# [1951] 1 S.C.R. 228 - **Citation:** [1951] 1 S.C.R. 228 - **Court:** Supreme Court of India - **Decided:** 1950-01-26 - **Bench:** Smu HAru1.AL KANIA C.J, SAIYID FAZL Au, Patanjali Sastri, Mehr Chand Mahajan, MuKHEJEA, DAs, Chandrasekhara Aiyar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1951-1-s-c-r-228-77 - **Pages:** 31 ## Headnote Constitution of India, 1950, Art. 13 (!)-Whether retrospective Prosecution for contravention of lndi'an Press (Emergency Powers) Act, 1931, ss. 15, IS-Constitution passed during pendency of prosecution-Laws inconsistent with fundamental rights declared void-Whether prosecution can be continuedA.bsence of provision saving pending proceedi1lgs-Effect a/- Expiry of temporary laws or repeal of laws, and laws becoming void by statutory declaration.-Difference-InterpretationSpirit of the Constitution. Held by the Court (KANIA C.J., PATANJALI SASTRI, MElD. CHAND MAHAJAN, DAs and CHANDRASEKHARA AIYAR JJ.-FAzL Au and MuKHERJEA fl., dissenting) .. . Article 13(1) of the Indian Constitution docs not make existing laws which are inconsistent with fundamental rights void ab inito, but only renders such laws ineffectual and Void with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect, and if therefore an act was done before the commencement of the new Constitution in contravention of the provisions of any la\\'· which was a valid law at the - time of the commission of the act, a prosecution for such an act, which was commenced before the Constitution can1e into force can be proceeded with and the accused punished according to that law, even after the commencement of the new Constitution. On the expiry of a temporary statute no further proceedings can be taken under it unless the statute itself saved pending proceedings and if an offence had been committed under a tern~ porary statute and proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then in the absence of a saving clause the pending prose~ cution -cannot be proceeded- with after the expiiy of the statute by effiux of time. The effect of Art. 13(1) is quite different from that of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. A court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or wish to be the spirit of the Constitution cannot prevail if the language of. the Co.nstitution OOe. not support that view. S.C.R. SUPREME COURT REPORTS 229 Per FAzL ALI and MuKHERJEA JJ. (contra)-Though Art. 13(1) has no retrospective operation, and transacclons which arc past and closed and rights which have already vested will · remain unt0uchcd, with regard to· inchoate matters which were still not determined when. the. Constitution came into force, and as regar.ds proceedings which were pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, a law which has become void under Art 13( 1) of the Constitution cannot be applied. What has to be looked at is the ~tate of the law at the time when the question arises as to whether a person has committed an offence, and if it is found that the law which made the act an offence has become completely ineffectual and nugatory, then neither can a charne be framed nor can the accused person be convicted. Judgment of the Bombay High Court affirmed. ## Text _Characters 0–39,623 of 68,448. This is a partial read: ask again with offset=39623 for what follows._ 1951 J ... 22 228 SUPREME COURT REPORTS [1951] KESHAVAN MADHAVA MENON "· THE STATE OF BOMBAY [Smu HAru1.AL KANIA C.J., SAIYID FAZL Au, PATANJALI SASTRI, MEHR CHAND MAHAJAN, MuKHEJEA, DAs and CHANDRASEKHARA AIYAR JJ.] Constitution of India, 1950, Art. 13 (!)-Whether retrospective Prosecution for contravention of lndi'an Press (Emergency Powers) Act, 1931, ss. 15, IS-Constitution passed during pendency of prosecution-Laws inconsistent with fundamental rights declared void-Whether prosecution can be continuedA.bsence of provision saving pending proceedi1lgs-Effect a/- Expiry of temporary laws or repeal of laws, and laws becoming void by statutory declaration.-Difference-InterpretationSpirit of the Constitution. Held by the Court (KANIA C.J., PATANJALI SASTRI, MElD. CHAND MAHAJAN, DAs and CHANDRASEKHARA AIYAR JJ.-FAzL Au and MuKHERJEA fl., dissenting) .. . Article 13(1) of the Indian Constitution docs not make existing laws which are inconsistent with fundamental rights void ab inito, but only renders such laws ineffectual and Void with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect, and if therefore an act was done before the commencement of the new Constitution in contravention of the provisions of any la\\'· which was a valid law at the - time of the commission of the act, a prosecution for such an act, which was commenced before the Constitution can1e into force can be proceeded with and the accused punished according to that law, even after the commencement of the new Constitution. On the expiry of a temporary statute no further proceedings can be taken under it unless the statute itself saved pending proceedings and if an offence had been committed under a tern~ porary statute and proceedings were initiated but the offender had not been prosecuted and punished before the expiry of the statute, then in the absence of a saving clause the pending prose~ cution -cannot be proceeded- with after the expiiy of the statute by effiux of time. The effect of Art. 13(1) is quite different from that of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. A court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or wish to be the spirit of the Constitution cannot prevail if the language of. the Co.nstitution OOe. not support that view. S.C.R. SUPREME COURT REPORTS 229 Per FAzL ALI and MuKHERJEA JJ. (contra)-Though Art. 13(1) has no retrospective operation, and transacclons which arc past and closed and rights which have already vested will · remain unt0uchcd, with regard to· inchoate matters which were still not determined when. the. Constitution came into force, and as regar.ds proceedings which were pending at the time of the enforcement of the Constitution and not yet prosecuted to a final judgment, a law which has become void under Art 13( 1) of the Constitution cannot be applied. What has to be looked at is the ~tate of the law at the time when the question arises as to whether a person has committed an offence, and if it is found that the law which made the act an offence has become completely ineffectual and nugatory, then neither can a charne be framed nor can the accused person be convicted. Judgment of the Bombay High Court affirmed. APPELLATE JuRISDICTION: Appeal under Art. 132(1) of the Constitution from a judgment and order dated 12th April, 1950, of the High Court of Judicature _at Bombay (Chagla C.J., Bavdekar and Shah JJ.) Case no. IX of 1950. A. S. R .. Chari, for the appellant. M. C. Setalvad. Attorney General for India (G. N. Joshi, with him) for the respondent. 1951. Jan. 22. The judgment of Kania C.J., Patanjali Sastri J. Das J. and Chandrasekhara Aiyar J. was delivered by Das J. Mahajan J. and Fazl Ali J. delivered separate judgments. Mukherjea J. agreed with Fazl Ali J. 1951 Eiiluzuan Madha~aM-· •• Thl~tateqf BOfllba, DAs J.-At all material times the petitioner, who · is Du J the appellant before us, was the Secretary of People's Publishing House, Ltd., a company incorporated under the Indian Companies Act with its registered office at 190-B, Khedwadi Main Road in Bombay. In September, 1949, a pamphlet entitled "Railway Mazdovron ke khilaf Nai Zazish" is alleged to have been published in Bombay by the petitioner as the secretary of that company. Learned counsel for the petitioner states that the pamphlet was published as a "book" within the meaning of section 1 of the Press and Registration of Books Act (XXV of 1867) and that the provisions of that Act had been duly complied 1951 X•ihautJtJ MadlulvaMIM# '" Thi Slat.• of &mbay. Das J, 230 SUPREME COURT REPORTS [19511 with. The Bombay Government authorities, however, took the view that the pamphlet was a "news sheet" within the meaning of section 2(6) of the Indian Press (Emergency Powers) Act, 1931, and that as it had been published without authority reqwreed by section 15(1) of that Act, the petitioner had committed an offence punishable under section 18(1) of the same Act. A prosecution under that Act w:u accordingly started against the petitioner in the Court decided that question of law. This was followed and was registered as Case No. 1102/P of 1949. During the pendency of the proceedings the Constitution of India came into force on · January 26, 1950. On March 3, 1950, the petitioner filed a written statement submitting, inter alia, that the definition of "news sheet" as given in section 2(6) of the Indian Press (Emergency Powers) Act, 1931, and sections 15 and 18 thereof were ultra vires and void in view of article 19(1) (a) read with article 13 and that the hearing of the case should be stayed till the High Court dtcided that question of law. This was followed up by a petition filed in the High Court on March 7, 1950, under article 228 of the Constitution, praying that the record of Case No. 1102/P of 1949 be sent for, that it be declared that sections 15 and 18 read with section 2(6) and (10), in so far as they create liability for restrictive measure for a citizen, are ultra vires of article 19(1) (a) and are, therefore, void and inoperative and that the petitioner be ordered to be acquitted. During the pendency of this petition the Chief Presidency Magistrate on March 23, 1950, framed a charge against the petitioner under section 18 of the Press (Emergency Powers) Act, 1931. The petition under article 228 was heard on April 12, 1950, by a Bench of the Bombay High Court consisting of Chagla C.J. and Bavdekar and Shah JJ. Two questions were raised before the Bench, namelythe the (1) Whether sections 15(1) and 18(1) read with definitions contained in section 2(6) and 2(10) of Indian Press (Emergency Powers) Act, 1931, were S.C.R. SUPREME COURT REPORTS 231 inconsistent with article 19(1) (a) read with clause (2) ot that article? and (2>' Assuming that they were inconsistent, whether the proceedings commenced under section 18(1) of that Act before the commencement of the Constitution could nevertheless be proceeded with? The High Court considered it unnecessary to deal with rr decide the first question and disposed of the. application only on the second question. The High Court took the view that the word "void" was used in article 13(1) in the sense of "repealed" and that conseqn<"ntly it attracted section 6 of the General Clauses Act, which Act by article 367 was made applicable for the interpretation of the Constitution. The High Court, therefore, reached the conclusion that proceedings under the Indian Press (Emergency Powers) Act, 1931, which were pending at the date of the commencement of the Constitution were not affected, even if the Act were inconsistent with the fundamental rights conferred by article 19(1) (a) and as such became void under article 13(1) of the Constitution after January 26, 1950. The High Court accordir.gly answered the second question in the affirmative and dismissed the petitioner's application. The petitio:-ier has now come up on appeal before us on the strength of a certificate granted by the High Court under article 132(1) of the Constitution. Learned counsel appearing in support of this appeal urged that the Indian Press (Emergency Powers) Act, 1931, was one of the many repressive laws enacted by an alien Government with a view to stifle the liberty of the Indian subjects and particularly of the Indian Press; that with the advent of independence the people of India began to breathe freely and bv the Constitution which they gave unto themselves. they took care to guarantee to themselves the fundamental rights d free citizens of a democratic republic and that article 13(1) of that Constitution brushed aside all vestiges of subordination which the tyranny of the alien rulers had imposed upon them and declared all 1951 Eeshavan Madhava Minon v. Th1Stal1 ef B0111ba;1. Das]. 1~51 Kukavan Madllava Mcwm v. TlwSlal• of Bombay. ])(u J. " • . \ 232 SUPREME COURT REPORTS ,11951] laws inconsistent with the fundamental rights to· be . void as if they had never been passed and had never . existed. It was, therefore; against the spirit of the • · Constitution, argued the learned counsel, that a free citizen of India should still continue to be persecuted under such a retrograde law which, being inconsistent. with the fundamental rights, must be declared to be void. Learned counsel urged that it 'Yas not necessary '- · ·for him to contend that such inconsistent laws became void ab inito or that all past and closed transactions could be reopened but he contended that on and from · ~ January 26, 1950, when· the Constitution cam!l into . force such inconsistent laws which became void could . not be lC?Oked at for any purpose" and far less-could they be utilised for the purpose of framing a charge or punishing a free citizen.. As the void law cannot be · · • i:tilised any longer' the pending prosecutions, accord:. mg to learned counsel, must fall tp the ground. T<;i permit pending ,proceedings under a law which, after the co=encement of the Constitution had become .• void, to proceed further,· after the Constitution has '- taken clffect, is to prolong the efficacy .of the law notwithstanding that it has become void on and from the •date the · Constitution came into force and that is against th~ spirit of the Constitution . An argument founded on what is claimed to be the. .., . spirit of the Constitution is always attractive, for it has a powerful appeal to sentiment and. emotion; but .. a court of law has to gather the.spirit of the Constitu- .ft.ion from the language of the ConstitutioJ.l. . What one may believe or think to_ be.'the spirit of the Con§titution cannot prevail if the langmtge of the Constitution does not ·support that view. Article 372 (2) gives · power to the,President to adapt and modify existing laws by way of repealor amendment. There is noth-. ing to prevent the President, in exercise of the powers conferred on. him by that article, ·from repealing say_ the whole or any part of the Indian Press (Emergency "' Powers) Act, 1931. If the President does so, then such repeal will at once attract . section 6 of the General - f '.Clauses Act. In such a situation all prosecutions under S.C.R.: SUPREME COURT REPORTS 233 the Indian Press (Emergency Powers) Act, 1931, which were 1Jending at the date of its repeal by the President would be saved and must be proceeded with notwithstanding the repeal of that Act unless an express provision was otherwise made in the repealing Act. It is therefore clear that the idea of the preservation of past inchoate rights or liabilities and pending proceedings to enforce the same is not foreign or abhorrent to the Constitution of India. We are, therefore, unable to accept the contention about the spirit of the Constitution as invoked by the learned counsel in aid of his plea that pending proceedings under a law which has become void cannot be proceeded with. Further, if it is against the spirit of the Constitution to continue the pending prosecutions under such a void law, surely it should be equally repugnant to that spirit that men who have already been convicted under such repressive law before the Constitution of India came into force should continue to rot in jail. It is, therefore, quite clear· that the court should construe the language or article 13(1) according to the established rules of interpretation and arrive at its true meaning uninfluenced by an assumed spirit of the Constitution. Article 13(1) with which we are concerned for the purposes of this application is in these terms :- "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with~the provisions of this Part, shall, to the extent of such inconsistency be void." It will be noticed that all that this clause declares i.:; that all existing laws, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. Every statute is prima f tzcic r-rospective unless it is expressly or by necessary implicatiom made to have retrospective operation. There is no reason why this rule of interpretation s~oukl not be applied for the purpose of interpreting our Constitution. We find nothing in the language of article 13(1) which. may be read as indicating an. 195l Ii' eslt{utltll Ma4/llllia·M~t11JJ. 'l'f TheStal'ef Bom/loJ• -- DuJ. 1951 Jli~ ~MelltR v. T lrl Slat. qf &m6q. - IJ4'j. 234 SUPREME COURT REPORTS p951] intention to give it retrospective operation. On the contrary, the language clearly points the other way. The provisions of Part III guarantee what are called fundamental rights. Indeed, the heading of Part III is "Fundamental Rights". These rights are given, for the first time. by and under our Constitution. Before the constitution cam~ into force there was no such thing as fundamental right. What article 13(1) provides i> that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution the que>tion of the inconsistency of the existing laws with those rights must · necessarily arise on and from the date those rights came into being. It must follow, therdore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation. After this first point is noted, it should further be seen that article B ( 1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsi.ient with the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes but they are void only to the .:xtcnt they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the vcridness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, c.r to wipe them out altogether from the statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution. Learned counsel for the appellant has drawn our attention to articles 249(3), 250, 357, 358 S.C.R. SUPREME COURT REPORTS 235 and 369 where express provision has been made for "lo-aving things done under the laws which expired. It will be noticed that each of those articles was concerned with expiry of temporary statutes. It is well known that on the expiry of a temporary statute no further proceedings can be taken under it, unless the statute itsdf saved pending proceedings. If, therefore, an offence had been committed under a temporary statute and the proceedings were initiated but the offender had not been prosecuted and punished before t11e expiry of the statute, then, in the absence· of any saving clause, the pending prosecution could not be proceeded with after the expiry of the statute by efflux of time. · It was on this principle that express provision was made in the several articles noted abovel for saving things done or omitted to be done uriJer the expiring laws referred to therein. As explained above, article 13(1) is entirely prospective in its· operation and as it was not intended to have any retrospective effect there was no necessity at all for inserting in that article any such saving clause. The effect of article 13 ( 1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. As already explained; article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamenta1 rights on and after the date of the commencement of the Constitution. It has no retrospectjv.e effect and if, therefore, an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned for, to say that it is, will be to give the law retrospective effect. There is n;> fundamental right that a person shall not be prosecuted a.nd punished for an offence committed before the Constitution came into force. So far as the past acts 19!il l{Aslrtuum Mailhava MNton v. r&.'- "Due to the numerous troublesome problems which constantly arose with the repeal of statutes, as well as to the numerous cases where hardship was caused, statutes have been enacted in several States expressly providing that the repeal of a statute shall not affect any rights, causes of action, penalties, forfeitures, and pending suits, accrued or instituted under the repealed statute." In India, the earliest attempt that was made to guard against the normal legal effect of a · repeal is to be found in sectioh 6 of Act I of 1868. This provision was further elaborated by section 6 of the General Clauses Act of 1897 which is on the same lines as section 38(2) of the Interpretation Act of England. 1he position therefore now in India as well as in England is that a repeal has not the drastic effect which it used to have before the enactment of the Interpretation Act in England or the General Clauses Act in this country. But this is due entirely to the fact that an express provision has been made in those enactments to counteract that effect. Hence, in those cases which are not covered by the language of the General Clauses Act, the principle already enunciated will continue to operate. The learned AttomeyGeneral had to concede that it was doubtful whether section 6 of the Act is applicable where there is a repeal by implication, and there can be no doubt that the law as to the effect of the expiry of a temporary statute still remains as stated in the books, because section 6 of the General Clauses Act and section 38(2) of the Interpretation Act have no application except where an Act is repealed. It should be remembered , S.C.R. SUPREME COURT REPORTS 241 that the soundness of the law which has been consistently applied to cases governed by statutes which have ceased to be in force, by reason of having been repealed or having expired; has never been questioned, and it cannot be brushed aside as if it embodied some archaic or obsolete rule peculiar only to the common law of England. It is the law which has been enunciated by eminent Judges both in England and in America and is based on good sense and reason. I shall now proceed to consider what would be the correct legal position, when a provision of an existing law is held to be void under article 13(1) of the Constitution. From the earlier proceedings before the Constituent Assembly, it appears that in the original draft of the Constitution, the words "shall stand abrogated" were used instead of "shall be void," in article 13(1), and one of the questions directly before the Assembly was what would be the effect of the use of those words upon pending proceedings and anything duly done or suffered under the existing law. Ultimately, the article emcrged in the form rin which it stands at present, and the words "shall stand abrogated" were replaced by the words "shall be void." If the words "stand abrogated" had been there, it would have been possible to argue, that those words would have the same effect as repeal and would attract section 6 of the General Clauses A.ct, bμt those words ~ave been ab~doned and a Vf!J' strong expression mdeed the: strongest expression which could be used, has been used ·in their place. The meaning of the word "void" is stated in Black's Law Dictionary (3rd Edn.) to be as follows:- "null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid." A reference to the Constitution will show that the framers thereof have used the word "repeal" wherever ncceswy (see articles 252, 254, 357, 372 and 395) They have also used such words as "invalid" (sec 1951 Ktshaz•an Madhava MenM v. The S1a11qf Bombay. Fazal AliJ. 19il 1:11.U..u ld•i4aa• Jt1u11 v. T/,. Slal1 .! B1m•ay. /1'0<•1 Ali]. 2'42 SUPREME COURT REPORTS [1951] articles 245, 255 and 276), "cease to have effect" (see articles 358 and 372), "shall be inoperative", etc. They have used the word "void" only in two articles, these being article 13(1) and article 154, and both these articles deal with cases where a certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under the existing law, they have used apt language for the purpose; r,ce for example articles 249, 250, 357, 358 and 369. The thoroughness and precision which the framers of the Constitution have observed in the matters to which referc;nce has been made, disinclines me to read into artide 13(1) a saving provision of the kind which we are asked to read into it. Nor can I be persuaded to hold that treating an Act as void under article 13(1) should have a milder effect upon transactions not past and closed than the repeal of an Act or its expiry in due course of time. In my opinion, the strong sense in which the word "void" is normally used and the context in which it has been used are not to be completely ignored. Evidently; the framers of the Constitution did not approve of the laws w.hich are in conflict with .the fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after the Constitution has come into force, the laws which are inconsistent with the fundamental rights will continue to be treated as good and effectual laws in regard to certain matters, as if the Constitution had never been passed. How such a meaning can be read into the words used in article 13 ( 1), it is difficult for me to understand. There can be no doubt that article 13(1) will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when the Constitution came into force, and as regards proceedings whether not yet begun, or pending at the time of enforcement of the Constitotion and not yet prosecilted to a final judgtPent, the YCI"'\' serious question arises as to whether a law which S.C.R. SUPREME COURT REPORTS 243 has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would -appear to me to be that the law having ceased to be effectual can no longer be applied. In R. v. Mawgan (Inhabitants) (1) a presentment as to the non-repair of a highway had been made under 13 Geo. 3, c. 78, s. 24, but before the case came on to be tried, the Act was repealed. In that case, Lord Denman C.J. said: "li the question had related merely to the presentment, that no doubt is complete. But dum loquimur, we have lost the power of . giving effect to anything that takes place under that proceeding." And Littledale J. added : "I do not say that what is already done has become bad, but that no more can be done." In my opinion, this is precisely the way in which we should deal with the present case. It was argued at the Bar that the logical outcome of such a view would be to hold that all the convictions already recorded and all the transactions which are closed, should be reopened, but, in my opinion, to argue on these lines is to overlook what has been the accc:pted law for centuries, namely, that when a law is· treated as dead, transactions which are past and closed cannot be revived and actions which were commenced, prosecuted and concluded whilst the law was operative cannot be reopened. In the course of the arguments, a doubt was also raised as to what would be the effect in the case of an appeal pending when the Constitution came into force, from a conviction already recorded before the 26th January, 1950. The law applicable to such a situation is well-known and has been correctly summed up by Crawford in these words : - · "Pending judicial proceedings based upon a statute cannot proceed after its repeal. The. rule holds true until the proceedin~ have reached a final judgment in the coun of last resort, for that court; when it comes to announce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was (I} (1888) 8 A. & E. 496. 1951 1(11/ra.aa Madhavatt Me••• v. T Iii Stoll q/ BO#lbay. /fa.cal Ali]. 1951 Keshaoiia Madhaoa Menon •• The Stale qf Bomba7. Fazal Ali]. 244 SUPREME COURT REPORTS [19511 correct when pronounced 'in the subordinate tribunal frorri whence the appeal was taken, if it appears that pending the . appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal." I think I should at this stage deal briefly with two points which were raised in the course of the arguments in support of the opposite view. It was urged in the first place that without there being a saving clause to govern article 13(1), it can be so construed as to permit offences committed prior to the 26th January, 1950, to be punished. The argument has been put forward more or less in the following form. The law which is said to be in conflict with the fundamental rights was a good law until the 25th January, and, since article 13(1) is to be construed prospectively, and not retr<>&pectivcly, every la.ct constituting an offence under the old law remains an · offence and can be punished even after the 26th January. It seems to me that the same argument could . be urged with reference to matters which constituted offences under a repealed Act or a temporary Act which has ex· pired. But such an argument has nc;ver succeeded. The real question is whether a person who has not been convicted before the Act has ceased to exist or ceased to be effectual can still be prosecuted under such an Ar.t. The answer to this question has always been in the negative, and I do not see why a different answer should be given in the case of an Act which has become void, i.e., which has become so ineffectual that it cannot be cured. The second argument which also has failed to im- . press me is that if section 6 of the General Clauses Act does not in terms apply, the principle underlying that section should be applied. The answer to this argument is that the Legislature in its wisdom has confined that section to a very definite siruation, and, though it was open to it to make the section more comprehen-. sive and general, it has not done so. It is well-known that situations similar to those which arise by reason of the repeal of an Act have arisen in regard to Acts S.C.R. SUPREME COURT REPORTS 245 which have expire.cl or Acts which have been declared to be void, and, though such situations must have been well-known to the Legislature, they have · not been provided for. In these circumstances, I do not sec how the very clear and definite provision can be enlarged in the manner in which it is attempted to be enlarged. Besides, I have not come across any c.ase in which the principle underlying section 38(2) of the Interpretation Act or section 6 of the General Clauses Act has been invoked or applied. In the present case, we have to look at the state of the law at the time when the question arises as to whether a person has committed any offence. If we find that the law which made the act an offence has become completely ineffectual and nugatory, then neither can a charge be framed nor can the accused person be convicted. In my opinion, if the assumption on which the High Court has proceeded is correct, the appellant is entitled to a declaration that he cannot be convicted for the offence of which he is accused. MAHAJAN J.-The appellant is the secretary of the People's Publishing House, Ltd., Bombay. In September, 1949, he published, a pamphlet entitled "Railway Mazdoorum Ke Khilaf Nai Sazish." On the 9th December, 1949, he was arrested and a prosecution was launched against him under section 18 ( 1) of the Indian Press (Emergency Powers) Act (XXIII of 1931) in the Court of the Chief Presidency Magistrate at Bombay in respect of this pamphlet, as it had been published without any authority as required under section 16 of the said Act. On the 8th March, 1950, an application was made on his behalf in the High Court of Judicature at Bombay under article 228 of the Constitution of India for quashing the proceedings started against him and it was contended that sections 16 and 18 of Act XXIII of 1931 were ultra vire; of Part III of the Constitution of India and were thus void and had· no effect whatsoever and no prosecution launched under these sections could be· proceeded with after the conling into force of the Constitution.