State of U.P. vs Seth Jagamander Das and Ors

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

Court: Supreme Court of India

Case Number: Appeal (crl.) 5 of 1952

Decision Date: 30 April 1954

Coram: Mehr Chand Mahajan, B.K. Mukherjea, V. Bose, N.H. Bhagwati, T.L. Venkatarama Ayyar

State of Uttar Pradesh versus Seth Jagamander Das and others was decided on 30 April 1954 by the Supreme Court of India. The opinion was authored by Justice Mehr Chand Mahajan and pronounced by a bench comprising Justices B. K. Mukherjea, V. Bose, N. H. Bhagwati, Meh r Chand Mahajan as Chief Justice and T. L. Venkatarama Ayyar. The case is reported as AIR 1954 SC 683 and is recorded as Criminal Appeal No. 5 of 1952, filed by the State of Uttar Pradesh as petitioner against Seth Jagamander Das and co‑accused as respondents.

The appeal arose from a revision judgment, Criminal Revision No. 981 of 1950, issued by the High Court of Judicature at Allahabad. That judgment had set aside the criminal proceedings that had been instituted against the respondents under Section 120‑B of the Indian Penal Code, read with Rule 81(4) and Rule 121 of the Defence of India Rules, and had ordered their discharge. The prosecution alleged that the respondents had violated Section 2 of the Non‑Ferrous Metals Control Order of 1942 during the period 1943‑1945, an act that constituted an offence punishable under the applicable statutes. Despite a police complaint lodged in August 1948, no formal prosecution was initiated until 16 January 1950. The delay of more than a year and a half in presenting the charge sheet before the court, together with what was described as a leisurely investigation of provisions of an Act whose future was uncertain, was noted without satisfactory explanation. The record expressed regret that serious offences might escape punishment because of procrastination by the investigating agency.

On 19 April 1950 the respondents filed an application before the trial magistrate seeking to have the proceedings that had begun on 16 January 1950 quashed. Their argument rested on the contention that the Defence of India Act and the Rules made thereunder had ceased to operate, and that the Government of India Act, 1935, had been repealed by the Constitution, thereby removing the statutory basis for the prosecution. The magistrate declined to dismiss the case. The reasoning offered by the magistrate was characterised in the record as lacking clear logic. Uncontentious with this decision, the respondents pursued a revision application before the Sessions Judge at Meerut, Mr. Maheshwari Dayal. The Sessions Judge, after reviewing the magistrate’s extensive and detailed judgment, concluded that the magistrate had correctly held that the Defence of India Rules continued to be in force and that persons who had breached those rules remained liable to prosecution. The judge acknowledged that the magistrate’s view was challenged in the revision proceedings, but after considering the arguments presented by counsel for the respondents and the relevant legal provisions, the judge affirmed the magistrate’s conclusion. He praised the magistrate for the great care taken in the case and for the thoroughness of the written judgment, indicating that his own reasoning would largely echo the magistrate’s detailed analysis.

The Sessions Judge had described the magistrate’s decision as an “excellent judgment which should serve as a model to other magistrates and be a source of inspiration to them.” He added that he had never encountered a magistrate’s judgment that dealt so well with important questions of law. The Sessions Judge further stated that it would be unnecessary to elaborate his own reasons for affirming the magistrate’s view because doing so would merely repeat what the magistrate had already expressed. He concluded that the magistrate’s judgment should speak not only for the magistrate but also for the Sessions Judge, and that he therefore adopted the magistrate’s arguments and reasoning. The High Court observed that the Sessions Judge had done nothing of his own in the matter and had merely poured encomia on the trial court. By employing such superlatives in praising the magistrate’s judgment, the High Court inferred that the Sessions Judge either failed to understand the magistrate’s holding or could not comprehend the legal propositions involved. Consequently, the High Court held that the Sessions Judge had not discharged his duty in this case.

The respondents had filed a revision before the High Court. The High Court allowed the revision, quashed the proceedings that had been taken against the respondents, and discharged them from their bail bonds. At the request of the State, a certificate under Article 132 of the Constitution of India was issued granting leave to appeal to this Court, and the appeal was filed on 12‑2‑1952. Counsel appearing for the appeal, identified only as the counsel supporting the appeal, was unable to assist the Court and could not point out any error in the High Court’s decision. The Court noted that, after its own examination, there were no adequate grounds to set aside the High Court’s judgment or to allow the appeal. The Defence of India Act had been enacted under the powers conferred by Section 102 of the Government of India Act, 1935. The Control Order under which the respondents were prosecuted concerned a matter listed in List II of the Seventh Schedule of that Act, and, but for the proclamation of emergency, the Central Government would not have been competent to make it. The emergency that existed in 1939 when the Defence of India Act was passed continued when the Control Order was issued in 1942. Section 1(4) of the Defence of India Act provided that the Act would remain in force during the war and for six months thereafter. The war ended on 1 April 1946 and the Act expired on 30 September 1946, together with all rules and orders made under it. When a statute is repealed or comes to an automatic end by the efflux of time, no prosecution for acts done during the continuance of the repealed or expired Act can be

The Court explained that a prosecution could not be started after the date on which a statute had been repealed or had expired, because doing so would amount to enforcing a law that was no longer in force. This general principle, however, is altered in the case of a repeal by the operation of Section 6 of the General Clauses Act, which modifies the rule for statutes that are expressly repealed. An Act that expires by the mere passage of time, on the other hand, is not subject to the modification provided by Section 6, and the ordinary rule against post‑expiry prosecution continues to apply.

On 30 March 1946, while the Defence of India Act was still operative, the Governor‑General issued an ordinance titled “The Defence of India (Second Amendment) Ordinance, No XII of 1946.” That ordinance amended Section 1(4) of the Defence of India Act by inserting a saving clause that read, in substance, that the expiry of the Act under that sub‑section would not affect the prior operation of the Act, nor anything duly done or suffered under the Act, any rule made thereunder, or any order made under any such rule. The language of this saving clause closely mirrors the provisions set out in Sections 6(a), (b), (c), (d) and (e) of the General Clauses Act. Consequently, the saving clause achieved the same effect that Section 6 would have produced if the statute had been repealed rather than merely expired. By virtue of the clause’s reference to “things done or omitted to be done under the Defence of India,” the Court held that a prosecution could lawfully be commenced even after the Act had ceased to exist. In other words, the ordinance expressly permitted an action for offences that occurred before the Act’s expiry to be instituted after the expiry date.

In 1947, after the Dominion of India and the Dominion of Pakistan were created under the Indian Independence Act, the newly constituted Dominion Legislature assumed the powers of the former Central Legislature. That Legislature enacted “The Repealing and Amending Act, 1947, Act II of 1948.” Among the statutes and ordinances listed for repeal in that Act was Ordinance XII of 1946. The schedule also, unnecessarily, mentioned the Defence of India Act, although that Act had already come to a natural end in September 1946 and required no formal repeal. Section 3 of the Repealing and Amending Act contained its own saving clause, stating that the repeal of any enactment would not affect any other enactment in which the repealed provision had been applied, incorporated or referred to, nor would it affect the consequences of anything already done, any liability incurred, any remedy or proceeding existing, any proof of past acts, or revive any right, restriction, exemption or other matter that had ceased to have effect because of the repeal. If the Defence of India Act had been repealed by this statute rather than having expired by the passage of time, that saving clause would have unquestionably allowed prosecutions for offences committed under the repealed Act. However, as the Court previously noted, the Defence of India Act had already expired, and therefore the repeal provision could not revive it for the purpose of sustaining a later prosecution.

In this case, the Court observed that the Defence of India Act had already become ineffective on 30 September 1946, and therefore could not be revived by its later mention in the schedule to Act II of 1948. The High Court had held that, although the Defence of India Act ceased to operate, Ordinance XII of 1946 continued in force because it amended Section 1(4) of that Act. That amendment remained effective until Ordinance XII was itself repealed by Act II of 1948, a repeal that took effect on 5 January 1948. Because the prosecution against the respondents did not commence before that date, the Court found that no act had been taken under the ordinance that could be saved after 5 January 1948. Consequently, the liability of the accused arose directly from the Defence of India Act and not from the ordinance, which merely extended the period for possible prosecution. Had the prosecution been initiated during the life of either the ordinance or the Act, the Court held that the continuation could have been justified under the saving provision of Act II of 1948. Because no proceedings were started before 5 January 1948, the Court concluded that no liability existed that could be affected by the repeal of the ordinance. Accordingly, the Court held that after that date no prosecution could be instituted for offences under the Defence of India Act concerning subjects in the Provincial List of the Seventh Schedule of the Government of India Act.

The High Court further considered that Section 102(4) of the Government of India Act 1935 might have permitted the continuation of the prosecution after 5 January 1948. However, the Court observed that the Government of India Act was repealed by Article 395 of the Constitution on 26 January 1950, and that repeal extinguished the statutory basis for continuing the proceeding. The Court noted that Section 6 of the General Clauses Act did not apply to a repeal effected by the Constitution, and therefore could not save the prosecution. The Court explained that the General Clauses Act was designed to govern the repeal of statutes enacted by the British Parliament. Consequently, its provisions could not be extended to a repeal that was effected by the sovereign Constitution of India. Consequently, the Court concluded that the liability under the Defence of India Act had arisen when that Act was already expired. Because the enabling law itself ceased to exist on 26 January 1950 and Section 6 of the General Clauses Act did not apply to a constitutional repeal, the prosecution had to be set aside. Thus, with both the substantive law under which the offence was defined and the procedural authority to maintain the action removed, the continuation of the case was legally impossible. In the Supreme Court’s view, no reason existed to depart from the High Court’s reasoning, and the conclusion that the Defence of India Act had expired on 30 September 1946 remained binding.

The Court observed that the Defence of India Act had ceased to operate on 30 September 1946, and because the Act contained no saving provision, no new prosecution for breach of its provisions could be lawfully started after the Act’s own expiry; moreover, Section 6 of the General Clauses Act could not be invoked to supply a saving in this circumstance. By contrast, a saving provision had been introduced through Ordinance XII of 1946, which temporarily allowed continuation of proceedings. However, that Ordinance was itself repealed by Act II of 1948, and the Court noted that no step had been taken in the present matter before 5 January 1948. Consequently, the Court held that fresh proceedings for alleged violations of the Defence of India Act could not be lawfully commenced after that date. The Court further examined the argument that Section 102(4) of the Government of India Act might have permitted the prosecution of the respondents for offences they had allegedly committed, and it pointed out that this provision was rendered inoperative when the Constitution repealed the Government of India Act on 26 January 1950, only a few days after the prosecution had been initiated. The Court explained that Section 6 of the General Clauses Act does not apply to the repeal of a statute enacted by the Parliament of England when that repeal is effected by the Constitution of India. Accordingly, Article 372 of the Constitution provides that, notwithstanding the repeal of statutes listed in Article 395, the law that was in force in the territory of India immediately before the Constitution’s commencement shall continue until it is altered, repealed or amended by a competent legislature or authority. The Court emphasized that Article 372 does not revive statutes that had already been repealed or that had terminated naturally, and that Explanation III to Article 372 expressly states that no temporary law may be construed as continuing beyond the date fixed for its expiration or the date it would have expired had the Constitution not come into force. In view of these principles, the Court concluded that the Defence of India Act, or any provision intended to extend its existence, could not be invoked to sustain the prosecution in the present case. As a result, the Court found that there was no substantive basis for the repeal sought and ordered the petition to be dismissed.