SRIDHAR ACHARI Vs. EMPEROR

JUDGEMENT

(1.) The applicants are connected with Rangji's temple at Bindraban in the district of Mathura. The High Denomination Bank Notes (Demonetisation) Ordinance, 1946, (Ordinance, 3[III] of 3946) was promulgated on 12 January 1946, and by Sub-para (2) of para. 6 of the Ordinance every owner of a high denomination bank note desiring to tender it for exchange was required to prepare in the form set out in the schedule three copies of a declaration signed by him giving in full the particulars required by that form and deliver them together with the high demomination bank note which he desired to exchange to a branch of the Reserve Bank or to a scheduled bank or to a Government Treasury. Copies of such forms were duly delivered by the applicants within the time fixed under the Ordinance. On 4 March 1947, however, a charge - sheet was submitted against them under Para. 7 of the Ordinance alleging that the applicants had knowingly made in the said declaration certain false statements. The applicants made an application to the Magistrate before whom the case was proceeding saying that the Ordinance in question was no longer in force and that, therefore, they could not be prosecuted under Para. 7 of that Ordinance. The learned Magistrate did not accept the contention of the applicants and held that the Ordinance was still in force in view of Sub-section (3) of Section 1, India and Burma (Emergency Provisions) Act, 1940, read along with Section 3 of that Act as well as the Order in Council issued under that section on 20 March 1946, declaring the first day of April 1946, as the date on which ended the emergency which was the occasion of the passing of that Act. The applicants went up in revision to the learned Sessions Judge of Mathura who agreed with the learned Magistrate and rejected the application and they have now come up in revision to the High Court from this order of the learned Sessions Judge.

(2.) The Ordinance in question, as stated in the preamble thereto was promulgated by the Governor-General in the exercise of the powers conferred upon him by Section 72, as set out in Schedule 9, Government of India Act, 1935. According to that section the Governor-General may in case 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 have force for the space of not more than six months from its promulgation. The India and Burma (Emergency Provisions) Act, 1940, by Sub-section (3) of Section 1, however, provided that Section 72 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 of the Act provided that the period referred to in that Sub-section would be "the period beginning with the date of the passing of this Act", viz., 27 June 1940, 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 the Act." By the Order in Council promulgated on 20 March 1946, the end of this period of emergency was declared to be the first day of April 1946. The contention "of learned Counsel for the Crown accordingly is that inasmuch as the present Ordinance was promulgated by the Governor-General during the period of "emergency" which was the occasion of the passing of the India and Burma (Emergency Provisions) Act 1940, it will be deemed to be still in operation and that, therefore, the prosecution of the applicants under Section 7 of the Ordinance is quite proper. It is pointed out that if the words "for the space of not more than is months from its promulgation" are omitted from Section 72, any Ordinance promulgated by the Governor-General under that section shall have in all respects the same force of law as an Act passed by the Indian Legislature and cannot be terminated except by another Ordinance or an Act passed by the Indian Legislature. Thus, all the ordinances promulgated by the Governor-General between 27 June 1940 and 1 April 1946, which conform to the provisions of Sub-section (3) of Section 1 of the 1940 Act, are in all respects like an Act passed by the Indian Legislature and cannot be regarded as temporary in their nature.

(3.) The contention of learned Counsel for the applicants, however, is that the intention of the provisions contained in the 1940 - Act was not to make Ordinances promulgated by the Governor-General during the period specified above permanent like an Act of the Indian Legislature, but that the intention was merely to keep them in force during that period or, at the outside, during a further period of six months beyond the first day of April 1946. It is pointed out that there is an inherent difference between an Act of the Indian Legislature and an ordinance inasmuch as the latter is necessarily of a temporary character. It is said that under Section 67B, Government of India Act, 1935, as set out in Schedule 9 of that Act, the Governor-General is also empowered to promulgate Acts in certain special circumstances. No doubt, as Section 72 has been framed, an Ordinance differs from an Act in being of a temporary nature. But obviously it was open to the Parliament, if it so chose to provide for the promulgation of ordinances by the Governor-General of a permanent character in cases of emergency. On a plain reading of Sub-section (3) of Section 1 of the 1940 Act my opinion is that the Parliament did in fact provide for the promulgation of Ordinances of a permanent nature by the Governor-General in cases of emergency during the period beginning from 27 June 1940, and ending with 1 April 1946.