Madras High Court
P.Ramakrishnan vs State Rep. By on 21 April, 2010
Author: S.Nagamuthu
Bench: S.Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 21.04.2010 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Criminal Original Petition Nos.7452, 8517 and 8747 of 2010 of 2010 P.Ramakrishnan ... Petitioner in Crl.O.P.No.7452 of 2010 Vs. State Rep. by The Inspector of Police, Perambalur, Perambalur District. [Crime No. Not known of 2010 for alleged offence under Sections 294(b), 323 and 506(i) of IPC] ... Respondent in Crl.O.P.No.7452 of 2010 Lawerance ... Petitioner in Crl.O.P.No.8517 of 2010 Vs. State Rep. by The Inspector of Police, Vishnu Kanchi Police Station, Kanchipuram, Kanchipuram Ditrict. [Crime No.239 of 290 for alleged offence U/s.294(b), 323 and 506(i) of IPC] ... Respondent in Crl.O.P.No.8517 of 2010 1] Veerasamy 2] Samy Manikandan ... Petitioners in Crl.O.P.No.8747 of 2010 Vs. State Rep. by The Inspector of Police, Tiruchengode Town Police Station, Tiruchengode, Namakkal Ditrict. [Crime No.341 of 2010 for alleged offences u/s.294(b), 323 and 506(i) of IPC] ... Respondent in Crl.O.P.No.8747 of 2010 Criminal Original Petitions for Anticipatory Bail under Section 439 of Cr.P.C. For Petitioner in Crl.O.P.No.7452 of 20010 : Mr.C.Prakasam For Petitioner in Crl.O.P.No.8517 of 20010 : Mr.S.Sheik Ismail for M/s.S.S.Advocates For Petitioners in Crl.O.P.No.8747 of 20010 : Mr.K.M.Balaji For respondent in all original petitions : Mr.R.Muniyapparaj, Govt. Advocate [Criminal Side] Mr.R.Shunmugasundaram, Senior Counsel Amicus Curiae Mr.C.S.Dhanasekaran -Amicus Curiae COMMON ORDER:
The Court made the following order:-
Heard.
S.NAGAMUTHU.J., Apprehending arrest at the hands of the respective respondent police, the petitioners have come forward with these petitions seeking anticipatory bail. In all these cases , except, offence punishable under Section 506(i) of IPC all other offences are bailable. A question arose before this Court as to whether, insofar as the State of Tamil Nadu is concerned, the offence punishable under Section 506(i) of IPC is bailable or non-bailable. Some of the counsel expressed their view that the same is bailable; whereas the others expressed that it is non-bailable.
2. Since very often, not only this Court, but also the Subordinate Courts are confronted with such question, I deemed it necessary to go into the said question and to answer the same. For the said purpose, this Court requested Mr.R.Shanmugasundaram, learned senior counsel to assist this Court as Amicus Curiae. Accordingly, he has taken much pains to go deep into the provisions and also to bring to my notice various judgments of various High Courts.
3. Let me now proceed to consider the same. Under the Code of Criminal Procedure, 1898, the offence under Section 506 (i) of IPC was shown as a bailable offence. In the year 1932, however, the Criminal Law Amendment Act, 1932 was brought into force. Section 10 of the said Act reads as follows:-
"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 Sections 186, 189, 188, 190, 295A, 298, 505, 506 or 507 of the Indian Penal Code, when committed in any area specified in the notification shall notwithstanding anything contained in the Code of Criminal Procedure 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 Section 198 or Section 506 of the Indian Penal Code shall be non-bailable."
4. In exercise of the powers conferred under the said Section, the Government of Tamil Nadu issued G.O.Ms.No.S/4118-1/70 Public (S.C.) dated 03.08.1970, published in Tamil Nadu Government Gazette NO.260, Extraordinary Part II Section 1 Madras, dated 3rd August, 1970 thereby declaring that any offence punishable under Section 188 and 506(ii) of IPC when committed in any place in the State of Tamil Nadu shall, not withstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable and non-bailable. After the said Government Order, in view of Section 10 (1) of the Criminal Law Amendment Act, 1932, the Code of Criminal Procedure, 1898 was deemed to have been amended accordingly.
5. When the Code of Criminal Procedure, 1973 was introduced, again the offence under Section 506 (i) of IPC has been shown as bailable. However, no fresh Notification has been issued under Section 10 of the Criminal Law Amendment Act. It is because of the same, a considerable confusion arose as to whether the earlier notification issued when the repealed Code was in force would be applicable in respect of the present Code also.
6. The learned senior counsel [Amicus Curiae] would submit that the same will have force and no such separate notification is required to be issued after the coming into force of the Code of Criminal Procedure, 1973. In my opinion too, it is so.
7. It is needless to point out that the Code of Criminal Procedure, 1973 is a Central enactment relating to a subject in Entry 4 of List III of the Constitution of India. There can also be no controversy that the State Legislature is empowered to make any local amendment in respect of any of the provisions of the Code. The constitutional requirements are that after such amendment, the same should get the assent of the President so as to have over-riding effect. Admittedly, in this case, neither the Code of Criminal Procedure, 1898 nor the Code of Criminal Procedure, 1973 was amended by State Legislature by means of any amending Act requiring the assent of the President of India. However, in the Code of Criminal Procedure, 1898 insofar as the classification of Section 506(i) of IPC as bailable is concerned, it was deemed to have been amended as non-bailable as per the notification issued under the Criminal Law Amendment Act which itself is a Central Legislation. Thus, it is not by actually amending the Code of Criminal Procedure, 1898 by any local amendment. Had it been the case that the Code of Criminal Procedure, 1898 was amended, the said amendment would have perished along with the main Act when the same was repealed by the Code of Criminal Procedure, 1973. In such an event, since the Code of Criminal Procedure, 1973 classifies the offence under Section 506(i) of IPC as bailable, the same would have been in force in the State of Tamil Nadu. But, contrary to the same, as I have already stated, the Code of Criminal Procedure, 1898 was not amended and instead, the offence falling under Section 506 (i) of IPC was declared as non-bailable in exercise of the power conferred under Section 10 of the Criminal Law Amendment Act. The said declaration will hold good until the same is withdrawn by the Government of Tamil Nadu under the said Act. Therefore, it is immaterial whether the offence falling under Section 506(i) of IPC has been classified as bailable in the Code of Criminal Procedure, 1973 or not. The notification issued under Section 10 of the Criminal Law Amendment Act will hold good thereby the declaration that the offence under Section 506(i) of IPC is non-bailable and cognizable shall have statutory force and the same shall have over-riding effect over the Code of Criminal Procedure, 1973.
8. In this regard, I may refer to a Judgment of the Delhi High Court in Sant Ram v. Delhi State, 17 (1980) DLT 490 wherein the Delhi High Court has taken a similar view which reads thus:-
"(4) Thus, the main grievance of the petitioner that he has been proceeded against on an F.I.R. which was wrongly registered and the proceeding against him are void and Ultra Vires of Articles 14 of the Constitution as being discriminatory has to fail because the offences of which the petitioner has been charged are cognizable as well as non-bailable in the Union Territorry of Delhi as it now exists. The petitioner urged that the effect of the passing of the Criminal Procedure Code, 1973 was to terminate the effect of the said notification, but this is obviously not so. All notifications and laws previously in force are continued by Section 484(2) of the new Act, and in any case, the notification was issued under the Amendment Act, 1932 which is not at all affected by the repeal of the Criminal Procedure Code of 1898."
9. Subsequently, in Narendra Kumar and others v. State , 2004 CRI.L.J. 2594, the Delhi High Court has again reaffirmed the said view taken earlier. However, the Delhi High Court has expressed its anguish that the said declaration has been put in use for more than 70 long years without any periodical scanning. In para 23 of the Judgment, it has stated as follows:-
"23. In my view continuation of such a notification issued way back in the year 1933 without reviewing the situation from time to time is not only an affront to the liberty of the citizens at large but has the tendency to subvert the law enacted by the Parliament and, therefore, for ends of justice and to maintain the sanctity of the law enacted by the Parliament as well as the liberty of citizens this court orders that the notification no. 232-Home dated 11th January, 1933 issued by Mr. JNG Johnson, the ten Chief Commissioner of Delhi declaring the offence punishable under Section 506 IPC as ''cognizable'' and ''non-bailable'' which has continued for 70 long years without any review of the factors and conditions that necessitated it, shall cease to be in operation from 15th January, 2004 till the Government takes a review of the overall situation and decides as to the necessity of its continuation."
10. The learned senior counsel Mr.R.Shanmugasundaram has, however, brought to the notice of this court, a Judgment of the Division Bench of Allahabad High Court in Virendra Singh and others v. State of U.P. 2002 CRI. L.J. 4265 wherein speaking for the Bench, Hon'ble Mr.Justice M.Katju [as he then was] has held that Section 10 of the Criminal Law Amendment Act has become redundant and otiose in view of Section 484 of the Code of Criminal Procedure, 1973 which has repealed the Code of Criminal Procedure, 1898. The Bench has further held that similar notification issued by the Government of Uttar Pradesh is illegal. In para 7 of the aforesaid judgment, the Allahabad High Court has held as following :-
"7.Section of the Criminal Law Amendment Act, 1932 does not give power to the State Government to amend by a notification any part of the Criminal Procedure Code, 1973. Since the Cr.P.C. Of 1898 has been repealed by Section 484 of the Cr.P.C. Act, 1973 we are of the opinion that Section 10 of the Criminal Law Amendment Act, 1932 has become redundant and otiose. Hence, in our opinion no notification can now be made under Section 10 of the Criminal Law Amendment Act, 1932. Any such notification is illegal for the reason given above. Hence, we declare notification NO.777/VIII-9 4(2)-87, dated July 31, 1989 published in the U.P.Gazette, Extra Part 4, Section (kha) , dated 2nd August 1989 by which Section 506 IPC was made cognizable and non-bailable to be illegal. Section 506 IPC has to be treated as bailable and non-cognizable."
11. However, when a similar question arose for consideration before a Division Bench of Gujarat High Court in Vinod Rao v. State of Gujarat, 1981 CRI. L.J. 232, in para 14 of the judgment, the Gujarat High Court has held as follows:-
"14. The last contention which Mr. Pandit has raised is that the notification issued under Sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932, with reference to Cr. P.C., 1898 cannot be regarded as a notification issued with reference to Cr. P.C. 1973. The argument which Mr. Pandit has raised is that the fact of issuing a notification under Sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932, was to amend the Cr. P.C., 1898. That Code has now been repealed. Therefore, the amendment which was made to that Code by the impugned notification could not be continued or read in the Cr. P.C., 1973. Mr. Pandit has in our opinion approached the question from a wrong angle and has, therefore, made an ill founded submission. In our opinion, the correct approach is to construe Section 10 in light of the rule of construction laid down in Section 8 of the General Clauses Act, 1897. Section 8 provides as follows:
"8. (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 reference 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 references 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-enanted."
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 the General Clauses 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."
12. When a similar question in respect of the notification issued by the Government of Tamil Nadu, which is now in question, came up for consideration before a Division Bench of this Court in K.M.Sundaram and anoth v. Inspector General of Police, Madras and others , 1970 L.W. (Crl.) 299, the Division Bench of this Court did not answer the question and it left it open. The relevant portion of the said Judgment is as follows:-
"The offence under S.506 of IPC is punishable with imprisonment for two years. But, it is non-cognizable according to Schedule II. By Notification under S.10 of the Criminal Law Amendment Act, the offence under S.506 IPC was declared to be cognizable and non-bailable. Though the validity of this notification was questioned in the affidavit filed by the petitioner, we do not think on the view that we are taking, in this case, that it is necessary to consider this question and we, therefore, leave it open. ...."
13. In view of the conflicting views taken by the Delhi High Court, the Division Bench of Allahabad High Court and the Division Bench of Gujarat High Court and since the said question has been left open by the Division Bench of this Court, I am of the view that in the interest of justice, to obviate the confusion prevailing in the minds of the Subordinate Courts as well as this Court and since the courts are very often confronted with the said question, it is necessary to refer the matter to a Division Bench to answer the question which was left open by the Division Bench of this Court earlier in K.M.Sundaram's case cited supra.
14. While doing so, since, as of now, the offence under Section 506(i) of IPC as per the Notification of the State Government has been all along treated as non baibale, I deem it appropriate to grant interim anticipatory bail to all these petitioners.
16. In the result, the Registry is directed to place these petitions before My Lord The Hon'ble The Chief Justice to consider to refer the following questions to a Division Bench:-
(1) Whether the Notification issued by the Government of Tamil Nadu in G.O.Ms.No.S/4118-1/70 Public (S.C.) dated 03.08.1970 in exercise of the powers conferred under Section 10 of the Criminal Law Amendment Act, 1932 is valid? and
2. Whether the offence under Section 506(i) of IPC is non-bailable insofar as the State of Tamil Nadu is concerned?
In the mean time, having regard to the facts and circumstances of the case, the petitioners in these petitions are ordered to be released on interim bail in the event of arrest or on their appearance before the respective learned jurisdictional Magistrates concerned on each of them executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for a like sum to the satisfaction of the learned Magistrate concerned and on further condition that the petitioners shall make themselves available for interrogation as and when required by the respective police.
Index : yes 21.04.2010
Internet : yes
kmk
S.NAGAMUTHU.J.,
kmk
Criminal Original Petition
Nos.7452, 8517
and
8747 of 2010
21.04.2010