Patna High Court
State Of Bihar vs Santo Kumar Mitra And Ors. on 19 December, 1951
Equivalent citations: AIR1952PAT148, AIR 1952 PATNA 148, ILR 31 PATNA170
JUDGMENT Narayan, J.
1. This appeal is directed against an order of the Judicial Commissioner of Chota Nagpur in a miscellaneous case in which the question arose whether Ordinance No. XXXVIII (38) of 1944 was still in force. The facts are within a short compass, and they are as follows:
2. On 1-9-1949, a first information had been lodged with the police in which the allegation was that there had been a defalcation of about 15 lacs of Government money. This information was lodged against the respondents Nos. 1, 2 and 3 before us, namely, Santo Kumar Mitra, Sudhir Kumar Bose and Anthony Kujur. Santo Kumar Mitra was the Head-clerk and Accountant of the Vaccine Institute, Namkum, and the other two respondents were his Assistants working under him in that institute. On 12-9-1949, the Province of Bihar filed a petition under Section 3 of Ordinance No. XXXVIII (38) of 1944 which is called by the name of the Criminal Law Amendment Ordinance in which it was stated that these respondents had withdrawn a sum of over Rupees 15 Lacs from the Ranchi Treasury and were guilty of offences under Sections 406, 409, 417, 420 and 120-B of the Indian Penal Code with regard to the said Government money, these offences bring scheduled offences under Ordinance No. XXXVIII (38) of 1944, which will hereinafter be referred to as the Ordinance.
The petition of the Government was supported by the necessary affidavits and the prayer in this petition was for the attachment of the money and the other properties of the opposite parties (the three respondents mentioned above) which the Government believe had been procured by them by the commission of the above-mentioned offences. In accordance with the prayer made by the Government an order for 'ad interim' attachment of the properties and the money mentioned in the schedule attached to the application was passed and notices were issued to the persons who were likely to claim those properties. As appears from the judgment of the learned Judicial Commissioner several claim cases were filed, and they are still awaiting decision. The most important point that was raised before the learned Judicial Commissioner was that the Ordinance had lapsed and was no more in existence, and this contention has found favour with the learned Judicial Commissioner. Though it was argued before him that the Ordinance had come to an end on the 1st of April 1946 or on the 30th September 1946, this contention was repelled by him. But he was of opinion that from the 15th of August 1947 when the Indian Independence Act came into force this Ordinance ceased to have any effect. In the result, therefore, Me vacated the order of 'ad interim' attachment which had been passed by him.
3. The State of Bihar have therefore appealed against the order of the learned Judicial Commissioner, and the learned Government Pleader who has appeared on behalf of the State before us has urged that the view taken by the learned Judicial Commissioner is absolutely erroneous and that he was not justified in vacating the order of 'ad interim' attachment.
4. Mr. P. R. Das, who has appeared for some of the respondents has tried to support the view of law taken by the learned Judicial Commissioner and the conclusion at which he has arrived. And Mr, A. K. Chatterji who has appeared for respondent No. 3 before us has contended that no appeal lies against the judgment of the learned Judicial Commissioner vacating the order of 'ad interim' attachment.
5. The Ordinance in question was made and promulgated by the Governor-General in exercise of the powers conferred on him by Section 72 of the Government of India Act 1935, and as set out in the Ninth Schedule to the Government of India Act. Section 42 of the Government of India Act empowered the Governor-General to promulgate such ordinances as the circumstances appeared to him to require when the Federal Legislature (which never came into existence), was not in session. And Section 72 of the Ninth Schedule to this Act empowered the Governor-General to make and promulgate ordinances for the peace and good government of British India, or any part thereof in cases of emergency, and it further laid down that any ordinance so made, shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature.
The operation of the words "for the space of not more than six months from its promulgation" was suspended by the India and Burma (Emergency Provisions) Act, 1940, and Sub-section (3) of Section 1 of this Act lays down that Section 72 of the Government of India Act shall, as respects Ordinances made during the period specified in Section 3 of this Act, the India and Burma (Emergency Provisions) Act, 1940, have effect as if the words "for the space of not more than six months from its promulgation" were omitted, and Section 3 of the Act, 1940, lays down that the period referred to in the preceding sections is the period beginning with the date of the passing of this Act and ending with such date as His Majesty may by Order in Council declare to be the end of the emergency which was the occasion of the passing of this Act.
By His Majesty's Order in Council the 1st of April 1946 was declared as the date when the emergency referred to in the India and Burma (Emergency Provisions) Act, 1940, would come to an end. It is not disputed that the emergency was notified to have come to an end on the 1st, of April 1946. It is an argument with which we are now very familiar that because the emergency came to an end on the 1st of April 194G the emergency ordinances also automatically came to an end on that date. But it is conceded by Mr. Das that because of the decision of the Federal Court in 'J. K . GAS PLANT CO., (RAMPUR), LTD. V. EMPEROR', 1947 F C R 141 this sort of argument cannot any more be advanced. As pointed out by their Lordships:
"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."
It cannot also be doubted that the ordinances promulgated by the Governor-General had the force of law as an Act passed by the Indian Legislature, and even Sub-section (6) of Section 311 of the Government of India Act, 1935, says that any reference in this Acts or laws or Provincial Acts or laws, or to Acts or laws of the Federal or a Provincial Legislature, shall be construed as including a reference to an ordinance made by the Governor-General or a Governor-General's Act or, as the case may be, to an ordinance made by a Governor or a Governor's Act. It will not be out of place to refer here to the India (Central Government and Legislature) Act, 1946, Section 5 of which Act has reference to the duration of laws passed by virtue of a Proclamation of Emergency. Section 5 is in these terms:
"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 in competency, cease to have effect."." The Indian Independence Act came into force on the 15th of August 1947, and Sub-section (2) of Section 8 of this Act lays down as follows: "Except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under Subsection (1) of this Section, each of the new Dominion and all Provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act, and of the Orders in Council, rules and other instruments made thereunder, shall, so far as applicable, and subject to any express provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor-General under the next succeeding section, have effect accordingly."
Sub-section (3) of Section 10 is most important for our present purpose, and it lays down:
"Save as otherwise expressly provided, in this Act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf."
Section 9 of this Act lays down that the Governor-General shall by order make such provision as appears to him to be necessary or expedient -- (a) for bringing the provisions of this Act into effective operation; (c) for making omissions from, additions to, and adaptations and modifications of, the Government of India Act, 1935, and the orders in Council, rules and other instruments made thereunder, in their application to the separate new Dominions; (d) for removing difficulties arising in connexion with the transition to the provisions of this Act; and for various other objects which are not relevant for our present purpose. By virtue of these powers conferred on the Governor-General several orders were promulgated by him on the 14th of August 1947, and as pointed out by the Federal Court in 'MIDNAPUR ZAMINDARY CO., LTD. V. PROVINCE OP BENGAL', 1949 F C R 309, and by the Supreme Court in "THE STATE OF TRIPURA v. THE PROVINCE OF EAST BENGAL', (AIR (38) 1951 SC 23), decided on the 4th of December 1950, the orders promulgated on the 14th of August 1947 by the Governor-General of India in exercise of the powers conferred under Section 9 of the Indian Independence Act 1947 and containing provisions especially designed to remove the difficulties arising in connection with the transition to the new situation created by the partition are binding on both the Dominion of India and the Dominion of Pakistan. One of such orders is the India (Adapatation of Existing Indian Laws) Order, 1947, in which the existing Indian Law has been defined as follows: "existing Ifrdian law" means any Act, Ordinance, Regulation rule, order or bye-law which immediately before the appointed day has the force of law in the whole or any part of the territories which as from that day form the territories of the Dominion of India, but does not include any Act of Parliament, or any Order in Council, rule or other instrument made under an Act of Parliament, or the General Clauses Act, 1897." Another important order is the India (Provisional Constitution) Order 1947, with which we are mainly concerned in this appeal. Section 3 (1) of this Order lays down as follows: "As from the appointed day, the Government of India Act, 1935, including the provisions of that Act which have not come into force before the appointed day, and the India (Central Government and Legislature) Act, 1946, shall, until other provision is made by or in accordance with a law made by the Constituent Assembly of India, apply to India with the omissions, additions, adaptations and modifications directed in the following provisions of this paragraph and in the Schedule to this Order." It would appear from the Schedule attached to this Order that Section 42 of the Government of India Act 1935 was recast and the Ninth Schedule to the Government of India Act, 1935, which contains Section 72 under which the Ordinance with which we are concerned in this case was promulgated was omitted. Because of the omission of the Ninth Schedule under this Order and because of the recasting of Section 42 it has been urged before us that the intention was not to keep alive the Ordinances which had been promulgated under the Government of India Act, 1935, after the passing of the Indian Independence Act, 1947. And the learned Judicial Commissioner has greatly relied on the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, published in the Gazette of India March 23, 1948, which in his opinion goes to indicate that the Ordinance with which we are concerned in this case ceased to have any effect from the 15th of August 1947.
But the view taken by him seems to me to be erroneous and the argument in support of that view appears to me to be quite fallacious. That the Ordinance in question continued to exist as the law of the land till the appointed day, that is, the day on which the Indian Independence Act came into force, has not been disputed and could not be disputed. The two provisions of the Indian Independence Act already referred to. by me should, in my opinion, leave no room for doubt that the old law of British India which existed immediately before the appointed day was to continue, as the law of each of the new Dominions, save as otherwise expressly provided in the Act or except in "so far as other provision was made by or in accordance with the law made by the Constituent Assembly of the Dominions.
The controversy, therefore, narrows down to this as to whether on account of the omission of the Ninth Schedule as Indicated in G. G. O. 14 dated the 14th August 1947 known as the India (Provisional, Constitution) Order, 1947, the Ordinance in question ceased to have force. And it has also to be seen if the construction that has been placed on the Indian Independence (Adaptation of Central Acts and Ordinances) Order, t948, by the learned Judicial Commissioner is correct. The answer appears to me to be a simple one. Section 18 (3) of the Indian Independence Act and Article 372 (1) of the Constitution of India have kept the Ordinance alive, and it is wrong to assume that because of the omission of the Ninth Schedule as indicated in the Schedule attached to G. G. O., 14, dated the 14th August 1947 this emergency Ordinance had ceased to operate. And I have already quoted the observation of the Federal Court to the effect that Ordinances promulgated under the Government of India 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.
The change with regard to Section 42 and the omission of the Ninth Schedule means nothing more than this that if henceforward an ordinance has to be promulgated, it would be by virtue of the new Section 42 which is the substitute for the old Section 42. If it was not considered necessary to retain the Ninth Schedule that does not mean that the ordinances promulgated under Section 72 of this Schedule in the past ceased to have force after 14-8-1947 or 15-8-1947. A careful reading of the Indian Independence (Adaptation of Central Acts and Ordinances), Order, 1948. which is G, G. O., 37. dated the 23rd March 1348 will show that the intention was to keep alive not only the Ordinances mentioned in this Order but also the other Ordinances. The preamble to this Ordinance is contained in two paragraphs, paragraph 1 refining to Sub-section (3) of Section 18 of Indian Independence Act, 1947, and paragraph 2, referring Sub-section (1) of Section 9 of that Act. Sub-section (2) of Section 3 of this Order appears to me to be important, because, in my opinion, it clearly shows that other Ordinances which have not been mentioned in the Schedule attached to this Order had also been kept alive. If certain ordinances are particularly mentioned in this Schedule, that is because certain alterations in the language of those Ordinances were considered essential on account of the attainment of the independence or the partition, of the country. Sub-section (2) lays dawn as follows:
"Whenever the expression "the whole of British India", or the expression "British India" (otherwise than in the expression "the whole of British India") occurs in a Central Act or Ordinance, 'whether in an Act or Ordinance specified in the Schedule to this Order or not', then, unless that expression is by that Schedule expressly directed to be otherwise modified, or to be omitted, there shall be substituted for the expression first-named the expression "all the Provinces of India", and for the expression second-named the expression "the Provinces."
The words underlined (here single quoted) by me have especially to be noted, and to my mind they clearly establish that the reference to particular Ordinances in this Order does not mean that only those Ordinances had been kept alive. It was considered necessary to lay down that wherever the expression "the whole of British India", or the expression "British India" occurred in an Ordinance whether that Ordinance was specified in the Schedule to the Order or not, there shall be substituted the expression "all the Provinces of India" or the expression "the Provinces." The words "whether in an Act or Ordinance specified in the Schedule to this Order or not" could not be used in this Subsection if the Acts or Ordinances mentioned in this Schedule were the only Acts or Ordinances kept alive. In fact this provision was meant to apply not only to the Act or Ordinances mentioned in the Order but also to other Acts and Ordinances. Even in this Order of the 23rd March 1948 there is an Ordinance of 1944 mentioned, namely, Ordinance No. XLII(42) of 1944, and it is not difficult to understand why this Ordinance No. XLII (42) of 1944 came to be specially mentioned. This is a Post-Office National Savings Certificates Ordinance, and because of the partition of India it was considered necessary to amend Sub-section. 4 of the Ordinance by inserting the following words: "or if that area is in Pakistan, by the Postmaster-General for such area in India as the Central Government may by general or special order specify in this behalf." Similarly, it was considered necessary to mention Ordinance No. XXX (30) of 1943 which is the Military Nursing Services (India) Ordinance, 1943. In this Ordinance the expression. "Commander-in-Chief, India" had to be substituted for the expression "Commander-in-Chief of His Majesty's Forces in India." It is thus obvious that only such Acts and Ordinances came to be especially mentioned in the Schedule attached to this Order with regard to the language of which some changes were considered essential on account of the new situation having been created. This Adaptation Older by no means lends any support to the view that by the omission of the Ninth Schedule it was meant to end the Ordinances promulgated under Section 72. Section 18 (3) and Section 8 (2) of the Government of India Act could not be modified by these Adaptation Orders, and the only reasonable inference on a perusal of G. G. O., 14 dated 14-8-1947 is that whatever alteration or com-mission was made, was made for the future, and that the omission of the Ninth Schedule did not mean the abrogation of the Ordinances promulgated under Section 72. The conclusion arrived at by the learned Judicial Commissioner cannot, therefore, be supported, and I would hold, in disagreement with him, that Ordinance No. XXXVII (38) of 1944 is still good law. By Act No. XIV (14) of 1950 a new section has been added to this Ordinance.
6. Mr. Chatterji, who appeared for respondent No. 3, faintly contended that this appeal was incompetent because the order of the learned Judicial Commissioner vacating the 'ad interim' attachment was only an interlocutory order, and he relied on a decision of the Lahore High Court in 'K. SATWANT SINGH v. PROVINCIAL GOVERNMENT OF THE PUNJAB', AIR (33) 1945 Lah 406. But under Section 11 of the Ordinance the Provincial Government or any person who has shown cause under Section 4 or Section 6 or has made an objection under Section 4 or has made an application under Section 8 or Section 9 if aggrieved by any order of the District Judge under any of the foregoing provisions of this Ordinance may appeal to the High Court within thirty days from the date on which the order complained against was passed. The Order so far as the Provincial Government is concerned is a final order because on the view that the Ordinance and ceased to exist the learned Judicial Commissioner held that no attachment could be ordered in this case. As pointed out even in the Lahore case cited by the learned Counsel a right to appeal has been conferred by Section 11 on the Provincial Government if the Government feels aggrieved by the District Judge's order allowing an objection raised by the person whose money or property has been attached. Their Lordships have further observed that if a preliminary issue has been decided against the Crown and the case has been finally disposed of so far at least as the District Judge is concerned, the Crown or the Provincial Government has a right of appeal under Section 11 of the Ordinance. The contention, therefore, has got no force whatsoever and must be overruled.
7. In the result, therefore, this appeal is allowed and the order of the learned Judicial Commissioner vacating the order of 'ad interim attachment on the ground that the Ordinance has lost its force is set aside.
8. There will be no order as to the costs of this appeal.
Reuben, J.
9. I agree.