by the following passage in his judgment:—

“Then comes the repealing statute—though in saying repealing statute I follow the argument for the Crown a little too literally, because the counsel for the Crown invariably spoke of the Act of 1833 as if it repealed the former statute, and they confounded the word “statute” with a particular clause.”

Later he referred to the decision in Surtees v. Ellison and Kay v. Goodwin and stated: “Substitute, therefore, the word ‘clause’ for ‘Act of Parliament’, and this clause is to be taken as if it had never existed, and if that be so it must be taken as if those 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 of 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 of 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 part of the judgments 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.”

Applying the principle of Attorney-General v. Lamplough, I find that we are entitled to look into the notification of the 23rd January, 1943, and the order fixing the maximum price of rice even if they are taken as repealed in order to construe the remaining portion of the Defence of India Rules. Rule 81(4), which has remained unchanged at all material times, provided that

“if any person contravenes any order made under this rule he shall be punishable……………”.

We are entitled to look into the notification and the order in question in order to decide what is meant in rule 81(4) by

“any order made under this rule”.

Treating the matter thus as a question of construction, I think it is obvious that as soon as the notification and the order in question ceased to have effect it was no longer possible to contravene either of them, but I see no reason to think that contravention which had already occurred would not continue to be punishable after the notification and the order had ceased to have effect. The matter may be put also in another way. Neither the notification nor the order in question by itself imposed a punishment on anyone and, so far as the occurrences with which we are dealing in these cases are concerned, the only effect of the notification and the order in question was to render the acts, with which the petitioners were charged, unlawful, and that effect was complete as soon as the acts were done. The subsequent events, viz., the prosecution and conviction of the petitioners where the effect not of the notification and the order in question but of rule 81(4) of the Defence of India Rules. I come, therefore, to the conclusion that the contention of the petitioners on the question of law is unsound and must be overruled.

As regards the facts of the two cases, I see no reason to think that the findings of the lower courts are incorrect. The convictions must, therefore, be upheld in both cases, I think, however, that it is unnecessary to keep the petitioners in jail any longer. I would, therefore, reduce the sentence of Madho Singh and Lakhi Sahu, the petitioners in case no. 939, to the period of imprisonment already undergone and a fine of Rs. 50 each or in default three weeks' rigorous imprisonment each. In Criminal Revision 982 the petitioner's sentence of substantive imprisonment would be reduced to the period already undergone, the sentence of fine of Rs. 50 or in default one month's rigorous imprisonment being maintained.

Manohar Lall, J.:— 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 the 18th of November, 1943, in the case of Bundeli Sao v. King Emperor 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 of Lewis v. Hughes.

The propositions of law which I then enunciated at page 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 the case of Steavenson v. Oliver: “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 disobeyed the Act, when it was a law, should become dis-punishable on its ceasing to exist as such”. Rolfe, B., also construed the effect of “the Act shall continue in force till the 1st August next” and asked this question: “Does that mean that what is enacted there is to have no force after that day” and observed: “If that be so, the Act would be productive of the greatest injustice. A party by being apprenticed for a certain time shall be qualified to go before the examiners; and the Act says, no person shall be entitled to have a certificate unless he has served an apprenticeship; and the court would be reluctant to suppose, that a person, authorized to practise during the year the Act was in force, should have to go back to a state of apprenticeship to entitle him to continue his practice; so that this Act, although repealed in one sense of the words, is still permanent as to the rights acquired under it”.

I then addressed myself to consider the interpretation which ought to be put upon the words

“all orders made whether before, on or after the 18th May, 1943, in exercise of these powers shall cease to have effect in so far as they relate to any food-grains or their products”.

The learned Government Advocate has drawn our attention to the case of Lewis v. Hughes. In that case Mr. Barrington-Ward argued that the words

“shall cease to have effect”

referred to the future and vested rights are not interfered “with. This argument was accepted by Swinfen Eady, L.J on the same principle. I must, hold that the words which we have to construe in this case must refer to the future, that is to say, the prohibition contained in the order in question has been removed with regard to the sale and transport of the food-grains after the 18th May, 1943. That cannot mean that the removal or the transport which was an offence before this date has ceased to be an offence. The legislature did not provide, as they could have done if that was their intention, that all the prosecutions which were pending on the date of this alteration in the rule shall ipso facto cease or that the past offences should no longer be taken cognisance of by the Criminal Courts.

K.D

Convictions upheld.