ORDER
B. Subhashan Reddy, J.
1. This Writ Petition has been filed seeking declaration that the Criminal Law (Amendment) Ordinance, 1944 is inoperative as having, lapsed on 26-1-1950 and consequently, no proceedings thereunder can be initiated or continued and also to declare the impugned G.O.Rt. Nos. 1137, dated 12-5-1997 and 1314, dated 6-6-1997 and 1721, dated 4-7-1997 as illegal, contrary to law, non est in the eye of law and also violative of the provisions of the Constitution of India and consequently to set aside all further proceedings initiated by the 2nd respondent-Government of Andhra Pradesh in pursuance of Criminal Law (Amendment) Ordinance, 1944 (hereinafter referred to as 'the impugned Ordinance'.
2. The petitioner is an Advocate practising at Visakhapatnam. He conducted land acquisition cases and in one such case, enhancement was granted, but the same was appealed against before the High Court and lastly in the Supreme Court. The Supreme Court had granted a conditional stay, but the said condition was not complied with. The Government, then deposited an amount of Rs. 94,14,030/-towards the satisfaction of the decree, out of which Rs. 90,90,841/- was paid. The Collector, Visakhapatnam, made a complaint to the Registrar of the High Court on 19-7-1996 making allegations against the petitioner as also the Subordinate Judge of Anakapalli and some others stating that amounts were unduly paid. District and Sessions Judge, Visakhapatnam also inquired into the matter and ultimately G.O.Ms. Nos. 236, dated 31-1-1997,1137 dated 12-5-1997, 1314 dated 6-6-1997 and 1721 dated 4-7-1997 were issued and crimes against the petitioner and others including the then Subordinate Judge, Anakapalli of Visakhapatnam District were registered vide Crime Nos. 327 of 1996, 6, 7 and 10 of 1997. The Government also appointed the Criminal Investigation Department of Andhra Pradesh under the supervision of Superintendent of Police, C.I.D. (Sarkars), Visakhapatnam, who was authorised to file petition/s under the said G.Os. issued under the impugned Ordinance. On such petitions being filed, the District Judge, Visakhapatnam passed an interim order attaching the properties belonging to the petitioner herein.
3. The petitioner contends that the impugned Ordinance is violative of Articles 14 and 300-A of the Constitution of India. According to the petitioner, the impugned Ordinance expired on expiry of Emergency on 1-4-1946. The premise is that the impugned Ordinance was not the existing law within the meaning of Clause (10) of Article 366 of the Constitution nor was it 'law in force' within the meaning of Article 372 to continue in force at all. According to the petitioner, when the Constitution came into force on 26-1-1950, the impugned Ordinance was dead law' and no life could be infused in an extinct law; as such, all proceedings taken against him under the impugned Ordinance are without jurisdiction, void and non est. The petitioner further contends that as the impugned Ordinance was promulgated under the Government of India Act, 1935, and as the said Act itself was repealed by the Articles 389 and 395 of the Constitution and as such, any Ordinance tracing its origin from the Government of India Act, 1935 has no force of law.
4. The petitioner also contends the Criminal Procedure Code, 1898 was repealed and re-enacted as the Code of Criminal Procedure, 1973 (Act II of 1974) which came into force with effect from 1-4-1974 and as Criminal Procedure Code, 1974 did not absorb or include the provisions of the impugned Ordinance, the impugned Ordinance became ineffective.
5. The case of the petitioner is that even though the Governor General promulgated Emergency Provisions (Continuance) Ordinance XXII of 1946 on 25-9-1946, the said Ordinance continued only certain provisions of the Defence of India Act, 1939 and the Defence of India Rules, but no other Emergency Ordinance including the Criminal Law (Amendment) Ordinance was continued. It is his further case that the impugned Ordinance ceased to have force or effect after 15-8-1947 because of the operation of the India (Provisional Constitution) Order, 1947 as well as India (Adaptation of Existing Indian Laws) Order, 1947. He also contends that the India and Burma (Emergency Provisions) Act, 1940 being an Act of British Parliament, was not an existing Indian Law within the meaning of the India (Adaptation of Existing Indian Laws) Order, 1947 and as such, it lapsed on 14-8-1947 and ceased to be operative thereafter and that in view of the same, the impugned Ordinance also lapsed. He further contends that the India (Provisional Constitution) Order, 1947 repealed the IX Schedule of the Government of India Act, 1935 including Section 11 thereof and with the repeal of the IX Schedule, the impugned Ordinance lapsed.
6. Alternatively, the petitioner contends that the provisions of the impugned Ordinance are arbitrary, unreasonable and oppressive. He submits that the classification of offences into Scheduled Offences and other offences under various Penal Laws of India is vague, foggy and imprecise and is not based on any rational differentia and that the classification has moreover no nexus with the object, if any, sought to be achieved; as such, the entire impugned Ordinance is bound to be struck down. He further submits that the impugned Ordinance provides for attachment, administration and forfeiture of the property suspected to be embezzled, stolen or obtained by false pretences from the Government; therefore, the provisions are wholly unreasonable and that the presumptions raised and burden of proof cast on the person from whose custody the property is attached, render the impugned provisions to be without any authority of law and infract Article 300-A of the Constitution.
7. Government of India Act, 1935 was enacted by Imperial Government and was aimed at very limited form of self Government while conferring wide powers on the Governor-General of India, who had exercised the power subject to the provisions of the Act, the executive authority of the Federation on behalf of his Majesty' and the said executive power of Federation extended to all matters with respect to which the Federal Legislature could make the laws under the Act. By transitional provision contained in Section 11 of IX Schedule appended to the above Act, the power to make and promulgate Ordinance for the peace and good Government in cases of emergency was conferred on the Governor-General. It is apt to extract the same:
'11. 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, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinances under this Section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this Section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act.'
While it is true that any Ordinance under the said provision has a tenure of not more than six months from the date of its promulgation, there is something special for the Ordinance promulgated under the above provision. Once the Governor-General formed an opinion that there was emergency and the consequent necessity to promulgate Ordinance for the peace and good Government, that Ordinance sustained beyond the period of six months in view of India and Burma (Emergency Provisions) Act, 1940. It is relevant to extract Sub-section (3) of Section 1, as also Section 3 of the said Act. Sub-section (3) of Section 1 reads as hereunder:
'(3) Section Seventy-two of the Government of India Act (which, as set out in the Ninth Schedule to the Government of India Act, 1935, confers on the Governor-General power to make Ordinances in cases of emergency) shall, as respects Ordinances made during the period specified in Section three of this Act, have effect as if the words' for the space of not more than six months from its promulgation' were omitted; and, notwithstanding the provision in the said section seventy-two that the power of making Ordinances thereunder is subject to the like restrictions as the power of the Indian Legislature to make laws:-
(a) Ordinances may, during the said period, be made under that section affecting the Army Act, the Air Force Act, or the Naval Discipline Act; and
(b) Section one hundred and eleven of the Government of India Act, 1935 (which exempts certain British subjects from certain Indian Laws) shall not apply to any Ordinance made under the said Section seventy-two during that period.'
Section 3 reads as follows:
'3. The period referred to in the preceding Sections is the period beginning with the date of the passing of this Act 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 this Act.'
8. The above provisions extracted were already interpreted by the Supreme Court in Hansraj Moolji v. The State of Bombay, : 1957CriLJ599 . The Constitution Bench of the Supreme Court was called upon to interpret the continuance of operation or otherwise of High Denomination Bank Notes (Demonetization) Ordinance, 1946, which was also promulgated Under Section 72 of IX Schedule of Government of India Act, 1935. Similar question fell for consideration as to whether the same was operative beyond the end of emergency on 1-4-1946 in view of India and Burma (Termination of Emergency) Order, 1946. The Supreme Court had held in the said case authoritatively that whatever Acts enacted or Ordinances promulgated by the Governor-General, were done so in exercise of his special legislative powers or in exercise of the emergency power conferred upon him by Section 72 of IX Schedule of Government of India Act, 1935 and were all equated with the Acts of the Federal Legislature or the Indian Legislature, as the case might be, and that the said Ordinance will have its operation and validity until it is amended or repealed, in view of Section 1(3) and Section 3 of the India and Burma (Emergency Provisions) Act, 1940. But, the learned Counsel for the petitioner strenuously contends that in the said case, the Supreme Court did not consider the key expressions 'during the period' occurring in Sub-section (3) of Section 1, and 'emergency which was the occasion of the passing of this Act' occurring in Section 3 thereof of Act of 1940. This contention is without any basis. In fact, the Supreme Court has adverted to the said issue by extracting the said provisions and also dealing with the same extensively. It is apt to extract the relevant passage from the judgment of the Supreme Court:
'An argument was accordingly addressed before us that even though the Ordinance in question had been promulgated during the period specified in Section 3 of the India and Burma (Emergency Provisions) Act, 1940 viz., between June 27,1940 and April 1, 1946 and Section 72 of the 9th Schedule of the Government of India Act, 1935 was to be read with the omission of the words 'for the space of not more than six months from its promulgation' therefrom, the effect of such omission was not to continue the duration of the Ordinance in question in any event beyond April 1, 1946. The Ordinance lapsed or ceased to be in operation on the declaration having been made on April 1, 1946 that the emergency had ended.
This argument however ignores the fact that whatever Governor-General's Acts were enacted or Ordinances promulgated by him in exercise of his special legislative powers or in exercise of the emergency power conferred upon him by Section 72 of the 9th Schedule of the Government of India Act, 1935 were all equated with the Acts of the Federal Legislature or the Indian Legislature as the case may be/assented to by the Governor-General. If there was a limitation to be found in the Acts or the Ordinances themselves in regard to the duration thereof the same was to prevail. But, if no time was limited in the enactment itself for its duration it was to continue in force until it was repealed. If by the operation of Section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940 the words 'for the space of not more than six months from its promulgation' were omitted from Section 72 during the period specified in Section 3 of that Act, viz. June 27, 1940 to April 1, 1946, there was no limitation of the period of duration of the Ordinance in question and the Ordinance having the like force of law as an Act passed by the Indian Legislature without any limitation on its duration was to continue in force until it was repealed. The emergency under which the Governor-General was invested with the power to make and promulgate Ordinances for the peace and good Government of British India or any part thereof Under Section 72 was the condition of the exercise of such power by the Governor-General and did not impose any limitation on the duration of the Ordinances thus promulgated. For determining the duration of such Ordinances one had to look to the substantive provisions of Section 72 which in terms enacted and laid down the limitation of 'not more than six months from its promulgation' on the life of the Ordinance, if these words had not been omitted by Section 1(3) of the India and Burma (Emergency Provisions) Act, 1940, the Ordinances thus promulgated would have been of a duration of not more than six months from their promulgation. Once these words were omitted by Section 1(3) of the India and Burma (Emergency Provisions) Act, 1940, Section 72 of the 9th Schedule of the Government of India Act, 1935 would read as under:
'The Governor-General may, in cases 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 the like force of law as an Act passed by the Indian Legislature; but the power of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws and the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any Act.'The effect of the deletion of these words from Section 72 leaving the section to be read as above had the necessary effect of equating the Ordinances which were promulgated between June 27, 1940 and April 1, 1946, with Acts passed by the Indian Legislature without any limitation of time as regards their duration. Ordinances thus promulgated were perpetual in duration and continued in force until they were repealed.'
9. The above legal principles enunciated by the Supreme Court are squarely applicable to the facts of this case. In this case also, the impugned Ordinance was promulgated on 23-8-1944 (during the relevant period i.e., between 27-6-1940 and 1-4-1946) and is of unlimited duration and operates till it is repealed or amended in accordance with the Constitution. But, as it still stands unamended, it operates in its full vigour. The provisions of Independence Act of 1947, Emergency Provisions (Continuance) Ordinance XXII of 1948, Defence of India Act 1939, India (Provisional Constitution) Order, 1947 or of the India (Adaptation of Existing Indian Laws) Order, 1947, have got no bearing on the continuance of the impugned Ordinance and there cannot be any curtailment on the operation of the impugned Ordinance unless repealed or amended as stated supra. The impugned Ordinance having independent existence having been promulgated Under Section 72 of Schedule IX of Government of India Act, 1935 and in view of Section 1(3) of India and Burma (Emergency Provisions) Act, 1940, its tenure is unlimited and it continues until it is repealed or amended by the Parliament or the Legislature, as the case may be. The impugned Ordinance was not a dead law as on the date of the commencement of the Constitution i.e., 26-1-1950 and even though Government of India Act, 1935 was repealed by Article 395 of Indian Constitution and consequently, the impugned Ordinance could have also lapsed, but the same was saved in view of Article 372 of Indian Constitution. The impugned Ordinance was an existing law within the meaning of Clause (10) of Article 366 of Constitution and as such, was saved by Article 372(1) of the Indian Constitution. Even though the above saving is not conditioned by making of adaptations or modifications by the President, by Section 3 of the Adaptation of Laws Order, 1950 issued on 26-1-1950 in exercise of the powers under Article 372(2) of the Constitution of India, the impugned Ordinance is operative even on this day. Under Section 3 of the said Adaptation Order, as from the appointed day, the existing Central laws mentioned in the Schedules to the said Order shall, until repealed or amended by a competent Legislature or other competent authority, have effect subject to the adaptations and modifications directed by those Schedules or, if it is so directed, shall stand repealed. It is needless to mention that the appointed day was 26-1-1950 and the impugned Ordinance finds place in Schedule II appended to the said Order.
10. The argument with reference to absorption of the impugned Ordinance either under the Code of Criminal Procedure, 1898 or that of 1973 has got no relevance at all. The Code of Criminal Procedure has got no effect on the continuation of the impugned Ordinance and in fact, it is a Code of procedure whereas the impugned Ordinance is a substantive provision for protecting the properties relating to the specific offences. While Criminal Procedure Code deals with the procedure for trial of the scheduled offences under the impugned Ordinance, the Indian Penal Code operates for punishment of criminal offences Under Sections 406, 408 and 409 IPC as also Sections 411, 414, 417 and 420 IPC and also any offence committed under the provisions of Prevention of Corruption Act or the offence of abetment of the above offences. The impugned Ordinance operates independently insofar as the attachment aspect is concerned. The impugned Ordinance is substantive provision for dealing with the property suspected to be tainted of the offence pending disposal of the trial of the above stated offences and as such, there is no conflict between the provisions of the impugned Ordinance or that of Code of Criminal Procedure and both are independent and operate in different fields.
11. The argument touching upon the arbitrariness of the impugned Ordinance on the ground that the classification of offences into scheduled offences and other offences under various penal laws of India is vague, foggy and imprecise and there is no intelligible differentia and that there is no nexus with the object sought to be achieved cannot also be countenanced. In fact, there is no classification with regard to trial of offences and what is provided is the manner in which the property is to be dealt with when scheduled offences are committed, which involve property both movable and immovable and definitely there is nexus to the object sought to be achieved as the property is sought to be preserved pending disposal of the trial and that will be dealt with depending upon the result of the trial. As such, there is neither arbitrariness nor unreasonableness in the provisions of the impugned Ordinance. In fact, there is a nexus to the object sought to be achieved, as, if the property is not attached and the trial goes on for years, then even if the offender is convicted, there may not be any property left, if no fetters are placed to preserve the same and then very purpose of the trial may become otiose. The property, which is suspected to be embezzled, stolen or obtained by false pretence from the Government need to be preserved and as such, the provision has been made to that effect under the impugned Ordinance and as such it cannot be termed as arbitrary. The impugned ordinance cannot be termed as arbitrary for other reason also i.e., a judicial authority deals with the matter and there is an appeal provided against the said order and also tenure and from time to time the same has to be revived. All these safeguards go to show that the provisions contained under the impugned Ordinance are salutary and not arbitrary.
12. In view of what is stated supra, the Criminal Law (Amendment) Ordinance, 1944 is a valid piece of legislation even as on this day and action taken in accordance with the said provisions is not vitiated by lack of any jurisdiction.
13. For the reasons mentioned supra, this Writ Petition fails and it is accordingly dismissed. No costs