Satish Chandra, J. - (1.) THE princi pal question raised by this writ petition was whether the Criminal Law Amendment Ordinance, No. 38 of 1944 was in force on 27th July, 1973 when the District Judge, Kanpur passed an ex parte order attaching the petitioners' Bank account under the pro visions of the aforesaid Ordinance. A Bench of this Court while admitting the writ peti tion directed that since the involved question was of general importance it may be heard and decided by a Division Bench. That is how this writ petition has been listed for hearing before this Bench.
(2.) LEARNED counsel for the petitioners urged that the Criminal Law Amendment Ordinance, 1944 ceased to have force or effect after 15th August 1947 because of the operation of the India (Provisional Constitu tion) Order, 1947 as well as the India (Adaptation of Existing Indian Laws) Order, 1947. In order to appreciate these submis sions we have to notice certain provisions. Part II of the Government of India Act, 1935 envisaged the establishment of the Federation of India. Section 317 -of the Government of India Act, 1935 continu ed the provisions of the Government of India Act, 1915 with certain amendments mentioned in Schedule 9 of 1935 Act until the establishment of the Federation. Sec tion 72 of the 9th Schedule conferred upon the Governor-General powers to issue Ordin ances in cases of emergency. It provided: "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 space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature: but the power of making ordinances under this section is sub ject to the like restrictions as the power of the Indian Legislature to make laws: and any ordinance made under this section is sub ject to the like disallowance as an Act passed by the Indian Legislature and may be con trolled or superseded by any such Acts." The British Parliament passed the India and Burma (Emergency Provisions) Act, 1940 on 27th June, 1940. Section 1 (3) of that Act stated: "Section seventy-two of the Government of India Acv (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 emer gency) shall, as respects Ordinances made during the period specified in Section 3 of promulgation were omitted:............" Section 3 referred to in this provision pro vided : "The period referred to in the preceding section 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 emer gency which was the occasion of the passing of this Act." As already seen, this Act was passed on 27th June, 1940. On 1st April, 1946 His Majesty's order in Council was published in the Gazette of India terminating the period of emergency with effect from 1st April, 1946. Thus the period specified under Section 3 of this Act extended from 27th June, 1940 to 1st April, 1946. The Criminal Law Amendment Ordin ance No. 38 of 1944 was promulgated on 23rd October, 1944, that is to say in between the specified period.
(3.) IN Hansraj Moolji v. The State of Bombay, AIR 1957 SC 497 it was held that the effect of the temporary amendment of Section 72 of the 9th Schedule by sub-sec tion (3) of Section 1 of the India and Burma (Emergency Provisions) Act, 1940 was that during the specified period, namely, 27th June, 1940 to 1st April, 1946 the Governor-General had the power to promulgate Ordin ances within unlimited duration. In other words, the qualification that such Ordinances shall cease to have effect after the expiry of six months from its promulgation were non-applicable to Ordinances made during the specified period. If on their terms the Ordin ances did not prescribe any period of time on the expiry of which they will come to an end they will be deemed in law to be permanently in force. It was held that the Ordinances thus promulgated were perpetual in duration and continued in force until they were repealed.;