JUDGMENT M. Karpaga Vinayagam, C.J. 1. C.B.I initiated the proceedings against the petitioner under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, before the court below for grant of ad interim order of attachment of the properties detailed in their application and further for making the same absolute as envisaged under Section 5 of the Ordinance, 1944. After passing ad interim order of attachment, the court below initiated proceedings and issued notice to the petitioner. The petitioner, on receipt of the notice, appeared before the learned Special Judge, and filed an application for dropping the proceedings initiated against him, as the Ordinance, 1944, is not an existing law. The said application was rejected. Hence, this writ petition has been filed before this Court seeking for quashing of the order dated 29.6.2006. 2. The short facts are as follows: In pursuance of the orders passed by the High Court and the Supreme Court, investigation of certain cases relating to Fodder Scam had been taken up by C.B.I. against several accused persons including the father of the petitioner. On 25.1.2000 C.B.I. filed an application under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, for ad interim order of attachment of properties and also for making the same absolute as envisaged under Section 5 of the Ordinance, 1944. The petitioner, seeking for the dismissal of the same, filed an application before the Special Judge stating therein that the proceedings under the Ordinance, 1944, is unconstitutional as the Criminal Law (Amendment) Ordinance, 1944, is not an existing law. However, the learned Special Judge, alter hearing both, held that the Criminal Law (Amendment) Ordinance, 1944, is an existing law and rejected the application by order dated 29.6.2006. 3. Challenging the same, this writ petition has been filed. The learned Counsel for the petitioner would make the following contentions: The Criminal Law (Amendment) Ordinance, 1944, was promulgated during the subsistence of emergency, i.e. between 27th June, 1940 and 1st April, 1946. The very power of the promulgation of emergency under Section 72 of 9th Schedule of Government or India Act, 1935 has been deleted by the Indian (Provisional Constitution) Order, 1947. Since the very power under which the Ordinance had been promulgated during subsistence of the emergency has been deleted from the appointed day, it cannot be said that the Ordinance, 1944, was in existence on the appointed day. Since the very power under which the Ordinance had been promulgated during subsistence of the emergency has been deleted from the appointed day, it cannot be said that the Ordinance, 1944, was in existence on the appointed day. Therefore, the proceedings initiated under Section 3 of the Criminal Law (Amendment) Ordinance, 1944, in view of the fact that it is not in existence, is illegal. 4. On the other hand, counsel for C.B.I would make the following submissions in reply: The argument advanced by the counsel for the petitioner that the Criminal Law (Amendment) Ordinance, 1944, has lost its force as on today has no legs to stand. The Ordinance, 1944, has come into force on 23th August, 1944 but it continues to be in force even after the enactment of the Constitution of India. The contention of the petitioner that because of the omission of 9th Schedule to the Government of India Act, 1935, including Section 72 thereof, the Criminal Law of (Amendment) Ordnance, 1944, has not been kept alive but has ceased to be in force on coming into force the Indian Independence Act on 15th August, 1947, cannot be accepted, in view of the fact that by virtue of Section 18(3) of the Indian Independence Act, Constitutionalists have kept that Ordinance in force Section 18(3) of the Indian Independence Act and Section 8(2) of the Government of India Act could not be modified by the Adaptation Order. Therefore, Ordinance XXXVIII of 1944 is still a good law. 5. We have are fully considered the contentions of both the counsel for petitioner and the counsel for the respondent-C.B.I. 6. As pointed out by the counsel for respondent-C.B.I, this point had been urged on the very same ground before the Patna High Court and the Patna High Court has decided that the Ordinance is still in force in (State of Bihar v. Santo Kumar Mitra and Ors.) According to the Patna High Court, on the date when the Indian Independence Act came into force on 15th August, 1947, power of the Governor General under the 9th Schedule was still available. Section 18(3) and 8(2) of the Indian Independence Act refer to continuance of the Government Act, 1935. Section 18(3) and 8(2) of the Indian Independence Act refer to continuance of the Government Act, 1935. It is, no doubt, true that the creation of Federation as envisaged by the British Parliament and enacted by way of Section 5 of 1935 Act had become incapable of being established under the Indian Independence Act, 1947, but that would not affect the power of the Governor General under the 9th Schedule and that power will be available so long as the 1935 Act continues to be in force. The fact that 1935 Act is continuing has been endorsed not only by the provisions of the Indian Independence Act of 1947 but also by Article 295 of the Constitution of India. 7. In this context, it is worthwhile to refer some of the observations made by the Division Bench of Patna High Court in AIR (39) 1952 Patna 148 (supra): The controversy, therefore, narrows down to this as to whether on account of the omission of the Ninth Schedule as indicated in G.G.O. 14 dated the 14th August 1947 known as the Indian (Provisional Constitution) Order, 1947, the Ordinance in question ceased to have force. And it has also to be seen if the construction that has been placed on the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, by the learned Judicial Commissioner is correct. The answer appears to me to be a simple one. Section 18(3) of the Indian Independence Act and Article 372(1) of the Constitution of India have kept the Ordinance alive and it is wrong to assume that because of the omission of the Ninth Schedule as indicated in the Schedule attached to G.G.O. 14, dated the 14th August 1947, this emergency Ordinance had ceased to operate. A careful reading of the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948, which is G.G.O, 37 dated the 23rd March, 1948, will show that the intention was to keep alive not only the Ordinance mentioned in this Order but also the other Ordinances. 8. The above observations made by the Division Bench of Patna High Court would apply in all fours to the present, case. Further, recently the Honble Supreme Court, in one of the cases reported in [2001] (3) Jhr. CR 5 (SC) (B.S. Sundari and Ors. v. State of Tamil Nadu), was considering the same law, i.e. the Criminal Law (Amendment) Ordinance, 1944. Further, recently the Honble Supreme Court, in one of the cases reported in [2001] (3) Jhr. CR 5 (SC) (B.S. Sundari and Ors. v. State of Tamil Nadu), was considering the same law, i.e. the Criminal Law (Amendment) Ordinance, 1944. The said appeal, which was preferred against the order of attachment, was dismissed by the Honble Supreme Court and the order passed under the Criminal Law (Amendment) Ordinance, 1944, was affirmed. Hence, there is no merit in this petition, which is accordingly dismissed. Narendra Nath Tiwari, J. 9. I agree.