PETITIONER: JETHANAND BETAB Vs. RESPONDENT: THE STATE OF DELHI(now Delhi Administration) DATE OF JUDGMENT: 15/09/1959 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER CITATION: 1960 AIR 89 1960 SCR (1) 755 ACT: Repeal of Statute-Repealing and Amending Act, object of- Enactment making Possession of wireless telegraphy apparatus without licence punishable-Amending Act introducing new section making Possession of wireless transmitter without licence liable to heavier Punishment-Repeal of Amending Act- Whether amendment introduced by it survives-Indian Wireless Telegraphy Act, 1933 (XVII of 1933), ss. 3, 6 and 6(1A)- Indian Wireless Telegraphy (Amendment) Act, 1949 (XXXI of 1949), s. 5-Repealing and Amending Act, 1952 (XLVIII of 1952), ss. 2 and 4--General Clauses Act, 1879 (X of 1879), S. 6A. HEADNOTE: Section 3 of the Indian Wireless Telegraphy Act, 1933 provided that no person shall possess wireless telegraphy apparatus without a licence and s. 6 made such possession punishable. The Indian Wireless Telegraphy (Amendment) Act, 1949, introduced s. 6(1A) in the 1933 Act, which provided for a heavier sentence for possession of a wireless transmitter without a licence. The Repealing and Amending Act, 1952, repealed the whole of the Amendment Act of 1949, but by s. 4 provided that the repeal shall not affect any other enactment in which the repealed enactment had been applied, incorporated or referred to. The appellant was convicted under s. 6(1A) for being, in possession of a wireless transmitter on July 31, 1953. He contended that s. 6(1A) had been repealed and his conviction and sentence thereunder could not be sustained. Held, that s. 6(1A) was saved by s. 6A of the General Clauses Act, 1897, though s. 4 of the Repealing and Amending Act, 1952, did not save it. 756 The object of the Repealing and Amending Act, 1952, was to strike out unnecessary Acts and to excise dead matter from the statute book. Khuda Bux v. Manager, Caledonian Press, A.I.R. 1954 Cal. 484, referred to. Section 4 of the Repealing and Amending Act, 1952, only saved other enactments in which the repealed enactment had been applied, incorporated or referred to. It had no application to the case of a later amending Act inserting a new provision in an earlier Act as it could not be said that the earlier Act applied, incorporated or referred to the Amending Act. Secretary of State for India in Council v. Hindusthan Co- operative Insurance Society, Ltd., L.R. 58 I.A. 259, followed. Mohinder Singh v. Mst. Harbhajan Kaur, I.L.R. 1955 Punj. 625 and Darbara Singh v. Shrimati Karnail Kaur, 61 P.L.R. 762, disapproved. Section 6A of the General Clauses Act provided that when any Central Act repealed any enactment by which the text of any Central Act was amended then unless a different intention appeared the repeal would not affect such amendment. The word " text " in s. 6A was comprehensive enough to include the subject as well as the terminology used in a statute, and the insertion of s. 6(1A) in the 1933 Act was an amendment in the text. No different intention appeared either from the repealing Act or from the history of the legislation and s. 6A applied to the repeal of the Amendment Act, 1949. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 185 of
1957.
Appeal by special leave from the judgment and order dated
the 6th December, 1955, of the Punjab High Court (Circuit
Bench) at Delhi, in Criminal Revision No. 122-D of 1955,
arising out of the judgment and order dated July 29, 1955,
of the First Additional Sessions Judge, Delhi, in Cr. A.
No. 367/55.
Mohan Behari Lal and Eluri Udayarathnam, for the appellant.
N. S. Bindra and R. H. Dhebar, for the respondent.
1959. September 15. The Judgment of the Court was
delivered by
SUBBA RAO J.-This appeal by special leave is directed
against the order of the High Court of Punjab (Circuit
Bench), Delhi confirming the conviction of the appellant and
the sentence passed on him by the
757
Magistrate, First Class, Delhi, under s. 6(1-A) of the
Indian Wireless Telegraphy Act, 1933 (XVII of 1933)
(hereinafter called ” the Act “).
Jethanand, the appellant herein, was prosecuted, along with
another, in the Court of the Magistrate, First Class, Delhi,
under s. 6(1-A) of the Act for possessing a wireless
transmitter in contravention of the provisions of s. 3 of
the Act, and was sentenced to six months rigorous
imprisonment. On appeal, the learned First Additional
Sessions Judge, Delhi, upheld the conviction but reduced the
sentence to the period of imprisonment already undergone
plus a fine of Rs. 500. On revision, the High Court
confirmed both the conviction and the sentence. On an
application filed for special leave, this Court gave the
same, but limited it to the question of sentence.
Learned Counsel raised before us the following
contentions: (1) s. 6(1-A) of the Act was repealed, and,
therefore, neither the conviction nor the sentence
thereunder could be sustained; and (2) if s. 6(1-A) of the
Act was repealed, this Court in limiting the appeal to the
question of sentence only went wrong, for, if that section
was not on the statute book at the time of the alleged
commission of the offence, not only the sentence but also
the conviction thereunder would be bad. Both the
contentions raised turn upon the same point. The different
steps in the argument may be stated thus: In the Act XVII of
1933, as it originally stood, there was no specific
provision making the possession of wireless transmitter an
offence. By the Indian Wireless Telegraphy (Amendment) Act,
1949 (XXXI of 1949) (hereinafter called the ” 1949 Act”), s.
6(1-A) was inserted in the Act, whereunder the possession of
a wireless transmitter was constituted a separate offence.
The amending Act was repealed by the Repealing and Amending
Act, 1952 (XLVIII of 1952) (hereinafter called the ” 1952
Act “), with the result that on the date of the alleged
commission of the offence the said section was not on the
statute book. If that was the legal position, the
limitation on the leave granted by this Court would result
in an
96
758
anomaly, namely, that the conviction would stand but the
sentence would be quashed. The argument so presented
appears to be plausible, but, in our view, not sound.
There is a real justification for this Court limiting the
scope of the special leave. The High Court by mistake cited
in its judgment the provisions of s. 6(1) of the Act instead
of s. 6(1-A) thereof. If the conviction was under s. 6(1),
the maximum sentence permissible on the first offence
thereunder was only fine which may extend to Rs. 100.
Presumably on the assumption that the conviction could be
sustained under s. 6(1), even if s. 6(1 -A) was not on the
statute book-there may be justification for this view, as
the words it wireless telegraphy apparatus ” in s. 6(1) are
comprehensive enough to take in ” wireless telegraphy
transmitter “-this Court gave leave limited to the question
of sentence. The inconsistency, if any, was the result of
the appellant’s presentation of his case at that stage, and
he cannot now be allowed to take advantage of his default to
enlarge the scope of the appeal.
That apart, there are no merits in the contention. At the
outset it would be convenient to read the relevant
provisions of the three Acts:
The Indian Wireless Telegraphy Act, 1933.
S. 3 : Save as provided by section 4, no person shall
possess wireless telegraphy apparatus except under and in
accordance with a licence issued under this Act.
S. 6(1): Whoever possesses any wireless telegraphy
apparatus in contravention of the provisions of section 3
shall be punished in the case of the first offence, with
fine which may extend to one hundred rupees, and, in the
case of a second or subsequent offence, with fine which may
extend to two hundred and fifty rupess.
The Indian Wireless Telegraphy (Amendment) Act, 1949.
S. 5. Amendment of section 6, Act XVII of 1933. In section
6 of the said Act,-
* * *
759
(ii) after sub-section (1), the following sub-section shall
be inserted, namely:-
“(1A) whoever possesses any wireless transmitter in
contravention of the provisions of section 3 shall be
punished with imprisonment which may extend to three years,
or with fine which may extend to one thousand rupees, or
with both.”
REPEALING AND AMENDING ACT, 1952.
S. 2: The enactments specified in the First Schedule are
hereby repealed to the extent mentioned in the fourth column
thereof
The First Schedule
Year No. Short title Extent of repeal
(1) (2) (3) (4)
1949 XXXI The Indian Wireless Telegraphy The whole
(Amendment) Act, 1949.
S. 4: The repeal by this Act of any enactment shall not
affect any other enactment in which the repealed enactment
has been applied, incorporated or referred to;
* * *
The substance of the aforesaid provisions may be stated
thus: The Act of 1949 inserted s. 6 (1 -A) in the Act of
1933. The 1949 Act was repealed by the 1952 Act, but the
latter Act saved the operation of other enactments in which
the repealed enactment has been applied, incorporated or
referred to. The first question that arises for
consideration is whether the amendments inserted by the 1949
Act in the 1933 Act were saved by reason of s. 4 of the 1952
Act.
The general object of a repealing and amending Act is stated
in Halsbury’s Laws of England, 2nd Edition, Vol. 31, at p.
563, thus:
“A statute Law Revision Act does not alter the law, but
simply strikes out certain enactments which have become
unnecessary. It invariably contains elaborate provisos.”
In Khuda Bux v. Manager, Caledonian Press Chakravartti,
C.J., neatly brings out the purpose and
(1) A.I.R. 1954 Cal. 484.
760
scope of such Acts. The learned Chief Justice says at p.
486:
” Such Acts have no Legislative effect, but are
designed for editorial revision, being intended only to
excise dead matter from the statute book and to reduce its
volume. Mostly, they expurgate amending Acts, because
having imparted the amendments to the main Acts, those Acts
have served their purpose and have no further reason for
their existence. At times inconsistencies are also removed
by repealing and ‘amending Acts. The only object of such
Acts, which in England are called Statute Law Revision Acts,
is legislative spring-cleaning and they are not intended to
make any change in the law. Even so, they are guarded by
saving clauses drawn with elaborate care,. . .”.
It is, therefore, clear that the main object of the 1952 Act
was only to strike out the unnecessary Acts and excise dead
matter from the statute book in order to lighten the burden
of ever increasing spate of legislation and to remove
confusion from the public mind. The object of the Repealing
and Amending Act of 1952 was only to expurgate the amending
Act of 1949, along with similar Acts, which had served its
purpose.
The next question is whether s. 4 of the Act of 1952 saved
the operation of the amendments that had been inserted in
the Act of 1933 by the repealed Act. The relevant part of
s. 4 only saved other enactments in which the repealed
enactments have been applied, incorporated or referred to.
Can it be said that the amendments are covered by the
language of the crucial words in s. 4 of the Act of 1952,
namely, applied, incorporated or referred to”. We think
not. Section 4 of the said Act is designed to provide for a
different situation, namely, the repeal of an earlier Act
which has been applied, incorporated or referred to in a
later Act. Under hat section the repeal of the earlier Act
does not affect the subsequent Act. The said principle has
been succinctly stated in Maxwell on Interpretation of
Statutes, 10th Edition, page 406:
Where the provisions of one statute are, by reference,
incorporated in another and the earlier
761
statute is afterwards repealed the provisions so in-
corporated obviously continue in force so far as they form
part of the second enactment.”
So too, in Craies on Statute Law, 3rd Edition, the sama idea
is expressed in the following words, at p. 349:
” Sometimes an Act of Parliament, instead of expressly
repeating the words of a section contained in a former Act,
merely refers to it, and by relation applies its provisions
to some new state of things created by the subsequent Act.
In such a case the is rule of construction is that where a
statute is incorporated by reference into a second statute,
the repeal of the first statute by a third does not affect
the second “.
The Judicial Committee in Secretary of State for India in
Council v. Hindusthan Co-operative Insurance Society, Ltd.
(1) endorsed the said principle and restated the same, at p.
267, thus:
” This doctrine finds expression in a common-form section
which regularly appears in the amending and repealing Acts
which are passed from time to time in India. The section
runs: ” The repeal by this Act of any enactment shall not
affect any Act………….. in which such enactment has
been applied, incorporated or referred to.” The independent
existence of the two Acts is therefore recognized; despite
the death of the parent Act, its offspring survives in the
incorporating Act. Though no such saving clause appears in
the General Clauses Act, their Lordships think that the
principle involved is as applicable in India as it is in
this country.”
It is, therefore, manifest that s. 4 of the 1952 Act has no
application to a case of a later amending Act inserting new
provisions in an earlier Act, for, where an earlier Act is
amended by a later Act, it cannot be said that the earlier
Act applies, incorporates or refers to the amending Act.
The earlier Act cannot incorporate the later Act, but can
only be amended by it. We cannot, therefore, agree with the
view expressed by the Punjab High Court in Mohinder Singh v.
Mst.
(1) L.R. 58 I.A. 259.
762
Harbhajan Kaur (1) and in Darbara Singh v. Shrimati Karnail
Kaur(2)that s. 4 of the Repealing and Amending Act of 1952
applies to a case of repeal of an amending Act.
This legal position does not really help the appellant, for
the case on hand directly falls within the four corners of
s. 6-A of the General Clauses Act, 1897 (X of 1897). – The
above section reads:
“Where any Central Act or Regulation made after the
commencement of this Act repeals any enactment by which the
text of any Central Act or Regulation was amended by the
express omission, insertion or substitution of any matter,
then, unless a different intention appears, the repeal shall
not affect the continuance of any such amendment made by the
enactment so repealed and in operation at the time of such
repeal.”
As, by the amending Act of 1949, the text of the Act XVII of
1933, was amended by the insertion of 6 (1-A) therein, the
repeal of the amending Act by the 1952 Act did not affect
the continuance of the amendment made by the enactment so
repealed. It is said that for the application of s. 6-A of
the General Clauses Act, the text of any enactment should
have been amended; but in the present case the insertion of
s. 6 (1-A) was not a textual amendment but a substantial
one. The text of an enactment, the argument proceeds, is
the phraseology or the terminology used in the Act, but not
the content of that Act. This argument, if we may say so,
is more subtle than sound. The word ” text “, in its
dictionary meaning, means ” subject or theme “. When an
enactment amends the text of another, it amends the subject
or theme of it, though sometimes it may expunge unnecessary
words without altering the subject. We must, therefore,
hold that the word ” text ” is comprehensive enough to take
in the subject as well as the terminology used in a statute.
Another escape from the operation of s. 6-A of the General
Clauses Act is sought to be effected on the basis of the
words ” unless a different intention
(1) I.L.R. 1955 Punj. 625.
(2) 61 P.L.R. 762.
763
appears “. The repealing Act does not indicate any intention
different from that envisaged by the said section. Indeed,
the object of the said Act is not to give it any legislative
effect but to excise dead matter from the statute book. The
learned Counsel placed before us the historical background
of the amending Act with a view to establish that the
intention of the legislature in passing the said Act was to
expurgate s. 6 (1 -A) from the statute as it was redundant
and unnecessary. It is said that the Indian Telegraph Act,
1885 (XIII of 1885) provided for the offence covered by s. 6
(1-A), and, therefore, the legislature though, by the Act of
1948, inserted the said section in the Act of 1933, removed
it in the year 1952 as the said amendment was unnecessary
and redundant. There is no foundation for this argument,
and the entire premises is wrong. Section 20 of Act XIII of
1885 reads;
S. 20 (1): If any person establishes, maintains or works a
telegraph within India in contravention of the provisions of
section 4 or otherwise than as permitted by rules made under
that section, he shall be punished, if the telegraph is a
wireless telegraph with imprisoment which may extend to
three years, or with fine, or with both, and in any other
case, with a fine which may extend to one thousand rupees.
Though the words are comprehensive enough to take in a
wireless transmitter, the section does not prohibit the
possession of a wireless apparatus. As the Act only gave
power to control the establishment, maintenance and working
of wireless apparatus, in practice it was found that the
detection of unlicenced apparatus and the successful
prosecution of the offenders were difficult, with the result
that the State was losing revenue. To remove this defect,
Act XVII of 1933 was passed to prohibit the possession
without licence of a wireless apparatus. Under s. 6, the
penalty for such illegal possession of a wireless telegraphy
apparatus was made an offence, but the sentence prescribed
was rather lenient. Subsequently, the legislature thought
that the possession of a wireless transmitter
764
was a graver offence; sometimes involving the security of
the State, and so an amendment was introduced in 1949
constituting the possession of such apparatus a graver
offence and imposing a more severe punishment. Therefore,
it cannot be said that s. 6(1-A), inserted in the Act XVII
of 1933 by the amending Act of 1949, is either covered by
the provisions of the Indian Telegraph Act, 1885, or a
surplusage not serving any definite purpose. Even from the
history of the legislation we find it not possible to say
that it disclosed an intention different from that envisaged
in s. 6-A of the General Clauses Act.
For the aforesaid reasons, we hold that s. 6 (1 -A) of the
Act continued to be on the statute book even after the
amending Act of 1949 was repealed by Act XLVIII of 1952, and
that it was in force when the offence was committed by the
appellant.
The appeal fails and is dismissed.