SRI RAM Vs. EMPEROR

JUDGEMENT

(1.) This application is by Moti Lal and Sri Ram under Section 561A, Criminal P.C., and Section 205, Government of India Act.

(2.) Moti Lal and Sri Ram are proprietors of a firm, Messrs. Moti Lal and Sri Ram. They were "tried for having contravened the provisions of Section 6, Clause (l), Hoarding and Profiteering Prevention Ordinance (35 [xxxv] of 1943). They were both convicted by Mr. S.P. Watal, Magistrate, First Class and were sentenced to eighteen months rigorous imprisonment and a fine of Rs. 1000 each. Moti Lal and Sri Ram filed a revision in this Court which was numbered as Criminal Revision No. 748 of 1946. This Court reduced the sentence of Sri Ram and while setting aside the sentence of imprisonment, the sentence of fine of Rs. 1000 was maintained. The sentence of imprisonment and of fine passed by the Magistrate on Moti Lal was maintained by this Court.

(3.) A certificate is prayed for by the present application under Section 205, Government of India Act, on the ground that the Ordinance was ultra vires of the Ordinance-making power of the Governor-General, he having no jurisdiction under Section 72 of Schedule 9, Government of India Act, 1935, to promulgate the said Ordinance. This point was not taken before this Court or any of the Courts below. In view of the decision of a Bench of this Court in Cri. Misc. cases, Nos. 437 and Jagdam Sahai V/s. Emperor Reported in the prayer for certificate under Section 205 must fail. The question of interpretation of the Government of India Act or of any Order in Council made thereunder not having been raised before this Court, it cannot be said that there was any reasonable possibility that the specified question arose and that the High Court, when it did not consider the question of the granting or the withholding of a certificate, failed in the performance of its duty under Section 205. The subsequent application would not, therefore, lie and this part of the prayer must be rejected.