J. B. Koshy, J. - (1.)In all these cases, main questions to be considered are common. Validity of the Criminal Law (Amendment) Ordinance, 1944 (hereinafter referred to as 'the Ordinance') and jurisdiction of District Judge under the Ordinance after enactment of the Prevention of Corruption Act, 1988 (in short 'P.C. Act') are the main questions to be considered in these cases. In Crl. Appeal No. 1400 of 2007 appellant was facing investigation for the case registered against him for the offence punishable under Section 13(2) read with Section 13(1)(e) of the P.C. Act alleging that the appellant had amassed wealth disproportionate to his income. The check period is 1-1-1994 to 12-5-2005. While the investigation was continuing, an application was filed by the Investigating Officer before the District Court for attachment of his properties invoking provisions of Sections 3 and 5 of the Ordinance. The District Court passed an order attaching certain properties scheduled in the petition. When the case came up for admission, after admitting the appeal, referred the case to Division Bench as some important questions of law are involved in this case. When petition for attachment was filed under the above Ordinance, preliminary objection was filed to decide the question of maintainability of the petition by the petitioners in Crl. M.C. No. 2526 of 2007. That petition was dismissed. After that order, the above Crl. M.C. was filed under Section 482 of the Code of Criminal Procedure. The very same petitioners applied for production of certain documents. Those petitions were dismissed. Hence, they again filed Crl. M. C. No. 2559 of 2007. Since criminal appeal involving almost similar points were referred to the Division Bench, these criminal miscellaneous petitions were also referred to the Division Bench.
(2.)According to the learned single Judge, following questions are to be answered by the Division Bench :
"i. Whether the District Court has got the power or jurisdiction to pass the impugned order under the provisions of the Prevention of Corruption Act, 1988

ii. Whether the State of Kerala can be represented by an Investigating Officer to file an Original Petition before the District Court as the State has to be represented either by a Public Prosecutor appointed under Section 24, Cr.P.C. or by a Government Pleader duly appointed

iii. The Criminal Law (Amendment) Ordinance, 1944 being a pre-constitutional law, whether the Ordinance has got any validity or can continue to remain valid after the commencement of the Constitution of India

iv. Whether an Ordinance by the Governor General of India under the provisions of Section 72 of Schedule IX of the Government of India Act, 1935 can be considered as an existing law as contemplated under Article 366(10) of the Constitution of India and whether such an Ordinance can continue as an existing law as per Article 372(2) of the Constitution of India

v. Whether the Criminal Law (Amendment) Ordinance, 1944 has got any validity after the expiry of six months as contemplated under Article 123 of the Constitution of India -

(3.)Questions (iii), (iv) and (v) mainly deal with validity of the Ordinance. Hence, we shall answer those questions initially. In view of Article 372 of the Constitution, all the law in force immediately before the commencement of the Constitution shall continue in force until altered according to law. Article 366(10) of the Constitution defines 'existing law' as follows :
" 'existing law' means any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation;"

Article 372(1) of the Constitution is as follows :

"372. Continuance in force of existing laws and their adaptation :- (1) Notwithstanding the repeal by the Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority."

Then, the question is whether the Ordinance was an existing law immediately before the commencement of the Constitution. 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 continued 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. Section 72 of the 9th Schedule conferred upon the Governor-General powers to issue Ordinances 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 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 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 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 3 of this Act, have effect as if the words 'for the space of not more than six months from its promulgation were omitted :....................' "

Section 3 provided :

"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 emergency which was the occasion of the passing of this Act."

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 period specified under Section 3 of the Act is from 27th June, 1940 to 1st April, 1946. The Criminal Law Amendment Ordinance No. 38 of 1944 was promulgated on 23rd October, 1944, that is to say in between the specified period. Therefore, the above Ordinance will continue in force even after the expiry of six months and was an existing law when Constitution of India came into force.