M.KARPAGA VINAYAGAM, J. - (1.) C .B.I initiated the proceedings against the petitioner under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, before the court below for grant of ad interim order of attachment of the properties detailed in their application and further for making the same absolute as envisaged under Section 5 of the Ordinance, 1944. After passing ad interim order of attachment, the court below initiated proceedings and issued notice to the petitioner. The petitioner, on receipt of the notice, appeared before the learned Special Judge, and filed an application for dropping the proceedings initiated against him, as the Ordinance, 1944, is not an existing law. The said application was rejected. Hence, this writ petition has been filed before this Court seeking for quashing of the order dated 29.6.2006.
(2.) THE short facts are as follows: In pursuance of the orders passed by the High Court and the Supreme Court, investigation of certain cases relating to Fodder Scam had been taken up by C.B.I. against several accused persons including the father of the petitioner. On 25.1.2000 C.B.I. filed an application under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, for ad interim order of attachment of properties and also for making the same absolute as envisaged under Section 5 of the Ordinance, 1944. The petitioner, seeking for the dismissal of the same, filed an application before the Special Judge stating therein that the proceedings under the Ordinance, 1944, is unconstitutional as the Criminal Law (Amendment) Ordinance, 1944, is not an existing law. However, the learned Special Judge, alter hearing both, held that the Criminal Law (Amendment) Ordinance, 1944, is an existing law and rejected the application by order dated 29.6.2006. Challenging the same, this writ petition has been filed. The learned Counsel for the petitioner would make the following contentions: The Criminal Law (Amendment) Ordinance, 1944, was promulgated during the subsistence of emergency, i.e. between 27th June, 1940 and 1st April, 1946. The very power of the promulgation of emergency under Section 72 of 9th Schedule of Government or India Act, 1935 has been deleted by the Indian (Provisional Constitution) Order, 1947. Since the very power under which the Ordinance had been promulgated during subsistence of the emergency has been deleted from the appointed day, it cannot be said that the Ordinance, 1944, was in existence on the appointed day. Therefore, the proceedings initiated under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, in view of the fact that it is not in existence, is illegal.
(3.) ON the other hand, counsel for C.B.I would make the following submissions in reply: The argument advanced by the counsel for the petitioner that the Criminal Law (Amendment) Ordinance, 1944, has lost its force as on today has no legs to stand. The Ordinance, 1944, has come into force on 23th August, 1944 but it continues to be in force even after the enactment of the Constitution of India. The contention of the petitioner that because of the omission of 9th Schedule to the Government of India Act, 1935, including Section 72 thereof, the Criminal Law of (Amendment) Ordnance, 1944, has not been kept alive but has ceased to be in force on coming into force the Indian Independence Act on 15th August, 1947, cannot be accepted, in view of the fact that by virtue of Section 18(3) of the Indian Independence Act, Constitutionalists have kept that Ordinance in force Section 18(3) of the Indian Independence Act and Section 8(2) of the Government of India Act could not be modified by the Adaptation Order. Therefore, Ordinance XXXVIII of 1944 is still a good law.;