In Re: A.N.G. Sundarajalu Chetty

Govinda Menon, J.—The point arising in this revision petition has already been the subject of a pronouncement by me in the decision

reported in The Public Prosecutor v. Eamalingeswara. swami, 1948 M. W. N. 684 : AIR 1949 Mad. 271; but Mr. E. Gopalaawami Aiyangar for

the petitioner in his interesting and able argument has sought to question the correctness of that decision and out of deference to his learned

arguments I shall state briefly the reasons why I adhere to the views already propounded by me in the case mentioned above.

The petitioner was convicted by the Additional First Class Magistrate of Kumbakonam of an offence u/s 7 (2), War Risk (Goods) Insurance

Ordinance IX [9] of 1940 and sentenced to a fine of Rs. 500. On appeal, the learned Sessions Judge of West Tanjore con-firmed the conviction

and sentence and this revision petition is a further attempt by the petitioner to canvass the correctness of his conviction and sentence. There is no

dispute regarding the circumstances which led to the prosecution and as regards the fact, that the petitioner did not take out an insurance policy as

contemplated by Section 7 (1) of the Ordinance. Various points were raised in the lower appellate Court of which, in addition to the question

regarding the sustainability of the prosecution, the only other point that was argued was about the necessity of taking out an insurance policy for the

entire good belonging to the petitioner stored in various districts throughout India.

The prosecution in this case was initiated on 21st November 1946 as a result of a sanction obtained on 7th November 1946. Ordinance IX [9]

of 1940 continued to be in force till the duration of the war and six months thereafter, i.e., till 30th September 1946, but portions of the same had

been repealed by Ordinance xxxiv [84] of 1945 dated 14th September 1945. This subsequent Ordinance repealed with effect, at and after

midnight between 30th September and 1st October 1945, Sections 5, 5A, 7, 8 and 15, War Risk (Goods) Insurance Ordinance of 1940. Such

being the case, from the date of the promulgation of the later Ordinance, Section 7 of the earlier Ordinance ceased to have any operation and was

wholly effaced with the result that from that date the prohibition against carrying on any business in British India as a seller of goods which were

insurable under the Ordinance and without taking out an insurance policy was thereby revoked; but the offence in this case was committed prior to

that date and if the prosecution had been started prior to 1st October 1945, there could have been no question whatever about the maintainability

of it.

The argument is now put forward that since the Ordinance of 1940 itself was a temporary piece of legislation which would automatically have

expired at the end of the period contemplated by Section 72, Government of India Act, 1935, with all its later amendments, it cannot be said that

the provisions of Section 6, General Clauses Act corresponding to Section 88 (s), English Interpretation Act can have any application here. By

Section 80, General Clauses Act, an Ordinance is equated to a Central Act and there, fore for the interpretation of the provisions of an Ordinance,

the principles enunciated in the General Clauses Act will have to be applied. Mr. Gopalaswami Aiyangar invited my attention to the passage in

Halsbury''s Laws of England, Edn. 2, vol. 31, pp, 511 to 518. At pp. 511 and 612, occur the following passage:

Statutes, moreover, may be intended to be temporary as well as perpetual, and express words are not necessary to show whether Parliament

intended a particular statute to be one or the other.

Again,

After the expiration of a statute, In the absence of provision to the contrary, no proceedings can be taken on it, and proceedings already

commenced ipso facto determine ... A statute which is repealed differs from a temporary statute in that the former, except in so far as it relates to

transactions already completed under it, becomes as if it had never existed, while with respect to the latter the extent of the restriction imposed and

the duration of the provisions are matters of construction.

In Lemm. v. Mitchell, 1912 A. c. 400 : 81 L.J. P.O. 173,their Lordships of the Judicial Committee quote from the decision of Tindal C. J. in Kay

v. Goodwin (1830) 6 Bing. 576 : 31 E. R. 500, as follows:

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 been passed; and it

must be considered as a law that never existed, except lot the purpose of those actions which were commenced, prosecuted, and concluded whilst

it was an existing law.

In Bansgopal v. Emperor, 56 ALL. 961 : AIR 1938 ALL. 669 : (1938) Cri.L.J., 1030., Sulaiman C. J. delivering the judgment of the Full Bench

has laid down that 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. An offence, therefore, 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. It is

further observed that even though the General Clauses Act would Ordinarily apply to ordinances under the Government of India Act, 8. 6 of the

Act is applicable only to a case where a previous Ordinance has been repealed by a subsequent Ordinance or a subsequent Act; and would not

necessarily apply to a case where a temporary Ordinance automatically expires after the period during which it is in operation and, therefore, even

though Section 30 makes the Act applicable to the-Ordinances, Section 6 has no application to such temporary Ordinances. This decision has

been followed by a single Judge of the Lahore High Court in F. C. Aulrey v. K. M. Aubrey AIR 1947 Lah. 414.

On the other hand, Mr. N. T. Raghunathan appearing for the Public Prosecutor contends, that if Section 6 is not intended to apply to a

temporary piece of legislation like an Ordinance, there was no necessity to insert Section 80 in the General Clauses Act at all. He further contends

that the statement of the law contended for by Mr. GopalaBwami Aiyangar has not been accepted as one of absolute universal application because

we find that in a very recent decision of the House of Lords reported in Wicks v. Director of Public Prosecutions, 1947 A. Section 862, the

unanimous opinion of the House of Lords was that under the Emergency Powers (Defence) Act, 1939, which by Section 11, Clause (3) provided

that ''the expiry of the Act shall not affect the operation thereof as respects things previously done or omitted to be done"" and that although

Regulation 2A of the Defence (General) Regulation ,1989, made pursuant to the Act expired on 24th February 1946, the trial of a person for an

offence committed when the regulation was in force, was proper and since Section 11, Sub-section (3) did not expire with the rest of the Act,

being designed to preserve the right to prosecute after the date of expiry, there was nothing wrong in proceeding with the prosecution after the

expiry of the regulation. Bennett v. Tattan (1918) 118 L. T. 788 : 88 L. J. K. B. 313, was a case of a similar kind where, after the repeal of a

certain temporary Regulation, offences committed against that Regulation were tried. It is also mentioned there that for the interpretation of such

Regulations, Section 38 (2), Interpretation Act is applicable. To the same effect is the view taken by this Court in In re Chockalingam, 1945 2 M.

L, J. 296 : AIR 1945 Mad. 521. It is noteworthy that such a point was not raised or discussed in similar cases arising out of temporary Acts and

Ordinances for it is seen that the offences committed in the case reported in Gas Plant Manufacturing Co., Ltd, v. Emperor, 1947 M. W. N. 85 :

AIR 1947 P. 0. 38 : (1947) Cri.L.J. 886, decided by the Federal Court were also against the provisions of such temporary Acts or Ordinances

which functioned only fox a definite period of time. It is unnecessary for me to discuss the other aspects at great length because I have already

stated in my judgment in the Public Prosecutor v. Bamalinge. swaraswami, 1048 M. W. N. 684 : AIR 1949 Mad. 271, that the repeal of Section

7 would not prevent the initiation and trial of offences against it while it was in force. But Mr. Gopalaswami Aiyangar contends that the retention of

Section 12 of the Ordinance was necessitated not by the circumstance that future prosecutions were permissible, but by the fact that Section 10

had been allowed to continue and with the existence of Section 10, there is a necessity to continue Section 12. I am not inclined to accept this

contention for Section 10, Clauses (a) and (b) are necessary even after the repeal of Section 7 for the purpose of investigation of offences which

were committed while Section 7 was in force.

It is next urged that since the Ordinance worked itself out by 30th September 1946, there was no authority competent to grant the sanction on

7th November 1946 to initiate the prosecution on 21st November 194G and, therefore, the whole proceedings are without jurisdiction. For this

purpose, reliance is placed on the decision in Monmohan Goswami v. Emperor, Cri.L.J. 770 : 2 31 1.0. 350 (Oal,), The answer to this contention

is found in the fact that even if, after the expiry of the Act, a prosecution can be launched by the application of els. (d) and (e) of 8. 6, General

Clauses Act, then the necessary prerequisite for such a prosecution must also be deemed to exist after the expiry of the Act. That there was an

authority competent to grant sanction u/s 12 of the Ordinance before its expiry is not disputed and it is the same authority that has now granted the

sanction, I am, therefore, of opinion that this contention should also be overruled.

Lastly Mr. Gopalaswami Aiyangar contended that since the value of the insurable goods exceeded Rs. 20,000 only in one district the criterion

adopted by the lower Courts in fixing the premium is wrong, and, therefore, the fine of Rs. 500 is excessive. I am inclined to hold that the

prosecution initiated more than a year-after the repeal of Section 7 does not require the imposition of a fine of Rs. 500. It is reduced to Rs. 100

which, if collected, will be credited to the War Risks (Goods) Insurance Fund. With this. modification the revision petition is dismissed.