- (1.) The accused Rajulal, Lallulal and Bholuram are undergoing a trial under sec. 6 of the Essential Supplies (Temporary Powers) Act, 1947, in the court of the Magistrate at Malpura. THEy applied for bail but their petition was disallowed by the Magistrate, because Sec. 12 (b) of the Jaipur Essential Supplies (Temporary Powers) Act (Amendment) Ordinance (No. 1 of 1949) does not allow bail being granted in such matters, when the prosecution does not support the petition for grant of bail. THE Sessions Judge also confirmed the order of the Magistrate on 18th January 1950. THE accused have, therefore, come before this court in revision.
(2.) The learned advocate of the accused has argued that the Essential Supplies (Temporary Powers) Act, 1947, has been repealed and in its place now the Rajasthan Essential Supplies (Tempo-rary Powers) Ordinance (No. 13 of 1949) has come into force from the 9th of July 1949. THE provisions of the previous Act governing grant of bail have now ceased to have any force and the provisions of the new Ordinance No. 13 of 1949 relating to restrictions in the matter of granting of bail do not govern the cases under the previous laws, but only apply to the cases under the new Ordinance. He has, therefore, prayed that the lower court was misled in applying the provisions of the new Ordinance in this case, which was a case of an offence under the old Ordinance. The Government Advocate has contested that the Rajasthan Essential Supplies (Temporary Powers) Ordinance No. 13 of 1949 has been further amended by the Rajasthan Essential Supplies (Temporary Powers) (Amendment) Ordinance No. 49 of 1949) which adds section 20 A to the Ordinance No. 13 of 1949 which runs as follows : - "20. A. Saving of certain orders made before promulgation of Ordinance. Notwithstanding anything contained in sub-section (3) of section 1 any order made or notification issued, thing done or action taken under any of the laws repealed by section 20 after the commencement of this Ordinance but before its publication in the Rajasthan Gazette, shall continue in force and be deemed respectively to be made, issued, done or taken under this Ordinance. " Section 20 (2) of the Rajasthan Essential Supplies (Temporary Powers) Ordinance No. 13 of 1949 runs as follows: - "20 (2 ). Any order made or deemed to be made under the said Acts, Ordinance and Laws and in force immediately before the commencement of this Ordinance shall continue in force and be deemed to be an order made under this Act, and all appointments made, licences or permits granted, directions issued, things done and action taken under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted, issued, done or taken in pursuance of this Ordinance. " He has argued that the effect of Sec. 20 A would keep alive the proceedings of cases under the previous laws, which have been repealed and which proceedings are to be deemed to be taken under the new Ordinance. He, therefore, concludes that because the proceedings under the previous Ordinance are to be deemed to be the proceedings under the new Ordinance the provisions relating to bail contained in the new Ordinance should apply to the proceedings under the old Ordinance. Sec. 12 (b) of Ordinance No. 1 of 1949 runs as follows : - "12 (b) No person accused or convicted of a contravention of an order made under Sec. 3, shall, if in custody, be released on bail or on his own bond, unless - (i) the prosecution has been given an opportunity to oppose the application for such release, and (ii) where the prosecution opposes the application, the court is satisfies that there are reasonable grounds for believing that he is not guilty of such contravention. " Section 13 (b) of the Rajasthan Ordinance No. 13 of 1949 is exactly in the same terms as Sec. 12 (b) of the Jaipur Essential Supplies Ordinance No. 1 of 1949. It has been conceded by the Government Advocate that sec. 13 (b) of Ordinance No. 13 of 1949, as it stands , only governs the cases under this Ordinance only and if the provisions of section 20 (2) and 20 A of this Act do not come into play, this section would not apply to the cases falling under the Jaipur Essential Supplies Act and its amendment Ordinance. The question arises as to the effect of Sec. 20 (2) and 20 A of this Ordinance whether by virtue of Sec. 20 (2) and Sec. 20 A the provisions of sec. 13 (b) can be made applicable to the cases of offences which are governed by the provisions of the Jaipur Essential Supplies Act, which has been repealed. Sec. 20 A lays down that notwithstanding anything contained in Sec. 3 of Sec. 1 any order made or notification issued, thing done or action taken under any of the laws repealed by Sec. 20 after the commencement of this Ordinance but before its publication in the Rajasthan Gazette shall continue in force and be deemed respectively to be made, issued, done or taken under this Ordinance. The accused were challaned on 18th August 1949 and the Amendment Ordinance No. 59 of 1949 was published in the Gazette of 10th August 1949. Consequently in the present case no action is taken or nothing is done after the commencement of this Ordinance and before its publication. Hence section 20 A does not afford any help to the prosecution. The Government Advocate has argued that under Sec. 20 (2) all things done or actions taken under the provisions of the laws repealed by Sec. 20 have been deemed to be done in pursuance of this Ordinance. According to the Government Advocate, therefore, this Achaean which was presented for an offence under the Jaipur Essential Supplies Act No. 1 of 1949 must be continued and be deemed to be a Achaean under the Rajasthan Essential Supplies Ordinance and as such it is desired that the provisions regarding grant of bail under Sec. 13 of the Rajasthan Ordinance should be made applicable to this case. Even though by virtue of Sec. (20) (2) things done and action taken under any order made or deemed to be made under the Acts or Ordinances repealed by Sec. 20 are to be deemed to have been done or taken in pursuance of the Rajasthan Ordinance, yet this would not go to amend the language of the Ordinance itself. The language of Sec. 13. if it is wide enough to apply to the cases of offences under the previous laws it can be made applicable to them but if it is explicitly meant for being applied to the cases under this very Ordinance it would not be proper to apply this provision to the cases Under the previous laws simply by reading it with Sec. 20 (2 ). As has been stated above even when a Achaean under the previous law is deemed to be a Achaean under this law this would not alter the offence itself from under the previous law to that under this Ordinance. The charge of the offence under the previous law shall continue by virtue of Sec. 6 of the General Clauses Act. Sec. 13 (b) lays down that no person accused or convicted of a contravention of an order made under Sec. 3 shall, if the accused is in custody be released on bail or on his own bond etc. , which means that reference to Sec. 3 is to Sec. 3 of the Rajasthan Ordinance and not to any of the sections of the Ordinances repealed by this Ordinance. The legislature has expressly limited the application of this section to the cases of offences under this Ordinance only. Had it been the intention of the legislature to apply it to the cases of offences under the previous laws, which are now repealed, some mention to that effect would have appeared in the language of this section. Sec. 13 of the Rajasthan Ordinance limits the powers of the lower coher in the matter of granting of bail and it indirectly invests the prosecution with the powers to allow or not to allow bail to an accused person. In other words virtually one party has been invested with judicial powers over the other so as to enable it to keep the accused in detention, which cannot be considered to be very desirable, but it is not the function of the courts to pronounce upon the reasonableness or desirability of laws. Courts are to administer justice according to the laws that are made by the legislative authority. At the same time it is a well-settled principle of law that the laws that take away the liberties of a subject should be strictly construed. The application of sec. 13, therefore, should not be extended to the cases not falling within the explicit scope of the language of the section. The language of sec. 13 (b) is not wide enough to allow its application to cases of offences under any other laws, except those under this Ordinance. This being so, even taking this chalan to be deemed to be a chalan under this Ordinance, it cannot be said that the offence, with which the accused are charged is an offence under sec. 3 of this Ordinance. Sec. 13 (2) cannot, therefore, govern the cases of offences under the laws that have been repealed by the Rajas-than Ordinance No. 13 of 1949. Grant of bail under those laws now would be governed by the Criminal Procedure Code. The special provisions contained in those laws relating to the grant of bail have been repealed and cannot be resorted to. The courts below were not justified in refusing to allow bail in the present case because of the provisions of sec. 13 (2) of the Rajasthan Ordinance of 1949. It is, therefore, ordered that the three accused in this case may be released on bail, provided they furnish two securities each for an amount of Rs. 2000/- and execute a bond for Rs. 4000/- for their appearance before the trial court to its satisfaction. .;