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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: MOHAR SINGH..

DATE OF JUDGMENT: 20/10/1954

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. BOSE, VIVIAN JAGANNADHADAS, B.

CITATION:  1955 AIR   84            1955 SCR  (1) 893  CITATOR INFO :  R          1956 SC  77  (10)  R          1959 SC1352  (6)  R          1960 SC 794  (5)  E&R        1960 SC1034  (9,30)  D          1961 SC 604  (6)  APL        1962 SC 680  (2,6,19)  R          1963 SC 976  (8)  R          1965 SC 321  (9)  R          1966 SC1053  (3,4)  F          1966 SC1415  (10)  RF         1966 SC1564  (7)  R          1967 SC 556  (4)  D          1969 SC1225  (7,8)  F          1971 SC1193  (8)  F          1972 SC 159  (4)  R          1972 SC1634  (13,15)  R          1973 SC 318  (11,12,13)  E          1973 SC2326  (4)  RF         1977 SC 991  (2)  RF         1978 SC1635  (18)  D          1979 SC 592  (29)  RF         1980 SC  77  (12)  R          1980 SC 640  (7)  RF         1981 SC2138  (5)  F          1983 SC 150  (18)  R          1985 SC1656  (7,8,10)  RF         1987 SC 798  (10)  RF         1987 SC1217  (7)  RF         1989 SC1614  (9)  R          1989 SC1913  (8)  R          1991 SC 227  (6,10)

ACT: General  Clauses  Act (X of 1897), s.  6(c)(d)(e)-Repeal  of law- Repeal and simultaneous enactment-Temporary Law running out by efflux of time-Such law repealed before running  out, Effect of East Punjab Refugees (Registration of Land Claims) Ordinance  VII  of  1948,  s.  7-  Offence  committed  under existing law-Prosecution started after repeal- Validity-East Punjab  Refugees  (Registration of Land  Claims)  Act,  1948 (Punjab  Act XLI of 1948), s. 11  ’Anything  done’,  Meaning of.

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HEADNOTE: The provisions of a. 6(c) (d) and (e) of the General Clauses Act,  1897 (same as s. 4 of the Punjab General Clauses  Act, 1898)  relating to the consequences of the repeal of  a  law are  applicable not only when an Act Regulation is  repealed simpliciter  but also to a case of repeal  and  simultaneous enactment  re-enacting  all the provisions of  the  repealed law. On  the  repeal of a law the consequences  mentioned  in  a. 6(c)(d)  and  (e) of the Act follow unless  a  different  or contrary intention appears from the repealing statute. For  ascertaining  the above contrary intention one  has  to look to the provisions of the new enactment in order to  see whether  the rights and liabilities under the  repealed  law have  been  put an end to by the now enactment.   It  is  an erroneous  and  incorrect  approach to enquire  if  the  new enactment  has by its provisions positively kept  alive  the rights and liabilities under the repealed law.  The  absence of  a  saving  clause in the new  enactment  preserving  the rights  and  liabilities under the repealed law  is  neither material nor decisive on the question. Section  6  of  the  General  Clauses  Act,  1897,  has   no application  to a temporary law which automatically  expires by  efflux  of  time  but the section  would  apply  if  the temporary law is repealed before it so expires.  The  Punjab Ordinance  VII  of  1948 was a temporary law  and  the  same having  been repealed before it expired by efflux of time  a prosecution  for  an  offence committed under s.  7  of  the Ordinance prior to its repeal could be validly started  even after the repeal. The term "anything done’.’ occurring in s. 11 of the  Punjab Act  XII of 1948 does not mean any act done by a  person  in contravention of the provisions of the East Punjab  Refugees (Registration  of Land Claims) Ordinance VII of  1948.   The term  "anything clone" refers to official acts done  in  the exercise of the powers conferred by or under the Ordinance. Danmal Parshotamdas v. Baburam ((1935) I.L.R. 58 All.  495), distinguished. 114 894

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 61  of 1953. Appeal under article 134(1)(c) of the Constitution of  India from  the Judgment and Order dated the 7th August, 1952,  of the  High  Court of Judicature for the State  of  Punjab  at Simla in Criminal Revision No. 78 of 1952 arising out of the case  reported by the District Magistrate,  Jullundur,  with his  No.  301-M.D. Reader dated the 9th January,  1952,  for revision  of  the  Order  dated  the  20th  July,  1951,  of Magistrate 1st Class. S.   M. Sikri, Advocate-General for the State Of Punjab    (Porus A. Mehta and P. G. Gokhale, with him) for the     appellant. N.   S. Bindra for the respondent. 1954.  October 20.  The Judgment of the Court was  delivered by MUKHERJEA  J.-This  appeal, which has come before us,  on  a certificate granted by the High Court of the State of Punjab at  Simla,  under article 134 (1)(c)  of  the  Constitution, raises a short point of law.  On the 3rd of March, 1948,  an

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Ordinance (being Ordinance No. VII of 1948) was  promulgated by  the  Governor of East Punjab, under section  88  of  the Government  of  India Act, 1935, making provisions  for  the registration of land claims of the East Punjab refugees.  On the 17th March, 1948, the respondent, Mohar Singh, who  pur- ports  to be a refugee from West Pakistan, filed a claim  in accordance  with the provisions of this  Ordinance,  stating therein,  that  he had lands measuring 104  kanals  situated within the district of Mianwali in West Punjab.  On the  1st of  April, 1948, this Ordinance was repealed and Act XII  of 1948  (hereinafter called ’the Act’) was passed by the  East Punjab  Legislature  re-enacting all the provisions  of  the repealed  Ordinance.  The claim filed by the respondent  was investigated in due course and it was found, after  enquiry, that the statement made by him was absolutely false and that as  a matter of fact there was no land belonging to  him  in West Pakistan.  Upon this, a prosecution was started against him on the 13th of May, 1950, under section 7 of the 895 Act,  which  makes it an offence for any person  to  submit, with  regard  to his claim under the  Act,  any  information which  is false.  The accused was tried by S. Jaspal  Singh, Magistrate, First Class, Jullandur, before whom he confessed his  guilt and pleaded for mercy.  The trying Magistrate  by his  order  dated  the 20th of  July,  1951,  convicted  the respondent  under section 7 of the Act and sentenced him  to imprisonment till the rising of the Court and a fine of  Rs. 120, in default of which he was to suffer rigorous imprison- ment for one month.. 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 Procedure Code  with a recommendation that a deterrent 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  provisions  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 Ordinance  had  come  to  an  end.   Having  regard  to  the diversity of judicial opinion on the point, the single Judge referred  the  case for decision by a Division  Bench.   The learned Judges constituting the Division Bench accepted  the contention raised on behalf of the respondent, and by  their judgment,  dated  the  7th of August, 1952,  set  aside  the conviction  of the respondent and the sentence imposed  upon him under section 7 of the Act.  It is against this judgment that the present appeal has been taken to this Court by  the State of Punjab. It  is  not disputed that the respondent  did  submit,  with regard to the claim filed by him under the provisions of the Ordinance, an information which was false and that such  act was  punishable  as  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 provisions of the Ordinance.  The  High Court  in  deciding  the case in favour  of  the  respondent proceeded on the 896 ground  that as Act XII of 1948 was not in existence at  the date  when the claim was filed by the respondent,  he  could not  possibly be convicted of an offence under a  law  which was  not  in  force at the time of  the  commission  of  the offence.   The  State  Government  attempted  to  meet  this

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argument  by  invoking the provisions of section  6  of  the General Clauses Act which is in the same terms 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  regulation  made after  the commencement of this Act, repeals  any  enactment hitherto  made  or  hereafter to be  made,  then,  unless  a different intention appears, the repeal shall not- (c)affect  any  right, privilege,  obligation  or  liability acquired,  accrued  or  incurred  under  any  enactment   so repealed ; or (d)affect any penalty, forfeiture or punishment incurred  in respect  of any offence committed against any  enactment  so repealed; or (e)affect any investigation, legal proceeding -or remedy  in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.  " On the strength of this provision in the General Clauses Act it  was contended on behalf of the State that the repeal  of the  Ordinance  could not in any way  affect  the  liability already  incurred  by  the  respondent,  in  respect  of  an offence,  committed against the provisions of the  Ordinance and any penalty or punishment consequent thereon. The  learned  Judges  of  the  High  Court  negatived   this contention by holding that section 6 of the General  Clauses Act  could  be attracted only when an Act or  regulation  is repealed  simpliciter but not when, as in the present  case, the repeal is followed by re-enactment.  The Repealing  Act, it  is  pointed  out,  reproduces  the  provisions  of   the Ordinance in their entirety, but it 897 nowhere provides that offences 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, indicate that a  criminal liability  incurred  when the Ordinance was in  force  would continue  after it came to an end.  It is the  propriety  of this view that has been challenged before us in this appeal. It  is  not  disputed that in the  present  case  the  prose caution  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 any serious difficulty, for the Court would  have ample  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 and punished under the Ordinance after it was repealed, and this is  the material point that requires consideration  in  this case. Under  the  law  of  England,  as  it  stood  prior  to  the Interpretation  Act  of  1889, the  effect  of  repealing  a statute  was said to be to obliterate it as completely  from the  records of Parliament as if it had never  been  passed, except  for  the  purpose  of  those  actions,  which   were commenced, prosecuted and concluded while it was an existing law(1).  A repeal therefore without any saving clause  would destroy  any  proceeding whether not yet  begun  or  whether pending  at the time of the enactment of the  Repealing  Act and  not  already prosecuted to a final judgment  so  as  to create  a  vested  right(1).   To  obviate  such  results  a practice came, into existence in England to insert a  saving

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clause  in  the repealing statute with a  view  to  preserve rights and liabilities already accrued or incurred under the repealed   enactment.   Later  on,  to  dispense  with   the necessity  of  having  to insert a  saving  clause  on  each occasion, (1)  Vide Craies on Statute Law, 5th edn, page 323. (2)  Vide Crawford on Statutory Construction, page 599-600. i 898 section 38(2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary  intention appears,  does  not  affect the previous  operation  of  the repealed  enactment or anything duly done or suffered  under it and any investigation, legal proceeding or remedy may  be instituted,  continued or enforced in respect of any  right, liability  and  penalty  under the repealed Act  as  if  the Repealing Act had not been passed.  Section 6 of the General Clauses  Act,  as  is well known, is on the  same  lines  as section 38(2) of the Interpretation Act of England. Under   section  30  of  the  General  Clauses  Act,   which corresponds to section 27 of the Punjab Act, the  provisions of the Act are applicable to Ordinances as well.  Of course, the  consequences  laid down in section 6 of  the  Act  will apply only when a statute or regulation having the force  of a statute is actually repealed.  It has no application  when a  statute,  which is of a temporary  nature,  automatically expires  by  efflux of time.  The Ordinance in  the  present case was undoubtedly a temporary statute but it is  admitted that  the  period during which it was to  continue  had  not expired  when  the  Repealing Act was  passed.   The  repeal therefore was an effective one which would normally  attract the operation of section 6 of the General Clauses Act.   The controversy  thus  narrows  down to the short  point  as  to whether  the  fact  of the repeal  of  the  Ordinance  being followed by reenactment would make the provision 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 reliance upon certain observations of Sulaiman C.J. in Danmal  Parshotamdas v. Baburam(1).  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  clause contained in section 74(b) of  the  Act. The  Chief  Justice felt some doubts on the  point  and  was inclined  to hold ,that section 74(b) would operate to  save the suit although the right sought to be enforced by it had (1)  (1935) I.L.R. 58 All. 495. 899 accrued prior to the commencement of the Act; but eventually he agreed with his colleague and held that section 69  would bar  the  suit.  While discussing the provision  of  section 74(2) of the Partnership Act, in course of his judgment, the learned Chief Justice referred by way of analogy to  section 6(e)  of the General Clauses Act and observed as follows  at page 504: It  seems that section 6(e) would apply to those 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 repealed, then the repeal would not  affect any previous right acquired nor would it even affect a  suit instituted subsequently in 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  the  General  Clauses  Act  is  not

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applicable, and we would have to fall back on the provisions of the new Act itself. These  observations could not undoubtedly rank  higher  than mere  obiter dictum for they were not at all  necessary  for purposes  of the case, though undoubtedly they are  entitled to great respect.  In agreement with 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 prosecuting old offenders, or a  provision dealing  with that 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 the subject and if the new  Act does not deal with the matter, it may  be  presumed that  the Legislature did not deem it fit to keep alive  the liability  incurred under the old Act.  In our  opinion  the approach  of  the High Court to the question  is  not  quite correct.   Whenever there is a 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 for expression  of  a  contrary opinion.  But when the 900 repeal is followed by fresh legislation on the same  subject we  would undoubtedly have to look to the provisions of  the new  Act,  but only for the purpose of  determining  whether they  indicate a different intention.  The line  of  enquiry would be, not whether the new Act expressly keeps alive  old rights and liabilities but whether it manifests an intention to destroy them.  We cannot therefore subscribe to the broad proposition  that  section 6 of the General Clauses  Act  is ruled out when there is repeal of an enactment followed by a fresh  legislation.  Section 6 would be applicable  in  such cases also unless the new legislation manifests an intention incompatible  with  or  contrary to the  provisions  of  the section.  Such incompatibility would have to be  ascertained from  a consideration of all the relevant 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. The offence committed by the respondent consisted in  filing a  false claim.  The claim was filed in accordance with  the provision of section 4 of the Ordinance and under section  7 of the Ordinance, any false information in regard to a claim was a punishable offence.  The High Court is certainly right in  holding  that 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:  "  The East Punjab Refugees (Registration of  Land  Claims) Ordinance  No. VII of 1948 is hereby repealed and any  rules made, notifications issued, anything done, any action  taken in  exercise  of the powers conferred 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.  " We  agree with the High Court that the 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  contemplates  and  keeps alive are rules, notifications or                              901

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other official acts done in exercise of the powers conferred by or under the Ordinance and these powers are mentioned  in several  sections of the Act.  But although the  lodging  of the claim does not come within the purview 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 one filed under the Act with  all  the consequences  attached  thereto.   Section  4  of  the   Act provides  for  the registration of land claims.   The  first subsection  lays  down how the claim is to  be  filed.   The proviso  attached  to it then says that "a refugee  who  has previously submitted a claim under Ordinance VII of 1948  to any  other authority competent to register such claim  shall not submit another claim in respect of the same land to  the Registering  Officer.   " Such claim would be  reckoned  and registered  as  a  claim under the Act and  once  it  is  so treated the incidents and corollaries attached to the filing of  a  claim,  as laid down in  the  Act,  must  necessarily follow.   The  truth  or  falsity of the  claim  has  to  be investigated  in the usual way and 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 hold  that  the  penal  provisions contained in the Act cannot be attracted in case of a  claim filed under the Ordinance, the results will be anomalous and even  if  on  the strength of a false claim  a  refugee  has succeeded  in  getting  an allotment  in  his  favour,  such 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  Legislature 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 of the General Clauses Act.  It may be pointed out that section 1 1 of  the Act is somewhat clumsily worded and 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 902 consideration is whether the Act evinces an intention  which is   inconsistent  with  the  continuance  of   rights   and liabilities  accrued or incurred under the Ordinance and  in our  opinion  this  question  has, to  be  answered  in  the negative. The  Advocate-General of Punjab has drawn our  attention  to certain  American  authorities which hold that  in  case  of simultaneous repeal and re-enactment, the re-enactment is to be  considered  as  reaffirmation of the  old  law  and  the provisions  of  the repealed Act which are  thus  re-enacted continue in force uninterruptedly.  It appears that judicial opinion in America on this point is not quite uniform and we do not consider it necessary to express any opinion upon it. The provisions of section 6 of the General Clauses Act will, in  our opinion, apply to a case of repeal even if there  is simultaneous  enactment unless a contrary intention  can  be gathered  from  the new enactment.  The result is  that  the appeal  is  allowed and the judgment of the High  Court  set aside.  The Advocate-General does not press for  enhancement of  sentence passed on the respondent.  Consequently  it  is unnecessary for the High Court to hear the reference made to it  by the District Magistrate, Jullundur any further.   The sentence  already passed upon the respondent by  the  trying Magistrate  shall stand and if the fine of Rs. 120  has  not already  been, paid, it shall be paid now.  In default,  the

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respondent shall suffer rigorous imprisonment for one month. Appeal allowed. 903