Jethanand Betab vs The State Of Delhi

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 185 of 1957

Decision Date: 15 September 1959

Coram: Subba Rao J., K. Subbarao, Syed Jaffer Imam

In this case the petition was brought by Jethanand Betab against the State of Delhi, which is now referred to as the Delhi Administration. The judgment was rendered on 15 September 1959 by a bench of the Supreme Court of India composed of Justice Subbarao K. and Justice Syed Jaffer Imam. The official citation of the decision appears as 1960 AIR 89 and 1960 SCR (1) 755. The matters before the Court involved several statutes: the Repeal of Statute-Repealing and Amending Act, the Indian Wireless Telegraphy Act of 1933 (specifically sections 3, 6 and 6(1A)), the Indian Wireless Telegraphy (Amendment) Act of 1949 (section 5), and the Repealing and Amending Act of 1952 (sections 2 and 4). In addition, the General Clauses Act of 1879 (section 6A) was relevant. The central issue related to an amendment made by the 1949 Amendment Act, which introduced section 6(1A) into the 1933 Act to impose a heavier punishment for possession of a wireless transmitter without a licence, and whether that amendment survived the repeal of the 1949 Act by the 1952 Repealing and Amending Act. The appellant had been convicted under section 6(1A) for possessing a wireless transmitter on 31 July 1953 and argued that the provision had been repealed, rendering the conviction untenable.

The Court noted that section 3 of the Indian Wireless Telegraphy Act, 1933 prohibited any person from possessing wireless telegraphy apparatus without a licence, while section 6 made such possession punishable. The 1949 Amendment Act added section 6(1A) to impose a stricter penalty for possessing a wireless transmitter without a licence. The Repealing and Amending Act of 1952 subsequently repealed the entire 1949 Amendment Act but contained in section 4 a saving clause stating that the repeal would not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to. The Court observed that this saving clause did not extend to a later amendment that inserted a new provision into the earlier Act, because it could not be said that the earlier Act applied, incorporated or referred to the amending Act. The Court referred to the decision in Khuda Bux v. Manager, Caledonian Press, A.I.R. 1954 Cal. 484, and followed the reasoning in Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society, Ltd., L.R. 58 I.A. 259. It disapproved of the authorities cited in Mohinder Singh v. Mst. Harbhajan Kaur, I.L.R. 1955 Punj. 625 and Darbara Singh v. Shrimati Karnail Kaur, 61 P.L.R. 762. The Court then turned to section 6A of the General Clauses Act, which provides that when any Central Act repeals an enactment that had amended the text of another Central Act, the amendment continues to have effect unless a contrary intention appears. The Court held that section 6A saved the operation of section 6(1A) despite the repeal by the 1952 Act, because neither the repealing Act nor the legislative history indicated a different intention. The decision concluded that the appellant’s conviction under section 6(1A) could be sustained. Section 6A of the General Clauses Act provided that when any Central Act repealed any enactment by which the text of any Central Act was amended then unless a different intention appeared the

The Court explained that the repeal provision in Section 6A of the General Clauses Act was intended not to disturb an amendment that had already been incorporated into the text of a statute. The term “text” in that section was understood to be broad enough to cover both the subject matter and the specific wording employed in a law. Accordingly, the insertion of Section 6(1-A) into the Indian Wireless Telegraphy Act of 1933 constituted an amendment within the text of that Act. No indication of a contrary intention could be found either in the repealing legislation or in the legislative history. Hence, Section 6A was deemed applicable to the repeal of the Indian Wireless Telegraphy (Amendment) Act of 1949.

This appeal, numbered Criminal Appeal No 185 of 1957, arose by way of special leave from an order dated 6 December 1955 of the Punjab High Court, Circuit Bench, Delhi, which affirmed the conviction and sentence imposed by the First Class Magistrate of Delhi under Section 6(1-A) of the Indian Wireless Telegraphy Act, 1933 (hereinafter “the Act”). The appellant, Jethanand, together with another individual, had been tried before that Magistrate for possession of a wireless transmitter in violation of Section 3 of the Act and was sentenced to six months’ rigorous imprisonment. On first appeal, the learned First Additional Sessions Judge in Delhi upheld the conviction but modified the punishment to the time already served plus a fine of Rs 500. The High Court, on revision, confirmed both the conviction and the original sentence. When a petition for special leave was filed, this Court granted leave but limited the scope of review to the question of sentencing. The counsel for the parties advanced two principal contentions: first, that Section 6(1-A) of the Act had been repealed and therefore neither the conviction nor the sentence could be sustained; second, that by restricting the appeal to sentencing, the Court erred because, if the section was not in force at the time of the alleged offence, the conviction itself would be untenable. Both points hinged on the same issue. The argument was outlined as follows: originally, the 1933 Act contained no explicit provision criminalising the possession of a wireless transmitter. The Indian Wireless Telegraphy (Amendment) Act, 1949 (the “1949 Act”) introduced Section 6(1-A) into the Act, thereby creating a distinct offence of possessing a wireless transmitter.

In this case, the Court observed that the amendment enacted by the 1949 Act was subsequently repealed by the Repealing and Amending Act of 1952, hereinafter referred to as the “1952 Act.” Consequently, at the time the alleged offence was said to have occurred, the specific provision that created the offence – namely section 6(1-A) – was no longer part of the statutory framework. The Court noted that, if this were the correct legal position, the limited leave that had been granted by this Court would produce an anomalous result: the conviction would remain in force while the sentence imposed under the repealed provision would have to be set aside. Although the argument raised by counsel appeared to be plausible, the Court found it to be unsound. The Court explained that there was a legitimate reason for confining the scope of the special leave. It pointed out that the High Court had mistakenly referred to section 6(1) of the Act rather than to section 6(1-A) in its judgment. Under section 6(1), the maximum penalty for a first offence was a fine not exceeding one hundred rupees. The Court inferred that the High Court might have assumed that the conviction could be sustained on the basis of section 6(1), even if section 6(1-A) was not on the books at the relevant time, because the language of “wireless telegraphy apparatus” in section 6(1) was broad enough to encompass a “wireless telegraphy transmitter.” For that reason, the Court had limited the leave to the question of sentencing. The Court further held that any inconsistency stemmed from the appellant’s presentation of his case at that stage, and that the appellant could not now exploit his earlier omission to expand the ambit of the appeal. Apart from this procedural lapse, the Court found no merit in the contention that the conviction itself should be set aside.

The Court then set out the relevant statutory provisions for clarity. The Indian Wireless Telegraphy Act of 1933, section 3, provided that, except as permitted by section 4, no person could possess wireless telegraphy apparatus without a licence issued under the Act. Section 6(1) of the same Act stipulated that anyone who possessed any wireless telegraphy apparatus in violation of section 3 would be punished, for a first offence, with a fine that could extend to one hundred rupees, and for a second or subsequent offence with a fine that could extend to two hundred and fifty rupees. The Indian Wireless Telegraphy (Amendment) Act of 1949, through section 5, amended section 6 of the 1933 Act by inserting a new sub-section 6(1-A), which provided that whoever possessed any wireless transmitter in contravention of section 3 would be punished with imprisonment of up to three years, or a fine of up to one thousand rupees, or both. Finally, the Repealing and Amending Act of 1952, in section 2, listed the enactments specified in the First Schedule that were to be repealed, and the First Schedule indicated that the entire 1949 Amendment Act was repealed. Section 4 of the 1952 Act saved the operation of any other enactment in which the repealed enactment had been applied, incorporated or referred to. The Court presented these provisions to illustrate the statutory context within which the present dispute arose.

The Act of 1949 introduced section 6(1-A) into the Act of 1933. Subsequently, the Act of 1952 repealed the 1949 Act, but it expressly preserved the effect of any other enactment in which the repealed enactment had been applied, incorporated, or referred to. The Court first examined whether the amendments that the 1949 Act inserted into the 1933 Act were therefore saved by section 4 of the 1952 Act.

To answer that question, the Court referred to the general purpose of repealing and amending statutes. Halsbury’s Laws of England (2nd Edition, Vol. 31, p. 563) explains that a Statute Law Revision Act does not change the law; it merely removes enactments that have become unnecessary and includes elaborate saving provisions. In Khuda Bux v. Manager, Caledonian Press, Chief Justice Chakravartti (see A.I.R. 1954 Cal. 484 at p. 486) outlined the scope of such legislation. He observed that “Such Acts have no Legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times inconsistencies are also removed by repealing and ‘amending Acts. The only object of such Acts, which in England are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care, …”.

From these authorities, the Court concluded that the principal aim of the 1952 Act was to eliminate superfluous statutes and to remove dead matter from the statute book, thereby easing the growing volume of legislation and reducing public confusion. Accordingly, the Repealing and Amending Act of 1952 was intended solely to expurgate the amending Act of 1949 and other similar statutes that had already fulfilled their purpose.

The Court then turned to the second issue: whether section 4 of the 1952 Act preserved the operation of the amendments that the repealed 1949 Act had introduced into the 1933 Act. Section 4 expressly saves “other enactments in which the repealed enactments have been applied, incorporated or referred to.” The Court examined whether the amendments themselves fall within the language of “applied, incorporated or referred to.” It held that they do not. Section 4 was crafted to address a different situation—namely, the repeal of an earlier Act that has been applied, incorporated, or referred to by a later enactment. Consequently, the amendments inserted by the 1949 Act into the 1933 Act were not saved by the saving provision of section 4 of the 1952 Act.

The Court observed that when a later enactment repeals an earlier enactment, the repeal does not affect the later enactment. This principle was succinctly stated in Maxwell on Interpretation of Statutes, 10th Edition, page 406, which says that where the provisions of one statute are, by reference, incorporated in another and the earlier statute is afterwards repealed, the incorporated provisions continue in force as far as they form part of the second enactment. A similar idea is expressed in Craies on Statute Law, 3rd Edition, page 349, which explains that an Act of Parliament may, instead of expressly repeating the words of a section contained in a former Act, merely refer to it and thereby apply its provisions to a new state of things created by the subsequent Act; in such a case the rule of construction is that the repeal of the first statute by a third does not affect the second. The Judicial Committee, in Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society, Ltd., endorsed the said principle and restated it on page 267, observing that this doctrine finds expression in a common-form saving clause that regularly appears in Indian amending and repealing Acts. The clause runs: “The repeal by this Act of any enactment shall not affect any Act … in which such enactment has been applied, incorporated or referred to.” The judgment emphasized that the two Acts retain independent existence; despite the death of the parent Act, its offspring survives in the incorporating Act. Although no such saving clause appears in the General Clauses Act, the judges held that the principle is as applicable in India as it is in England.

Consequently, the Court held that section 4 of the 1952 Act has no application to a situation where a later amending Act inserts new provisions into an earlier Act, because when an earlier Act is amended by a later Act, it cannot be said that the earlier Act applies, incorporates or refers to the amending Act. The earlier Act can only be amended by the later Act and cannot incorporate it. Accordingly, the view expressed by the Punjab High Court in Mohinder Singh v. Mst., L.R. 58 I.A. 259, and in Darbara Singh v. Shrimati Karnail Kaur, that section 4 of the Repealing and Amending Act of 1952 applies to the repeal of an amending Act, was rejected. The Court noted that this legal position does not aid the appellant, because the matter falls squarely within the four corners of section 6-A of the General Clauses Act, 1897 (Act X of 1897). Section 6-A reads: “Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation … was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.”

The Court explained that section 6-A of the General Clauses Act, 1897 provides that when a Central Act or Regulation made after the commencement of that Act repeals any enactment by which the text of any Central Act or Regulation was amended through an express omission, insertion or substitution, the repeal will not affect the continuance of any such amendment made by the enactment that has been repealed, unless a different intention appears. In the present case, the amendment enacted in 1949 inserted clause 6(1-A) into Act XVII of 1933. The later repeal of the 1949 amending Act by the Repealing and Amending Act of 1952 therefore did not disturb the continuation of the amendment that had been inserted before the repeal. It was contended that for section 6-A to apply, the text of an enactment must have been amended, and that the insertion of clause 6(1-A) was not a mere textual amendment but a substantial one. The argument advanced that “text” refers only to the phraseology or terminology of the statute and not to its substantive content. The Court rejected this view, observing that the ordinary dictionary meaning of “text” is “subject or theme”. When one enactment amends the text of another, it necessarily amends the subject or theme of that enactment, even if the amendment merely deletes superfluous words without altering the overall subject. Consequently, the word “text” must be understood in a comprehensive sense that includes both the subject matter and the wording used in a statute. Another attempt to escape the operation of section 6-A was based on the words “unless a different intention appears”. The repealing Act did not express any intention contrary to that contemplated by section 6-A. The purpose of the repealing legislation was not to give legislative effect to the amendment but to remove obsolete material from the statute book. Counsel for the appellant presented a historical background of the 1949 amending Act, seeking to show that the legislature’s intention in passing the repealing Act was to expunge clause 6(1-A) because it was redundant and unnecessary. It was further argued that the Indian Telegraph Act, 1885 had already provided for the offence covered by clause 6(1-A) and that the 1948 insertion of the clause into the 1933 Act was therefore superfluous, leading to its removal in 1952. The Court found no basis for this argument and held that the premise was incorrect. Section 20 of the Indian Telegraph Act, 1885, reads: “If any person establishes, maintains or works a telegraph within India in contravention of the provisions of section 4 or otherwise than as permitted by rules made under that section, he shall be punished…if the telegraph is a wireless telegraph with imprisonment which may extend to three years, or with fine, or with both…”. The Court noted that while the wording of section 20 is broad enough to include a wireless transmitter, it does not prohibit possession of a wireless apparatus. The Act only empowered control over the establishment, maintenance and operation of wireless apparatus, and in practice the detection of unlicensed apparatus and prosecution of offenders proved difficult, resulting in revenue loss to the State. To remedy this defect, Act XVII of 1933 was enacted to prohibit possession of a wireless apparatus without a licence, making such possession an offence under clause 6 with a relatively lenient penalty. Subsequently, the legislature considered possession of a wireless transmitter to be a more serious offence, sometimes involving State security, and introduced the 1949 amendment to treat the possession as a graver offence with a more severe punishment.

The provision stipulated that, in any case other than the wireless telegraph scenario, the penalty would be a fine not exceeding one thousand rupees. Although the wording of the section was broad enough to encompass a wireless transmitter, it did not forbid the mere possession of a wireless apparatus. The Act of 1885 granted authority only to regulate the establishment, maintenance, and operation of wireless equipment; consequently, in practical terms, detecting unlicensed devices and successfully prosecuting offenders proved difficult, resulting in a loss of revenue for the State. To remedy this shortcoming, the legislature enacted Act XVII of 1933, which expressly prohibited the possession of a wireless apparatus without a licence. Under section 6, the illegal possession of such equipment was made an offence, but the prescribed punishment was relatively mild. Later, the legislature concluded that possessing a wireless transmitter could constitute a more serious offence, potentially affecting State security, and therefore introduced an amendment in 1949 that elevated the offence and imposed a harsher penalty. Accordingly, it could not be said that section 6(1-A), inserted by the 1949 amendment to Act XVII of 1933, was either covered by the Indian Telegraph Act 1885 or was redundant and without purpose. Moreover, the legislative history did not demonstrate an intention different from that expressed in section 6-A of the General Clauses Act. For these reasons, the Court held that section 6(1-A) remained part of the statute even after the 1949 amendment was repealed by Act XLVIII of 1952, and that it was in force at the time the appellant committed the alleged offence. Consequently, the appeal was dismissed.