# K.N.Mehra v. The State of Rajasthan

- **Citation:** [1957] 1 S.C.R. 634
- **Court:** Supreme Court of India
- **Decided:** 1955-04-14
- **Case number:** Criminal Appeal No. 93 of 1956
- **Bench:** Bhagwatj, Jagannadhadas, )Afer Imam, · GovINDA MENON, j. L. KAPUR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-n-mehra-v-the-state-of-rajasthan-1363
- **Pages:** 16

## Headnote

Ordinance,
duration
of-Promulgaiion
under the Emergency
ProvisionJ-Declaration
of ter1nination
of emergency-Scope and
effect-Operation of Ordinance after end of emergency-Government
of India Act, 1935 (25 & 26 Geo. 5 Ch. 42). Sch. 9 s. 72-India
and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo. 6 Ch. 33),
ss. 1 (3), J-High Denomination
Bank Not('s
(Demonetisation)
Ordinance, 1946 (Ordinance No. III of 1946), ss. 4. 7.
Under s. 72 of the 9th Sch. of the Government of India Act,
1935 : "The Governor-General may, in cases of en1ergency, make
and promulgate ordinances ... and any ordinance so 1nadc shall, for
the space of not more than six months from its pron1ulgation,
have the like force of la\.V as an Act passed by the Indian Legislature . .. "; s. I ( ~) of the
India
and
Burma
( E1nergency
Provisions) Act, 1940, provided that s. 72 of the Government of India
Act, 1935, shall as respects
Ordinances made during the period
beginning with Tune 27, 1940, the <late of the passing of that Act,
and ending \.Vith such date as
His Majesty may by
Order in
Council declare to be the end of the emergency, have effect as if
...
S.C.R.
SUPREME COURT REPORTS
635
the words "for the
space of not more than six
months from its
1957
Promulgation" were omitted.
H
..
ansrqi Moo!;•
The appellant was prosecuted for having on July 11, 1953,
contravened the provisions of s.
4 of the
High
Denomination
Bank Notes (Demonetisation) Ordinance, 1946.
The
Ordinance
was promulgated by the
Governor-General of India on
January
12, 1946, but on April 1, 1946, an Order in Council was published
in the Gazette of
India Extraordinary whereby the period of
emergency referred to in the
India
and
Burma
(Emergency
Provisions) Act, 1940, was
declared to have ended on April 1,
1946.
It was contended for the appellant that the
Ordinance in
question was not in operation on the date when the offence was
alleged to
have been committed and that therefore the
prosecution was not maintainable, because ( 1) the Ordinance had been
promulgated in exercise of 'the emergency
powers
and that it
lapsed ipso facto on April 1, 1946, when the declaration was made
that the emergency
was at an end; and (2) s. 72 of the 9th
Sch. of the
Government of India Act, 1935, having been restored
with effect from April 1, 1946, one must look to its terms as they
originally stood, to justify the continuance of the Ordinance after
April 1, 1946.
Held, that the deletion of the words "for the space of not
more than six months from its promulgation" from s. 72 of the
9th Sch. of the Government of India Act, 1935, by s. 1 ( 3) of the
India and
Burma (Emergency Provisions)
Act, 1940, had the
effect of equating Ordinances which were promulgated between
June 27, 1940, and April I, 1946, with Acts passed by the Indian
Legislature without ari.y
limitation of
timt"
as
regards their
duration, and
therefrre continuing in force
until they
were
repealed.
Though after April
1, 1946, s. 72 of the 9th
Sch. of the
Government of India Act, 1935, was restored in its original form,
the continuance of the Ordinance in question after that date had
to be determined having regard to the terms of the section as
they stood on the date of such promulgation, as there was nothing
to justify retrospective operation of the section so restored.
/. K. Gas Plant Manufacturing Co. (Rampttr) Ltd. and others
v. King Emperor, [ 1947] F.C.R. 141, relied on.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 93 of 1956.
Appeal by special leave
from the

## Text

1957
K.N.Mehra
v.
The State of
Rajasthan
Jagannadhadas J.
1957
February 12,
634
SUPREME COURT REPORTS
[1957]
in the appellant's situation should be sent back to jail
to serve
out
the rest
of
the sentence.
We have
ascertained
from
the
Advocate
appeanng
for the
Government that the appellant
has already
served
a
sentence of 11 months and 27 days. Learned
counsel
for the appellant has also informed us that the appellant was in judicial custody for about eleven months as
an under-trial prisoner. In view of all the circumstances
of the case, we agree that the interests of
justice
do
not call for his being sent back to jail.
While, therefore, maintaining the conviction of the
appellant,
K. N. Mehra, we reduce
the sentence
of
imprisonment
against
him to
the
period
already
undergone.
The sentence of fine and the sentence
of
imprisonment in default
thereof shall stand.
With this
modification, in sentence, the appeal is dismissed.
Appeal dismissed, and sentence modified.
HANSRAJ MOOLJI
ti.
THE STATE OF BOMBAY
[BHAGWATJ, JAGANNADHADAS, )AFER IMAM,
· GovINDA MENON and j. L. KAPUR, JJ.J
Ordinance,
duration
of-Promulgaiion
under the Emergency
ProvisionJ-Declaration
of ter1nination
of emergency-Scope and
effect-Operation of Ordinance after end of emergency-Government
of India Act, 1935 (25 & 26 Geo. 5 Ch. 42). Sch. 9 s. 72-India
and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo. 6 Ch. 33),
ss. 1 (3), J-High Denomination
Bank Not('s
(Demonetisation)
Ordinance, 1946 (Ordinance No. III of 1946), ss. 4. 7.
Under s. 72 of the 9th Sch. of the Government of India Act,
1935 : "The Governor-General may, in cases of en1ergency, make
and promulgate ordinances ... and any ordinance so 1nadc shall, for
the space of not more than six months from its pron1ulgation,
have the like force of la\.V as an Act passed by the Indian Legislature . .. "; s. I ( ~) of the
India
and
Burma
( E1nergency
Provisions) Act, 1940, provided that s. 72 of the Government of India
Act, 1935, shall as respects
Ordinances made during the period
beginning with Tune 27, 1940, the <late of the passing of that Act,
and ending \.Vith such date as
His Majesty may by
Order in
Council declare to be the end of the emergency, have effect as if
...
S.C.R.
SUPREME COURT REPORTS
635
the words "for the
space of not more than six
months from its
1957
Promulgation" were omitted.
H
..
ansrqi Moo!;•
The appellant was prosecuted for having on July 11, 1953,
contravened the provisions of s.
4 of the
High
Denomination
Bank Notes (Demonetisation) Ordinance, 1946.
The
Ordinance
was promulgated by the
Governor-General of India on
January
12, 1946, but on April 1, 1946, an Order in Council was published
in the Gazette of
India Extraordinary whereby the period of
emergency referred to in the
India
and
Burma
(Emergency
Provisions) Act, 1940, was
declared to have ended on April 1,
1946.
It was contended for the appellant that the
Ordinance in
question was not in operation on the date when the offence was
alleged to
have been committed and that therefore the
prosecution was not maintainable, because ( 1) the Ordinance had been
promulgated in exercise of 'the emergency
powers
and that it
lapsed ipso facto on April 1, 1946, when the declaration was made
that the emergency
was at an end; and (2) s. 72 of the 9th
Sch. of the
Government of India Act, 1935, having been restored
with effect from April 1, 1946, one must look to its terms as they
originally stood, to justify the continuance of the Ordinance after
April 1, 1946.
Held, that the deletion of the words "for the space of not
more than six months from its promulgation" from s. 72 of the
9th Sch. of the Government of India Act, 1935, by s. 1 ( 3) of the
India and
Burma (Emergency Provisions)
Act, 1940, had the
effect of equating Ordinances which were promulgated between
June 27, 1940, and April I, 1946, with Acts passed by the Indian
Legislature without ari.y
limitation of
timt"
as
regards their
duration, and
therefrre continuing in force
until they
were
repealed.
Though after April
1, 1946, s. 72 of the 9th
Sch. of the
Government of India Act, 1935, was restored in its original form,
the continuance of the Ordinance in question after that date had
to be determined having regard to the terms of the section as
they stood on the date of such promulgation, as there was nothing
to justify retrospective operation of the section so restored.
/. K. Gas Plant Manufacturing Co. (Rampttr) Ltd. and others
v. King Emperor, [ 1947] F.C.R. 141, relied on.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 93 of 1956.
Appeal by special leave
from the
judgment
and
order dated the
April 14, 1955, of the
Bombay High
Court in Criminal Appeal No. 156 of 1955 and Criminal
Revision Application No. 435 of 1955 arising out
of
Judgment dated the
January 3, 1955,
of the
Court of
v,
The State oj
Bombay
1957
Hansraj Moolji
v.
T /i, State ef
Bombay
636
SUPREME COURT REPORTS
[19571
the Additional
Chief Presidency Magistrate,
Bombay,
m Case No. 9/p of 1954.
Purshottam Tricumdas, /. B. Dadachanji, S. N. Andley and Rameshwar Nath, for the appellant.
C. K. Daphtary,
Solicitor-General
of India, Porus
A. Mehta and R. H. Dhebar, for the respondent.
1957. February 12.
The Judgment of the Court was
delivered by
BHAGWATI J.-This appeal with special leave under
Art. 136 of the
Constitution raises the question whether
the
High
Denomination
Bank
Notes (Demonetisation) Ordinance, 1946
(Ordinance No. III of 1946)
promulgated by
the
Governor-General of
India
on
January
12, 1946,
was in operation on July 11, 1953,
when the offence under s. 7 read with s. 4 thereof was
committed by the appellant herein.
The appellant who was the accused No. 1 before the
Additional Chief
Presidency Magistrate's Court, Bombay, was charged along with the accused. Nos. 2, 3, 5
and 6 with having on or about July 11, 1953, transferred
by sale 10 High
Denomination
Bank
Notes
of the
Denomination of
Rs. 1,000 each to one Velji Lakhamshi
Joshi for Rs. 1,800 at the rate of Rs. 180 per note and
thus contravened the provisions of s. 4 of the Ordinance
and committed an offence punishable under s. 7 of the
Ordinance read with s. 109 of the Indian Penal Code.
A preliminary objection was urged by the . learned
counsel for the appellant that the said
Ordinance was
not in operation at the date
when . the. offence · was
alleged to have been committed and that
therefore the
prosecution was not maintainable.
This
objection was
overruled
by the
learned
Presidency
Magistr:ite and
the trial ended in the conviction of the appellant along
with the co-accused of the offence with which they had
been charged.
The
appellant was· sentenced
to pay a
fine of Rs. 8,000 and in
default
suffer
six· .. months'
· rigorous
imprisonment . and the
co-accused
of the
appellant were awarded varying sentences of fine with
which however we are not concerned.
The appellant took an appeal to the High Court of
Judicature at Bombay being Criminal Appeal No. 156
...
S.C.R.
SUPREME COURT REPORTS
637
of 1955.
The
State of Bombay, the respondent herein,
also filed an application for enhancement of the sentence,
being Criminal Revision Application No. 435 of 1955.
The co-accused of the appellant had also filed
appeals
against their convictions and sentences of fine imposed
upon them and all these
appeals wd the
application
of the respondent were heard
together
by a Division
Bench of the
High Court. The
High Court agreed
with the learned Presidency
Magistrate in regard to the
finding of fact and held that the appellant had in fact
transferred by the sale 10 High Denomination Bank Notes
of Rs. 1,000 each to the possession of Velji Lakhamshi
and his act fell within the prohibition
enacted in s. 4
of the Ordinance.
The High Court also overruled the
contentions which were urged before it in regard to the
Ordinance having lapsed and ceased to be in operation
before July 11, 1953, . the date on
which
the
offence
was alleged to
have been committed.
It accordingly
confirmed the conviction recorded against
the appellant
by the learned Additional Chief Presidency Magistrate.
In regard to the sentence the High Court saw no ground
for enhancing the
same and confirmed the sentence of
fine of Rs. 8,000 and in default six months' rigorous
imprisonment which had been awarded
by
the learned
Presidency Magistrate to the appellant.
The appellant applied to the High Court for a certificate under
Art. 134( 1) ( c) of the
Constitution.
The
said application was however dismissed by the
High
Court with the result that he applied
for and obtained
from this
Court special leave
under
Art. 136 of the
Constitution.
The decision of this appeal turns on the construction ·
of s. 72 of the 9th Sch. of the
Government of
India
Act, 1935 (25 and 26 Geo. 5 ch. 42) and s. 1(3) of the
India and Burma (Emergency
Provisions) Act, 1940
(3 and- 4 Geo. 6 ch. 33).
Section 72 of the 9th sch. of the
Government
of
India Act, 1935, read as follows :
"The Governor-General
may, in
cases
of emergency, make and promulgate ordinances for the peace
and good
Government of
British
India or any part
thereof and any ordinance so made shall,
for the
1957
Hansraj Moolji
v.
The State of
Bombay
Bhagwati].
1957
Hansraj Moolji
v.
The Statt of
Bombay
Bhagwati J.
638
SUPREME COURT REPORTS
[1957]
space of not more than six months from its promulgation, have the like force of law as an
Act passed by
the Indian
Legislature; hut ihe
power
of
making
ordinances under
this
section is subject
to the like
restrictions as the power of the
Indian
Legislature to
make laws ; and any ordinance made under this section
is subject to the like disal!owance as an
Act passed by
the
Indian
Legislature, and may
be
controlled
or
superseded by any such Acts."
Section 1 (3) of the
India and Burma (Emergency
Provisions) Act, 1940, ran as under :
"Section seventy-two of the
Government of
India
Act, (which, as set out in the Ninth
Schedule
to the
Government
of
India
Act, 1935,
confers
on
the
Governor-General power to make
Ordinances in cases of
emergency) shall, as respects Ordinances
made during
the period. specified in section three of this
Act, have
effect as if the words "for the space of not more than
six months from its promulgation" were
omitted ; and,
notwithstanding
the
provision in the
said
section
seventy-two that the
power
of making
Ordinances
thereunder is
subject to the
like
restrictions
as the
power of the Indian Legislature to make laws-
( a) Ordinances may, during the said
period, be
made under that section affecting
the
Army Act, the
Air Force Act, or the Naval Discipline Act ; and
(b) Section
one
hundred
and
eleven
of
the
Government of India Act, 1935 (which exempts certain
British subjects from certain
Indian
Laws) shall not
apply to any ordinance made
under
the
said section
seventy-two during that period."
Section 3 referred to hcreinabove was in the terms
following:
"The period referred to in the preceding
sections
is the neriod bcginnirn~ with the tlate of the passing of
this Ac't and en:1ing With such d~1te as 1-Iis
J\1:1jcsty 111ay
by
Order in
Council declare to be the end
of the
emergency which was the occasion
of the passing of
this Act."
The India and Burma (Emergency Provisions)
Act,
1940, was passed on June 27. 1940, and was an Act to
-'
I
S.C.R.
SUPREME COURT REPORTS
639
make emergency provisions with respect to
Government of
India and
Burma.
On April 1, 1946, was
published in the
Gazette of India Extraordinary His
Majesty's
Order in
Council called "The
India
and
Burma (Termination of Emergency)
Order, 1946". By
the said order the period of
emergency referred to in
s. 3 of the
India and Burma
(Emergency
Provisions)
Act, 1940, was declared to have ended on April 1, 1946.
The period specified in s. 3 of the said Act thus extended
from June 27, 1940,
to April 1, 1946.
The Ordinance
in question was promulgated on January 12, 1946, and
was therefore within the said period_
The argument which was addressed before us by the
learned counsel for the appellant based on these provisions was (a) that as soon as the declaration that the
emergency was at an end was made on
April 1, 1946,
the original position was restored and the
Ordinance in
question which had been
promulgated
in exercise of
the emergency
powers ipso
facto
lapsed
when the
emergency was declared to have ended, (b) that, in the
alternative, s. 72 of the 9th Sch. of the
Government of
India Act, 1935, having hem thus restored with effect
from April 1, 1946, one must look to its terms
as they
originally stood to
justify
the
continuance
of
the
ordinance in question after
April 1, 1946,
whensoever
it may have been promulgated.
It will be useful at this stage
to see what was the
scheme provided in the Government of India Act, 1935,
for enacting legislative
measures.
It may
be noted
that the
Act envisaged the establishment of the Federation of India. Part II, ch. 3 provided for the constitution
of the Federal Legislature which was to consist of two
chambers known respectively as the
Council of
States
and the House of Assembly.
The
normal
legislative
procedure required a bill to be passed
by
both the
Chambers of the
Federal
Legislature and
assented to
by the
Governor-General.
There was a distribution of
legislative powers between the Federal
Legislature and
the Prm·i!1cial Legislatures and the Federal Legislature
was invested with the
power to
make laws for
the
whole or any part of British India or for any Federated
State with respect to any of the ·matters enumerated
1957
Hansraj llfoolji
v.
The State of
Bombay
Bhagwati].
1957
Hansraj Moolji
v.
The State of
Bombay
Bhagwati ].
640
SUPREME COURT REPORTS
[1957}
in the
Federal Legislative List and any of the matters
enumerated in the
Concurrent Legislative List. Power
was however given to the
Federal
Legislature,
if the
Governor-General
in
his
discretion
declared
by a
"Proclamation of Emergency" that a grave emergency
existed whereby the security of
India was threatened,
whether by war or internal disturbance, to make laws
for a Province or apy part thereof with
respect to any
of the matters enumerated in the
Provincial Legislative
List. These were the powers of the Federal Legislature
to enact legislative measures.
The Governor-General
was,
however,
conferred
certain legislative powers in
Part II, ch. 4. Power was
conferred upon him to promulgate Ordinances if at any
time when the Federal Legislature was
not in session
he
was
satisfied
that
circumstances
existed
which
rendered it necessary for him to take immediate action.
Ordinances thus promulgated were to
have
the same
force and effect as
Acts of the
Federal
Legislature
assented to by the
Governor-General.
But every such
Ordinance would cease to operate at the expiration of
six months from the re-assembly
of the
Legislature.
Similar power was conferred upon the Governor-General
to promulgate Ordinances if at any time he was satisfied
that circumstances existed which rendered it ·necessary
for him to take immediate
action
for the purpose of
enabling him satisfactorily to discharge
his functions
in so far as he. was required in the exercise
thereof to
~ct in his discretion or to exercise his individual judgment.
Such
Ordinances also were to have
the same
force and effect as the
Acts of the
Federal Legislature
assented to by the
Governor-General
and were
to
continue in operation for such period not exceeding six
months as may be specified therein
but could by subsequent Ordinances be extended for a further
period not
exceeding six months.
Power was also conferred upon
the Governor-General if at any time it appeared to him
that for the purpose of enabling him satisfactorily
to
discharge his functions in so far as he was required in
the exercise
thereof to act
in his discretion
or to
exerrne
his individual judgment it was essential that
provision
should
be made
by legislation, to
enact
S.C.R.
SUPREME COURT REPORTS
641
Governor-General's
Act
which when enacted
were
to have the same force and effect as Acts of the
Federal
Legislature assented
to
by the
GovernorGeneral.
These
were the special
legislative
powers
conferred upon the
Governor-General which could be
exercised by him when the normal legislative procedure
could not be resorted to.
It is worthy of note however
that howsoever and under whatever circumstances
the
legislative powe.rs vested in the
Governor-General were
exercised by him, the
Governor-General's
Acts
thus
enacted and the
Ordinances
thus promulgated
were
equated
with
the Acts of the
Federal
Legislature
assented to by the Governor-General.
Part XIII enacted Transitional Provisions. A period
of time was bound to elaose
between the
commencement of
Part III of theAct which related
to the
Governor's Provinces
and the
establishment
of the
Federation and s. 317 of the
Act continued in force
certain provisions of the
Government
of
India Act
with amendments consequential on the
provisions of
the Act set out in the 9th Sch. thereof until the
establishment of the
Federation.
Section 72 above quoted
formed part of the 9th Sch. under the caption "Indian
Legislature" and conferred upon the
Governor-Gt:neral
power to make and promulgate
Ordinances for the
peace and good
Government of
British
India or any
part thereof in cases
of emergency.
Ordinances
thus
promulgated by the
Governor-General in exercise
of
the power thus conferred upon
him were to continue in
operation for the space of not
more than
six months
from the date of their promulgation and were to have
the like force of law as
Acts passed by the
Indian
Legislature. They were also equated
with the
Acts
passed by the Indian Legislature by having resort to
the normal legislative procedure set out in the Government of India Act.
Even though the 'Governor-Generai's
Acts and the
Ordinances promulgated
by him
were thus
equated
with the
Acts
passed
by
the
Federal Legislature
or the
Indian
Legislature
as the
case
may
be,
the period of duration thereof had to be determined.
Every
statute
for
which
no
time
1s
limited
1s
4-79 S. C. lndia/59.
1"957
HanJTaj Moo!fi
v.
TheStah of
.B0mbay
Bhagwati].
1957
Hat1t1aj Mool.fi
v.
Tiit Stale ef
Bombay
Bhagwati J.
642
SUPREME COURT REPORTS
[1957]
called
a. perpetual
Act,
and its
duration is prima
facie perpetuaI.
It continues
rn
force
until
it is
repealed.
(Vide
Craies
on
Statute
Law,
5th Ed.
p. 374 ; Halsbury's Laws of England, Hailsham
Ed.,
Vol. XXXI, p. 511, para 664.)
If an
Act contains a
proviso that it is to continue in force only for a certain
specified time, it is called a
Temporary
Act. This
result would follow
not only from
the terms of the
Act itself but also from the fact that it was
intended
only as a temporary measure.
This ratio
has
also
been applied to emergency measures
which
continue
during the
subsistence of the emergency
but
lapse
with the cessation thereof. It was therefore
contended
that
Ordinances promulgated
under
the
emergency
powers vested in
the
Governor-General
would be in
operation during the period of emergency
but
would
cease to be in
operation
once
the emergency was
declared to have ended.
In the instar1t case before us
the Ordinance in question was promulgated in exercise
of the emergency powers
vested
in the
GovernorGeneral under s. 72 of the 9th
Sch. of the Government
of India Act, 1935, and it was urged that the Ordinance
thus promulgated would cease to be in operation after
the emergency was declared to have ended on April I,
1946, by the
India and Burma (Termination of Emergency) Order, 1946, in spite of the
words of limitation
"for the space of not more than six months
from its
promulgation"
having
been
omitted
from s.
72 by
s. 1(3) of the India and Burma (Emergency Provisions)
Act, 1940.
Reliance was placed
in support of this contention
on the
observations
of
Vardachariar C. J.
in King
Emperor v. Benoari !.All Sharma and others(
1
) :
"Legislation
by
Ordinance has
no doubt
been
given the same effect as ordinary legislation
and· the
ambit
as• to the subject-matter is the same in
both
cases.
But
there
are
two
fundamental
points
of
difference which have a material bearing oil the present
question : One is that
by the
very terms of s. 72 of
the Ninth
Schedule to the
Constitution
Act, the
operation of the
Ordinance is limited to :\ period
of
(1) [1943] F.C.R. 96, 137.
S.C.R.
SUPREME COURT REPORTS
643
six months (and even now it is only temporary, though
the particular limit has
bee~ removed), and secondly,
it is avowedly the c:xercise of a special
power intended
to meet an emergency."
Zafrulla Khan J. also had expressed himself to the
same effect in King Emperor v. Sibnath Banerjee( 1 ) :
"The legislature can at
:my time enact a measure
and such measure can remain in
force
without any
limit of time ; but the extrcise
of
the
Orclinancemaking
power is
limited in two
ways (i)
by the
limitation as to the circumstances in which it can be
exercised, :md (ii) by the limitation
as
to the time
during which any measure rn enacted
can remam m
operation.
The
existence
of
an
emergency
1s
a
condition precedent to the exercise of the power.
The
fact that the
Court cannot go behind a declaration
of
emergency made by the
Ordinance-making authority
cannot affect this question.
The power
was intended
to be availed of and could be availed of only in an
emergency, whereas ordinary legislation is not governed by any
such limitation.
Similarly,
an
Ordinance
is necessarily of limited duration,
whether
under s. 72
or under the terms
of tl1e
India and Burma
(Emergency Provisions) Act of 1940."
An argument was accordingly
addressed before us
that even though the Ordinance in question
had been
promulgated during the period
~pecified in s. 3 of the
India and
Burma (Emergency
Provisions)
Act, 1940,
viz., between June
27, 1940, and
April l, 1946,
and
s. 72 of the 9th Sch. of the
Government of
India Act,
1935, was to be read with the omission of the
words
"for the space of not more tha·n six months from its
promulgation"
therefrom, rhe
effect
of such omission
was not to continue the duration of rhe
Ordinance in
question
in any
event beyond April 1, 1946.
The
Ordinance lapsed or ceased to be in operation on the
declaration having been made on April 1, 1946, that
the emergency had ended.
This argument however ignores the fact that whatever
Governor-General's
Act
were
enacted
or
(•) [1944] F.C.R. I, 12.
1957
Hansrqj Mou/ji
\ .
The Stale of
Bombti)I
Bhagwat J.
!957
Hanmy Moolji
v.
TMStdte of
Bo~'!1
B/w.gwati ] •
644
SUPREME COURT REPORTS
(1957}
Ordinances
promulgated by him
in exercise
of his
special legislative
powers or in exercise
of the emergency power conferred upon him by s. 72 of the 9th
Sch. of the
Government of
India Act, 1935, were all
equated with the
Acts of the
Federal Legislature or
the Indian
Legislature, as the case may be, assented to
by the
Governor-General.
If there was a
limitation
to be found in the
Acts or the
Ordinances themselves
in regard to the
duration thereof
the same
was to
prevail.
But if no time was limited in the enactment
itself for its duration it was to continue in force
until
it was repealed.
If by the operation of s. I (3) of the
India and Burma (Emergency Provisions)
Act, 1940,
the words "for the space of not more than six months
from
its promulgation"
were
omitted
from
s. 72
during
the period specified in s. 3 of that
Act viz.,
June 27, 1940 to April 1, 1946, there was no limitation
of the period of duration of the
Ordinance in question
and the
Ordinance having the like force of law as an
Act passed by the
Indian
Legislature without
any
limitation on its duration
was to
continue
in force
until it was repealed.
The emergency
under
which
the Governor-General was invested with the
power to
n;iake and promulgate Ordinances
for the peace
and
good government of
British
India or any part thereof
under 5. 72 was the condition of the
exercise of
such
power by the
Governor-General
and did not impose
any limitation on the duration of the
Ordinances thus
promulgated.
For determining the , duration
of such
Ordinances one had to look to the substantive provisions of s. 72 which in terms enacted
and laid
down
the limitation of "not more than six months
from its
promulgation" on the life of the .Ordinance. If these
words had not been omitted by s. I ( 3) of the
India
and
Burma (Emergency
Provisions)
Act, 1940, the
Ordinances thus promulgated would have
been of a
duration of not more than six
months
from
their
promulgation.
Once these
words
were omitted
by
s. 1(3) of the India and Burma (Emergency Provisions)
Act, 1940, s. 72 of the 9th Sch. of the
Government of
India Act, 1935, would read as under :-
S.C.R.
Sul'REME COURT REPORTS
645
"The
Governor-General
may, in
cases of emergency, make and promulgate ordinances for the
peace
and good government of
British
India
or any part
thereof and any
ordinance
so made shall. ........ .
have the like force of law as an
Act passed
by the
Indian
Legislature ; but
the
power
of
making
ordinances under this section is subject
to the
like
restrictions as the power of the
lndian
Legislature to
make laws ; and the like disallowance
as
an Act
passed by the Indian Legislature, and may be controlled
or superseded by any such Act."
The effect of the deletion of these words from s. 72
leaving the section to be read as above had the necessary effect of equating the
Ordinances
which
were
promulgated between
June 27, 1940,
and
April
1,
1946, with Acts passed by the
Indian Legislature without any
limitation of time as
regards their duration.
Ordinances thus promulgated were perpetual in duration and continued in force until they were repealed.
This position was considered by the
Federal Court
in J. K. Gas Plant Manufacturing Co., (Rampur) Ltd.
and others v. King
Emperor( 1 )
where
Spens
C. J.
observed:-
"These
Ordinances
were made under the: powers
conferred
on
the
Governor-General by s. 72 of the
Ninth
Schedule to the
Constitution Act, as amended
by the India and Burma (Emergencv Provisions)
Act,
1940 (3 & 4 Geo. 6, Ch. 33). Under the said s. 72, as
it originally stood,
Ordinances
were
limited
to an
effective: life of six
months
onlv from the date
of
promulgation.
Sub-section (3) of 's. 1 of the said
Act,
however, provided that in respect of
Ordinances made
under s. 72 during the period specified in .~. 3 of the:
Act, s. 72 should have effect ~ if the words "for the
space of not more than six months from its promulgation" were omitted.
The period specified in s. 3 of
the: Act is "the period beginning with the date of the:
passing of this Act and ending with such date: as
His
Majesty may by
Order in Council declare
to be: the
end of the: emergency which was the occasion
of the
passing of this
Act."
The: date of the passing of the
(1) [1947] F.C.R. 1<.1, 161.
1957
Han11~i Maolji
v
The State •I
Bomba.,
Bb4g111llh ] .
1957
Hansr4j Moolji
v,
ThLSlale ef
BDmhay
BMgwafi ].
646
SUPREME COURT REPORTS
[1957}
said Act was the 27th June, 1940, and the emergency
was not notified to have come to an end on the 1st
April, 1946.
It was contended on behalf of the appellants that
the true construction to be given to s. 72 as so amended was in effect to substitute in s. 72 in respect of the
duration of an
Ordinance, the period specified in s. 3
of the Act for the original six months' period and that
accordingly on the expiration of that period, viz., on
the !st April, 1946,
Ordinances made after the passing
of the Act automatically came to an end.
It was not
made very clear
how one could arrive
at
such
a
construction.
It appears to be based on the suggestion
that the power to promulgate an Ordinance under s. 72
was· by the section
confined to the existence
of
an
emergency,
Cf :
the
wads in the
sub-section "in
cases of emergency'', and that the
Act was
intituled
an
Act to make emergency provision with respect to
the Government of
India and Burma and defined the
period of emergency.
Unless therefore the construction
contended for by the appellants was accepted no period
would
be
provided
for the
continuance
of these
Ordinances, and that could not have been the intention
of the legislature, as the
ordinance-making
power of
the Governor-General
was
recognised as
temporary
only.
In our opinion, the emergency on the happening
of which an
Ordinance can be promulgated is separate
and distinct from and must not be
confused with the
emergency which occasioned tht: passing of the
Act and
the clear efjert of the words of the Act on s. 72 is that
Ordinances promulgated under that sub-section
during
the period specified in s. 3 of the
Act arr, subject to no
time limit as regards their existence and validity, unless
imposed by the Ordinances themselves, or other amending
or repealing lt:gislation, whether by
Ordinance or otherwise. In our judgment, it is clear
that
the second
Lahore
Tribunal did not cease to exist
or to have
jurisdiction in the case under appeal by reason of the
expiration on the !st April, 1946, of the period specified
in s. 3 of the
Act in question."
In our opinion, the above observations of Spens C. J.
enunciate the correct position.
The
Ordinance
in
S.C.R.
SUPREME COURT REPORTS
647
question having
been promulgated during the period
between
June 27, 1940,
and
April
1,
1946,
was
perpetual in duration and continued in force until it
was
repealed. Our attention has not
been drawn to
any subsequent Ordinance or Act of the Indian Legislature amending or repealing the said
Ordinance
with
the result that it continues to be in force and was in
operation on July 11, 1953, the date on
which the
offence in question was committed by the appellant.
This position was recognized in the Adaptation of
Laws
Order, 1950, issued under the
Constitution
of
India. In the Second Schedule to the said Order were
contained several
Central
Ordinances enacted between
1940 and 1946 including the High Denomination Bank
Notes
(Demonetisation)
Ordinance, 1946
(Ordinance
No. III of 1946)
where in s. 11 thereof
the
words
"Part A States and Part C States"
were to be substituted for "the provinces".
It is not necessary to refer
to the other
Ordinances appearing in this compilation
but suffice it to say that in respect of all the Ordinances
which were thus promulgated by the
Governor-General
in exercise of the power
conferred
upon him under
s. 72 of the 9th Sch. of the
Government of
India Act,
1935, the continuance thereof even after April 1, 1946,
was predicated and the adaptations prescribed in the
Adaptation of
Laws
Order, 1950, issued
under the
Constitution of
India were made applicable thereto.
This position is further supported by referring to the
relevant provisions of the
Reserve
Bank of India Act,
1934 (II of 1934). Section 26 of that Act provided:-
"(1) Subject to the provisions of sub-section (2),
every bank note shall be legal tender
at any place in
India in
payment
or on
account for
the
amount
expressed therein,
and shall be
guaranteed
by
the
Central Government.
(2) On recommendation of the
Central
Board the
Central Government may, by notification in the Gazette
of India, declare that, with effect
from
such date as
may be specified in the notification, any series of bank
notes of any denomination shall cease to be legal tender
save at such office or agency of the bank and to such
extent as may be specified in the notification.
1957
Haruraj M'*fl
,.,
The St au, ef
Bombay
Bhagwali J.
1937
Htmiraj Moolji
v.
TMSiak of
Bombay
Bhagwali].
648
SUPREME COURT REPORTS
(1957]
Under s. 1(2) of the Act as it stood, the Act extended
to whole of India excepting the
State of Jammu and
Kashmir.
The
High
Denomination
Bank
Notes
(Demonetisation)
Ordinance,
1946 (Ordinance No. III
of 1946)
declared
that
Denomination
Notes of the
denominational value of Rs. 500, Rs. 1,000 or Rs. 10,000
ceased to be legal tender in payment or on account at
any place in
British
India on the expiry of
January
12, 1946. The
Ordinance hadng continued in operation
even after the declaration
of the emei;gency
having
come to an end was made on April 1, 1946, the said
notes continued to be ineffective as legal tender
in
India, though the position in Jammu and Kashmir in
regard to the same could not be affected by reason of
the Reserve Bank of India Act, 1934, not having been
made applicable to the State of Jammu and Kashmir
as stated above.
On September 25, 1956, however, the
Jammu
and
Kashmir (Extension of Laws) Act, 1956
(LXII of 1956) being an Act to provide for the extension of certain laws to the State of Jammu and Kashmir
was passed by the Parliament.
In the Schedule to that
Act was contained the Reserve Bank of India Act,
1934 (II of 1934).
The words "except
the
State
of
Jammu and Kashmir" were omitted from s. l, sub-s. (2)
and s. 26A was added after s. 26 of the
Act.
Section 26A provides :-
"Notwithstanding
anything contained in
section
26, no bank note of the denominational value of five
hundred rupees, one 1housand rupees or
ten
thousand
rupees issued before the
13th
day of
January,
1946,
shall be legal tender in payment or on account for the
amount expressed therein."
The law in the State of Jammu and Kashmir with
regard to these High Denomination Bank Notes issued
before January 13, 1946, was thus
brought into line
with the law as it obtained in the rest of
lnclia.
This
would certainly have not been clone but for the acceptance of the pnsition that the
Ordinance
in question
continued in operation even after April
1, 1946, and
was m operation right throughout even after
April 1,
1946.
S.C.R.
SUPREME COURT REPORTS
649
The alternative argument addressed before us by the
learned counsel for the appellant need not detain us at
all, for the simple reason that reading s. 72 in the
manner suggested would be tantamount to giving
a
retrospective effect to the section as it originally stood
in regard to Ordinances which had been promulgated
between June 27,
1940, and
April 1, 1946.
There is
nothing to justify
such retrospective
operation.
As
regards such Ordinances
the period of their duration
had to be determined having regard to the provisions
of s. 72 as they stood with the omission of the
words
"for the space of not more than six months
from its
promulgation" therefrom during
the period specified
in s. 3 of the
India and Burma (Emergency Provisions)
Act, 1940, and the
Ordinance in question was therefore
not limited to the space of not more than six months
from the date of its promulgation but
was perpetual
in its duration with the result
that it continues
in
operation until it is repealed.
There is no warrant for
reading the provisions of s. 72 with the omitted words
restored to their original position after
April l, 1946,
while determining the duration of the
Ordinances which
had been promulgated
betweeμ
June 27,
1940, and
April 1, 1946.
Both the contmtions 'Jrged by the learned counsel
for the appellant before us having thus failed, it follows
that the
High Denomination Bank Notes (Demonetization) Ordinance, 1946 (Ordinance No. III of 1946) was
-in operation on July 11, 1953, the date
on
which the
.offence was committed by the appellant and the appellant was rightly convicted by both
the
courts below.
The appeal will accordingly stand dismissed.
Appeal dismissed.
1957
Hansr11.i Moolji
v.
The Slate of
Bombq
BhaiwatiJ.