minal 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 36755
Mohan Behari Lal and Eluri Udayarathnam for the appellant
N section Bindra and R H Dhebar for the respondent
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 section 61 A of the 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 section 61 A of the Act for possessing a wireless transmitter in contravention of the provisions of section 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Learned Counsel raised before us the following contentions 1 section 61 A of the Act was repealed and therefore neither the conviction nor the sentence thereunder could be sustained and 2 if section 61 A of the Act was repealed this Court in limiting the appeal to the question of sentence only went wrong for if that section was not on the statute book at the time of the alleged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 section 61 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The amending Act was repealed by the Repealing and Amending Act 1952 XLVIII of 1952 hereinafter called the  1952 Act  with the result that on the date of the alleged commission of the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 section 61 of the Act instead of section 61 A thereof
If the conviction was under section 61 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 section 61 even if section 61 A was not on the statute book there may be justification for this view as the words it wireless telegraphy apparatus  in section 61 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  section 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
section 61 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
section 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
section 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
section 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 section 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 section 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 vs Manager Caledonian Press Chakravartti CJ neatly brings out the purpose and 1 AIR 1954 Cal
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 section 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 section 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 section 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 vs 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  their Lordships think that the principle involved is as applicable in India as it is in this country
 It is therefore manifest that section 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 vs Mst
1 LR 58 IA 259
762 Harbhajan Kaur 1 and in Darbara Singh vs Shrimati Karnail Kaur2that section 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 section 6 A of the 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 section 6 A of the  the text of any enactment should have been amended but in the present case the insertion of section 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 section 6 A of the is sought to be effected on the basis of the words  unless a different intention 1 ILR 1955 Punj
2 763 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 section 6 1 A from the statute as it was redundant and unnecessary
It is said that the XIII of 1885 provided for the offence covered by section 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 section 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 section 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 section 61 A inserted in the Act XVII of 1933 by the amending Act of 1949 is either covered by the provisions of the  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 section 6 A of the 
For the aforesaid reasons we hold that section 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


Summary:
A complaint was filed against seven persons under SS 409 465 467 471 and 477A of the Indian Penal Code
After examining the complainant summonses were issued to the accused to answer a charge under section 406 The trial started as in a warrant case prosecution witnesses were examined and cross examined and the statements of the accused were recorded and the Magistrate heard arguments on the question of framing charges
Thereafter he framed charges under SS 409 and 465 read with SS 471 and 477A and without giving previous intimation of his intention to do so passed an order committing the appellants to the Court of Sessions
The appellants contended that the commitment was illegal because the case having begun as a warrant case it was incumbent upon the Magistrate when he decided to commit the case to the Court of Session to follow the procedure provided in Ch
XVIII Code of Criminal Procedure but he failed to comply with the provisions of SS 208 to 213 of
737 that Chapter
The complainant urged that even if the provi sions of SS 208 to 213 had not been complied with no prejudice was caused to the appellants and the commitment could not be quashed
Held that the commitment order was illegal as the Magistrate had failed to comply with the provisions of section 208 of the Code of Criminal Procedure
The proceedings having begun as in a warrant case if the Magistrate at a subsequent stage was of the view that the case should be committed to the Court of Sessions he had to act under section 3471 of the Code and to follow the procedure prescribed for inquiries under Ch
XVIII of the Code
When in the present case the Magistrate decided to commit the case he should have refrained from framing the charge and should have informed the accused of his intention to commit and should have called upon the accused to produce defence evidence if any
The failure of the Magistrate to intimate his decision to commit to the accused deprived them of the right to produce defence evidence if any under section 208
The denial of this right was itself sufficient to cause prejudice to the accused and failure of justice inasmuch as the accused were prevented from leading evidence which might have induced the Magistrate not to frame the charge against them
Subramania Iyer vs King Emperor 1901 LR 28 IA 257 Pulukuri Kotayya vs King Emperor 1948 LR 74 IA 65 and  Narain Rao vs The State of Andhra Pradesh  referred to