http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: JETHANAND BETAB

       Vs.

RESPONDENT: THE STATE OF DELHI(now Delhi Administration)

DATE OF JUDGMENT: 15/09/1959

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER

CITATION:  1960 AIR   89            1960 SCR  (1) 755

ACT: Repeal  of  Statute-Repealing and Amending Act,  object  of- Enactment making Possession of wireless telegraphy apparatus without  licence  punishable-Amending  Act  introducing  new section  making Possession of wireless  transmitter  without licence liable to heavier Punishment-Repeal of Amending Act- Whether amendment introduced by it survives-Indian  Wireless Telegraphy  Act,  1933 (XVII of 1933), ss. 3, 6  and  6(1A)- Indian  Wireless Telegraphy (Amendment) Act, 1949  (XXXI  of 1949),  s.  5-Repealing and Amending Act,  1952  (XLVIII  of 1952),  ss. 2 and 4--General Clauses Act, 1879 (X of  1879), S. 6A.

HEADNOTE: Section  3  of  the Indian  Wireless  Telegraphy  Act,  1933 provided  that no person shall possess  wireless  telegraphy apparatus  without a licence and s. 6 made  such  possession punishable.  The Indian Wireless Telegraphy (Amendment) Act, 1949,  introduced s. 6(1A) in the 1933 Act,  which  provided for  a  heavier  sentence  for  possession  of  a   wireless transmitter  without a licence.  The Repealing and  Amending Act, 1952, repealed the whole of the Amendment Act of  1949, but  by s. 4 provided that the repeal shall not  affect  any other  enactment  in which the repealed enactment  had  been applied,  incorporated  or referred to.  The  appellant  was convicted  under  s.  6(1A) for being, in  possession  of  a wireless transmitter on July 31, 1953.  He contended that s. 6(1A)  had  been repealed and his  conviction  and  sentence thereunder could not be sustained. Held,  that  s.  6(1A) was saved by s.  6A  of  the  General Clauses Act, 1897, though s. 4 of the Repealing and Amending Act, 1952, did not save it. 756 The  object of the Repealing and Amending Act, 1952, was  to strike  out unnecessary Acts and to excise dead matter  from the statute book. Khuda  Bux  v. Manager, Caledonian Press, A.I.R.  1954  Cal. 484, referred to. Section  4  of the Repealing and Amending  Act,  1952,  only saved  other enactments in which the repealed enactment  had been  applied,  incorporated  or referred  to.   It  had  no application to the case of a later amending Act inserting  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

new provision in an earlier Act as it could not be said that the  earlier  Act applied, incorporated or referred  to  the Amending Act. Secretary  of State for India in Council v.  Hindusthan  Co- operative  Insurance  Society,  Ltd.,  L.R.  58  I.A.   259, followed. Mohinder  Singh v. Mst.  Harbhajan Kaur, I.L.R.  1955  Punj. 625  and Darbara Singh v. Shrimati Karnail Kaur,  61  P.L.R. 762, disapproved. Section 6A of the General Clauses Act provided that when any Central Act repealed any enactment by which the text of  any Central  Act was amended then unless a  different  intention appeared  the repeal would not affect such  amendment.   The word  " text " in s. 6A was comprehensive enough to  include the  subject as well as the terminology used in  a  statute, and  the  insertion  of  s. 6(1A) in the  1933  Act  was  an amendment  in  the text.  No  different  intention  appeared either  from  the repealing Act or from the history  of  the legislation and s. 6A applied to the repeal of the Amendment Act, 1949.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 185  of 1957. Appeal  by special leave from the judgment and  order  dated the  6th December, 1955, of the Punjab High  Court  (Circuit Bench)  at  Delhi, in Criminal Revision No. 122-D  of  1955, arising  out of the judgment and order dated July 29,  1955, of  the First Additional Sessions Judge, Delhi, in  Cr.   A. No. 367/55. Mohan Behari Lal and Eluri Udayarathnam, for the appellant. N.   S. Bindra and R. H. Dhebar, for the respondent. 1959.   September  15.   The  Judgment  of  the  Court   was delivered by SUBBA  RAO  J.-This  appeal by  special  leave  is  directed against  the  order  of the High Court  of  Punjab  (Circuit Bench), Delhi confirming the conviction of the appellant and the sentence passed on him by the 757 Magistrate,  First  Class,  Delhi, under s.  6(1-A)  of  the Indian   Wireless  Telegraphy  Act,  1933  (XVII  of   1933) (hereinafter called " the Act "). Jethanand, the appellant herein, was prosecuted, along  with another, in the Court of the Magistrate, First Class, Delhi, under  s.  6(1-A)  of  the Act  for  possessing  a  wireless transmitter  in contravention of the provisions of s.  3  of the   Act,  and  was  sentenced  to  six   months   rigorous imprisonment.   On  appeal,  the  learned  First  Additional Sessions Judge, Delhi, upheld the conviction but reduced the sentence  to  the period of imprisonment  already  undergone plus  a  fine  of  Rs. 500.  On  revision,  the  High  Court confirmed  both  the  conviction and the  sentence.   On  an application  filed  for special leave, this Court  gave  the same, but limited it     to the question of sentence. Learned   Counsel    raised   before   us   the    following contentions:   (1) s. 6(1-A) of the Act was repealed, and, therefore,   neither   the  conviction  nor   the   sentence thereunder  could be sustained; and (2) if s. 6(1-A) of  the Act  was repealed, this Court in limiting the appeal to  the question  of sentence only went wrong, for, if that  section was  not  on  the statute book at the time  of  the  alleged commission  of the offence, not only the sentence  but  also the   conviction   thereunder  would  be  bad.    Both   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

contentions raised turn upon the same point.  The  different steps in the argument may be stated thus: In the Act XVII of 1933,  as  it  originally  stood,  there  was  no   specific provision  making the possession of wireless transmitter  an offence.  By the Indian Wireless Telegraphy (Amendment) Act, 1949 (XXXI of 1949) (hereinafter called the " 1949 Act"), s. 6(1-A) was inserted in the Act, whereunder the possession of a  wireless transmitter was constituted a separate  offence. The amending Act was repealed by the Repealing and  Amending Act,  1952 (XLVIII of 1952) (hereinafter called the  "  1952 Act  "),  with the result that on the date  of  the  alleged commission  of the offence the said section was not  on  the statute   book.   If  that  was  the  legal  position,   the limitation  on the leave granted by this Court would  result in an 96 758 anomaly,  namely,  that the conviction would stand  but  the sentence  would  be  quashed.   The  argument  so  presented appears to be plausible, but, in our view, not sound. There  is a real justification for this Court  limiting  the scope of the special leave.  The High Court by mistake cited in its judgment the provisions of s. 6(1) of the Act instead of s. 6(1-A) thereof.  If the conviction was under s.  6(1), the  maximum  sentence  permissible  on  the  first  offence thereunder  was  only  fine which may  extend  to  Rs.  100. Presumably  on the assumption that the conviction  could  be sustained  under s. 6(1), even if s. 6(1 -A) was not on  the statute  book-there may be justification for this  view,  as the words it wireless telegraphy apparatus " in s. 6(1)  are comprehensive  enough  to  take  in  "  wireless  telegraphy transmitter "-this Court gave leave limited to the  question of  sentence.  The inconsistency, if any, was the result  of the appellant’s presentation of his case at that stage,  and he cannot now be allowed to take advantage of his default to enlarge the scope of the appeal. That  apart, there are no merits in the contention.  At  the outset   it  would  be  convenient  to  read  the   relevant provisions of the three Acts: The Indian Wireless Telegraphy Act, 1933. S.   3  :  Save as provided by section 4,  no  person  shall possess  wireless telegraphy apparatus except under  and  in accordance with a licence issued under this Act. S.   6(1):   Whoever  possesses  any   wireless   telegraphy apparatus  in contravention of the provisions of  section  3 shall  be  punished in the case of the first  offence,  with fine  which  may extend to one hundred rupees, and,  in  the case of a second or subsequent offence, with fine which  may extend to two hundred and fifty rupess. The Indian Wireless Telegraphy (Amendment) Act, 1949. S.   5. Amendment of section 6, Act XVII of 1933. In section 6 of the said Act,- *                         *            * 759 (ii) after sub-section (1), the following sub-section  shall be inserted, namely:- "(1A)   whoever  possesses  any  wireless   transmitter   in contravention  of  the  provisions of  section  3  shall  be punished with imprisonment which may extend to three  years, or  with  fine which may extend to one thousand  rupees,  or with both." REPEALING AND AMENDING ACT, 1952. S.   2:  The enactments specified in the First Schedule  are hereby repealed to the extent mentioned in the fourth column thereof

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

              The First Schedule Year   No.        Short title               Extent of repeal (1)   (2)             (3)                          (4) 1949 XXXI  The Indian Wireless Telegraphy        The whole                 (Amendment) Act, 1949. S.   4:  The repeal by this Act of any enactment  shall  not affect  any other enactment in which the repealed  enactment has been applied, incorporated or referred to; *                       *                        * The  substance  of the aforesaid provisions  may  be  stated thus:  The  Act of 1949 inserted s. 6 (1 -A) in the  Act  of 1933.   The 1949 Act was repealed by the 1952 Act,  but  the latter Act saved the operation of other enactments in  which the  repealed  enactment has been applied,  incorporated  or referred   to.    The  first  question   that   arises   for consideration is whether the amendments inserted by the 1949 Act in the 1933 Act were saved by reason of s. 4 of the 1952 Act. The general object of a repealing and amending Act is stated in  Halsbury’s Laws of England, 2nd Edition, Vol. 31, at  p. 563, thus: "A  statute  Law Revision Act does not alter  the  law,  but simply  strikes  out certain enactments which   have  become unnecessary.  It invariably contains elaborate provisos." In  Khuda  Bux v. Manager,  Caledonian  Press  Chakravartti, C.J., neatly brings out the purpose and (1)  A.I.R. 1954 Cal. 484. 760 scope  of such Acts.  The learned Chief Justice says  at  p. 486: " Such Acts have no  Legislative effect, but are designed  for  editorial revision, being  intended  only  to excise  dead matter from the statute book and to reduce  its volume.   Mostly,  they  expurgate  amending  Acts,  because having imparted the amendments to the main Acts, those  Acts have  served  their purpose and have no further  reason  for their  existence. At times inconsistencies are also  removed by  repealing and ’amending Acts.  The only object  of  such Acts, which in England are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended  to make  any change in the law.  Even so, they are  guarded  by saving clauses drawn with elaborate care,. . .". It is, therefore, clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and excise  dead matter from the statute book in order to lighten the  burden of  ever  increasing  spate of  legislation  and  to  remove confusion from the public mind.  The object of the Repealing and Amending Act of 1952 was only to expurgate the  amending Act  of 1949, along with similar Acts, which had served  its purpose. The  next question is whether s. 4 of the Act of 1952  saved the  operation of the amendments that had been  inserted  in the  Act of 1933 by the repealed Act.  The relevant part  of s.  4  only  saved other enactments in  which  the  repealed enactments  have been applied, incorporated or referred  to. Can  it  be  said that the amendments  are  covered  by  the language  of the crucial words in s. 4 of the Act  of  1952, namely,  applied,  incorporated or referred to".   We  think not.  Section 4 of the said Act is designed to provide for a different  situation, namely, the repeal of an  earlier  Act which  has  been applied, incorporated or referred to  in  a later Act.  Under hat section the repeal of the earlier  Act does not affect the subsequent Act.  The said principle  has been succinctly stated in Maxwell on Interpretation of Statutes, 10th Edition, page 406:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

Where  the  provisions  of one statute  are,  by  reference, incorporated in another and the earlier 761 statute  is  afterwards  repealed  the  provisions  so   in- corporated  obviously continue in force so far as they  form part of the second enactment." So too, in Craies on Statute Law, 3rd Edition, the sama idea is expressed in the following words, at p. 349: "  Sometimes  an  Act of Parliament,  instead  of  expressly repeating the words of a section contained in a former  Act, merely refers to it, and by relation applies its  provisions to  some new state of things created by the subsequent  Act. In  such a case the is rule of construction is that where  a statute is incorporated by reference into a second  statute, the  repeal of the first statute by a third does not  affect the second ". The  Judicial Committee in Secretary of State for  India  in Council v. Hindusthan Co-operative Insurance Society,   Ltd. (1) endorsed the said principle and restated the same, at p. 267, thus: "  This doctrine finds expression in a  common-form  section which  regularly appears in the amending and repealing  Acts which  are passed from time to time in India.   The  section runs:  " The repeal by this Act of any enactment  shall  not affect  any  Act.............. in which such  enactment  has been applied, incorporated or referred to." The  independent existence  of the two Acts is therefore recognized;  despite the  death of the parent Act, its offspring survives in  the incorporating Act.  Though no such saving clause appears  in the  General  Clauses Act, their Lordships  think  that  the principle  involved  is as applicable in India as it  is  in this country." It is, therefore, manifest that s. 4 of the 1952 Act has  no application to a case of a later amending Act inserting  new provisions  in an earlier Act, for, where an earlier Act  is amended  by a later Act, it cannot be said that the  earlier Act  applies,  incorporates or refers to the  amending  Act. The  earlier Act cannot incorporate the later Act,  but  can only be amended by it.  We cannot, therefore, agree with the view expressed by the Punjab High Court in Mohinder Singh v. Mst. (1)  L.R. 58 I.A. 259. 762 Harbhajan Kaur (1) and in Darbara Singh v. Shrimati  Karnail Kaur(2)that  s. 4 of the Repealing and Amending Act of  1952 applies to a case of repeal of an amending Act. This legal position does not really help the appellant,  for the  case on hand directly falls within the four corners  of s.  6-A of the General Clauses Act, 1897 (X of 1897). -  The above section reads: "Where  any  Central  Act  or  Regulation  made  after   the commencement of this Act repeals any enactment by which  the text  of  any Central Act or Regulation was amended  by  the express  omission, insertion or substitution of any  matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment  so repealed and in operation at the time of  such repeal." As, by the amending Act of 1949, the text of the Act XVII of 1933,  was amended by the insertion of 6 (1-A) therein,  the repeal  of the amending Act by the 1952 Act did  not  affect the  continuance of the amendment made by the  enactment  so repealed.  It is said that for the application of s. 6-A  of the  General Clauses Act, the text of any  enactment  should have been amended; but in the present case the insertion  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

s.  6  (1-A) was not a textual amendment but  a  substantial one.   The text of an enactment, the argument  proceeds,  is the phraseology or the terminology used in the Act, but  not the  content of that Act.  This argument, if we may say  so, is  more  subtle  than sound.  The word "  text  ",  in  its dictionary  meaning,  means " subject or theme  ".  When  an enactment amends the text of another, it amends the  subject or theme of it, though sometimes it may expunge  unnecessary words  without  altering the subject.  We  must,  therefore, hold that the word " text " is comprehensive enough to  take in the subject as well as the terminology used in a statute. Another  escape from the operation of s. 6-A of the  General Clauses  Act  is sought to be effected on the basis  of  the words " unless a different intention (1) I.L.R. 1955 Punj. 625. (2) 61 P.L.R. 762. 763 appears ". The repealing Act does not indicate any intention different from that envisaged by the said section.   Indeed, the object of the said Act is not to give it any legislative effect but to excise dead matter from the statute book.  The learned  Counsel placed before us the historical  background of  the  amending  Act with a view  to  establish  that  the intention of the legislature in passing the said Act was  to expurgate  s. 6 (1 -A) from the statute as it was  redundant and unnecessary.  It is said that the Indian Telegraph  Act, 1885 (XIII of 1885) provided for the offence covered by s. 6 (1-A), and, therefore, the legislature though, by the Act of 1948, inserted the said section in the Act of 1933,  removed it  in the year 1952 as the said amendment  was  unnecessary and  redundant.  There is no foundation for  this  argument, and the entire premises is wrong.  Section 20 of Act XIII of 1885 reads; S.   20 (1): If any person establishes, maintains or works a telegraph within India in contravention of the provisions of section 4 or otherwise than as permitted by rules made under that  section, he shall be punished, if the telegraph  is  a wireless  telegraph  with imprisoment which  may  extend  to three  years, or with fine, or with both, and in  any  other case, with a fine which may extend to one thousand rupees. Though  the  words  are comprehensive enough to  take  in  a wireless  transmitter,  the section does  not  prohibit  the possession  of a wireless apparatus.  As the Act  only  gave power to control the establishment, maintenance and  working of  wireless  apparatus, in practice it was found  that  the detection   of  unlicenced  apparatus  and  the   successful prosecution of the offenders were difficult, with the result that  the State was losing revenue.  To remove this  defect, Act  XVII  of  1933 was passed to  prohibit  the  possession without  licence of a wireless apparatus.  Under s.  6,  the penalty for such illegal possession of a wireless telegraphy apparatus  was made an offence, but the sentence  prescribed was  rather lenient.  Subsequently, the legislature  thought that the possession of a wireless transmitter 764 was  a graver offence; sometimes involving the  security  of the  State,  and  so an amendment  was  introduced  in  1949 constituting  the  possession  of such  apparatus  a  graver offence  and imposing a more severe punishment.   Therefore, it  cannot be said that s. 6(1-A), inserted in the Act  XVII of  1933 by the amending Act of 1949, is either  covered  by the  provisions  of  the Indian Telegraph Act,  1885,  or  a surplusage not serving any definite purpose.  Even from  the history  of the legislation we find it not possible  to  say that it disclosed an intention different from that envisaged

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

in s. 6-A of the General Clauses Act. For  the aforesaid reasons, we hold that s. 6 (1 -A) of  the Act  continued  to  be on the statute book  even  after  the amending Act of 1949 was repealed by Act XLVIII of 1952, and that  it was in force when the offence was committed by  the appellant. The appeal fails and is dismissed.