General .Clauses Act (X of 1897), .s. 6(c)(d)(e)-Repeal of law v. Mohar SiTzgh

·it ail'" offence for· any · ·person to Act; which makes regard· fo his. · claim under 1the. Act, any submit, with information which is false. The accused•: was' tried . by S. J aspal Singh, Magistrate, First Class, . Jullundur, before whom he confessed· his guilt and: ' pleaded for · The trying Magistrate by his order dated the mercy. 20th of July, 1951, convicted" the respondent · under section 7 of the Act' and sentenced him to. imprison the rising of the ·Court and a fine . of Rs. 120, ment till in default of which he .was to suffer rigorous· imprison ment for one month. 1 954 Tht State of Punjab . v. Mohar Singh. Mukherjea J. The District Magistrate of Jullundur considered the sentence to be inadequate .and referred the case. to the High Court at Simla under section 438 . of . the Criminal that'. a deter Procedure Code with a recommendation rent sentence might be imposed upon the accused. · The matter first came up before a single Judge of that Court and a preliminary point was raised on behalf of . the respondent that it was not within the competence of the trying Magistrate to convict him at all under the . pro visions of the Act, as . the offence was committed against the Ordinance before the Act came into force and the prosecution was started long after the Ordiµance had come to an end. Having. regard to the . di v.ersity of judicial opinion on the point, the single. Jud, ge referred the case for. decision by a Division Bench: TJie. learned Judges constituting the Division Bench accepted the contention rais~d on behalf of th.e respondent;. and by .the 7th of August, i952, set their judgment, . date.cl aside the convic; ti@ of the respondent and ~he sentence It is imposed upon him under section .7 of the Act. against this judgment that the present appeal has ~een taken to this ,Court by the. State of Punj.ab. · . It is not disputed that the respondent dia submit, with regard to the claim filed by him uridei: the provi sons of the Ordinance; an information' which .'was ·false and that such act' was . punishable'' a~ an offence. under section 7 of the Ordinance. The Ordinance however was repealed soon after the 'filing of the claim and was substituted ·by the Act which incorporated · all · the pro Vtsions of the ·ordinance: · The High Court 'in' decidii'ig the case in . favour of the respondent proceeded oti, the - ) 19M Statl'Of Pu•jab v. - Mohar ·.·Singh. Mukh•dea J. 8% SW'REME C01)R'f REPORTS ground .that as Act . XII of 1948 was not in existence at the date when·.the·· claim. was. filed ·bt the. ·tespondent, he could not possibly be _.convicted of all offence under a ktw . which was not in force at the time of the commi.!7 sion of .the offence. The 'State Government attempted t0 meet this argument by invoking ·the provisions of sec tion 6 of the General .Clauses Act which is in the sam~ term.s as ·section 4 of the Punjab.- General · Clauses Act. Section 6 of the General Clauses Act lays down the effect of .the repeal of an enactment. . .The section . :runs thus: "6 .. Where this Act or any Central Act or regula tion made after the commencement of . this Act, repeals to be mad.e; any enactment. hitherto .made or hereafter then, unless a different repeal the. intention appears, shall not-, • • • i • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • · ( c) affect any right, privilege, obligation or 'iiabi' lily a'cquired, accrued · or incurred under any enactment so repealed; or · ( d) affect -any · penalty, forfeiture ·or punishment respect of any offence committed · against incurred in any enactment so repealed ; or investigation, ( e) affect any legal proceeding or remedy in . respect of any such right, privilege, obliga: tion, ·liability, ' penalty, forfeiture punishment as aforesaid." _ .. this provision On the strength of the General Clauses Act it was contended on behalf of the State that the . repeal . of the· Ordi:nante could not in any way affect the liability· already incurred by the respondent, in respect of an offence; committed ' against the provi• sions of the Ordinance and any penalty or punishment consequent' thereon. . . '!'h~Jearne,d Judges .;£the High ·.Court negativ~d thi~ contention by holding thai section. · 6 0f the Gene.ral Clauses. Act could. be attracted _only ,. wlien an Act or regulation is.repealed _ simp#citer but not . when, as iri the present. case, -.the repeal is 'followed . by re-enactment. The , R,epep.ling Act, it is poin~ed qut,. reproduces the provis1ons 9£ tht;, but it . Qrdi,J:iance .in their ent:frery, s.~.}l:; sµ:pREME COURT REPORTS 897 nowhere .proyides· that offence!;. committed, ·when.: the Ordinance was in force, could be punished after· its repeal. The language of section . 11 of the Act, which contains its saving provisions, does not, it is said, cate that a criminal liability incurred when Ordin~ it came ance was in force would . continue after to an end. that · has · been this view challenged. before . us in this appeal. . · the propriety of It is r954 Stal• ·of Punja;,.. v·r ·Mohar Singh_ Mukherjea j.o · It is not disputed that in i:he present case the prose cution was started against the respondent under section 7 of the Act and not under the · corresponding· provision of the Ordinance. The offence was committed at a time when the Act was not in force and obviously no man could be prosecuted or punished under a law which came into existence subsequent . to the commission of the offence. But this by itself might. not . raise the · Court would have, ample serious difficulty, for authority to alter the conviction of the· accused,. under the Act, to one under the Ordinance which contained the identical provision, provided he could be prosecuted . under and punished ·after . it was repealed, and this is the material point that requites consideration in this case. the Ordinance · .. .• Under th<; law of England, as it stood prior to the Interpretation Act of 1889, · the effect of repealing a it as completely to be to obliterate statute was said · from the records of Parliament as if it had never been passed, except for the purpose of those actions, which and concluded while it. were· commenced, prosecuted was an existing law(1 ). A repeal therefore without any saving cla1Jse would destroy . any . proceeding · whe.ther not yet begun or whether pending at the time of the eflactment of the ·Repealing · Act and not ·already prose.:. c11ted to a a. vested. right(2). Tei .obviate such results .a practice came into existence in · England to insert a saving clause in · the". rights and n::pealing statute . with a . view liabilities already accrued or incurred~ under the repealed, the . necessity:. insert a saving clause. on each · occasion,., · ,; of having to '.: .(1j Vide Crai'es on -Statute Law, 5t!) edn.,· page ~s,-: ·. ehactment. . Later on, to dispense with final· .judgment so. as to . presei-Ve to create (2) Vide Crawford on Statutory Constructic>n,_page 599:.600.· .•, 1954 Stak offU11jab v. 898 SUP:REME C:OUR'P REPO&TS [1955] sei:tion . .38(2).:was .inserted,;n the 'Interpretari0n Att of 1889 which .provic\es th; rt' .a repeal,.: unless .. the ' conrrary intention appears, . d©es .not affect; the•· previous opera tion. of. tile repealed., enactment ' or •anytliing duly· done investigation;··, legal·• pro or .suffered under.•it" and• any ceeding or .remedy may · •be continued or instituted, enforced ·in respect of ·any right, liability· and penalty under the repealed Act as ihhe Repealing •Att' had" 'not been ,passed.. Sec, tion. ,6 .of the General .. Clauses Act, as is well k.nown, .is. on .the same lines as.section 38(2) of the Interpretation A~t of England. . . . Under section .. 30 of the General Clauses ·Act, which corresponds to section.-27 of thei Punjab. Act, the provi sions· of the. Act are applicable to Ordinances as' well. . consequences laid down· in ·section 6 of Of course, · the the Act will·apply.only when a.statutecYor regulation having . the• force of a statute is actually repealed.. It has .no application when .a statute, - which is-·of a tern· porary. nature,.. ·automatically expires by effiux of. ·time. The Ordinance in the present case. was ·undoubtedly· a temporary statute but· it is admittecl ·the· period during which it was to .continue had ·not expired when the Repealing Act was passed. The repeal · · therefore w.as an effectiYe one whiCh would normally attract · the operatiofl of section. 6 .of the General Clauses Act. . The contro-.:ersy thus . narrows down. to the short point a~ to whether the fact' of the repeal of the Ordinance· being followed by re-enactment would make the provisions . of section 6 of the General Clauses . Act inapplicable •to >the present case. · . The High · Court, in support of the view that .. it .took, placed great rdiance ·•upon· certain , observations• of Sulain; ian C.J. in D,_anmal •Parshotamdas v. Baburam{' ). The question raised in .. .that· case· was· whether a suit·· by an unregistered· firm against a third party; after .coming into force. of· .section 69 ·of .the: Partnership Act, ··would be. barred :by that section in· spite of· the .saving I' clause contained .in section 74.(b} 0£ the •Act.· The•Chief Justice felt .some doubts on the point and was inclined • 'tO• hold that . ,section 74.(b). would · operate ·the · · suit right . sought to .be enforced· by it had although to save (I) (1935) I.L.R.. 58 All.:495, S.C.R. SUPREME COURT REPORTS 899 the Act; but accrued prior to the commencement of eventually he agreed with his colleague and held that section 69 would bar the suit. While discussing provision of section 74(2) of the Partnership Act, in course of his judgment, the learned Chief Justice refer red by way of analogy to section 6( e) of the General Clauses Act and observed as follows at page 504: 1954 Stau of Punjab v. _ Mohdr Singh. Afuk!zerjea J. , -- - repealed, "It seems that section 6(e) would apply to cases only where a previous law has been simply repealed and there is no fresh legislation to take its place. Where an old law has been merely the repeal would not affect any previous right acquired nor would it even affect a suit instituted respect of a right, previously so acquired. But where there is a new law which not only repeals the old law, but is substituted in place of the old law, section 6(e) of General Clauses Act is not applicable, and we would have to fall back on the provisions of the new Act itself." subsequently m dealing with to great respect. These observations could not undoubtedly higher than mere obiter dictum for they were not at all necessary for purposes of the case, though undoubtedly In agreement with they are entitled this dictum of Sulaiman C.J. the High Court of Punjab, in its judgment in the present case, has observed that where there is a simple repeal and the Legislature has either not given its thought to the matter of prosecut ing old offenders, or a prov1S1on question has been inadvertently omitted, section 6 of the General Clauses Act will undoubtedly be attracted. But no such inadvertence can be presumed where there has been a fresh legislation on it may be new Act does not deal with the matter, presumed that the Legislature did not deem it fit to In keep alive the liability incurred under the old Act. our opinion the approach of the High Court to a 1s is not quite correct. Whenever there question repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room But when the for expression of a contrary opinion. the subject and !!95"4 ·\.State OJ Piinjah ·V. Mohar Singh. .Mukiie; jea j. '900 'SUPREME '-COURT REPORTS {1955} :·the liabilities rights· ·and :repeal is followed .. by fresfr•legislatiorr·on the.: same· 'stib :ject we· would undoubtedly have.to look' tothe ·provisions :of the riew Act, buf;'"only'for the purpose of determining whether they indicate a : different -intention:•: Tlie " line -of enquiry would be, not· whether the -new Act expressly 'keeps alive old but whether it manifests · an in~ention ·to destroy thein. · We· ·cannot :therefore . subscribe to :settionc-6:of the··· General Clauses Act is ruled out when there is repeal of an followed by a fresh enactment. 'legislation. Section 6 would be applicable ·in such' cases also unless a_n -intention the new legislation ·manifests incompatible with _or contrary ·to · the provisions of the to be section. from · a consideration of all' the relevant ascertained ·provisions of the new" law and the. mere absence of 'a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case. incompatibility would · broad · proposition Such The offence cornrniued by the respondent consisted filed in accord ·in filing a false claim. The claim was ance with the provision of section 4 of the · Ordinance and under section 7 of the Ordinance, any false infor mation in regard to a claim was a punishable offence. The High Court is certainly section 11 of the Act does not make the claim filed under the Ordinance a claim under the Act so · as .. to .attract the operation of section 7. Section 11 of the Act is in the following terms : in holding "The East Punjab Refugees (Registration of Land repealed Claims) Ordinance No. VII of 1948 is hereby .and any rules made, anything issued, done, any action taken in exercise of the powers con ferred by or under the said Ordinance shall be deemed to have been made, issued, done or taken in exercise of ·the powers conferred by, or under this Act as .if this Act had come into force on 3rd day of March, 1948." notifications We agree with the High Court that expression ·"anything done" occurring in the section does not mean -or include an act done by a person in contravention of the provisions of the Ordinance. What the section -eonternplates and keeps alive are rules, notifications · or ' ' 1954 :siate of Punjab •V, . Mohar Singh MukherjedJ .. s:c.it: SUPREME 'COURT "REPORTS 901 treated that. "a refugee who· has in respect of the same other official acts ·done ·in exercise · of the · powers • con ferred 'by or under the · Ordinance •and these powers are mentioned in several sections of ·the· Act. But. although the lodging of the, claim doe~· not corne :within the pur view of section 11 of the Act, we are of .opinion that the proviso to section· 4 of the Act clearly shows that a claim filed under the . Ordinance would . be .. treated as the · consequences one filed under the Act with ·all attached thereto. Section 4 of the Act provides for registration of land -claims. The first sub-section lays down how the claim is to be filed. The proviso attached to it then says .previously submitted a claim under Ordinance VII of 1948 to any other authority competent to register such claim shall not submit another claim the Registering Officer." Such claim · would be reckoned and registered as a claim under the Act and incidents and corollaries '.attached to the filing of a claim, as laid down in the truth or falsity of Act, must necessarily follow. The in the usual way and the claim has to be ·if it is found that the information given by the claimant is false, he can certainly be punished in the manner laid down in· sections 7 and 8 of the Act. If we are to that the penal provisions contained in the Act cannot be attracted ·Ordinance, the results will be anomalous and even if -on the· strength of a false claim a refugee has succeeded in his favour, such allotment in getting an allotment could not be cancelled under section 8 of the Act. We think that the provisions of sections 4, 7 and 8 make it apparent that it was not the intention of the Legis lature that the rights and liabilities in respect of claims filed under the Ordinance shall be extinguished on the passing of the Act, and this is sufficient for holding that the present case would attract the operation of section 6 -0£ the General Clauses Act. It may be pointed out that section 11 of the Act is somewhat clumsily worded it does not make use of expressions which are _generally used in saving clauses appended to repealing :Statutes ; but as has been said above the point for our in case of a claim filed under investigated .... - '--t • 902 SUPREME COURT REPORTS (1955} 1954 Slate of Punjab v. Moh"' Singh. M•id1etfea ]. the Act evinces an intentiol\ the continuance of rights the Ordinance in our opinion this question has to be answered in is whether consideration inconsistent with and liabilities accrued or incurred under the negative. ) -... thus re-enacted continue judicial opinion in America on The Advocate-General of Punjab has drawn our attention to certain American authorities which hold that in case of simultaneous repeal and re-enactment, to be considered as reaffirmation of the re-enactment the old law and the provisions of the repealed Act which in force uninterruptedly. It appears is not quite uniform and we do not consider it to express any opinion upon it. The provi necessary sions of section 6 of the General Clauses Act will, our opinion, apply to a case of repeal even if there is intention simultaneous enactment unless the new enactment. The result can be gathered from is that the appeal is allowed and the judgment of the High Court set aside. The Advocate-General does not respondent. Consequently it is unnecessary for the High reference made to it by the District Court to hear the sentence further.. The Magistrate, already passed trying Magistrate shall stand and if the fine of Rs. 120 has not· already been paid, it shall be paid now. In default, respondent shall suffer rigorous imprisonment for one month. the respondent by Jullundur enhancement of passed on sentence contrary a Appeal allowed.