PARLIAMENTARY DEBATES 315
Shri Shiv Charan Lal: So far as the Civil procedure code is concerned, an Order has not got much importance. But so far as the Criminal Procedure Code is concerned, Orders have the same force as an Act. I may point out that under the Defence of India Act, so many orders were passed by the different state Governments and these orders had the force of law. So if you are placing the words “Act, Ordinance and Regulation”, then the word “ Order” also must be there, because in the Criminal Courts, these Orders have the force of law. I do not mean the ordinary Orders, but Orders like the Cotton Yarn and Cloth control Order, the Sugar Control Orders and other such orders which have the force of law. They are sometimes challenged in the courts whether those orders are valid or not. Simply putting the word “Act” before will not do.
The other amendment of mine is that in sub-clause 2 of section 432 along with presidency magistrate if the words ‘sessions judge are added that will give a great scope for the Sessions Judge’ also to refer the matter to the high court. If the Minister accepts the amendments I will move them, otherwise not.
Dr. Ambedkar: With regard to the first amendment to clause 3 introducing the words “or order” the position is that an order is generally issued under a law made by the legislature. If the contention of a party is that the law under which the order is issued is ultra vires, then obviously the matter will have to be referred by the judge to the High Court, if he is satisfied with the contention. But if the contention of the party is that the law is valid but the order is not, then it is the deliberate intention of this Bill that such a matter should be decided by the subordinate judge or magistrate, because we do not propose to overburden the High Court with all kinds of litigation which can be easily determined by the subordinate judge and it does not affect the generality of the public but the particular individual affected by that legislation.
With regard to the last amendment seeking to extend the privilege or the opportunity given to the presidency magistrate, to sessions judges, if he will refer, for instance, to sections 436,