MANISH KUMAR JAYASWAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) MANISH Kumar Jayaswal has filed this petition under Article 228 of the Constitution of India for a direction to transfer Civil Misc. Case No. 127/1999 pending in the Court of Special Judge, CBI, VIth, in which attachment order has been passed on the strength of the Criminal Law (Amendment) Ordinance, 1944, (hereinafter referred to as Ordinance, 1944) and to declare the said Ordinance, 1944, to be not in force and consequently to cancel the entire proceedings.

(2.) THE short facts are as follows: CBI, on the basis of the orders passed by the High Court and the Supreme Court, conducted investigations relating to Fodder Scam cases and ultimately filed charge -sheet against the petitioner's father. On 3.6.1999, CBI filed an application under Sec. 3 of the Ordinance, 1944, for ad interim order of attachment of properties and also for making the same absolute as envisaged under Sec. 5 of the Ordinance, 1944. Ultimately the trial Court passed ad interim order of attachment under Sec. 4(b) of the Ordinance, 1944. An application has been filed by the petitioner before the Court below challenging the proceedings under the Ordinance, 1944, as unconstitutional as the Ordinance, 1944, is not an existing law. Without pursuing the matter, the petitioner has filed this petition under Article 228 to transfer the said case from the Court below to this Court and to declare the Ordinance, 1944, to be not an existing law.

(3.) BEYOND six months unless ratified by the competent legislature. (b) In view of Explanation III to Article 372 that the Ordinance, 1944, does not remain valid on expiry of six months, the Ordinance, 1944, cannot be said to be in existence. This has been accepted by the Delhi High Court which declared the provisions of the Ordinance. 1944, as ultra vires in W.P. No. 223/1988. Therefore, this Court may be pleased to declare the proceedings pending before the Court below in pursuance of the Ordinance, 1944, as illegal and the Ordinance, 1944, to be not an existing law.