1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REFERENCE NO. 1 OF 2008 CRIMINAL REFERENCE NO. 1 OF 2008 CRIMINAL REFERENCE NO. 1 OF 2008 Shri. P.P. Suroshe, Addl. Chief Metropolitan Magistrate, 11th Court, Kurla, Mumbai. ... Petitioner Versus The State of Maharashtra ... Respondent Mr. Ravi Kadam, Advocate General with Mr. P.S. Hingorani, A.P.P. for State. Mr. I.P. Bagaria for Original Complainant. CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & R.S. MOHITE, JJ. R.S. MOHITE, JJ. R.S. MOHITE, JJ. DATED: DECEMBER 12, 2008 DATED: DECEMBER 12, 2008 DATED: DECEMBER 12, 2008 ORAL JUDGMENT (Per F.I. Rebello,J.): ORAL JUDGMENT (Per F.I. Rebello,J.): ORAL JUDGMENT (Per F.I. Rebello,J.): . This matter arises from a reference made by the Addl. Chief Metropolitan Magistrate dated 15.12.2007. The question referred for consideration is "Whether a Criminal case registered under the provisions of the "The Essential Commodities (Special Provisions) Act, 1981 and the subsequent Ordinances on their coming to an end by efflux of time, which is the competent court to try and decide the matters". 2. The applicant was charged for an offence under Section 12A of Essential Commodities (Spl. 2 Provisions) Act, 1981 which hereinafter shall be referred to as "Special Provisions Act". The Special Provisions Act amended the Essential Commodities Act, 1955 which hereinafter shall be referred to as Essential Commodities Act. The Special Provisions Act was to be initially in force for a period of ten years. By Act of 34 of 1993, the period was extended upto 15 years with effect from 27.8.1992. 3. The President thereafter was pleased to promulgate an Ordinance known as "Essential Commodities (Special Provisions) Ordinance 1997" which came into force from 3.10.1997. The Ordinance contained similar provisions as contained in Special Provisions Act. This Ordinance shall be known as Ordinance of 1997. The President thereafter issued Ordinance No. 1 of 1998 which is known as Essential Commodities (Special Provisions) Act, second Ordinance 1998 which was published in the gazette of India on 2.1.1998 and came into effect from the said date. It shall be known as Ordinance 1 of 1998. The President then promulgated Ordinance 13 of 1988 which came into effect from 25.4.1998 and shall be referred to as Ordinance No. 13 of 1998. 3 4. One M/s. Mundhada Auto Services and another filed Criminal Writ Petition No. 93 of 1999 before the Nagpur Bench of this Court. The reliefs sought was a writ of quo warranto against the first respondent therein, functioning as Special Judge (Essential Commodities) under the Essential Commodities Act, 1955. Against the Petitioner therein, F.I.R. had been lodged in respect of which Crime No. 3167 of 1998 came to be registered under the provisions of the Essential Commodities Act. It was the case of the Petitioners that from 8.7.1998, the Ordinance lapsed and consequently provisions of the Special Provisions Act No. 18 of 1981 also lapsed. On this basis it was contended and submitted that the special Courts constituted under the provisions of Section 12A and appointments which were made by the State Government also automatically ceased to exist and as such no special court could function under the Act much less continue to function at least with effect from 8.7.1998. 5. A learned Division Bench of this Court by its order dated 6.4.2000 considered the said contention and also submissions made by the learned Additional Advocate General who supported the case of the Petitioner and conceded that Section 12A of the 4 Essential Commodities Act is no longer in force and the proceedings against the Petitioners therein must be proceeded with on the basis of section 12 of the Original Act. Considering that, the learned Division Bench allowed the Petition with a liberty to the State to proceed against the Petitioners under Section 12 or any other section of the Original Act as the case may be and not to prosecute the petitioner before the special Court. 6. Subsequent to the said order, it appears that the State Government by notification dated 30.5.2001 in exercise of the powers conferred by Section 12 and sub section (2) of Section 12A of the Essential Commodities Act, 1955 and with concurrence of the Chief Justice and Judges of this Court empowered the Additional Metropolitan Magistrate, Additional Chief Metropolitan Magistrates and all the Metropolitan Magistrates mentioned in the schedule appended thereto to try the cases under the said Act summarily within the limits of the Brihanmumbai arising in their respective jurisdiction. By letter dated 19th July, 2001 issued by the Registrar of this Court addressed to the Principal Judge, City Civil Court and Sessions Judge, Greater Bombay, it is set out that the Government of Maharashtra in the 5 Law and Judiciary Department, on 16.3.2000 had brought to the notice of this court that the Ordinance No. 13 of 1998 had lapsed and the position was that the law prior to coming into force of the Special Provisions Act, 1981 would prevail and would revert to original position as it stands under the Essential Commodities Act, 1955. This was based on the correspondence and reference was also made to the Judgment of the Division Bench dated 6.4.2000 in Criminal Writ Petition No. 93 of 1999. It was therefore set out that all cases pending on the file of the City Civil and Sessions Court (Special Courts) be transferred to the files of the respective Metropolitan Magistrates Courts in Grater Bombay. 7. The applicant in the present Reference has been charged under the provisions of the Essential Commodities Act as also Special Provisions Act in respect of which C.R. No. 101 of 1996 had been filed. By an application before the Additional Chief Metropolitan Magistrate they prayed for dropping of proceedings/stopage of proceedings and or passing of appropriate orders in accordance with law in view of Section 12A and Section 12AA of the Special Provisions Act, 1981. It was their 6 submission that the offences punishable under C.R. could only be tried by the Special Court alone and as such the Additional Chief Metropolitan Magistrate in case No. 885/P/01 (Old C.C. No. EC Spl No. 111/1996) had no jurisdiction. The learned Magistrate after considering various contentions held that the notification issued by the Law and Judiciary Department dated 30.5.2001 is prospective in nature and has to be considered with the provisions of Essential Commodities Act, 1955, and the circular cannot empower the court to try the offences which were committed during the subsistence of Essential Commodities (Special Provisions) Act, 1981. The court therefore held that as it was not a Court of Sessions Judge or Additional Sessions Judge, therefore, it could not try the case. However, the court felt that the case involves the matter of principle and serious failure of justice will crop up if application is allowed and proceedings are stopped for want of jurisdiction and in that light of the matter has made reference to this court under Section 395 of the Code of Criminal Procedure, 1973. 8. We had heard the learned counsel for the parties. After hearing the learned counsel and as 7 we were of the opinion that as there is a judgment of the Coordinate Bench of this court and as notification transferring matters had been issued by the State Government pursuant to that judgment notice was issued to the learned Advocate General for the State of Maharashtra. The learned Advocate General has been heard. 9. Before we proceed to answer the reference, it would be essential to refer to the various enactments and the provisions therein which are required to be considered for answering the controversy. In so far as Special Provisions Act is concerned, what is relevant is section 1(3) which reads as under : "3, It shall cease to have effect on the expiry of fifteen years from the date of commencement of this Act except as respects things done or omitted to be done before such ceaser of operation of this Act, and Section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply upon such ceasor of operation of this Act as if it had then been repealed by a Central Act." 8 . By virtue of Section 2 it was set out that during the continuance of the Special Provisions Act, the Essential Commodities Act shall have effect subject to the amendments specified in section (3) to (11) of the Special Provisions Act. Two other relevant sections of the Special Provision Act are Section 12A for constitution of Special Courts and Section 12(AA) which provides for the offences triable by special Courts. 10. We then have the Ordinance No. 21 of 1997 which came into force with effect from 3.10.1997. What is relevant would be section 11 of the Ordinance which introduced section 15-AA and which reads as under : "15-AA - Transfer of cases - Notwithstanding anything contained in any other law, any prosecution in respect of any offence under the Principal Act, committed during the period commencing on the 1st day of September, 1997 and ending with the date of commencement of this Ordinance, shall be instituted only in the Special Court and any prosecution in respect of such offence pending in any Court shall stand transferred 9 to the Special Court." 11. In Ordinance 1 of 1998, the relevant provision is Section 12. Section 12(1) repealed the provisions of the Ordinance 21 of 1997. Section 12(2) reads as under : "Notwithstanding such repeal, anything done or any action taken under the principle Act, as amended by the said Ordinance so repealed shall be deemed to have been done or taken under the principal Act as amended by this Ordinance." . Also by Section 11, new section 15AA was inserted where offences committed under the Principal Act commencing from 1st September, 1997 to 2nd January, 1998 were to be tried by the Special Court. 12. Then we have Ordinance No. 13 of 1998. This Ordinance came into effect from 25.4.1998.The relevant provision is Section 10 which reads as under : "10. Repeal and saving - (1) The Essential Commodities (Special Provisions) Second 10 Ordinance, 1998 (Ord. 1 of 1998) is hereby repealed. (2) Notwithstanding such repeal, if any appeal, application, trial, inquiry or investigation is pending immediately before such repeal, then, such appeal,application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Principal Act as amended by the Essential Commodities (Special Provisions) Ordinance, 1998 s in force immediately before the commencement of hits Ordinance, as if, this Ordinance had not come into force." 13. Before we answer the issue, we may refer to some judgments on the effect of repeal of a temporary legislation. Gainful reference can be made to two constitution Bench Judgments. In S. constitution Bench Judgments. In S. constitution Bench Judgments. In S. Krishnan and Others Versus the State of Madras and Krishnan and Others Versus the State of Madras and Krishnan and Others Versus the State of Madras and another, A.I.R. 1951 Supreme Court 301 the Law another, A.I.R. 1951 Supreme Court 301 the Law another, A.I.R. 1951 Supreme Court 301 the Law placing placing placing reliance on Craies on Statutes, Edn. 4, Page 347 was explained as under : 11 "The general rule in regard to a temporary statute is that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires. (Craies on Statutes, Edn. 4, p.347)." . This position of Law was considered in Gopi Chand . This position of Law was considered in Gopi Chand . This position of Law was considered in Gopi Chand Versus Delhi Administration, A.I.R. 1959 Supreme Versus Delhi Administration, A.I.R. 1959 Supreme Versus Delhi Administration, A.I.R. 1959 Supreme Court 609. It was therein argued that the Court 609. It was therein argued that the Court 609. It was therein argued that the proceedings taken under the temporary Act were invalid and that it will not be permissible to invoke the provisions of Section 6 of the General Clauses Act because the said section deals with the effect of repeal of permanent statutes. The Court answered the issue in the following words : "This argument no doubt is well founded.As Craies has observed, "as a general rule, unless it contains some special provisions to the contrary, after a temporary Act has expired no proceedings can be taken upon it and it ceases to have any further effect". This principle has been accepted by this Court in S. Krishnan Vs. State of Madras, 12 1951, SCR 621 at p. 628; (AIR 1951 SC 301 at p. 304). "The general rule in regard to a temporary statute is", observed, Patanjali Sastri J., "that, in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires". It is true that the Legislature can and often enough does avoid such an anomalous consequence by enacting in the temporary statute a saving provision, and the effect of such a saving provision is in some respects similar to the effect of the provisions of S. 6 of the General Clauses Act." . The law thus as enunciated and declared by the two constitution Benches of the Supreme Court is that on the expiry of the temporary statute no proceedings can be taken under it and it ceases to have any further effect. However, if under the temporary statute there is any saving provisions, then by virtue of such saving provision the pending proceedings will have tobe dealt with as if the legislation is still in force. 13 14. Considering this proposition of law, we find that in so far as Special Provisions Act is concerned, Section 1(3) specifically made applicable the provisions of Section 6 of the General Clauses Act in respect of things done or omitted to be done before such cessor of operation of the Act. In other words, by virtue of incorporation of Section 6 of General Clauses Act, pending proceedings will be continued to be governed by the provisions of the Special Provisions Act even though the legislation itself expired by efflux of time. Ordinance No. 21 of 1997 for the interregnum between 1st September, 1997 and 3rd October, 1997 when the Ordinance was promulgated provided for transfer of those cases committed under the Principal Act to the Special Court and if any prosecution was pending it also shall stand transferred to the Special Court. On coming into force of the Ordinance, the provisions of the Ordinance would apply in respect of the Offences governed by the Ordinance. Similarly by virtue of Section 12 of Ordinance No. 1 of 1998, inspite of repeal of Ordinance No. 21 of 1997, the proceedings then filed were to be continued under the Ordinance No. 1 of 1998. Then by virtue of Ordinance No. 13 of 1998 which came into effect on 25.4.1998, subsequent to repeal of Ordinance No. 1 14 of 1998, all proceedings set out therein and which provisions we have earlier set out had to be continued in accordance with the provisions of the Principal Act as amended by Ordinance No. 1 of 1998 as if the Ordinance has not come into force. Therefore, these proceedings were to be governed by Ordinance No. 1 of 1998. . All proceedings initiated and pending under the Special Provisions Act and the Ordinances even though they ceased to operate by efflux of time, were saved and were to be governed by the Special Provisions Act and the Ordinances, considering the law laid declared in S. Krishnan and Others (supra) and Gopichand (supra). The proceedings would continue and can only be tried by the Special Court. 15. The next question with which we are called upon to answer is the effect of the order dated 6.4.2000 of the Coordinate Bench of this Court in Criminal Writ Petition No.93 of 1999. The learned Advocate General Submitted that considering the fact that the attention of the learned Division Bench was not invited to the saving and repealing provisions which we have referred to earlier, the said order would be per incuriam and therefore, there is no need for 15 reference of the matter to a larger Bench. We are in agreement with the view expressed by the learned Advocate General. In the instant case, attention of the learned Bench appears not have been invited to the saving and repealing provisions. A judgment, without noticing the statutory provisions is a judgment per incuriam when those provisions were required tobe considered before deciding the controversy in issue. In the instant case, the repealing provisions were relevant for deciding the controversy in Criminal Writ Petition No. 93 of 1999. That having not been done, we are clearly of the opinion that the judgment in Criminal Writ Petition No. 93 of 1999 dated 6.4.2000 is per incuriam. A judgment should be treated as per incuriam when it is given in ignorance of the terms of the Statute or Rules having force of statute or judgment of the Supreme Court. See Fancy Rehabilitation Centre Vs. Union of India (2007) 112 FLR 726 (Bom). 16. Considering the above, we are clearly of the opinion that the Special Courts are the only competent Courts to try the offences which were filed during the period of validity of the Special Provisions Act and the Ordinances. The notification 16 therefore, of the State Government dated 30.5.2001 and any other similar notification would be entirely in contravention in law and consequently illegal and non est. It is the special Court alone which is empowered to try such offences. 17. The Government is therefore, directed in terms of Section 12A of the Special Provisions Act to constitute Special Courts to try those offences. All proceedings which were transferred to the Magistrates Courts including Metropolitan Magistrate be retransferred back to the Special Courts by issuing appropriate notifications and directions. The entire exercise to be completed at the earliest and not later than three months from today. 18. Reference is answered accordingly. The contention of the applicant that Additional Chief Metropolitan Magistrate does not have jurisdiction is upheld. However, in terms of the findings, the proceedings will have to be transferred to the Special Courts as soon as they are notified. In the meantime, the Magistrate Courts including Metropolitan Magistrates courts are directed not to proceed with the proceedings which were transferred to them from the Special Court. The State 17 Government is directed to forthwith take necessary steps. (R.S. MOHITE, J.) (R.S. MOHITE, J.) (R.S. MOHITE, J.) (F.I. REBELLO,J.) (F.I. REBELLO,J.) (F.I. REBELLO,J.)