Bombay High Court
K. N. Krishnamurthy vs The State Of Maharashtra And Anr on 5 April, 2017
Author: V.M. Kanade
Bench: V.M. Kanade, Revati Mohite Dere
WP/2841/2013 with
connected writ petitions
BDPPPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2841 OF 2013
Kahera Sayed .... Petitioner
V/s
The State of Maharashtra & Ors ..... Respondents.
WITH
CRI. WRIT PETITION NO.77 OF 2011
Anil Menghraj Gehi .....Petitioner
V/s
Charanjeet Singh Gehi & Ors ....Respondents.
WITH
CRI. WRIT PETITION NO.704 OF 2016
Rafique Dawood Kamdar & Anr. .....Petitioners.
V/s
The State of Maharashtra & Anr. ..... Respondents.
WITH
CRI. WRIT PETITION NO.2211 OF 2010
Manish Digambar Advilkar ..... Petitioner.
V/s
The State of Maharashtra ..... Respondent.
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WITH
CRI WRIT PETITION NO.3307 OF 2010
Dinesh Ramchandra Dubey .... Petitioner.
V/s
The State of Maharashtra ..... Respondent.
WITH
CRI. WRIT PETITION NO.3337 OF 2011
K.N. Krishnamurthy .... Petitioner.
V/s
The State of Maharashtra & Anr. ..... Respondents.
WITH
WRIT PETITION NO.3549 OF 2014
Raj Kumar Awasthi ..... Petitioner.
V/s
State of Maharashtra ..... Respondent.
Mr. Ayaz Khan, Zehra Charavin, Dilip Mishra for the Petitioner in Writ
Petition No.2211 of 2000.
Mr. Niteen Pradhan, Prashant Gavali, Malalaxmi Ganapathy, S.D.
Khot, Akanksha Agrawal i/b Mahalakshmi Ganapathy for the
Petitioner in WP/3337 of 2011
Mr. Rajkumar Awasthi Petitioner in person in Writ Petition No.3549 of
2014.
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Mr. Shivraj Kunchge a/w Altaf Khan and Tanveer Nizam, Anjali
Awasthi i/b Anjali Awasthi for the Petitioner in WP/2841/2013.
Mr. Niranjan Mundargi for the Petitioner in Writ Petition No.77 of
2011.
Ms Noorseema Baig a/w Sarfaras Khalife for the Petitioner in Writ
Petition No.704/2016.
Mr. S.K. Shinde, Public Prosecutor a/w Mr. K.V. Saste APP for the
Respondent/State.
------
CORAM: V.M. KANADE, S.C. GUPTE &
REVATI MOHITE DERE, JJ.
Reserved on : 16/12/2016
Pronounced on : 05/04/2017
ORDER:(Per V.M. Kanade, J.) 1] Heard the learned Counsel appearing on behalf of the respective Petitioner(s) in Writ Petition Nos. 2211/2010, 3337/2011, 2841/2013, 77/2011, Mr. Awasthi, the Petitioner appearing in person in Writ Petition No.3549 of 2014 and Mr. S.K. Shinde, the learned Public Prosecutor appearing on behalf of the State in all the aforesaid Writ Petitions.
2] This matter has been referred to us by the Hon'ble Chief Justice in view of difference of opinion between the view taken by Division 3/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:25 ::: WP/2841/2013 with connected writ petitions Bench (Goa Bench) in Vishwajit P. Rane vs. State of Goa and Ors 1 and by the Division Bench of this Court (Bombay Bench) in a group of Writ Petitions, the lead Writ Petition being Writ Petition No.2211 of 2010 (Shri Manish Digambar Advilkar vs. State of Maharashtra and 2 others) pronounced on 08/07/2011.
3] The Division Bench of this Court (Coram: B.H. Marlapalle & U.D. Salvi, JJ.) which has referred the matter for reconsideration has framed the following issues:
(A) Whether the powers under Section 10 of the Criminal Law Amendment Act, 1932 can be exercised by the State of Maharashtra after 1/4/1974 by reading the words "the Criminal Procedure Code 1973" in place of the words "Criminal Procedure Code, 1898" in view of the scheme of Section 8 of the General Clauses Act, 1897?
(B) Whether the State Government retains the power to issue a notification under Section 10 of the Criminal Law Amendment Act, 1932 after 1/4/1974 when the Code of 1898 has been repealed and unless in Section 1 2010(3) Bom.C.R. (Cri.) 341 4/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:25 ::: WP/2841/2013 with connected writ petitions 10(1) of the said Act the words "Criminal Procedure Code 1898" are substituted by the words "Criminal Procedure Code, 1973"?
(C) Whether the impugned notification amounts to amendment in the First Schedule to the Code of 1973, by the State Government, when the said notification is only for the limited area of greater Mumbai?
(D) Whether the notification dated 4/10/1962 issued by the State of Maharashtra is applicable to the area of greater Mumbai even after the Code of 1973 has been brought into force and the Code of 1898 has been repealed?
4] Mr. Pradhan, the learned Counsel appearing on behalf of one of the Petitioners submitted that the Criminal Law Amendment Act, 1932 is ultra vires to the Constitution of India. The said issue is similar to the issue raised by Mr. Awasthi, who is the Petitioner appearing in person. It will not be possible for us to consider these submissions since it is well settled that Reference Court has to decide only those points which have been referred for determination. Vires of the Criminal Law Amendment Act, 1932 was not referred for 5/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions reconsideration.
5] In order to decide the controversy, it will be necessary to consider in brief the issue raised in all these Petitions in which the relief prayed is common viz. (a) to quash the FIR registered for the offence punishable under Section 506 (II) of IPC and (b)) to set aside the Notification dated 04/10/1962 issued by the State of Maharashtra through its Home Department.
6] Criminal Procedure Code 1973 was brought into force with effect from 01/04/1974 and the Code of Criminal Procedure Code 1898 therefore stood repealed with effect from 01/04/1974. When the old Cr.P.C. was in force, the Criminal Law Amendment Act, 1932 (XXIII of 1932) was brought into force. Section 10 of the said Criminal Law Amendment Act, 1932 conferred powers on the Government of Maharashtra to make certain offences cognizable and non-bailable, notwithstanding anything contained in the Code of Criminal Procedure 1898 (5 of 1898). Relying on Section 10 of the Criminal Law Amendment Act, 1932, Government of Maharashtra issued Notification dated 4/10/1962 and made the offences punishable under section 506 (II) IPC as cognizable and non-bailable only within the limits of Greater Mumbai.
7] Division Bench of this Court (Bombay Bench) (Coram: B.H. Marlapalle & U.D. Salvi, JJ.) in its judgment dated 08/07/2011 6/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions delivered in a group of Writ Petitions, lead Writ Petition being Writ Petition No.2211 of 2010, however, did not agree with the view taken by the Division Bench of this Court (Goa Bench) in Vishwajit P. Rane (supra).
8] Mr. Awasthi, who is appearing in person, has submitted his written submissions. Apart from submitting that the said amendment was ultra vires to the Constitution of India which we have not permitted to agitate before this Court since no reference was made on that issue, the second point which he urged was that, Section 10 of the Criminal Law Amendment Act, 1932 stood repealed by necessary implication. He relied on the judgment of the Apex Court in Kishorebhai Khamanchand Goyal vs. State of Gujarat and Ors. 1 He submitted that the intention of the Parliament while enacting the new Cr.P.C. was different vis-a-vis the old Cr.P.C. and section 10 of the Criminal Law Amendment Act, 1932. In his written submissions he has given the following instances of distinction which appear in new Cr.P.C. and old Cr.P.C.:-
(a) Section 1(2) (proviso) of Old Cr.P.C.
expressly endows delegated Legislative Powers on the provincial Governments to modify the old Cr.P.C. to such excepted persons mentioned in Section 1(2)(a), (b), 1 (2003) 12 SCC 274 7/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions (c ) of the old Cr. P.C.
(b) Its corresponding provision in New Cr.P.C. can be found in Section 5 (Saving) which stipulates that in the absence of specific provision to the contrary, any special law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for time being in force shall continue. However, in present case, it can be seen that there is specific provision in new Cr.P.C. to the contrary than old Cr.P.C. as well as Section 10 of the 'said Act'.
(c) Different intention within the meaning of Section 8 of General Clauses Act, 1897 can also be seen in New Cr.P.C. vis-a-vis old Cr.P.C. from the definition of word "Prescribed" defined U/s. 2(t) of New Cr.P.C. whereby the prescribed means "prescribed by rules made under this code".
Perusal of Section 477 of New Cr.P.C.
shows that the rule making power has been given to this Hon'ble Court and the State 8/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions Government's role is to grant previous approval. These rules are required to be published in the official gazette. Thus, different intention appears ex facie that in old Cr.P.C. on one hand the power was delegated to the Provincial Governments to expressly carry out modification in old Cr.P.C. whereas, in new Cr.P.C., no such delegated powers are granted. Even the power of making rules has been endowed upon this Hon'ble Court and the role of State Government is confined only to grant previous approval. Therefore, when the Central Legislature has not intended to confer even the powers to frame the rules, it would be quite illogical, irrational to trace any intention in New Cr.P.C. conferring the powers on the State Government in the nature of delegated Legislative Powers.
(d) It is pertinent to note here that "Prescribed" was not defined in the old Cr.P.C., although, power to make rules were granted in the old Cr.P.C. initially to the "High Court" with previous sanction of the Government to make rules, forms etc under 9/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions Sec. 554(2). This was substituted in the year 1973 by words "Supreme Court" till the new Cr.P.C. came in force by way of Notification dated 01/04/1974.
(e) On the other hand, the intention in Criminal Law Amendment Act, 1932 is expressly conferring delegated legislative powers on the State Government (Provincial Governments) U/s. 10. This is certainly not the intention of the Parliament legislature in new Cr.P.C.
9] Mr. Awasthi then submitted that there is direct conflict between the new Cr.P.C. and the old Cr.P.C. and he has given the following instances:-
(a) "non-cognizable offence" is defined differently in the old Cr.P.C than new Cr. P.C. In old Cr.P.C., it is defined U/s. 4(1)(n) which confers discretionary power on the police to arrest or not to arrest even in the cases of 'non-cognizable offences' without warrant.
This shows that discretion was given to the Police to arrest or may not arrest without 10/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions warrant. In other words, Police may also arrest without warrant.
(b) Per Contra, in new Cr.P.C. 'non-
cognizable offence' is defined U/s. 2(l) which stipulates that the Police Officer has no Authority at all to arrest without warrant. Thus, it can be seen that the meaning of "non cognizable" for the purpose of Sec. 10(1) of the Criminal Law Amendment Act, 1932 and in the old Cr.P.C. is not the same but quite different than new Cr.P.C.
(c) New Cr.P.C. shows a different intention of the Legislature in the definition of 'bailable offence' u/s. 2(a) which expressly declares an offence [namely Section 506 of IP Code] as bailable in the First Schedule. Overriding the First Schedule of new Cr.P.C. [qua Sec. 506], sec. 10 of the said Act and impugned notification seek to declare it as 'non-bailable'. This different intention in Criminal Law Amendment Act, 1932 is to declare offence u/s. 506 of the IP Code as 'non-bailable', whereas, sec. 2(a) of the new Cr.P.C. directly 11/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions declares any offence (including sec. 506) as 'bailable' and only in default, any offence becomes 'non-bailable'. In new Cr.P.C., there is no intention to declare an offence directly as 'non-bailable' as contrary to the same existing in the Criminal Law Amendment Act, 1932.
(d) It is pertinent to note that in Schedule II of the old Cr.P.C., corresponding column no.4 of "Cognizable or Non-cognizable" of new Cr.P.C. is absent.
Mr Awasthi submitted that the four tests laid down in Kishorebhai Khamanchand Goyal (supra) are squarely applicable to the present case and therefore there is implied repeal.
10] He then submitted that since the provisions of later Act (new Cr.P.C.) are so inconsistent with and repugnant to the provisions of the earlier Act viz. the Criminal Law Amendment Act, 1932 that they cannot stand together and cannot be read together. He further submitted that under the provisions of Article 31-B of the Constitution, the Criminal Law Amendment Act, 1932 is not saved and it is not contained in List of the 9th Schedule. Reliance has been placed on the Judgment of the Allahabad High Court in Virendra Singh & 12/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions Others vs. State of U.P and others 1 (Paras 6 and 7). Lastly, he submitted that by virtue of entry no.2 enumerated in List III in the Seventh Schedule (Concurrent list), it is futile for the State Government to device any other procedure or mode to carry out any "deemed amendment" in the First Schedule of the new Cr.P.C. for limited area of Greater Mumbai and for any amendment under new Cr.P.C., State Legislature has to obtain assent of the Hon'ble President of India under Article 254(2) of the Constitution of India. He therefore submitted that the impugned Notification could not have been issued. He has also invited our attention to the object and reason of the Criminal Law Amendment Act, 1932, which shows that this provision was made to curb the situation which was created by 'civil disobedience movement' initiated by Mahatma Gandhi. He submitted that draconian powers were given to the Police in Colonial era by Legislative Assembly Department and this is not the object and reason existing today while enacting the new Cr.P.C. on 01/04/1974 or subsequently.
11] We have heard all the learned Counsels appearing on behalf of respective parties and also Mr. Awasthi who is appearing in person at length. We have gone through the relevant provisions and the Judgments on which reliance has been placed by the learned Counsels appearing on behalf of respective Petitioners, Mr. Awasthi who is appearing in person and the learned Public Prosecutor appearing on 1 2002 Cr.L.J. 4265 13/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions behalf of the State.
12] It will be necessary to state the brief background and to reproduce the relevant provisions.
13] The old Cr.P.C. 1898 was repealed by new Cr.P.C of 1973 which came into force on 01/04/1974. When the old Act was in force, the Criminal Law Amendment Act, 1932 was passed. Section 10 of the said Criminal Law Amendment Act, 1932 reads as under:-
"10. Power of State Government to make certain offences cognizable and non-bailable.- (1) The State Government may, by notification in the official Gazette declare that any offence punishable under Sec. 186, 188, 189, 190, 228, 295-A, 298, 505, 506 or 507 of the Indian Penal Code (45 of 1860), when committed in any area specified in the notification shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898) be cognizable and thereupon the Code of Criminal Procedure, 1898 shall, while such notification remains in force, be deemed to be amended accordingly.
(2) The State Government may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under Sec.
188 or Sec. 506 of the Indian Penal Code (45 of 1860), shall be non-bailable."
14] Perusal of the said section 10 clearly reveals that it is a delegated power to the State to declare that any offence under IPC mentioned in sub-section (1) when committed in area specified in the 14/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions notification, shall notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898) be cognizable and thereupon the Code of Criminal Procedure, 1898, shall while such notification remains in force, be deemed to be amended accordingly. Sub-section (2) also made an offence punishable under Section 188 or Sec. 506 of the Indian Penal Code (45 of 1860) non-bailable. Section 10 of the Criminal Law Amendment Act, 1932 delegates power to the State Government to amend the Act and it is accordingly deemed to be amended. For the purpose of exercising power delegated to it, it had to issue notification to that effect. There was no question of placing it before the Assembly since that power was already delegated to the State Government.
15] The Government issued Notification dated 4/10/1962 stating therein that the offence of criminal intimidation punishable under Section 506 IPC would be cognizable and non-bailable when committed in Greater Mumbai. The said Notification reads as under:-
"Government of Maharashtra Notification, Home Department (Special) No. S.B. I/CIA/1060/26953, dated the 4th October, 1962 as amended by Notification, Home Department (Special No. S.B. I/CIA/1061/27115 dated the 10th August, 1962 No. S.B. I/CIA. 1060/26963. In exercise of the powers conferred by section 10 of the Criminal Law Amendment Act, 1932 (XXIII of 1932) and in supersession of Government Notification, Home Department (Political) No. S.D. 7753, dated the 27 th 15/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions December, 1932, the Government of Maharashtra hereby declares that the offence of criminal intimidation punishable under section 506 of the Indian Penal Code (XLV of 1860), where the threat is to cause death or grievous hurt or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life or with imprisonment for a term which may extend to seven years or to impute unchastity to a woman, when committed in Greater Bombay shall, notwithstanding anything contained in the Code of Criminal Procedure 1898 (V of 1898), be cognizable and non-bailable.
By order and in the name of Governor of Maharashtra.
J.R. Gabral Deputy Secretary to the Government of Maharashtra, Home Department."
16] The validity of Section 10 of the Criminal Law Amendment Act, 1932 was challenged before the Division Bench of the Gujarat High Court in Vinod Rao vs. The State of Gujarat and another 1. The Gujarat High Court upheld the validity of Section 10 of the Criminal Law Amendment Act, 1932 and held that it does not offend Article 14 of the Constitution of India and the Notification issued thereunder making an offence under Section 506 of the IPC cognizable and non- bailable does not suffer from constitutional infirmity under Article 14.
17] It is in this context the points which have been enumerated in the reference will have to be taken into consideration. Firstly, we will 1 1981 Cri LJ 232 16/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions have to consider the judgment of the Division Bench of this Court (Goa Bench) in the case of Vishwajit P. Rane (supra) in which in para 12 the Division Bench has observed as under:-
"12..... On a plain reading of section 10 of the Act of 1932 it reveals that the power conferred by the said section was to amend the said Code of 1898 by making certain offences cognizable and non- bailable. Section 10 of the Act of 1932 does not empower the State Government to amend the First Schedule to the said Code of 1973 by making the offence punishable under section 506 of the Penal Code cognizable and non-bailable. Even section 8 of the General Clauses Act, 1897 will have no application. The said Code of 1973 is the law enacted by the Parliament. The said Code of 1973 is covered by Item 2 of List III (the concurrent list) of Seventh Schedule to the Constitution of India. The law made by the Parliament could have been amended only by an appropriate legislation by the State Government and no provision of the said Code of 1973 could have been amended only by issuing notification. There is no power vesting in the State Government to amend the First Schedule to the said Code of 1973 by issuing a 17 notification."
Perusal of the said observations of the Division Bench makes it apparent that the Division Bench has proceeded to consider the Notification dated 29 April/May, 2004 issued by Government of Goa as an amendment and came to the conclusion that the statutory act cannot be amended by issuing a Notification and, secondly, it has observed that even if the amendment is made, since the said Act is repugnant with the Central Act, assent of the President under Article 17/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions 254(2) of the Constitution is required.
18] We are unable to accept the said observation of the Division Bench in the case of Vishwajit P. Rane (supra). Division Bench, obviously, in our humble view, erred in treating the Notification as an exercise of power of amendment and it has failed to take into consideration Section 10 of the Criminal Law Amendment Act, 1932 which confers delegated power to amend Sections 188 or 506 of the IPC in a specified area in the State of Maharashtra. It is a settled position in law that if the statute, in this case, section 10 of the Criminal Law Amendment Act, 1932 confers or delegates power to amend the main Act and Rules framed thereunder then such amendment would be a valid piece of legislation. Delegation of power to make Rules or Act therefore is an accepted mode of retaining that power with the State Government and it can exercise that power in exigencies of the situation. In our view, the Division Bench in Vishwajit P. Rane (supra) has lost sight of this important mode of retention of power by the State Government. We are therefore unable to accept the view taken by the Division Bench in Vishwajit P. Rane (supra) and we concur with the view taken by Division Bench (Coram:
B.H. Marlapalle & U.D. Salvi, JJ.) in Shri Manish Digambar Advilkar (supra).
19] Much emphasis was laid on the concept of implied repeal by Mr. Awasthi, who is appearing in person.
18/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 :::WP/2841/2013 with connected writ petitions 20] In Kishorebhai Khamanchand Goyal (supra), the Supreme Court has observed in paras 6 to 9 as under:-
"6. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. (See: Municipal Council, Palai through the Commissioner of Municipal Council, Palai v. T.J. Joseph [1963] SC 1561 ), Northern India Caterers (Private) Ltd. and Anr. v. State of Punjab and Anr. [AIR 1967 SC 1581], Municipal Corporation of Delhi v. Shiv Shanker [(1971) 1 SCC 442] and Ratan Lal Adukia and Anr. v. Union of India [(1989) 3 SCC
537. When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further-strengthened on the principle expressio unius (personae vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley [(1978) 3 AC 944]. The continuance of existing legislation, in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. v. Moore [(1978) 3 Ex D 276], Ratan Lal case [(1989) 3 SCC 537] and R.S. Raghunath v. State of Karnataka and Anr., [(1992) 1 SCC 335]"19/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 :::
WP/2841/2013 with connected writ petitions "7. The necessary questions to be asked are:
(1) Whether there is direct conflict between the two provisions.
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;
(3) Whether the two laws occupy the same field.
(See: Pt. Rishikesh v. Salma Begum [(1995) 4 SCC 718] and A.B. Krishna vs. State of Karnataka [(1998) 3 SCC 495]"
"8. The doctrine of implied repeal Is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does no more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, "unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies on Statute Law, Seventh Edition, page 366, with reference to Berrey Re [1936 Ch 274]. To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The areas of operation of the Act and the Establishments Act in question are different with wholly different aims and objects. They operate in their respective fields and 20/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions there is no impediment for their existence side by side. (See State of M.P. v. Kedia Leather and Liquor Ltd. and Ors. [(2003) 7 SCC 389]"
"9. It is to be noted that there is no direct conflict between any of the provisions of the two statutes. The determinative test as noted above is whether the enactments are sharply conflicting or are inconsistent and/or repugnant. In the instance case it is not so. The operation of the Act is not restricted in its area of operation by what is provided in the Establishments Act and vice versa. Absence of some provisions in another Act does not amount to conflicting provision or inconsistent provision amounting to repugnancy of such provision."
21] We find on careful scrutiny of the provisions contained in Old Act of 1898 and new Act of 1973 that there are no inconsistencies in the Old as well As the new Act and, secondly, the Criminal Law Amendment Act, 1932 is a central piece of legislation and, as such, there is no question of implied repeal of the central piece of legislation and the question of inconsistency between the Central Act and the State Act does not arise, particularly because the Central Act has delegated power to the State Government.
22] In our view, there is no such inconsistency in the old Act and new Act. Section 484 of the Cr.P.C., 1973 which speaks about repeal of the Old Act, expressly saves certain provisions. Moreover, under Section 8 of the General Clauses Act, all Notifications which are issued under the old Act continue to operate. The said Notification 21/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions therefore which was issued by exercising power vested in the State Government by virtue of the Criminal Law Amendment Act, 1932 on 4/10/1962 is a valid exercise of delegated legislation and continued to be in force even after the old Act was repealed.
23] Mr. Awasthi, appearing in person submitted that the object of 1932 Act was to curb the 'civil disobedience movement' started by Mahatma Gandhi. It has to be noted here that though the State of Bombay (as it then was) had power to issue such Notification, it was issued in 1962 i.e. only after independence and not during the British Regime.
24] It will also be relevant to see Section 8 of the General Clauses Act, which reads as under:-
"8. Construction of references to repealed enactments.- [(1)] Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals and re- enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision, so repealed shall, unless a different intention appears, be construed as references to the provision so re-22/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 :::
WP/2841/2013 with connected writ petitions enacted.
[(2)] [Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted], with or without modification, any provision of a former enactment, then reference in any [Central Act] or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re- enacted.]"
25] From the aforesaid provision, therefore, it is clear that Notifications which are issued under the Criminal Law Amendment Act, 1932 are saved by the aforesaid provisions and it is not even necessary to refer to Section 484 of the Cr.P.C.
26] The learned Public Prosecutor appearing on behalf of the State invited our attention to the recent judgment of the Apex Court in Aires Rodrigues vs. Vishwajeet P. Rane and Ors 1 pronounced and decided on 10/01/2017. Apex Court, by the said Judgment, was pleased to set aside the Judgment of Division Bench of this Court (Goa Bench) in Vishwajit P. Rane Vs. State of Goa and Ors 2 and upheld the validity of 1 2017 SCC OnLine SC 219 2 2010(3) Bom.C.R. (Cri.) 341 23/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions the Notification dated 27/06/1973 and corrigendum dated 05/07/1973.
27] Apex Court, in the said judgment in Aires Rodrigues (supra), has observed in paras 10, 11, 12, 13, 14, and 16 as under:-
"10. There is no dispute that the 1932 Act is a Central Legislation and even today it is operative and power conferred under Section 10 can be exercised."
"11. In these circumstances, merely because 1898 Code has been repealed and replaced by 1973 Cr.P.C., could not affect the situation. Section 484 of Cr.P.C. 1973 as well as Section 8(1) of the General Clauses Act, 1897 saved a notification which may have been issued under Cr.P.C. of 1898. Section 8 of the General Clauses Act is as follows:
"Section 8 in The General Clauses Act, 1897 8 . Construction of references to repealed enactments -
(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the 24/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions provision so re-enacted."
"12. In these circumstances, we are unable to sustain the view taken in the impugned orders."
"13. It is pointed out by learned counsel for the appellant that a contra view has been taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in Vinod Rao v. The State of Gujarat and Anr.- (1980) 2 GLR 926, Sant Ram v. Delhi State and Anr. - 17(1980) Delhi Law Times 490, Mata Sewak Upadhyay & Anr. v. State of U.P. & Ors. - 1995 JIC 1168 (All) (FB), P. Ramakrishnan v. State Rep. by the Inspector of Police - 2010-1-LW(Crl.) 848 respectively. He also pointed out that a different view has been taken by the High Court of Allahabad in Pankaj Shukla v. Anirudh Singh - 2011(2)ADJ 472 without noticing the Full- Bench decision of the High Court of Allahabad in Mata Sewak Upadhyay (supra)."
"14. It is not necessary to refer to all the above judgments. View taken in support of the notification remaining valid and operative in Vinod Rao (supra) is, inter alia, as follows:
"Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, we must read in Section 10 of the Criminal Law Amendment Act, 1932, Cr.P.C., 1973 in place of the expression of "Cr.P.C., 1898". When we so read it, it becomes clear that the notification issued under Section 10 with reference to Cr.P.C., 1898 should be read as having been issued with reference to the Cr.P.C., 1973. So far as the impugned notification is concerned, it also refers to the Cr.P.C., 1898. The Rule of construction laid down in Section 8 of the General Clauses Act, 1897 also requires us to construe reference to the repealed enactment made in any "instrument" as reference to the repealing enactment or the new enactment which has been brought into force. The expression 'instrument' used in Section 8 of 25/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions the General Clause Act, 1897, in our opinion, necessarily includes a notification such as the impugned notification. Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, 1897, we read both in Section 10 of the Criminal Law Amendment Act, 1932 and in the impugned notification reference to Cr.P.C., 1898, as a reference to Cr.P.C., 1973. Therefore, the effect of the notification issued under Section 10 in 1937 is to modify the relevant provisions in the Cr.P.C.,1973. Therefore, the notification of 1937 as well as the subsequent notification issued in 1970 are relevant to the instant case."
"16. We approve the view taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in Vinod Rao, Sant Ram, Mata Sewak Upadhyay and P. Ramakrishnan (supra) and disapprove the view taken by High Court of Allahabad in Pankaj Shukla (Supra)"
The questions which have been raised in the reference by the Division Bench of this Court (Coram : B.H. Marlapalle & U.D. Salvi, JJ.) are no longer res integra in view of the Judgment of the Apex Court in Aires Rodrigues (supra). Since the judgment and order of Division Bench of this Court (Goa Bench) in Vishwajit P. Rane vs. State of Goa and Ors1 having been set aside by the Apex Court in Aires Rodrigues (supra) and the Notification issued in the said case having been upheld, this reference will have to be answered accordingly.
28] We are therefore of the view that Notification dated 04/10/1962 1 2010(3) Bom.C.R. (Cri.) 341 26/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 ::: WP/2841/2013 with connected writ petitions is upheld and it is declared to be valid and operative in the area mentioned therein. Issues raised in the reference and which are mentioned in para 3 of this order are therefore accordingly answered as under:-
ISSUES ANSWERS
(A) Whether the powers under Section 10 of
the Criminal Law Amendment Act, 1932 can be exercised by the State of Maharashtra after In the affirmative 1/4/1974 by reading the words "the Criminal Procedure Code 1973" in place of the words "Criminal Procedure Code, 1898" in view of the scheme of Section 8 of the General Clauses Act, 1897?
(B) Whether the State Government retains the power to issue a notification under Section 10 of the Criminal Law Amendment Act, 1932 after 1/4/1974 when the Code of 1898 has been In the affirmative repealed and unless in Section 10(1) of the said Act the words "Criminal Procedure Code 1898"
are substituted by the words "Criminal Procedure Code, 1973"?
(C) Whether the impugned notification amounts to amendment in the First Schedule to the Code of 1973, by the State Government, when the said In the affirmative notification is only for the limited area of greater Mumbai?
(D) Whether the notification dated 4/10/1962 issued by the State of Maharashtra is applicable to the area of greater Mumbai even after the In the affirmative Code of 1973 has been brought into force and the Code of 1898 has been repealed?27/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 :::
WP/2841/2013 with connected writ petitions 29] Since this reference is decided by virtue of the judgment of the Apex Court in Aires Rodrigues (supra), these matters are referred back to the Regular Bench for further hearing and for further orders.
30] Office is directed to Place the Order under reference before the Regular Bench to which these matters have been assigned.
( V. M. KANADE, J. ) ( S. C. GUPTE, J. ) ( REVATI MOHITE DERE, J. ) 28/28 ::: Uploaded on - 12/04/2017 ::: Downloaded on - 13/04/2017 00:09:26 :::