Das, J.These three applications, in revision arise out of three separate oases. They have, however, been heard together, because of a common question of law which arises in them. I shall first deal with the common question of law and then deal with the facts of each case separately, so far as those facts are material for the contentions raised before us.

2. The common question of law which has been raised is the effect of the expiry of the Defence of India Act and the Rules made thereunder on the convictions recorded and the sentences passed in these three cases. For the purpose of considering the question of law, it is sufficient to state that in criminal Revision No.845 of 1946, the two petitioners have been convicted and sentenced under Rule 81(4) of the Defence of India Rules for the contravention, of certain notifications made by the Governor of Bihar in exercise of the powers conferred by Sub-rule (2) of Rule 81, Defence of India Rules. The contravention took place on 15th May 1945 and related to the despatch of some bags of rice by Shree Sita Ram Rice, Mills of Nirmali of which petitioner Ram Pal Singh was the proprietor and. petitioner Gulabchand Rai was the Manager. The prosecution case was that the bags of rice had been despatched from Nirmali to a place in the Muzaffarpur District in contravention of certain notifications made by the Governor of Bihar relating to the transport of rice from one district to another. In Criminal revision No. 867 of 1946 the petitioner is one Sad ho Rai. He was convicted and sentenced under Rule 81(4) read with Rule 121, Defence of India Rules, for a contravention of a similar notification relating to the transport of rice from one district to another. In Criminal Revision No. 1264 of 1946 the petitioner 19 Haricharan Bhagat. He was convicted and sentenced u/s 81(4), Defence of India Rules, for contravening the terms of a licence granted to him under Clause 3, Bihar Cotton Cloth and Yarn (Control) Order, 1945.

3. Now, the point of law which has been urged before us on behalf of the petitioners is that the Defence of India Act, the rules made thereunder, the orders and Notifications made under the Rules all ceased to have any effect after 30th September 1946, and the expiry of the said Act, Rules, Orders and Notifications must now be given effect to by setting aside the convictions and sentences passed against the petitioners, Sub-section (4) of Section 1, Defence of India Act, 1989, as it originally stood, said that "the Act shall remain in force during the continuance of the present war and for a period of sis months thereafter." Ordinance X of 1946 passed by the Governor-General on 5th February 1946, determines the date of the termination of the present War for certain purposes. It says, inter alia, that for the purposes of any provision made after 2nd September 1939, in any enactment or in any notification, rule or order under any enactment etc., making any reference, to the present war or the present hostilities, the present war arid present hostilities, shall, unless the subject or context otherwise, requires be deemed to continue to, and to end on, the day on which the Proclamation of Emergency made on 3rd; September 1939 u/s 102, Government of India Act, 1935, is revoked. It is stated that the Proclamation was revoked on 1st April 1946, and therefore the period of six months during which the Defence of India Act remained in force under Sub-section (4) of Section 1 of the Act expired on 30th September 1946. So far the argument of learned Counsel for the petitioners appears to be unassailable. On 30th March 1946, (that is a day before the revocation of the Proclamation of Emergency), the Governor General made and promulgated the Defence of India (Second Amendment) Ordinance, 1946, and to Sub-section (4) of Section 1 Defence of India Act 1939, were added the following provisions, namely:

but its expiry under the operation of this Sub-section shall not affect (a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or order made under any such rule, or (b) any right, privileges, obligation Or liability acquired, accrued or incurred under this Act or any rule mode there under or any order made under any such rule, or (c) any penalty,, forfeiture or punishment incurred in respect of any order made under any such rule, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not expired.

4. If these provisions were validly enacted, then there can be no doubt that the contention raised on behalf of the petitioners must fail. Learned Counsel for the petitioners has very frankly conceded this, but has argued that the Defence of India (Second Amendment) Ordinance, 1946 is ultra vires of the Governor-General as the Ordinance-making authority. This is a point which I shall presently consider. To the contention raised on behalf of the petitioners, there is, however, a short answer, which does not depend on, nor need invoke the aid of, the provisions of Ordinance XII of 1946, namely, the Defence of India (Second Amendment) Ordinance 1946. Now I propose to explain this answer before going on the provisions of Ordinance XII of 1946.

5. It is now well settled that there is ft difference between temporary statutes and statutes which are repealed. The leading authority on1 this point is Steavenson v. Oliver (1841) 8 M & W 234 where Parke B. expressed the distinction in the following words (at p. 241 of the report):

There is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed ; but With respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction.

6. We are not in the present case dealing with a repealed statute and I do not, therefore, pause to consider the effect of the Interpretation Act, 1889, Section 38(2)(c) and (d), which provides that the repeal of an Act passed after the commencement of the Interpretation Act shall, not unless the contrary intention appears, affect any liability incurred or affect any penalty or punishment incurred in respect of any offence committed against any enactment so repealed, etc., nor is it necessary to consider the corresponding provisions in Section 6, General Clauses Act, 1897, which makes a similar provision with regard to Indian Law. I have already said that we are not dealing here with a repealed statute, and Section 6, General Clauses Act, 1897, refers to a Central Act or Regulation. In a decision of this Court in 23 pat. 2403 it has been held that the Defence of India Rules are not a Central Act or a Regulation within the meaning, of Section 6, General Clauses Act, 1897, and nothing in Rule (1), Defence of India Rubs, which applies the General Clauses Act, 1897, to the interpretation of the Defence of India Rules, can extend the scope of Section 6, General Clauses Act, 1897. It is sufficient to state that even the repeal of a statute does not invalidate transactions already completed under the repealed statute. This is made clear in the observations of Parke, B., quoted above. Maxwell on the Interpretation of Statutes has put the matter thus:

Where an Act expired or was repealed, it wag formerly regarded. In the absence of provisions to the contrary, as having never existed, except as to matters and transactions post and closed. Where, therefore, a penal law was broken, the offender could not be punished under it, if it expired before he was convicted, although the prosecution was begun while the Act was still in force.

7. Maxwell has quoted in support several English decisions: Key v. Goodwin (1830) 6 Bing. 576; Surtees v. Ellion (1829) 9 BC 750, etc. It hag been observed by Lord Goddard C.J. in a very recent decision, R. v. Wicks 1946(2) All. E.R. 529:

There are dicta both by the Chief Baron and by Alderson, B. in Steavenson v. Oliver (1841) 8 M. & W. 234 which go further, and appear to any that in any case where a man offends against a temporary statute he can be convicted and punished after its expiration but this is contrary to the older cases which were not cited to the Judges, in particular, Millers case 96 E.R. 259 and R. v. Mckenzi (1820) 168 E.R. 881.

8. The position under a temporary statute, so far as transactions already completed are concerned, cannot be worse than under a repealed statute. To hold otherwise would mean that a person who commits an offence against an Act of a temporary nature and is punished for disobeying the Act during its existence as a law is to become "dispunished" on its ceasing to exist. In Steavenson v. Oliver (1841) 8 M. & W. 234 Alderson, B. expressed himself specially against any such contention. In all the three cases before-us the convictions of the appellants had been recorded and the appeals by them disposed of before the expiry of the temporary statute. In cri Rev. No. 845 of 1946 the offence was committed on 15-5-1946, and conviction was recorded on 22-8.1946. The appeal was disposed of on 1-5-1946. In Cri. Rev. No. 867 of 1946 the offence was committed on 19-1-1946, conviction was recorded on 18-4-1946, and the appeal was disposed of on 25-5-1946. In cri. Rev. No 1264 of 1946, the offence was committed on 2-9-1945, conviction was recorded on 16-5-1946, and the appeal was disposed of on 7-9-1346. Therefore, in all the three oases the proceedings for the prosecution had coneluded before the expiry of the temporary statute. In two of the cases the applications in revision were filed when the temporary statute was in force. In the third case the application was filed after the expiry Of the statute. The applications in revision have no doubt been heard after the expiry of the statute. This in my opinion makes no difference. In revision, this Court exercises a discretionary power, and it can never have been intended that transactions which had already been legally completed under a temporary statute should be reopened under the discretionary powers-of this Court. It is also to be noted that all necessary proceedings for the punishment of the offenders had been taken by the Crown during the time the statute was in force, and the right of appeal which the offenders had under the law, had also been unsuccessfully exercised within that time. Dealing with the question of temporary statutes in B. Bansgopal v. Emperor AIR 1983 All. 669 Sulaiman C.J. had stated:

According to the English Law, as a general rule, unless there is a special rule to, the contrary, after temporary act has expired no proceedings" can be taken upon it and it ceases to have any further effect. It would follow that an offence committed against a temporary Act must be prosecuted and punished before the act expires, and as soon as the Act expires any proceedings which had been taken against a person will ipso facto terminate.

In that case it was further observed as follows:

Once a person has been convicted and sentenced it is altogether immaterial whether an Act on which the order of the Court was based expires or is subsequently repealed. The continuance of the punishment is not in consequence of the operation of Section 6, General Clauses Act any longer, but is by virtue of the order of a competent Court though it was based on the Act before it was repealed.

9. In the cases before us the proceedings against the petitioners had terminated; and the; petitioners had been punished before the expiry of the Act. That being the position, the petitioners cannot now be "dispunished", to borrow the Expression used by Alderson, B. after the expiry of the temporary statute. This, in my opinion, is the short answer to the contention raised on" behalf of the petitioners. A similar view can be inferred from the observations made by Lord Goddard C.J. in R. Wicks 1946(2) All. E.R. 529 referred to above. Dealing with the contention that a particular provision in the Emergency Powers (Defence) Act, 1939, covered only past and completed acts, the Lord Chief Justice observed:

Now if this Sub-section operates only on matters past and completed, it may well be asked what object there was in enacting it at all. A competent authority or administrator under the Act would not require it for his protection after the Act had expired, provided what had been done or omitted there under was authorised by the Act at the time of the act or omission. To take an example, if after the expiration an action of trespass, either to the poison or to property, were brought against an officer of the Crown alleging detention without trial Or taking possession of land against the will of the owner, he could plead that, at the time he did the act complained of, it was justified by the law then in force.

10. This shows that for past and, completed acts no special provision was necessary. The special provisions made in Ordinance XII of 1946, no doubt, cover past and completed proceedings, as, also proceedings instituted but not completed. We are, however, considering the matter as though there were no such special provisions. In my view the expiry of the Defence of India Act, the Rules made thereunder, the Orders and Notifications made under the Rules does not, in any way, affect proceedings, which had terminated and been completed before the expiry of the said Act, Rules, Orders and Notifications.

11. I now come to Ordinance XII of 1946. The Ordinance was made and promulgated by the Governor. General in exercise of the powers conferred by Section 72, Government of India Act, as set out in Schedule 9, Government of India Act, 1986. Under that section the Governor-General may, in case of emergency make and promulgate ordinances "for the peace and good Government in British India or any part thereof." The Election further says that the Ordinance has the like force of law as an Act passed by the Indian Legislature. The , as it Originally stood, makes the Ordinance valid for a period of six months only. By amendments made by the India and Burma (Emergency Provisions) Act, 1940, the words "for the space of not more than his months from its promulgation" were suspended during the period specified therein, which period came to an end on 1-4-1946, under the India and Burma (Termination of Emergency) Order, 1946. Learned Counsel for the petitioners has contended before us that the Governor-General could not by Ordinance directly amend an Act, of the Indian Legislature; and therefore, the Ordinance in question is ultra vires of the powers of the Governor-General u/s 726 of Schedule 9. This very contention was raised before the Federal Court in AIR 1943 75 (Federal Court) . Their Lordships pointed out that the question in, the. broad form in which it had been put lit that case was not capable of a comprehensive answer, and considered it unnecessary to pronounce any decision on that question, in the view which their1 Lordships took of another section of Ordinance 14 [xiv] of 1943 which was the Ordinance under consideration in that case. It was, however, pointed out by their Lordships that as regards subject matter and local extent the powers of the Ordinance-making-authority were coextensive with those of the ordinary Legislature, but there were two limitations upon its powers as to the circumstances in which the powers could be: exercised, and (2) the limitation as to the time during Which any measure enacted by Ordinance-making authority Would remain in, operation. The first limitation related to the existence of an emergency, and it was pointed out that the Court could not go behind a declaration of emergency made by the Ordinance-making, authority. The case went up to the Privy Council, and was decided on a ground Which relieved their Lordships, as observed by Lord Thankerton who delivered the judgment of their Lordships, from any consideration of Ordinance 14 [xiv] of 1943. In AIR 1944 86 (Federal Court) the validity of the Restriction and Detention Ordinance 3 [III] of 1944) was questioned before the Federal Court and dealing with that, question it was pointed out by their Lordships that the words "for the peace, and good Government in British India" were words of the Widest amplitude the argument was again raised as to the poiyer of Ordinance-making authority to repeal a provision of an independent legislative measure, but it was stated that the argument did not call for determination in that case; It was, however, observed that it would-be too much to maintain that no Ordinance could contain any provision inconsistent with a provision contained in any Act of the Legislature. In AIR 1945 48 (Privy Council) the power of the Ordinance-making authority tinder Section 72 was considered by their Lordships of the Privy Council and it was observed as follows:

Assuming that the condition as to emergency ,is fulfilled, the Governor-General acting under para. 72 may repeal or alter the ordinary law as to the revisionary jurisdiction of the High Court, just as the Indian Legislature itself might do.

The question in that case was whether the Governor-General could exclude the revisional and appellate powers of the High Court in cases dealt with by the Special Courts constituted under the. Ordinance, and the question, had special reference to Section 228, Government of India Act, 1935. It was, however, pointed out that the Governor-General acting under para. 72 might repeal or alter the ordinary law, as to the revisionary jurisdiction of the High Court, just as the Indian Legislature might do. In the case of the Defence of India Act, 1939, the Indian Legislature could certainly amend it. I do not see why the Governor-General cannot do the same in exercise of the powers given to him u/s 72, provided the restrictions mentioned therein are not exceeded. It has not been shown to us that in making and promulgating Ordinance 13 [XII] of 1946 the Governor-General has exceeded or ignored the restrictions, imposed upon him by Section 72. As to the emergency there is a clear recital in the preamble, and as pointed out by their Lordships of the Privy Council in AIR 1945 48 (Privy Council) , the question whether an emergency existed at the time when the Ordinance was made and promulgated was a matter of which the Governor General was the sole Judge. The other restriction as to time also does not appear to have been exceeded because the Governor-General has merely incorporated certain provisions regarding the effects of the expiry of the temporary statute. It was not all attempt to amend a permanent enactment of the Legislature, as distinguished from an attempt to amend an act of limited duration, a distinction which was pointed out by their Lordships of Federal Court in AIR 1943 75 (Federal Court) . I must confess that there may be some difficulty regarding that part of the provisions of the Ordinance which allows legal proceedings to be "instituted" after the expiry of that it may be argued that that is legislating for the future and for an indefinite period. That question does not, however, arise in the present case, and the Ordinance cannot be held to be ultra vires on that ground, that part being clearly severable from the rest of the provisions.

12. For the reasons given above, I am unable to accept the contention that Ordinance 12 [XII] of 1946 was ultra vires of the powers of the Governor-General u/s 72 as set out in Schedule 9, Government of India Act, 1935. The provisions of this Ordinance place the matter beyond any doubt whatsoever. It states that the, expiry of the Act shall not affect any penalty, forfeiture or punishment incurred in respect of any contravention of any rule made under any Act or of any order made under any such rule. The conviction made and punishment imposed on the petitioners cannot, therefore, be set aside on the ground that the Defence of India Act and the Rules made thereunder have expired after 30th Setpember, 1946.

13. It remain now to consider the facts of each caser It would be convenient to take up each application separately. In Criminal Revision No. 845 of 1945 case was that Shree Sita Bain Rice Mills, of which petitioner Rampal Singh was the proprietor arid petitioner Gulab chand Bai wad the Manager had despatched rice to a place in Muzaffarpui in contravention of a permit which had been granted to the Mills for the despatch of "khudi" only from Nirmali to Bhagwanpur. The Courts below have found these facts to be clearly established by the evidence in the record, and nothing has been stated before us which should lead us to think that any error had been limited by the Courts below. There was one document, Ex. 1 regarding the admissibility of which there was some doubt. The Court appeal below has however, considered the case leaving Ex. 1 out of consideration. The only substantial point which has been argued before us is that Gulabchand Rai, the manager, could not be made liable for the following reasons. The prosecution case was that the bags there loaded by some coolies under the supervision of a employee of the name Balak Tewari, of the Rice Mills. The defence of the petitioners was that the loading had been by mistake. The plea of mistake has, however, been negatived by the Courts below for very good grounds. The proprietor of the Mills was undoubtedly responsible for the act of his servant done within the scope and authority of his employment Gulabchand was not present at the time of the loading, nor was the employer. He was merely another employee of the Rice Mills. I do not, therefore, think that Gulabohand can be held liable for act of another employee namely Balak Tewari. The only person who can be held liable for a contravention of the permit is Rampal Singh, who is responsible in law for the acts of his servant done within the scope and authority of the latters employment. In Criminal Revision No. 867 of 1946 the point which has been urged before us is that the petitioner had been prejudiced by the amendment of the charge at a very late stage of the trial. In my opinion, there was no prejudice. What happened was that Rule 121 of the Defence of India Rules was not mentioned in the charge at first. This was subsequently added and the petitioner was given a further chance to cross-examine prosecution witnesses and adduce any additional evidence, if he so liked. From the very beginning the prosecution case was that the petitioner had taken some bags of rice to Gerhi Ghat for the purpose off taking them by boat across the river to another district. The petitioner was sitting on 42 bags of rice when he was questioned by the Food Grain Inspector. The petitioner admitted that he was waiting to take the bags of rice to the district, of Saran on the other side of the river. It has, been contended before us that the statement of the petitioner to the Food Grain Inspector was not admissible in evidence. The Food Grain Inspector was not, however, a police officer, and there is nothing to show that the statement was made as a result of any threat, inducement, etc. The Court of appeal below, however, has not decided the case on, the basis of the statement made by the petitioner. It has decided the case on the other evidence in the record, and has come to the finding that the petitioner was doing an act preparatory to a contravention of certain notifications forbidding the transport of rice from one distrust to another In my opinion, the petition has no merit.

14. In Criminal Revision No. 1264 of 1946, the petitioner has been found to have contravened the terms of a licence granted to him under Clause 3 of the Bihar Cotton Cloth and Yarn (Control) Order, 1945. Learned Counsel for the petitioner has made a gallant but unsuccessful effort before us to show that there was no contravention of the terms of the licence. It appears that house and the shop of the petitioner was searohed on and Sept. 1945, by a Magistrate, and on verification of the stock register it was found that there was, a shortage of several pairs of dhotis and saris, 949 yards of other cloth, 13 chaddars and 3 towels. It has been contended before us that the Magistrate did not count or measure certain cut-pieces, nor did he take account of the transactions of the day. These points have been sufficiently dealt with by the Court of appeal below. The shortage in towels and chaddars cannot be accounted for by cut-pieces. I am therefore, of the view that the petitioner had been rightly convicted of contravening the conditions of the licence granted to aim.

15. In the result, I would allow the application of Gulabchand Rai in Criminal Revision No. 865 of 1946. The conviction and sentence passed against him are set aside. He is discharged from bail. The applications of the other petitioners fail, and are dismissed. There are no grounds for interference with the, sentences passed. Those of the petitioners other than Gulabchand Rai who have been sentenced to imprisonment must now surrender themselves to their bails and serve out the sentences imposed on them.

Agarwala Ag. C.J.

I agree.