State of Punjab vs Mohar Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 61 of 1953

Decision Date: 20 October 1954

Coram: B.K. Mukherjea, Vivian Bose, B. Jagannadhadas

The case titled State of Punjab versus Mohar Singh was decided on the twentieth day of October, 1954 by the Supreme Court of India. The judgment was authored by Justice B. K. Mukherjea, and the bench consisted of Justice B. K. Mukherjea, Justice Vivian Bose and Justice B. Jagannadhadas. The parties are recorded as the State of Punjab as petitioner and Mohar Singh as respondent. The official citation of the decision is reported as 1955 AIR 84 and also appears in the Supreme Court Reports as 1955 SCR (1) 893. Several subsequent citations of the case have been recorded in later law reports, including references such as R 1956 SC 77 (10), R 1959 SC 1352 (6), R 1960 SC 794 (5), E&R 1960 SC 1034 (9, 30), D 1961 SC 604 (6), APL 1962 SC 680 (2, 6, 19), R 1963 SC 976 (8), R 1965 SC 321 (9), R 1966 SC 1053 (3, 4), F 1966 SC 1415 (10), RF 1966 SC 1564 (7), R 1967 SC 556 (4), D 1969 SC 1225 (7, 8), F 1971 SC 1193 (8), F 1972 SC 159 (4), R 1972 SC 1634 (13, 15), R 1973 SC 318 (11, 12, 13), E 1973 SC 2326 (4), RF 1977 SC 991 (2), RF 1978 SC 1635 (18), D 1979 SC 592 (29), RF 1980 SC 77 (12), R 1980 SC 640 (7), RF 1981 SC 2138 (5), F 1983 SC 150 (18), R 1985 SC 1656 (7, 8, 10), RF 1987 SC 798 (10), RF 1987 SC 1217 (7), RF 1989 SC 1614 (9), R 1989 SC 1913 (8), R 1991 SC 227 (6, 10). The statutes discussed in the judgment include the General Clauses Act of 1897, section 6(c)(d)(e) concerning repeal of law, the concept of repeal and simultaneous enactment, and the operation of a temporary law that ceases by the passage of time. The judgment also examined the East Punjab Refugees (Registration of Land Claims) Ordinance VII of 1948, section 7, the validity of prosecution started after a repeal, the East Punjab Refugees (Registration of Land Claims) Act, 1948 (Punjab Act XLI of 1948), section 11 and the interpretation of the phrase “anything done”.

The headnote of the decision explains that the provisions of section 6(c), (d) and (e) of the General Clauses Act, 1897—identical to section 4 of the Punjab General Clauses Act, 1898—govern the consequences of the repeal of a law not only when an enactment is repealed entirely but also when repeal is accompanied by a new enactment that reenacts all the provisions of the repealed law. Upon repeal, the consequences outlined in section 6(c), (d) and (e) follow unless the repealing statute manifests a different or contrary intention. To determine whether such contrary intention exists, one must examine the provisions of the new enactment to see whether the rights and liabilities created under the repealed law have been terminated by the new law. The judgment cautions against the erroneous method of asking whether the new enactment positively preserves the rights and liabilities of the old law. The mere absence of a saving clause in the new enactment that expressly preserves rights and liabilities under the repealed law is neither decisive nor material for the question. Moreover, section 6 of the General Clauses Act, 1897 does not apply to a temporary law that automatically expires by the passage of time; however, it does apply if such a temporary law is repealed before it expires. This principle was applied to the Punjab Ordinance VII of 1948, which was a temporary law repealed before its expiry, leading to the conclusion that a prosecution for an offence committed under section 7 of that Ordinance before its repeal could lawfully be instituted even after the repeal. The phrase “anything done” occurring in section 11 of the Punjab Act XII of 1948 was held not to refer to any act performed in contravention of the Ordinance but rather to official acts done in the exercise of powers conferred by or under the Ordinance, distinguishing the case from the earlier decision in Danmal Parshotamdas v. Baburam (1935) I.L.R. 58 All. 495.

The Court observed that Section 6 of the General Clauses Act, 1897, did not apply to a temporary law that expired automatically by the passage of time, but it did apply when such a temporary law was repealed before its scheduled expiry. Consequently, the Punjab Ordinance VII of 1948, being a temporary enactment, was examined under this principle. Because the Ordinance was repealed on 1 April 1948, well before it would have terminated by efflux of time, the Court held that a prosecution for an offence committed under section 7 of the Ordinance before its repeal could be validly instituted even after the Ordinance had been repealed. The Court further explained that the expression “anything done” appearing in section 11 of the Punjab Act XII of 1948 should not be understood to encompass any act performed by an individual in violation of the East Punjab Refugees (Registration of Land Claims) Ordinance VII of 1948. Instead, the phrase was intended to refer to official actions carried out in the exercise of powers conferred by or under the Ordinance. In reaching this conclusion, the Court distinguished the earlier decision in Danmal Parshotamdas v. Baburam ((1935) I.L.R. 58 All. 495). The judgment then proceeded to set out the factual and procedural background of the present appeal, identified as Criminal Appeal No. 61 of 1953, filed under article 134(1)(c) of the Constitution of India against the order dated 7 August 1952 of the High Court of Judicature for the State of Punjab at Simla. The appeal arose from a revision filed by the District Magistrate of Jullundur, No. 301‑M.D. Reader dated 9 January 1952, challenging the order of a First‑Class Magistrate dated 20 July 1951. The State of Punjab was represented by the Advocate‑General, assisted by counsel, while the respondent was represented by counsel. The Court noted that the appeal was heard on 20 October 1954, and the judgment was delivered by Justice Mukherjee. The Court recounted that on 3 March 1948 the Governor of East Punjab promulgated Ordinance No. VII of 1948 under section 88 of the Government of India Act, 1935, to provide for registration of land claims of refugees. The respondent, Mohar Singh, who claimed to be a refugee from West Pakistan, filed a claim on 17 March 1948 stating that he owned 104 kanals of land in the Mianwali district of West Punjab. The Ordinance was repealed on 1 April 1948 and replaced by Act XII of 1948, which re‑enacted all provisions of the Ordinance. After investigation the claim was found to be wholly false, as no such land belonged to the respondent. Consequently, a prosecution was initiated on 13 May 1950 under section 7 of the Act, which made it an offence to submit false information in a claim under the Act. The accused was the respondent.

Mohar Singh was tried before S. Jaspal Singh, who was a First Class Magistrate at Jullundur, and during that trial he admitted his guilt and asked the Magistrate for mercy. By an order dated 20 July 1951, the Magistrate found him guilty of an offence punishable under section 7 of the Act, and imposed a term of imprisonment that would last until the court rose, together with a monetary fine of one hundred and twenty rupees; the order further provided that if the fine was not paid, the accused would have to undergo an additional month of rigorous imprisonment. The District Magistrate of Jullundur considered this punishment to be too lenient and consequently sent the case to the High Court at Simla under the authority of section 438 of the Criminal Procedure Code, recommending that a more deterrent sentence be imposed on the accused. When the case first came before a single Judge of that High Court, the respondent’s counsel raised a preliminary objection that the Magistrate had no jurisdiction to convict him under the provisions of the Act because the alleged offence had been committed against the Ordinance before the Act came into force and because the prosecution was instituted long after the Ordinance had ceased to operate. Observing that there were conflicting opinions among judges on this point, the single Judge referred the matter to a Division Bench for a definitive decision. The judges who sat on that Division Bench accepted the respondent’s contention, and in a judgment dated 7 August 1952 they set aside both the conviction and the sentence that had been imposed under section 7 of the Act.

The State of Punjab subsequently filed the present appeal against the Division Bench’s judgment. It is not contested that the respondent, when he filed his claim under the Ordinance, supplied false information, and that such falsehood was an offence punishable under section 7 of the Ordinance. However, the Ordinance was repealed shortly after the claim was lodged and was replaced by the Act, which incorporated all the provisions of the repealed Ordinance. The High Court, in favor of the respondent, held that because Act XII of 1948 did not exist at the time the claim was made, the respondent could not be convicted for an offence under a law that was not in force when the alleged offence occurred. To counter this argument, the State Government relied upon section 6 of the General Clauses Act, which is worded the same as section 4 of the Punjab General Clauses Act, and which sets out the legal effect of the repeal of an enactment. Section 6 of the General Clauses Act provides that when this Act or any Central Act or regulation made after its commencement repeals any earlier enactment, the repeal shall not, unless a contrary intention appears, affect any right, privilege, obligation or liability accrued under the repealed enactment, nor any penalty, forfeiture or punishment incurred for an offence committed against that enactment, nor any investigation, legal proceeding or remedy relating thereto. The State argued that this provision prevented the repeal of the Ordinance from negating the respondent’s liability for the offence committed under it.

Section 6 of the General Clauses Act provides that the repeal of any enactment shall not affect any right, privilege, obligation or liability that was acquired, accrued or incurred under the repealed enactment; it shall also not affect any penalty, forfeiture or punishment that was incurred for any offence committed against the repealed enactment; furthermore, it shall not affect any investigation, legal proceeding or remedy relating to any such right, privilege, obligation, liability, penalty, forfeiture or punishment. On the basis of this provision, the State argued that the repeal of the Ordinance could not, in any manner, affect the liability already incurred by the respondent for an offence committed under the provisions of the Ordinance, nor could it affect any penalty or punishment that arose from that offence. The High Court rejected this argument, holding that Section 6 could be invoked only when an Act or regulation is repealed simply, without any subsequent re‑enactment, which was not the case here because the repeal was followed by a new enactment that reproduced the Ordinance’s provisions in full.

The Court observed that the Repealing Act, while reproducing the entire text of the Ordinance, did not contain any clause indicating that offences committed while the Ordinance was in force could continue to be punished after the Ordinance’s repeal. Moreover, the saving provisions contained in Section 11 of the Act did not expressly state that a criminal liability incurred during the Ordinance’s existence would survive its termination. This interpretation, adopted by the High Court, was the point challenged before this Court on appeal.

It is undisputed that the respondent was prosecuted under Section 7 of the Act, not under the corresponding provision of the Ordinance. The offence occurred at a time when the Act was not yet in force, and consequently a person could not be prosecuted or punished under a law that was enacted after the commission of the offence. Nevertheless, the Court noted that this circumstance did not necessarily create a difficulty, because the Court possessed sufficient authority to transform the conviction under the Act into a conviction under the Ordinance, provided that the respondent could be lawfully prosecuted and punished under the Ordinance after its repeal. Determining whether such prosecution was permissible formed the material issue for consideration in this appeal.

For comparative context, the Court referred to English law as it stood before the Interpretation Act of 1889. At that time, the effect of repealing a statute was to obliterate it completely from Parliamentary records as if it had never been passed, except for actions that had been commenced, prosecuted and concluded while the statute was still in force. Consequently, a repeal without an explicit saving clause would extinguish any proceeding that had not yet begun or that was pending at the time of the repeal, unless the proceeding had already reached a final judgment, thereby creating no vested right. To prevent such harsh results, English practice evolved to include a saving clause in the repealing statute, preserving rights and liabilities that had already accrued under the repealed enactment.

The legislative practice was to insert a saving clause in a repealing statute in order to preserve rights and liabilities that had already accrued or been incurred under the enactment that was being repealed. Later, to avoid the need to insert a saving clause on every occasion, the authorities point to (1) Vide Craies on Statute Law, 5th edn, page 323 and (2) Vide Crawford on Statutory Construction, pages 599‑600. Consequently, section 38(2) was inserted in the Interpretation Act of 1889, which provides that a repeal, unless a contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it, and that any investigation, legal proceeding or remedy may be instituted, continued or enforced with respect to any right, liability or penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the General Clauses Act, as is well known, mirrors the language of section 38(2) of the English Interpretation Act. Under section 30 of the General Clauses Act, which corresponds to section 27 of the Punjab Act, the provisions of the Act are also applicable to Ordinances. Of course, the consequences laid down in section 6 of the Act apply only when a statute or regulation having the force of a statute is actually repealed; the provision does not apply where a statute of a temporary nature automatically expires by the efflux of time. The Ordinance in the present case was undeniably a temporary statute, but it is admitted that the period for which it was to continue had not expired when the Repealing Act was passed. Accordingly, the repeal was an effective one and would normally attract the operation of section 6 of the General Clauses Act. The controversy therefore narrowed to the precise question of whether the fact that the Ordinance’s repeal was followed by its reenactment would render section 6 of the General Clauses Act inapplicable to the present case. The High Court, in support of the view it took, relied heavily on certain observations of Sulaiman C.J. in Danmal Parshotamdas v. Baburam(1). The issue in that case was whether a suit by an unregistered firm against a third party, after the commencement of section 69 of the Partnership Act, would be barred by that section despite the saving clause contained in section 74(b) of the Act. The Chief Justice expressed some doubts and was initially inclined to hold that section 74(b) would save the suit, even though the right sought to be enforced had (1) (1935) I.L.R. 58 All. 495 accrued prior to the commencement of the Act; however, he eventually agreed with his colleague and held that section 69 would bar the suit. While discussing section 74(2) of the Partnership Act, the learned Chief Justice, by way of analogy, referred to section 6(e) of the General Clauses Act and observed

In the passage quoted on page 504, Sulaiman C.J. observed that section 6(e) of the General Clauses Act is applicable only when an earlier law has been wholly repealed and no fresh legislation has been enacted to replace it. According to his view, a simple repeal does not affect any right that was acquired under the old law, nor does it invalidate a suit that is subsequently instituted in respect of that previously acquired right. However, where a new statute not only repeals the earlier enactment but also substitutes a fresh law on the same subject, the Chief Justice held that section 6(e) is not applicable and that the provisions of the new statute must be consulted. He qualified these remarks by stating that they were not essential to the decision of the case and therefore amounted only to obiter dictum, although they deserved considerable respect. The High Court of Punjab, agreeing with this dicta, stated that where a law is simply repealed and the legislature has either not considered the prosecution of offenders under the old law or has inadvertently omitted a provision dealing with that question, section 6 of the General Clauses Act would inevitably be attracted. The High Court further said that no such presumption of inadvertence could be drawn when fresh legislation on the subject has been enacted; if the new act does not address the matter, it may be inferred that the legislature chose not to preserve the liability created by the old act.

The Court, however, expressed a different view. It held that whenever an enactment is repealed, the consequences prescribed in section 6 of the General Clauses Act will apply unless the section itself indicates a contrary intention. In cases of a simple repeal, there is little scope for expressing an opposite opinion. When a repeal is followed by fresh legislation on the same matter, the Court said that the provisions of the new law must be examined solely to determine whether they reveal an intention to destroy the old rights and liabilities. The Court rejected the broad proposition that section 6 of the General Clauses Act is excluded whenever a repeal is accompanied by fresh legislation. It maintained that section 6 remains applicable even in such situations unless the new law manifests an intention incompatible with or contrary to the provisions of section 6. Such incompatibility must be identified by considering all relevant provisions of the new statute, and the mere absence of an explicit saving clause is not sufficient to override section 6. These principles were said to guide the Court in its subsequent examination of the facts of the present case.

In this case the Court described the facts as follows: the respondent had committed the offence of filing a false claim. The claim had been filed under section 4 of the East Punjab Refugees (Registration of Land Claims) Ordinance, No VII of 1948. Under section 7 of that Ordinance any false information supplied in respect of a claim constituted a punishable offence. The Court agreed with the High Court that section 11 of the East Punjab Refugees (Rights) Act does not convert a claim filed under the Ordinance into a claim under the Act for the purpose of attracting the operation of section 7. Section 11 of the Act reads: “The East Punjab Refugees (Registration of Land Claims) Ordinance No VII of 1948 is hereby repealed and any rules made, notifications issued, anything done, any action taken in exercise of the powers conferred by or under the said Ordinance shall be deemed to have been made, issued, done or taken in exercise of the powers conferred by, or under this Act as if this Act had come into force on the 3rd day of March, 1948.” The Court held that the words “anything done” in that provision do not extend to acts performed in contravention of the Ordinance. Rather, the provision preserves rules, notifications and other official acts that were exercised under the powers granted by the Ordinance, which are enumerated in several sections of the Act.

Although the filing of a claim itself does not fall within the scope of section 11, the Court found that the proviso to section 4 of the Act makes clear that a claim filed under the Ordinance is to be treated as a claim filed under the Act, with all the legal consequences that flow from that classification. Section 4 of the Act governs the registration of land claims; its first subsection sets out the procedure for filing a claim. The attached proviso states: “A refugee who has previously submitted a claim under Ordinance VII of 1948 to any other authority competent to register such claim shall not submit another claim in respect of the same land to the Registering Officer.” Consequently, such a claim is deemed to be a claim under the Act, and the attendant incidents and corollaries laid down in the Act must follow. The truth or falsity of the claim must be examined in the usual manner, and if the information supplied by the claimant is found to be false, the claimant may be punished under sections 7 and 8 of the Act. To hold that the penal provisions of the Act could not apply to a claim filed under the Ordinance would create an anomalous result, especially where a false claim leads to an allotment that could not be revoked under section 8 of the Act.

The Court observed that when a refugee obtained an allotment in his favour, that allotment could not be set aside under section 8 of the Act. The provisions of sections 4, 7 and 8 indicated that the Legislature did not intend that the rights and liabilities arising from claims made under the Ordinance should be extinguished by the later enactment of the Act. Accordingly, the Court held that the present matter fell within the operation of section 6 of the General Clauses Act. The Court noted that section 11 of the Act was drafted in a somewhat clumsy manner and did not employ the usual language found in saving clauses of repealing statutes. Nevertheless, the issue for determination was whether the Act manifested an intention that conflicted with the continuation of rights and liabilities that had accrued under the Ordinance. The Court concluded that such an intention was absent. The Advocate‑General of Punjab referred to certain American decisions that treat simultaneous repeal and reenactment as a reaffirmation of the earlier law, allowing the repealed provisions to continue uninterrupted. The Court observed that American jurisprudence on this point was not uniform and declined to adopt any view on it. The Court affirmed that section 6 of the General Clauses Act applies to a repeal even where there is a concurrent enactment, unless the new enactment clearly expresses a contrary intention. As a result, the Court allowed the appeal and set aside the judgment of the High Court. The Advocate‑General did not pursue an increase in the sentence imposed on the respondent, making it unnecessary for the High Court to consider further the reference made by the District Magistrate, Jullundur. The sentence already imposed by the trying Magistrate was confirmed, and the fine of Rs. 120 was ordered to be paid if it had not yet been. In case of default, the respondent was directed to undergo rigorous imprisonment for one month. The appeal was therefore allowed.