Case Analysis: The State of Bihar vs Hiralal Kejriwal and Another
Case Details
Case name: The State of Bihar vs Hiralal Kejriwal and Another
Court: Supreme Court of India
Judges: Subba Rao J.
Date of decision: 14 September 1959
Citation / citations: 1960 AIR 47
Case number / petition number: Criminal Appeal No. 36 of 1958; Criminal Reference No. 51 of 1957; Criminal Revision No. 323 of 1957; Criminal Revision No. 14 of 1957
Neutral citation: 1960 SCR (1) 726
Proceeding type: Criminal Appeal (special leave)
Source court or forum: Supreme Court of India
Source Judgment: Read judgment
Factual and Procedural Background
The respondents, Hiralal Kejriwal and another, were the proprietors of the firm M/s Patna Textiles, which carried on the cotton trade in Patna. On 30 August 1955 they dispatched two bales of saris from Patna Ghat to M/s Hiralal Basudev Prasad, a cloth‑merchant of Balia, without obtaining a permit from the Textile Controller. The dispatch was alleged to have contravened section 3 of the Cotton Textiles (Control of Movement) Order, 1948, which had been issued under the Essential Supplies (Temporary Powers) Act, 1946.
The respondents were prosecuted before the Court of the Munsif‑Magistrate, Patna under section 7 of the Essential Commodities Act, 1955 read with the 1948 Order. They filed a petition before the Munsif‑Magistrate seeking discharge on the ground that the Essential Supplies (Temporary Powers) Act, 1946—under which the Order had been made—had ceased to have effect on 26 January 1955, and therefore the Order no longer possessed legal force. The Munsif‑Magistrate rejected the petition.
The Additional Sessions Judge, Patna, transmitted the record to the Patna High Court under section 438 of the Code of Criminal Procedure, expressing the opinion that the Munsif‑Magistrate’s order was erroneous and should be set aside. The respondents also filed a revision against the Munsif‑Magistrate’s order. The High Court, hearing both the reference and the revision, set aside the Munsif‑Magistrate’s order and directed that the accused be discharged.
The State of Bihar filed a criminal appeal by special leave (Criminal Appeal No. 36 of 1958) against the High Court’s judgment dated 9 May 1957. The appeal was heard by the Supreme Court of India, which exercised its discretionary jurisdiction under Article 136 of the Constitution.
Issues, Contentions and Controversy
The Court was called upon to determine (i) whether the Cotton Textiles (Control of Movement) Order, 1948—made under the Essential Supplies (Temporary Powers) Act, 1946—remained in force on 30 August 1955 by virtue of the saving provisions contained in the Essential Commodities Ordinance, 1955 and the Essential Commodities Act, 1955; (ii) whether, if the Order survived, the prosecution of the respondents under section 7 of the Essential Commodities Act, 1955 was legally valid; and (iii) whether the Supreme Court should entertain the special leave appeal in view of the alleged procedural irregularities and the lapse of more than four years since the alleged offence.
The State of Bihar contended that section 16 of the Essential Commodities Ordinance, 1955 saved any order that was in force immediately before the Ordinance commenced, and that section 16(2) of the Essential Commodities Act, 1955 further saved such orders after the Ordinance was repealed. Accordingly, the State argued that the 1948 Order continued to be operative on the date of the alleged offence and that the prosecution was valid.
The respondents argued that the repeal of the Essential Supplies (Temporary Powers) Act, 1946 extinguished the 1948 Order because the saving clauses of the Ordinance and the Act did not apply to it. They maintained that the Order had ceased to have legal effect on 26 January 1955 and that the prosecution could not be sustained on a non‑existent order. The respondents also submitted that the matter was stale, having arisen more than four years earlier, and that the High Court had correctly rejected the belated application for leave to appeal under Rule 28 of the Patna High Court Rules. Consequently, they urged that the Supreme Court decline to entertain the special leave petition.
Statutory Framework and Legal Principles
The relevant statutory scheme comprised:
Essential Supplies (Temporary Powers) Act, 1946 – the parent enactment under which the 1948 Order was issued; it ceased to have effect on 26 January 1955.
Essential Commodities Ordinance, 1955 – promulgated on 21 January 1955 and brought into force on 26 January 1955. Section 16 of the Ordinance contained two complementary parts: (a) any order in force immediately before the Ordinance commenced was deemed to be made under the Ordinance and would continue in force; and (b) the appointments, licences or directions issued under such an order were saved until superseded.
Essential Commodities Act, 1955 – enacted on 1 April 1955, repealing the Ordinance. Section 16(1)(b) repealed “any other law” except the Ordinance itself, and section 16(2) mirrored the saving provision of the Ordinance, deeming orders that were in force immediately before the Act’s commencement to be saved.
The Court applied a purposive and harmonious construction, insisting that the two parts of section 16 of the Ordinance be read together and that the saving provision of the Act be interpreted in conformity with the legislative intent to preserve existing orders despite the repeal of the parent enactments.
Court’s Reasoning and Application of Law
The Court first examined the textual relationship between the two parts of section 16 of the Essential Commodities Ordinance, 1955. It held that the first part conferred a deeming provision, while the second part expressly saved the substantive effects of the orders, licences and directions issued under them. Both parts were required to operate in tandem to give effect to the legislature’s intention of preserving the legal force of existing orders and the acts done under them.
Turning to the Essential Commodities Act, 1955, the Court observed that the repeal clause in section 16(1)(b) applied only to “any other law” and did not repeal an order that had already been saved by the Ordinance. Consequently, section 16(2) of the Act revived the saved order, making it operative under the new statutory framework.
Applying this construction to the facts, the Court concluded that the Cotton Textiles (Control of Movement) Order, 1948 remained in force on 30 August 1955. Therefore, the respondents’ dispatch of two bales of saris without a permit constituted a contravention of a valid statutory requirement, rendering the prosecution under section 7 of the Essential Commodities Act, 1955 legally sustainable.
Having established the validity of the prosecution, the Court then addressed the procedural aspect of the appeal. It noted that the alleged offence had occurred more than four years earlier and that the special leave petition was filed after a considerable delay. The Court also identified procedural defaults, including the respondents’ failure to file the application for leave to appeal within the period prescribed by Rule 28 of the Patna High Court Rules. Relying on the doctrine of staleness and the lack of a compelling public interest, the Court exercised its discretion under Article 136 to decline to entertain the appeal.
Final Relief and Conclusion
The Supreme Court dismissed the appeal filed by the State of Bihar. It declined to exercise its discretionary jurisdiction under Article 136, holding that the matter was stale and that procedural deficiencies precluded the grant of special leave. Consequently, the order of the Patna High Court directing the discharge of the respondents remained ineffective, and the prosecution was deemed to have been validly launched. No further relief was granted to either party.