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Criminal Revision No. 1010 of 1963, decided on 20th December 1963.
Revision admitted only on one point‑,4rguments, on merits of case on other grounds, not allowed.
‑Order under section cannot be permanent or semi permanent in effect.
Queen‑Empress v. Sheodin I L R 10 All. 115 and Ramanadhan Chetti v. Murugappa Chetti I L R 24 Mad. 45 ref.
Temporary statute Expiry by of flux of time‑Statute ceases to have effect except as to transactions past and closed (Obiter).
The Crown v. Haveli P L D 1949 Lah. 550 rel.
Shamim Ahmad Mirza for Petitioner.
S. M. Bashir, A. A.‑G. for Respondent.
Date of hearing : 16th December 1963.
This is a petition under section 435 of the Code of Criminal Procedure for revision of the order of the District Magistrate, Lahore, dated the 11th of November 1963, passed under section 144 of the same Code, prohibiting dancing in an establishment known as "People's Restaurant". The said order contains the following passage :‑
"This order shall take immediate effect and remain in force for a period of two months unless withdrawn or modified earlier.
Notwithstanding the expiry of this order, anything done, action taken, obligation, liability, penalty or punishment incurred, investigation, inquiry or proceedings pending juris diction or powers conferred shall be valid and continue to be valid and fresh proceedings against offenders in Court of Magistrates having 1st Class powers under the Code of Criminal Procedure, 1898, and their punishment in respect of the offences committed during the enforcement of this order shall be continued or launched as if this order had not expired."
2. The petition was admitted by a learned Single Judge of this Court for consideration of the second paragraph of the portion of the impugned order reproduced above.
3. Learned counsel for the petitioner attempted to argue the merits of the case, but the admitting order makes it clear that the only point on which the petition was admitted was that already referred to. Moreover, the learned Single Judge refused to suspend the operation of the impugned order, and if he had intended that the merits of the case should be gone into, he would undoubtedly have granted stay.
4. The paragraph under consideration is, so far as I am aware, unique in the context of an order under section 144, Cr. P. C., and I venture to express the hope that it may remain so.
5. The impugned paragraph is, in my opinion, clearly illegal. Subsection (6) of section 144, Cr. P. C., runs
"No order under this section shall remain in force for more than two months from the making thereof ; unless, in cases of danger to human life, health or safety, or likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise directs."
Orders under section 144 were thus clearly intended to be only temporary in their operation, and there is no lack of authority on the point that any attempt to give such an order permanent or semi‑permanent effect is illegal. For example, in Queen -Empress v. Sheodin (ILR 10 All. 115) a Nery eminent Judge, Mahmood, J., observed:
"Under the old Code, Act X of 1872, section 518 gave to Magistrates the power to issue orders in cases of obstruction, danger to human life, or riots, and the explanation to the section clearly shows that the Legislature in conferring this power intended it only to be applied to emergent matters. That section, however, did not prescribe any limitation or duration as to the duration of the order remaining in force; but a Full Bench of the Calcutta High Court in Gopi Mohun Mallack v. Taramoni Chowdhrani I L R 5 Cal. 7 concurred in holding upon general principles of the interpretation of such statutes that the Magistrate was not empowered to pass an order under section 518 of Act X of 1872 which would have more than a temporary operation, and that the grant of what is in effect an order for a perpetual injunction was beyond such magisterial jurisdiction. I follow the principles of that ruling, and I cannot help thinking that section 144 of the present Code, in modifying the law contained in the corresponding section 518 of the old Code, takes into account what Garth, C. J., said in the Full Bench case to which I have referred, and I say this because I find that whilst section 518 of the old Code was silent as to the duration of a Magistrate's order passed for the purposes mentioned, the present Code in the last paragraph of section 144 contains express provisions, saying that no order under this section shall remain in force for more than two months from the making thereof, unless in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the local Government by notification in the official Gazette, otherwise directs.' This, then, is the present law, and I think also was virtually the older law, though, of course, no duration was named in the older Code."
6. The above ruling was given under the Criminal Procedure Code of 1882, but the wording of the last subsection of section 144 of that Code is identical with subsection (6) of the present section 144 with the immaterial difference that the expression "local Government" has now been replaced by "Provincial Government". The principle laid down in the above authority has, therefore, full application to the facts of the present case.
7. Again, in Ramanadhan Chetti v. Murugappa Chetti (I L R 24 Mad. 45) it was held that an order passed under section 144 of the then Code of Criminal Procedure directing a person not to interfere with the management of a certain temple until another person should be duly evicted from the management by due course of law contravened the provisions of subsection (5) of section 144 of the Code of 1882 and was to that extent without jurisdiction.
8. On the above grounds alone the petition must succeed, but there is also another aspect of the matter. A perusal of the impugned paragraph of the order in dispute shows that the learned District Magistrate has apparently attempted to adapt for his own purposes the provisions of Article 250 of the Constitution of Pakistan without, however, taking into account on the one hand, the difference between an order under section 144 of the Code of Criminal Procedure and a statute and, on the other, the distinction between repeal and expiry by mere lapse of time. Even if the order of the learned Magistrate had enjoyed the status of a statute, which, of course, it does not, it would have been a temporary statute, and the law relating to such enactments has been laid down in The Crown v. Haveli (I L R 24 Mad. 45), a Full Bench decision, in which the main judgment was written by the present learned Chief Justice of Pakistan, as follows :‑
"The general law in relation to temporary statutes is that once such a statute has expired it ceases altogether to have effect as if it had never been except as to transactions past and closed. This result follows unless there be provision made in the statute itself for continuing the effect thereof in any respect."
In the present case the learned District Magistrate has attempted to secure permanence or semi‑permanence for the impugned order, a procedure entirely unknown to the law.
9. For the above reasons I accept the revision petition to the extent of holding that the impugned paragraph is ultra vires of the powers of the District Magistrate and consequently of no legal effect.
K. B. A.
Petition partly accepted.
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