IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 1ST NOVEMBER 2007 / 10TH KARTHIKA 1929 CRL.A.No. 1400 of 2007 ---------------------- AGAINST ORDER DATED 22.6.2007 IN O.P.(MIS.) NO.221/2006 of DISTRICT COURT, TRIVANDRUM .................... APPELLANT/COUNTER PETITIONER: ------------------------------ DR. V.K.RAJAN, S/O. KOCHUKUTTY, AGED 56 YEARS, FORMERLY DIRECTOR OF HEALTH SERVICES, KERALA, (RESIDING AT OF TC 25/405(1) & (2), PANCHAJANYAM GARDENS, SANTHI NAGAR, THIRUVANANTHAPURAM). BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT/PETITIONER: ----------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (THROUGH THE DEPUTY SUPERINTENDENT OF POLICE, VACB, SPECIAL CELL, THIRUVANANTHAPURAM). BY SHRI P.G.THAMPI, DIRECTOR GENERAL OF PUBLIC PROSECUTIONS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/10/2007, ALONG WITH CRL.M.C. NO. 2559 OF 2007 AND CRL.M.C. NO. 2526 OF 2007, THE COURT ON 01/11/2007 DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ----------------------------------------------------- Crl.A.1400 of 2007, Crl.M.C.Nos.2526 & 2559 of 2007 ------------------------------------------------------ Dated this the 1st day of November, 2007 JUDGMENT Koshy, J . In all these cases, main questions to be considered are common. Validity of the Criminal Law (Amendment) Ordinance, 1944 (hereinafter referred to as 'the Ordinance') and jurisdiction of District Judge under the Ordinance after enactment of the Prevention of Corruption Act, 1988 (in short 'P.C. Act') are the main questions to be considered in these cases. In Crl. Appeal No.1400 of 2007 appellant was facing investigation for the case registered against him for the offence punishable under Section 13 (2) read with Section 13 (1) (e) of the P.C. Act alleging that the appellant had amassed wealth disproportionate to his income. The check period is 1.1.1994 to 12.5.2005. While the investigation was continuing, an application was filed by the Investigating Officer before the District Court for attachment of his properties invoking provisions of Section 3 and 5 of the Ordinance. The District Court passed an order attaching certain properties scheduled in the petition. When the case came up for admission, after admitting the appeal, referred the case to Division Bench as some important questions of law Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 2 are involved in this case. When petition for attachment was filed under the above Ordinance, preliminary objection was filed to decide the question of maintainability of the petition by the petitioners in Crl.M.C.No.2526 of 2007. That petition was dismissed. After that order, the above Crl. M.C. was filed under Section 482 of the Code of Criminal Procedure. The very same petitioners applied for production of certain documents. Those petitions were dismissed. Hence, they again filed Crl.M.C.No.2559 of 2007. Since criminal appeal involving almost similar points were referred to the Division Bench, these criminal miscellaneous petitions were also referred to the Division Bench. 2. According to the learned single Judge, following questions are to be answered by the Division Bench: "i. Whether the District Court has got the power or jurisdiction to pass the impugned order under the provisions of the Prevention of Corruption Act, 1988? ii. Whether the State of Kerala can be represented by an Investigating Officer to file an Original Petition before the District Court as the State has to be represented either by a Public Prosecutor appointed under Section 24 Cr. P.C. or by a Government Pleader duly appointed? Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 3 iii. The Criminal Law (Amendment) Ordinance, 1944 being a pre- constitutional law, whether the Ordinance has got any validity or can continue to remain valid after the commencement of the Constitution of India? iv. Whether an Ordinance by the Governor General of India under the provisions of Section 72 of Schedule IX of the Government of India Act, 1935 can be considered as an existing law as contemplated under Article 366 (10) of the Constitution of India and whether such an Ordinance can continue as an existing law as per Article 372 (2) of the Constitution of India? v. Whether the Criminal Law (Amendment) Ordinance, 1944 has got any validity after the expiry of six months as contemplated under Article 123 of the Constitution of India?" 3. Questions (iii), (iv) and (v) mainly deal with validity of the Ordinance. Hence, we shall answer those questions initially. In view of article 372 of the Constitution, all the law in force immediately before the commencement of the Constitution shall continue in force until altered according to law. Article 366 (10) of the Constitution defines 'existing law' as follows: " 'existing law' means any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation;" Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 4 Article 372 (1) of the Constitution is as follows: "372. Continuance in force of existing laws and their adaptation:- (1) Notwithstanding the repeal by the Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." Then, the question is whether the Ordinance was an existing law immediately before the commencement of the Constitution. Part II of the Government of India Act, 1935 envisaged the establishment of the Federation of India. Section 317 of the Government of India Act, 1935 continued the provisions of the Government of India Act, 1915 with certain amendments mentioned in Schedule 9 of 1935 Act until the establishment of the Federation. Section 72 of the 9th Schedule conferred upon the Governor- General powers to issue Ordinances in cases of emergency. It provided: "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 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 Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 5 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 Acts." The British Parliament passed the India and Burma (Emergency Provisions) Act, 1940 on 27th June, 1940. Section 1 (3) of that Act stated: "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 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 provided: "The period referred to in the preceding section 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." On 1st April, 1946 His majesty's order in Council was published in the Gazette of India terminating the period of emergency with effect from 1st April, 1946. Thus period specified under section 3 of the Act is from 27th June, 1940 to 1st April, 1946. The Criminal Law Amendment Ordinance No.38 of 1944 was promulgated on 23rd October, 1944, that is to say in between the specified period. Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 6 Therefore, the above Ordinance will continue in force even after the expiry of six months and was an existing law when Constitution of India came into force. 4. Whether Ordinance passed in between 27th June, 1940 and 1st April, 1946 will continue for interim period was considered by a five member bench of the Apex Court in Hansraj Moolji v. The State of Bombay (AIR 1957 SC 497) and held as follows: "18. 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 S.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 S.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 S.72 during the period specified in S. 3 of the 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 Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 7 and promulgate Ordinances for the peace and good government of British India or any part thereof under S.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 S.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 S.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." Thereafter, it was held as follows: "19. The effect of the deletion of these words from S.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." The Apex Court also considered the decision of the Federal Court and observations of Spens, C.J., in J.K.Gas Plant Manufacturing Co. (Rampur) Ltd. v. King Emperor (AIR 1947 FC 38 at page 44) and held as follows: "21. In our opinion, the above observations of Spens, CJ. enunciate the correct position. The Ordinance in question having been promulgated during the period between 27.6.1940 and 1.4.1946, was Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 8 perpetual in duration and continued in force until it was repealed. Our attention has not been drawn to any subsequent Ordinance or Act of the Indian Legislature amending or repealing the said Ordinance with the result that it continued to be force." Hon'ble Apex Court was considering the validity of the High Denomination Bank Notes (Demonetization) Ordinance, 1946. The decision is equally applicable in this Ordinance also. 5. With regard to the alternative contention raised by the appellant that even if Ordinance will be valid beyond six months it will be valid only till the end of declaring of emergency, same was repelled by the Supreme Court in the above case as follows: "27. The alternative argument addressed before us by the learned counsel for the appellant, need not detain us at all, for the simple reason that reading S.72 in the manner suggested would be tantamount to giving a retrospective effect to the section as it originally stood in regard to Ordinances which had been promulgated between 27.6.1940 and 1.4.1946. There is nothing to justify such retrospective operation. As regards such Ordinances the period of their duration had to be determined having regard to the provisions of S.72 as they stood with the omission of the words 'for the space of not more than six months from its promulgation' therefrom during the period specified in S.3 of the India and Burma (Emergency Provisions) Act, 1940 and the Ordinance in question was therefore not limited to the space of not more than six months from the date of its promulgation but was perpetual in its duration with the result that it continues in operation until it is repealed. There is Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 9 no warrant for reading the provisions of S.72 with the omitted words restored to their original position after 1.4.1946 while determining the duration of the Ordinances which had been promulgated between 27.6.1940 and 1.4.1946." Every statute for which no time is limited is called a perpetual Act and its duration is prima facie perpetual. It continues in force until it is repealed or altered. (Vide Craies on Statute Law, Ed.5, p. 374; Halsbury's Laws of England, (Vol.XXXI, p. 511 para 664). If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called a Temporary Act. This result would follow not only from the terms of the Act itself but also from the fact that it was intended only as a temporary measure. This ratio has also been applied to emergency measures which continue during the subsistence of the emergency but lapse with the cessation thereof. But, in view of India and Burma (Emergency Provisions) Act, 1940, the Ordinance under challenge is not a temporary one as it was passed before India and Burma (Termination of Emergency) Order, 1946 in view of the principles enunciated in the authoritative decision of the Hon'ble Apex Court in Hansraj Moolji's case (supra). 6. The contention that the Ordinance is not applicable after independence is also untenable. The Indian Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 10 Independence Act came into force on the 15th of August 1947, and sub-section (2) of section 8 of this Act lays down as follows: "Except in so far as other provision is made by or in accordance with a law made by the Constituent Assembly of the Dominion under sub-section (1) of this section, each of the new Dominion and all provinces and other parts thereof shall be governed as nearly as may be in accordance with the Government of India Act, 1935; and the provisions of that Act, and of the Orders in Council, rules and other instruments made thereunder, shall, so far as applicable, and subject to any express provisions of this Act, and with such omissions, additions, adaptations and modifications as may be specified in orders of the Governor-General under the next succeeding section, have effect accordingly." Sub-section (3) of section 18 is most important for our present purpose, and it lays down: "Save as otherwise expressly provided in this Act, the law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf." These statutory provisions are very clear to the effect that law existing at the time of independence was Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 11 continuing even after independence, unless they are repealed or amended. Since Ordinance under challenge was not rescinded, it continued after independence. 7. Considering the provisions in the Prevention of Corruption Act there is no scope for any controversy as we are of the view that as the Ordinance is adopted and incorporated in the P.C. Act itself. Section 5 (6) of the P.C. Act provides as follows: "5. Procedure and powers of Special Judge -- xx xx xx xx (6) A Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944)." Section 29 reads as follows: "29. Amendment of the Ordinance 38 of 1944:- In the Criminal Law Amendment Ordinance, 1944, -- (a) in sub-section (1) of section 3, sub-section (1) of section 9, clause (a) of section 10, sub-section (1) of section 11 and sub-section (1) of section 13, for the words 'State Government', wherever they occur, the words 'State Government or, as the case may be, the Central Government' shall be substituted. (b) in section 10, clause (a), for the words, 'three months', the words 'one year' shall be substituted; Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 12 (c) in the Schedule, -- (i) paragraph 1 shall be omitted; (ii) in paragraphs 2 and 4, -- (a) after the words 'a local authority', the words and figures 'or a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956) or a society aided by such corporation, authority, body or Government company' shall be inserted; (b) after the words 'or authority', the words 'or corporation or body or Government company or society' shall be inserted; (iii) for paragraph 4-A, the following paragraph shall be substituted, namely, -- "4-A. An offence punishable under the Prevention of Corruption Act, 1988". " The above section shows that Ordinance was amended by the provisions of P.C. Act to the extent mentioned therein. Therefore, in view of the clear provisions in the P.C. Act it is clear that the provisions of the Ordinance are adopted in the P.C. Act and are still applicable. Hence, Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 13 we are of the view that the Ordinance is valid and still applicable and any provisions of the Ordinance as amended by section 5 (6) and section 29 of the P.C. Act are valid as specifically accepted and adopted by the provisions of the P.C. Act. A plethora of decisions of Supreme Court and High Court were cited before us to show that the Ordinance is still valid. (See: M.M. Sales and Exports (India) (Pvt.) Ltd. and others v. The State of UP and others (AIR 1974 Allahabad 263); State of Bihar v. Santo Kumar Mith and others (AIR 1952 Patna 148) etc.) Therefore, Ordinance is accepted and followed throughout India after Independence till now and hence we answer question Nos.(iii), (iv) and (v) affirmatively in favour of the prosecution and against the appellant and petitioner. 8. Now, we will consider question No.(i) regarding jurisdiction of the District Court to consider the application for attachment after establishment of Special Courts(Question No.(i)). It was argued that after the enactment of P.C. Act only Special Judge can consider the application and jurisdiction of other courts are ousted. There is no dispute regarding the proposition that Special Court constituted under the P.C. Act is conferred with special jurisdiction to deal with the cases under the Act. On a reading of sections 5 and 6 of the P.C. Act, it is Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 14 crystal clear that Special Judge constituted under the Act is exercising all powers conferred on court of original jurisdiction except the powers specifically taken away and it is under the direct supervision of the High Court and not under the Sessions Court. Special Court can take cognizance of the case or can exercise all powers of a Magistrate under the Code of Criminal Procedure and after investigation of the case, it can try the case as a Sessions Judge and will be deemed to be Sessions Judge in view of special conferment of jurisdiction by the Act, Special Judge need not fall within the category of 'Magistrate' or 'Sessions Judge' specified in Cr. P.C. But, it can exercise all powers of a Magistrate and Sessions Judge except those powers specifically excluded and it is not subordinate to Sessions Court, but, only to High Court. It is further clear from section 8 of the Criminal Law Amendment Act, 1952 (in short 'Amendment Act, 1952) which is reproduced below: "8. (1) A Special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates. (2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 15 concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of Sections 339 and 339-A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under section 338 of that Code. (3) Save as provided in sub-section (1) of sub-section (2), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not consistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judges shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor. (3-A) In particular, and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of the Code of Criminal Procedure, 1898 shall, so far as may be, apply to the proceedings before a Special Judge, and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate. (4) A Special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted." 9. The Amendment Act was enacted to amend the Indian Penal Code and the Code of Criminal Procedure, 1898 and to provide for a more speedy trial of certain offences. Crl. Appeal No.1400/2007 & Crl.M.C.Nos.2526 & 2559/2007 16 Section 6 prescribes that State Government has to appoint Special Judge by notification for such area or areas as may be specified in the notification and a person shall not be qualified for appointment as Special Judge unless he is, or has been, a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898. Section 7 confers exclusive jurisdiction on the Special Judge appointed under section 6 to try the cases set out in section 6 (1) (a) and 6 (1) (b). Sub- section (2) of section 7 provides that 'every offence specified in sub-section (1) of section 6 shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government.' Sub-section (3) enlarges the jurisdiction