Andhra HC (Pre-Telangana)
Thatikonda Venkateswarlu And Other vs Inspector Of Police, Vigilence Cell, ... on 10 February, 2000
Equivalent citations: 2000(5)ALD486, 2000(3)ALT562A
Author: Bilal Nazki
Bench: Bilal Nazki
ORDER
1. This Court while disposing of a Batch of writ petitions being WP No.15224 of 1999 and Batch found that the Amending Act 18of 1981 was not in existence therefore cases under Essential Commodities Act had to be dealt with in accordance with the Essential Commodities Act, 1955 as it stood before the Amendment of 1981. Necessary directions were given. It appears that the registry had issued a Circular in terms of the directions given by this Court.
2. Now, it appears that a letter has been received by the Registrar (Judicial) from Sri T. Lakshmana Rao, Special Judge for trial of cases under Essential Commodities Act seeking certain clarifications. On the basis of this letter a note was put up before me in my chambers. Clarification is sought as to what would be the fate of pending cases in the light of judgment given by this Court. I directed that the matter be listed before the Court after serving a notice on the Additional Advocate-General who had appeared earlier in the matter. The matter was thereafter listed and I have heard the parties.
3. In the Preamble to the Essential Commodities (Special Provisions) Act, 1981 being Act No.18 of 1981, it was stated.
"And whereas for dealing more effectively with persons indulging in such anti-social activities and the evil of vicious inflationary prices, it is necessary to make certain special provisions, by way of amendment to the Essential Commodities Act, 1955 (10 of 1955) for a period of fifteen years."
4. Originally the period given was ten years but it was amended by another amendment to make it fifteen years. This Amendment Act made amendments to Section 3 to Section 11 of the original Act. Section 10-A was also amended and after the word "cognizable" the words" and non-bailable" was inserted. Section 10-AA was also inserted to the original Act which stated:
"10-AA. Power to arrest :--Notwithstanding anything contained in the Code of Criminal Procedure, 1978, no office below the rank of an officer in-charge of a police station or any police officer authorised by him in this behalf in writing shall arrest any person accused of committing an offence punishable under this Act."
Section 12 was omitted and Section 12-A was substituted as under:
"12-A. Constitution of Special Court:--
(1) The State Government may for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette constitute as many Special Courts, as may be necessary for such area or areas as may be specified in the notification.
(2) A Special Court shall consist of a single Judge, who shall be appointed by the High Court upon a request made by the State Government.
(3) A person shall not be qualified for appointment as a Judge of the Special Court unless-
(a) he is a qualified for appointment as a Judge of High Court; or
(b) he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge."
Section 12-AA was also inserted which made the offences triable by Special Courts.
5. This Act came into operation on 1-9-1982. The period of fifteen years, therefore, ended on 31st August, 1997. Section 1(3) of the Act 18 of 1981 laid down :
"1(3) It shall cease to have effect on the expiry of fifteen years from the date of commencement of this Act except as respects things done or omitted to be done before, such cesser of operation of this Act and Section 6 of the General Clauses Act, 1897 (10 of 1897) shall apply upon such cesser of operation of this Act, as if it had then been repealed by a Central Act."
So, sub-section (3) of Section I saved all those actions which were taken when the Act was in operation. That means, all the offences which had taken place prior to 31st August, 1997 had to be dealt with in accordance with Act 18 of 1981. That would also mean that the offences under the Act had to be treated as non-bailable offences and were triable by Special Judge. After this Act ceased to remain in operation, the Government passed an Ordiance on 3rd October, 1997. Same amendments were carried by this Ordinance in the Principal Act which had been carried by Act 18 of 1981. This Ordinance came into force on 3rd October, 1997. This Ordinance was still in force when another Ordinance was promulgated on 2nd January, 1998 being Ordinance No.1 of 1998. By Section 12 the earlier Ordiance was repealed but it was stated in sub-section (2) of Section 12 that:
"12(2) Notwithstanding such repeal, anything done or any action taken under the Principal Act, as amended by the said Ordinance so repealed, shall be deemed to have been done or taken under the principal Act, as amended by this Ordinance."
So, the actions taken under 1997 Ordinance and under the Ordinance 1 of 1998 were saved by sub-section (2) of Section 12. Therefore, the learned Additional Advocate-General Suggests that actions taken under the first Ordinance or the second Ordinance are saved and those cases registered from 3rd October, 1997 till 25th April, 1998 when third Ordinance was promulgated are saved and have to be dealt with in accordance with the provisions of Amended Act or the procedure laid down in Ordinance No.21 of 1997 or Ordinance No. 1 of 1998. Then came the Ordinance of April, 1998 being No. 13 of 1998. It was promulgated on 25th April, 1998. It also carried the same amendment to the Essential Commodities Act which were carried by the Amending Act, 1981. Sub-section (1) of Section 10 stated that, the Essential Commodities (Special Provisions) Second Ordinance, 1998 is repealed. Sub-section (2) laid down :
"10(2). Notwithstanding such repeal, if any appeal, application, trial inquiry or investigation is pending immediately before such repeal, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Principal Act as amended by the Essential Commodities (Special Provisions) Ordiance, 1998 as in force immediately before the commencement of this Ordinance, as if, this Ordiance had not come into force."
Therefore, all those cases which were filed during the period in which the first and second Ordinances were operative would also have to be dealt with in accordance with the procedure laid down in those Ordinances. The third Ordinance ceased to be operative from 8-7-1998. Now, there fs no difficulty with regard to the cases which were registered before 25th April, 1998 as they will have to be dealt with in accordance with the Special Provisions laid down in the earlier Ordiance. The difficulty is only with respect to the Ordinance promulgated on 25th April, 1998 which ceased to remain operative from 8-7-1998 and there is no saving clause in the Ordinance itself which could save the actions taken under the Ordinance. But, the learned Additional Advocate-General submits that the actions taken under this Ordinance also are saved by virtue of Section 6 of General Clauses Act. Section 6 of General Clauses Act reads as under:
6. Effect of repeal:--Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hiterto made or thereafter to be made, then, unless a different intention appears, the repeal shall not-
(a) revive anything not in force or existing at the time at which the repeat takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforce, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
He relies on various judgments of Supreme Court. This Court need not labour very hard as the question has already been decided by the Supreme Court in T. Venkata Reddy v. State of A.P., . Similar question was raised before the Supreme Court. The Court while analysing Article 213 of the Constitution which confers upon Governors the Ordinance issuing powers similar to those conferred on President of India under Article 123, the Court held :
"It is seen that Article 213 of the Constitution does not say that the Ordinance shall be void from the commencement on the State Legislature disapproving it. It says that it shall cease to operate. It only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause (2) of Article 213."
Therefore, the Ordinance has ceased to operate but whatever actions taken under the Ordinance would be actions as if taken in pursuance of an Act of Parliament because Article 213(2) gives the Ordinance same force and effect as an Act of Parliament.
6. The learned Additional Advocate-General also referred to Supreme Court judgment in Mohammed Iqbal Madar Sheikh v. State of Maharashtra, 1996 (1) Supreme 269. In this case, the Supreme Court considered the question whether proceedings initiated under TADA would ipso facto come to an end with the expiry of the Act. The Supreme Court while interpreting subsection (4) of Section 1 of TADA held that the Act itself had enacted same provision like Section 6 of the General Clauses Act and therefore the actions taken under TADA when it was in force would have to be dealt with in accordance with the provisions of TADA. Therefore, in view of the deeming clause in sub-section (4) of Section 1 of the TADA all pending investigations and legal proceedings would remain alive. The Court also referred to State of Orissa v. Bhupendra Kumar Bose, , which was by a Constitutional Bench and quoted a passage from the judgment which is reproduced:
"It is true that the provisions of Section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. As observed by Patanjali Sastri, J., as he then was, in S. Krishnan v. State of Madras, , the general rule in regard to a temporary statute is that in the absence of special provisions to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. That is why the Legislature can, and often does, avoid such an anomalous consequence by enacting in the temporary statute a saving provision, the effect of which is in some respects similar to that of Section 6 of the General Clauses Act."
Keeping in view the judgment of Supreme Court in Mohammed Iqbal's case (supra) and Bhupendra Kumar Bose's case (supra) it is clear that Section 6 of the General Clauses Act in relation to the effect of repeal do not apply to a temporary Act. Since the Ordinance is also by way of temporary Act, therefore, in my view the General Clauses Act cannot be applied to the latest Ordinance. Even when the Supreme Court was considering the applicability of TADA after its repeal (TADA was a temporary Act), the Supreme Court did not rely on Section 6 of the General Clauses Act but it relied on subsection (4) of Section 1 of the TADA. The respondents have been conscious of this fact and therefore in all Ordinances except the last one which is dated 25th April, 1998 there is a saving clause. Since in the Ordinance dated 25th April, 1998 there is no saving clause, therefore, offences registered after 25th April, 1998 shall have to be dealt with under the unamended Act i.e., Essential Commodities Act, 1955. The offences registered before 25th April, 1998 can be dealt with either the Ordinances or the Amending Act 18 of 1981 depending upon the date on which the offence was committed.
7. With these clarifications, the application is disposed of. This order should be communicated to all the Magistrates and Sessions Judges by the Registry.