Jiamalingatn v. The Jajfnu Central Bus Co., Ltd.
1954Present: de Silva J.M. RAMALINGAM (Office Assistant to the Government Agent,Northern Province), Appellant, and THE JAFFNA CENTRAL0BUS CO., LTD., Respondent
S. C. 764—M. C. Mallakam, 6,447
J interpretation Ordinance (Cap. 2)—Section 6—Prosecution uiulera repealed Ordinance—
Retrospective effect on it of repealing statute—Motor Car Ordinance, No. 43
»J 193S, ss. 29 (1), 150 (/), 158—Motor Traffic Act, No. 14 of 1951, s. 243.
Where an offence is committed in contravention of an Ordinance which issubsequently repealed the prosecution in respect of it may, by virtuo ofsection 6 (3) (6) of the Interpretation Ordinance, bo instituted oven uftor thorepealing statute comes into force, unless tho repealing statuto expresslyprohibits it. Section 6 (3) (6) of tho Interpretation Ordinance is independent<>f section 6 (3) (c).
The accused was charged on July 3, 1953, with huving possessed ori April 1,1050, a motor vehicle without a licence in contravention of section 20 (1) of theMotor Car Ordinance, No. 45 of 1038:Tho Motor Car Ordinance was, however,
repealed on September 1, 1951, by section 243 of the Motor Trofiic Act, No. 1 4 of1951.
Held, tliut tliu prosecution was maintainable.
XIPPEAL from a judgment of the Magistrate’s Court, Mallakam.
//. .4. Wijemanne, Crown Counsel, with V. S. A. Pullenayagam, CrownCounsel, for the complainant appellant.
t ’. Renyanathan, with V. K. Palasunderam, for the accused respondent.
Cur. adv. vult.
D£ SILVA J.—JtamaUngam v. 2%* Jaffna Central But Co., Lid.
November 16, 1964. »E Silva J.—
The complainant-appellant who is the Office Assistant to the Govern-ment Agent, Northern Province,, reported to the Magistrate’s Court ofMallakam on the 3rd July, 1953, that the accused-respondent did, in orabout the 1st April, 1950, in contravention of section 29 (1) of the MotorCar Ordinance No. 45 of 1938, possess a Motor Vehicle boaring registerednumber X 5355 for which a licence was not in force on 1st April, 1950, andthe said accused-respondent had thereby committed an offence undersection 158 read with section 160 (1) of the said Ordinance. To thischarge the respondent on 7th August, 1953, pleaded not guilty.
When the case came up for trial on 27th May, 1954, the proctor whoappeared for the defence submitted to the Court that the prosecutioncould not be maintained because the Motor Car Ordinance No. 45 of 1938had'been repealed by section 243 of the Motor Traffic Act No. 14 of 1951. 'After hearing the arguments addressed to him by the proctor for the- respondent and the Crown Counsel who appeared for the prosecution, thelearned Magistrate by his order dated 17th June, 1954, upheld the objectionraised by the defence and acquitted the respondent. The complainanthas appealed, with the sanction of the Attorney-General, from that order.
As stated above the respondent is charged with the contravention ofsection 29 (1) of the Motor Car Ordinance. No. 45 of 1938. The date of thealleged offence is 1st April, 1950. The case was instituted on 3rd July,
The Motor Car Ordinance No. 45 of 1938 was repealed by section243 of Motor Traffic Act No. 144of 1951 which came into operation on1st September, 1951. Admittedly no provision was made in this Act forpast contraventions of section 29 (1) of the Motor Car Ordinance of 1938in respect of which legal proceedings had not been taken. The effect ofsuch a repeal, it is contended on behalf of the respondent, is as stated byTindal 0. J. in Kay v. Goodwin 1 (decided before the Interpretation Actof 1889) where he says “ I take the effect of repealing a statute to be toobliterate as completely from the records of the Parliament as if it hadnever been passed ; and it must be Considered as a law that never existedexcept for the purpose of those actions which were commenced, prosecutedand conducted whilst it was an existing law ”. Mr. Wijemanne, C.C., whoappeared for the appellant, however, argued that no such drastic resultwould ensue by this repeal of the Motor Car Ordinance of 1938 in view ofthe provisions of section 6 (3) of the Interpretation Ordinance of 1901(Cap. 2). This section reads as follows :—
6 (3). Whenever any written law repeals either in whole or part aformer written law, such repeal shall vnot,.in the absence of any expressprovision to that effect, affect or be deemed to have affected—
(а)the past operation of anything duly done or suffered under the
repealed written law ;'■
(б)any nffonoe committed, any right, liberty or penalty acquired or
incurred under the repealed written law ;
<7830) 6 Bing. 616.
DB SILVA J.—Ramalingam v. The Jaffna Central Hue Co., Ltd.
any action, proceeding, or thing pending or incompleted whenthe written law comes into operation, but every such action,proceeding, or thing may be carried on and completed as ifthere had been no euch repeal.
Mr Wijemanne relies on section 6 (3) (6) and contends that in spito ofthe repeal of the Motor Car Ordinance of 1938 the offence committedby the respondent before such repeal is kept alive and he is liable to beprosecuted and punished in respect of that offence. Mr. Renganathaufor the defence submits however, that section 6 (3) (6) cannot stand alonebut it is subject to section 6 (3) (c). According to him, and this view wasshared by the learned Magistrate, section 6 (3) (6) merely keeps alive theoffences, rights, liberties, or penalties acquired or incurred under the re-pealed written law for the purpose of punishing or enforcing them undersection 6 (3) (c). The latter section deals with actions, proceedings, &c.which were pending at the time of the repeal. Therefore it is argued thatonly those offences, rights, &c. referred to in section 6 (3) (b) in respectof which actions have been filed or proceedings instituted can be punishedor enforced as the case may be. Attention was also drawn to the fact thatin section 6 (3) (c) no reference is made to the institution of actions orproceedings whereas in Section 38 of the Interpretation Act of 188!)of England and section 6 of the General Clauses Act of 1897 of Indiawhich correspond to section 6 (3) of out Interpretation Ordinance expressprovision is made for the institution of proceedings in respect of the rights,privileges, penalties, &c. saved by those sections.
The contention that section 0 (3) (6) cannot stand by itself is quiteuntenable in my view. Sections 6 (3) (6) and 6 (3) (c) refer to two cate-gories of matters. Section 6 (3) (b) sets out in general the various matterswhich are saved after the repeal. If the defence contention is correct,then at the end of section 6 (3) (6) some such words as “ provided that anaction proceeding or thing has been instituted ” should have been in-serted. If tho intention of the legislature was to save only those rights,&c. in respect of which proceedings were pending effect to that intentioncould easily have been given by the insertion of the necessary words.It is clear from the language used in this section that there was no suchintention. The meaning of the words appearing in this section is neitherobscure nor ambiguous and therefore speculation regarding tho intentionof the legislature becomes unnecessary. The grant of a right implies thegrant of tho means necessary for its enforcement. Section 6 (3) (c) makesprovision for pending cases or proceedings as distinct from those mattersin respect of which no action has been taken at the time of the ropeal. Itwould appear that this section apart from saving pending cases, &c. (whichperhaps is not quite necessary in view of 6 (3) (6)) providos for the conti-nuity of the procedure under the repealed law in respect of them, eventhough the repealing law sets up a different procedure to be followed inthe proceedings taken under it.
If the defence contention that only those offences and rights in respect'of which proceedings were pending at the time of the appeal wore savedis correct then it would result in a serious encroachment on vested rights.
DE SILVA J.—Ramalingam v. The Jaffna Central Bus Co., Ltd.
It is not the policy of civilized countries, except for very good reason, tof deprive parties of the rights they have already acquired, by resorting toretrospecl ive legislation. If a particular law is to operate retrospectivelythere must be express provision in it to that effect. It is a well knownprinciple of judicial interpretation that the Courts would refuse to re-cognize a law to be retrospective unless it is clear from its provisionsthat it waB so intended. Section 0 (3) of the Interpretation Ordinanceprovides that in the absence of express provision to the contrary therepeal of a written law shall not affect the matters set out in section 6 (3)(ft).-
It is true that the corresponding sections in the English and the IndianActs make provision for the institution of actions and proceedings.That provision was made, probably, from an abundance of caution.Section 6 of the Indian Act is almost identical with section 38 of the •Interpretation Act of England. Section 6 (3) of our InterpretationOrdinance is more concise although it achieves the same result.
In the case of Akilandanayaki v. Sothinagaralnam et al.1 which wasdecided by a Bench of five Judges the effect of sections 6 (3) (6) and 6 (3) (c)was considered in relation to the Jaffna Matrimonial Rights and In-heritance (Amendment) Ordinance, No. 88 of 1947. It was contended inthat case that the provisions of that Ordinance were retrospective ineffect. Gratiaen J. who prepared the main judgment, with which theother judges agreed, held that in view of Section 6 (3) (6) the vestedrights of the plaintiff in Thediatheddam property were not affected bythe repealing Ordinance. It" was npj; even contended in that case thatsection 6 (3) (ft) was governed by.'gecti(m*6 (3) (c). It is true, however,that at the time the repealing Ordinance came into operation an actionbrought by the plaintiff in regard to the property involved was alreadypending. Gratiaen J., however, held that the plaintiff was entitled tosucceed under section 0 (3) (6) as well as under 6 (3) (c). In the light ofthis decision the order of the learned Magistrate cannot be upheld.Accordingly I set aside the order of acquittal and direct the Magistrateto proceed on with the trial.
Acquittal set aside.
M. RAMALINGAM (Office Assistant to the Government Agent , Northern Province), Ap
Jiamalingatn v. The Jajfnu Central Bus Co., Ltd.