J.P.Mitter, J. - (1.) This is a reference by a Presidency Magistrate under Section 432(2), Criminal P. C. for a decision by this Court as to the validity of Railway Stores (Unlawful possession) Ordinance, 1944 (Ordinance 19 of 1944). The questions propounded by the learned Magistrate are as follows: "(1) Did Ordinance 19 of 1944 expire on 1/4/1946 or is it a law in force under Article 372 of the Constitution of India? (2) Was Ordinance 19 of 1944, passed under Article 72 of Schedule 9, Government of India Act, 1935, even though the Ordinance might be extended beyond 1/4/1946, automatically repealed with effect from 15/8/1947 when Schedule 9 itself was repealed by the India (Provisional Constitution) Order, 1947? (3) If the answers to points (1), (2) be in the affirmative, should the accused persons be discharged u/s 253(2) Criminal P. C. or should they be tried u/s. 54A-IV-66?"
(2.) In our view, successive enactments, as we shall presently show, kept alive the Ordinance which is still in force as part of the law of the land. The genesis of the Ordinances which followed the outbreak of the last war was Section 72. Schedule 9, Government of India Act, 1935. Section 72 was in these terms: "The Governor-Gemeral 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 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this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act." Then came India and Burma (Emergency Provisions) Act, 1940, passed by the British Parliament, which received the Royal assent on 27/6/1940 (3 and 4 Geo. 6). Sub-section (3) of Section 1 of the said Act was, 'inter alia', as follows: "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;" It would follow that by virtue of the amendment of Section 72 by India and Burma (Emergency Provisions) Act, 1940, the life of any ordinance made under Section 72 as amended became unlimited. Section 3 of India and Burma (Emergency Provisions) Act, 1940, was as follows: "The period referred to in the preceding sections 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."
(3.) The confusion created by the provisions of this section was resolved by the decisions of the Federal Court of India in - 'J.K. Gas Plant Manufacturing Co., (Rampur) Ltd. v. Emperor', AIR 1947 FC 38 (A). Delivering the judgment of the Court, Spens, C. J. observed: "It was contended on behalf of the appellants that the true construction to be given to Section 72 as so amended was in effect to substitute in Section 72 in respect of the duration of an Ordinance, the period specified in Section 3 of the Act for the original six months' period and that accordingly on the expiration of that period viz.: on 1/4/1946, 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 appeared to be based on the suggestion that the power to promulgate an Ordinance under Section 72 was by the section confined to the existence of an emergency, of; the words in the sub-section 'in cease 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 he confused with the emergency which occasioned the passing of the Act and the clear effect of the words of the Act on Section 72 is that Ordinances promulgated under that sub-section during the period specified in Section 3 of the Act are subject to no time-limit as regards their existence and validity, unless imposed by the Ordinances themselves, or other amending or repealing legislation, whether by Ordinance or otherwise.";