Punjab-Haryana High Court
Satbir Singh vs State Of Haryana And Others on 16 January, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Writ Petition No.30 of 2012
Date of decision: 16th January, 2012
Satbir Singh
... Petitioner
Versus
State of Haryana and others
... Respondents
1. Whether Reporters of Local Newspapers may be allowed Yes
to see the judgment?
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Vijay Kumar Jindal, Advocate for the petitioner.
KANWALJIT SINGH AHLUWALIA, J.
Present criminal writ petition has been filed under Article 226 of the Constitution of India praying that the impugned order dated 16.11.2011, Annexure P-8, passed by the Government of Haryana be quashed and the petitioner be held entitled to release under the Good Conduct Prisoners' Probational Release Act, 1926 (hereinafter referred to as, 'the Probational Release Act' or 'the Act') read with the Good Conduct Prisoners' Probational Release Rules, 1927 (hereinafter referred to as, 'the Rules').
The petitioner, along with his co-accused, was tried in a case arising out of FIR No.337 dated 24.5.1994, registered at Police Station City Panipat, under Sections 304-B and 498-A IPC by the Court of Additional Sessions Judge, Panipat. Others were acquitted, but the petitioner was found guilty of these offences and was convicted and Criminal Writ Petition No.30 of 2012 2 sentenced to undergo ten years rigorous imprisonment under Section 304-B IPC (dowry death) and two years rigorous imprisonment and fine of Rs.200/- for the offence under Section 498-A IPC vide judgment and order dated 19th/21st October, 1995. The petitioner filed an appeal before this Court bearing Criminal Appeal No.687-SB of 1995 challenging conviction and sentence recorded by the trial Court. It was dismissed vide judgment (Annexure P-2) dated 15th May, 2009. Aggrieved against the same, the petitioner filed SLP but the same was also dismissed and the judgments passed by the trial Court as well as of this Court were upheld vide order dated 3rd May, 2010. The petitioner, as of now, has undergone sentence of 4 years 3 months and 14 days, which includes 6 months remissions granted under Section 432 Cr.P.C., out of the awarded sentence of 10 years. Thereafter, on readmission in jail with effect from 2nd April, 2010, the petitioner made a request/notice (Annexure P-5/A) to the authorities for his conditional release from jail under the Act and the Rules. It has been rejected vide order at Annexure P-8, impugned herein.
I have heard learned counsel for the petitioner at length and perused the records. The two questions, which arise for adjudication in the present case, can be formulated as under:
First, whether the petitioner is entitled to release under the Probational Release Act in the year 2012 when the Act itself has been repealed by State of Haryana in the year 2001?
Secondly, whether the petitioner who has been convicted for an offence under Section 304-B IPC is entitled Criminal Writ Petition No.30 of 2012 3 to release under the provisions of the Probational Release Act and the rules framed thereunder?
Question No.1 The first issue which arises for the consideration in the instant case is whether the petitioner can seek his release in the year 2012 under the provisions of the Probational Release Act which has been repealed by the State of Haryana in the year 2001 by enacting Good Conduct Prisoners' Probational Release (Repeal) Act, 2001 (hereinafter referred to as, 'the Repeal Act'). A perusal of the petition would reveal that it is the categoric stance of the State that they have no infrastructure or manpower to implement the provisions of the Probational Release Act as pursuant to its repeal the entire infrastructure has been disbanded by them. Further, State of Haryana abolished the office of Reclamation Officer/Probation Officer, who are supposed to implement the provisions of the Act, way back in the year 1976. It is thus the case of State that they cannot release the petitioner after invoking provisions of the Probational Release Act which stands repealed. In this regard, reference can be made to Annexure P-6 attached with the petition which reflects the stance of State of Haryana.
Learned counsel for the petitioner has argued that this issue is no longer res integra in view of the decisions rendered by this Court.
He has also drawn my attention to the order passed by this Court in a petition filed by the petitioner titled as 'Satbir Singh v. State of Haryana and others' CRWP No. 1104 of 2011, decided on July 27, 2011 (Annexure P-7) wherein the above mentioned stance of the State has already been rejected.Criminal Writ Petition No.30 of 2012 4
A perusal of the order passed by this Court would reveal that this Court referred to Section 2(c) of the Repeal Act which provided that the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed. Relying on the said provision, it was held that if any right had accrued to the petitioner for consideration for conditional release under the Act before its repeal, the same is not affected by the Repeal Act. It further held that non-
existence of infrastructure cannot be a ground to decline the benefit to the petitioner. Accordingly, the State was directed to reconsider the case of the petitioner. Relying on the said order, counsel for the petitioner has urged that the FIR in the case pertains to year 1994 and he was convicted in the year 1995. Since at that point of time the Probational Release Act was in force, the petitioner cannot be denied the relief as his rights have been specifically protected by the Repeal Act.
Having perused the order passed by a Coordinate Bench, I am constrained to strike a discordant note as in my humble opinion it does not reflect the correct position of law and runs contrary to the dicta of the various decisions passed by the Hon'ble Supreme Court which had not been brought to the notice of the Coordinate Bench. In my considered opinion, no right or privilege had accrued to the petitioner which can be said to have been protected by the Repeal Act.
At this juncture, it would be appropriate to give a brief overview of the judicial and legislative history behind saving the rights and liabilities accrued under a repealed Act as the same would have a bearing on the outcome of the present case. Under common law, once an Act was repealed it stood completely obliterated as if it never existed.
Since, the consequences of repeal were quite drastic with advent of time Criminal Writ Petition No.30 of 2012 5 certain saving provisions were introduced. It is pertinent to mention that a provision similar to Section 2(c) of the Repeal Act also exists under Section 6 of the General Clauses Act. The rationale for introducing such provisions was explained by the Hon'ble Supreme Court in the case of 'State of Punjab v. Mohar Singh Pratap Singh', AIR 1955 SC 84 and a relevant extract is as under:
"6. Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law: Vide Craies on Statute Law, 5th can. page 323. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right: Vide Crawford on Statutory Constitution, pp. 599-600. To obviate such results a practice came into existence in England to insert a saving clause in the repealing statute with a view to preserve rights and liabilities already accrued or incurred under the repealed enactment.
Later on, to dispense with the necessity of having to insert a saving clause on each occasion, Section 38 (2) was inserted in the Interpretation Act of 1889 which provides that a repeal, unless the contrary intention appears, does not affect the previous operation of the repealed enactment or anything duly done or suffered under it and any investigation, legal proceeding or remedy may be instituted, continued or enforced in respect of any right, liability and penalty under the repealed Act as if the Repealing Act had not been passed. Section 6 of the Criminal Writ Petition No.30 of 2012 6 General Clauses Act, as is well known, is on the same lines as section 38 (2) of the Interpretation Act of England."
As these saving clauses are invariably introduced after the repeal of any Act, the question which has often arisen is as to what is meant by 'right accrued'. It is now fairly well settled that the leading decision on this point is the case of 'Abbott v. Minister of Lands' decided way back in the year 1895, wherein it was held that the mere right existing, at the date of the repealing statute, to take advantage of the provisions of the Act repealed was not a "right accrued" within the meaning of the saving clause. It was, therefore, held by the Hon'ble Supreme Court in the case of 'Kanaya Ram v. Rajender Kumar', (1985) 1 SCC 436:
"10. ... ... ... It has been held ever since the leading case of Abbott v. Minister for Lands 1895 A.C. 425 that a mere right to take advantage of the provisions of an Act is not an accrued right. Abbott case has been followed by this Court in a number of decisions. In such a situation, the Court is bound to take into consideration the subsequent events and mould the relief accordingly... ... ..."
A Constitution Bench of Hon'ble the Supreme Court in the case of 'Lalji Raja v. Firm Hansraj', (1971) 3 SCR 815, while explaining as to what is meant by a right accrued, held as under:
"That a provision to preserve the right accrued under a repealed Act 'was not intended to preserve the abstract rights conferred by the repealed Act. It only applies to specific rights given to an individual upon happening of one or the other of the events specified in statute - See Lord Atkin's observations in Hamilton Gell v. White, (1922) 2 KB Criminal Writ Petition No.30 of 2012 7
422. The mere right, existed at the date of repealing statute, to take advantage of Provisions of the statute repealed is not a right accrued within the meaning of the usual saving clause - see Abbot v. Minister for Lands (1895) AC 425 and G. Ogden Industries Pvt. Ltd. v. Lucas, (1969) 1 All ER 121" (Emphasis Supplied) Similarly, another Constitution Bench of Hon'ble the Supreme Court in the case of 'Bansidhar v. State of Rajasthan', AIR 1989 SC 1614 held as under:
"14. ... ... ... For purposes of these clauses the "right" must be "accrued" and not merely an inchoate one. The distinction between what is and, what is not a right preserved by Section 6 of the General Clauses Act, it is said, is often one of great fineness. What is unaffected by the repeal is a right 'acquired' or 'accrued' under the repealed statute and not "a mere hope or expectation"
of acquiring a right or liberty to apply for a right." (Emphasis Supplied) The Supreme Court in the case of 'Gajraj Singh etc. v. State Transport Appellate Tribunal' AIR 1997 SC 412 referred to the work of Sutherland Statutory Construction (3rd Edition) Vol. I by Horack which explained the nature of rights which can be said to have accrued. In the said treatise it was explained that inchoate rights cannot be said to be rights accrued. It would be pertinent to reproduce the relevant extract here:
"30. ... ... ... Rights of action which are dependent upon a statute, and which are still inchoate and not reduced to possession or perfected by final judgment, are lost by the repeal of the statute from Criminal Writ Petition No.30 of 2012 8 which they stem. This rule of construction is simply a restatement of the common law principle of construction that the repeal of a statue operates to divest all rights accruing under the repealed statute and all proceedings not concluded prior to the repeal, since inchoate rights are by definition not vested rights such as to escape the common law rule of effacement. The inchoate rights are but an incident to the statute and fall with its repeal."
Thus, a bare perusal of the above decisions rendered by Hon'ble the Supreme Court would reveal that what is preserved by the repeal Act is a right which already stands accrued. The mere hope that one would acquire a right or would be at liberty to apply for a right or take benefit of a certain provision cannot be held to be right accrued. It is in this background, one has to evaluate whether any right or privilege had accrued to the petitioner by adverting to the provisions of the Probational Release Act and the rules framed therein. It is pertinent to mention that Section 2 of the Probational Release Act gives the power to the State Government to permit by license any person to be released from prison, keeping in view his antecedents and his conduct in the prison, on the condition that he will be placed under the authority or supervision of a Government officer or a secular institution. The period undergone by the person on the license is reckoned as a part of the period of imprisonment to which he was sentenced. At this juncture, it would be pertinent to reproduce Sections 2 and 4 of the Probational Release Act which read as under:
"2. Power of Government to release by license on conditions imposed by it.-
Criminal Writ Petition No.30 of 2012 9Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure 1898 (V of 1898) when a person is confined in prison under a sentence of imprisonment and it appears to the State Government from his antecedents or his conduct in the prison that he is likely to abstain from crime and lead useful and industrious life, if he is released from prison, the State Government may by license permit him to be released on condition that he be placed under the supervision or authority of a Government officer or a secular institution or of a person or society named in the license and willing to take charge of him.
XXXX XXXX XXXX XXXX
XXXX XXXX XXXX XXXX
4. Period of release to be reckoned as imprisonment for computing period of sentence served. -
The period during which a person is absent from prison under the provisions of this Act on a license which is in force shall be reckoned as a part of the period of imprisonment to which he was sentenced, for the purpose of computing the period of his sentence and for the purpose of computing the amount of remission of his sentence which might be awarded to him under any rules in force relating to such remission."
A perusal of the Rules framed under the Probational Release Act, which are on record at Annexure P-10, would reveal that the Reclamation Officer who is appointed by the State Government for supervising the release of persons under the Act may from time to time prepare a list of persons who can be released under the Act and may recommend their release to the State Government. It is apparent from a bare perusal of the Act and the rules framed therein that the accused has no right to seek release under the Act. Even a perusal of the Statement Criminal Writ Petition No.30 of 2012 10 of Objects and Reasons would reveal that this is a privilege which can be given to those whose antecedents and conduct show promise. Firstly, under the Act the accused has no right to be released after undergoing a certain period of sentence. It is only a privilege for the grant of which certain guidelines have been made under the Act and rules. Secondly, no such privilege had admittedly accrued to the petitioner. At best it can be said, the accused had a hope that if he maintains good conduct he would be able to apply for grant of such a privilege. As has been pointed out, the mere hope or right to apply cannot be said to be right or a privilege accrued.
It is my considered opinion that what is intended to be preserved by the repealing Act are situations where persons have been released on a license under Section 2 of the Act. However, before the period of the license could exhaust the Act was repealed. Since the privilege had already accrued to them they would continue to enjoy their release on license under the Act, despite its repeal. It is for these reasons, I do not subscribe to the argument of the counsel for the petitioner that he is still entitled to release under the Probational Release Act. Such an argument, thought attractive at first flush, is contrary to the provisions of the Repeal Act and the ratio of law laid down by Hon'ble the Supreme Court on various occasions.
In view of the above, the ratio of law propounded in CRWP No.1104 of 2011 (Annexure P-7) relying upon the decisions rendered in 'Ruli Ram v. State of Haryana etc.' CRWP No.104 of 2004 decided on 1st October, 2004 and 'Ram Dass v. State of Haryana and others' CRM No.32996 of 2002 in CRM No.46299-M of 2001 decided on 20th Criminal Writ Petition No.30 of 2012 11 September, 2002, is required to be re-looked as I have expressed a contrary opinion.
Thus, question No.1 be laid before a larger Bench for answer.
Question No.2 Governor of Punjab had given assent on 21st July, 1926 to the Probational Release Act which received further consent of the Governor General of India on 16.08.1926 and was published in the Punjab Gazette on 27.8.1927 and the Act came into force with effect from 1.5.1927. This Act was for the reformation of those prisoners who during their stay in the prison by their good and exemplary conduct had endeared to the jail authorities and who had formulated a view that the reformation of those convicts is possible. Essentially the object of the Act was to promote reformation of the convict. It was guided by the principle that it is the evil which should be curbed and not the offender. It also took into consideration that the continuous stay of adolescent or adult in jail may create bad influence on their impressionable mind and, thus, they ought to be conditionally released with an opportunity of earning their livelihood and live with those families which practise private philanthropic cause. It also informed that two farms of this purpose called Nili Bar were created where such persons could be employed for industrious output. Who are entitled to the grant of probation under the Act, were left to the discretion of the Reclamation Officer under Rule 4 of the Rules (Conditional release of well-behaved prisoners) which states that the Reclamation Officer may, at any time after consultation with the Superintendent of Jail, prepare a list of the prisoners who, from their Criminal Writ Petition No.30 of 2012 12 antecedents or conduct in prison, appear to be likely, if released from prison, to abstain from crime and to lead a useful and industrious life. Therefore, the Act left it to the discretion of the Reclamation Officer and the Superintendent Jail to determine those who are entitled for release on probation while undergoing the sentence. Rule 9 of the Rules specifically states that those prisoners who are convict of the following offences shall not be eligible for the conditional release. It will be apposite to reproduce Rule 9, which reads as under:-
"9. Classes of offenders not eligible for conditional release.- The following classes of offenders shall not be eligible for conditional release under the Act:-
(a) Persons who have been convicted for offence under the following Acts, or provisions thereof:-
(i) Chapters VI and VII Sections 216A, 302, 303, 311, 328, 364, 376, 377, 382, 386 to 389, 392 to 402, 413, 455, 458 to 460 of the Indian Penal Code. (ii) The Indian Criminal Law Amendment Act, 1908; (iii) The Explosives Substances Act, 1908; (iv) The Prevention of Corruption Act, 1947; (v) The Prevention of Food Adulteration Act, 1954; (vi) The Drugs and Cosmetics Act, 1940;
(vii) Offence of criminal conspiracy as defined in Section 120-A of the Indian Penal Code in so far as relates to any of the offences mentioned in sub-clause (i) or under the Acts mentioned in sub-clause (ii), (iii), (v) and (vi) above.
(b) Except in the case of prisoners committed to
prison on default of furnishing security,
prisoners, the unexpired term of whose term of imprisonment is less than six months.Criminal Writ Petition No.30 of 2012 13
(c) Prisoners who have been sentenced to imprisonment for a term exceeding three years and have not completed 8 months of their sentence of imprisonment in prison.
Note: The prohibition in clause (c) shall not apply to a prisoner whose age on the date of his latest sentence was not above 21 years.
(d) Prisoners who have been convicted of an
offence under Section 7 of the Act, or whose
license has been previously revoked on
account of a breach of the conditions of the
license."
Helpless, newly married girls, for the greed of dowry, were being killed in the four-corners of the house. The menace of dowry deaths increased and it caught attention of the law makers. The Parliament, to curb this social evil, had to enact Section 304-B IPC which was inserted by Act No.43 of 1986 and it came into operation with effect from 19th November, 1986. The minimum sentence, which a convict is to undergo under Section 304-B IPC (dowry death), is 7 years. The minimum sentence so prescribed was to express deterrence of the law. The Indian Penal Code is the one legislation which, for various offences, provides sentences guided by principles of reformation or deterrence. Therefore, for certain offences, no minimum sentence is prescribed and probation can be granted. The Sections which prescribe minimum sentence, are those where one can infer intention of the legislature that qua these offences, deterrence should be there. Section 304-B IPC is one such offence where even a Judge trying an accused cannot award sentence less than seven years.
Criminal Writ Petition No.30 of 2012 14
This view is also fortified by the following observations made by Allahabad High Court in 'Bhoora Singh v. State of U.P.' 1992 Cri. L.J. 2294:
"30. The object of enacting Section 304B by the Amendment Act was to combat the menace of Dowry- Deaths. By enacting Section 304B the Parliament seems to have laid more emphasis on the deterrent theory of punishment in Criminal Jurisprudence to curb the evil of bride burning... ..."
Coming to the facts of the case, Satbir Singh petitioner was married with Anita, a young girl of 21 years, on 28.06.1993. Anita died in her matrimonial home within less than a year of marriage on 24.05.1994. In the present case, the trial Judge and this Court had not even awarded minimum sentence of 7 years but sentence of 10 years. Conviction and sentence awarded upon the petitioner have been upheld by the Hon'ble Apex Court.
Mr. Vijay Kumar Jindal, Advocate appearing on behalf of the petitioner, has placed reliance upon a judgment rendered by another single Judge of this court in 'Sunder Lal v. State of Haryana and others' CRM No.13697-M of 1999 decided on 27th July, 1999 (Annexure P-12). The reasoning propounded in Sunder Lal's case (supra), that since Section 304-B IPC is not a part of Rule 9 of the Rules, therefore, the accused can be released on probation, to me, in no way seems tenable. While holding that accused under Section 304-B IPC is also entitled to release on probation, the Court in Sunder Lal's case (supra) observed as under:-
Criminal Writ Petition No.30 of 2012 15
"5. The learned counsel for the petitioner submits that the stand which has been taken by the State is not tenable. In this context the learned counsel for the petitioner submits that there are as many as 51 Sections in the Indian Penal Code which are more stringent in the matter of sentence as compared to Section 304-B IPC. In those sections life sentence has also been provided, still the legislature in its wisdom when drafted Rule 9 did not think proper to incorporate most of the Sections. Giving illustrations Mr. Jindal submitted that Sections 306, 307, 313, 314, 326, 371, 409, 412, 436, 438, 449, 467, 472, 474, 475, 477 and other sections if compared to Section 304-B would show that the offence under some of the Sections are triable by the Court of Sessions like the offence under Section 304-B IPC. In some of the offences even minimum sentence has been provided like the one under Section 304-B, still those sections do not fall within Rule 9(a)(i) of the Good Conduct Prisoners Probational Release Rules, 1927. On the contrary, Mr. Ahlawat submitted that the object of the Act is not to grant the benefit of conditional release to those offenders who have committed serious and heinous offences and in this regard the counsel submitted that Sections 302, 303, 311 and all other sections which have been incorporated in Rule 9(a)(i) would show that in serious offences a conditional release is not permissible. I do not subscribe to the argument raised by learned counsel for the respondents. Unfortunately, the State Government did not make it upto date with the passage of time. When Section 304-B of the IPC was brought on the statute book, the Governments of both the States did not incorporate the provisions of Sections 304-B and 498-A IPC in Rule 9. We are supposed to interpret Rule 9 as it is. As it stands today, Sections 304-B and 498- A is not the part of Rule 9(a)(i). In these circumstances, a convict is entitled to the benefit of section 2 of the Act if the Criminal Writ Petition No.30 of 2012 16 State Government finds and comes to the conclusion from the antecedents and conduct of a convict that he would not commit any offence and would lead useful and industrious life if released from the prison."
While making the above said observations, the very object for which Section 304-B IPC was enacted, was not taken into consideration.
After giving my due consideration to the observations made in Sunder Lal's case (supra), I am not able to accept the principles of literal interpretation given in Sunder Lal's case (supra) to reject the stand of the State. Therefore, I most respectfully beg to differ with the ratio of the said case.
It is now a well settled principle of statutory interpretation that Courts are not bound to follow the rule of literal interpretation on all occasions, especially when it leads to anomaly and absurdity. I have already given a brief background of the circumstances in which offence under Section 304-B IPC came on statute book and the mischief which was sought to be curbed by its introduction. It would be relevant to compare the object with which Section 304-B IPC was introduced vis-a- vis Probational Release Act as in my view, ends of justice mandate the invocation of rule of mischief or purposive construction.
In view of the context in which provision of Section 304-B IPC was enacted, it is apparent that in the instant case rule of mischief needs to be adverted while deciding the question as to whether the petitioner is entitled to invoke the beneficial provisions of the Act. This rule was explained by a seven-Judge Bench of the Hon'ble Supreme Criminal Writ Petition No.30 of 2012 17 Court of India in the case of 'Bengal Immunity Co. Ltd. v. State of Bihar' AIR 1955 SC 661, wherein Das J held as under:
"It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's, Case, was decided that......for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
1st, What was the common law before the marking of the Act,.
2nd. What was the mischief and defect for which the common law did not provide., 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth., and 4th. The true reason of the remedy : and then the office of all Judges is always to make such construction as shall suppress the mischief , and advance the remedy, and to suppress suitable inventions and evasions for continuance of the mischief , and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico".
This rule has been adverted to by Hon'ble the Supreme Court of India in a catena of decisions, especially in the case of 'NEPC Micon Ltd. v. Magma Leasing Ltd' 1999 SCC(Cri) 524 wherein this rule was adopted for interpreting provisions of Section 138 of Negotiable Instruments Act. In the said case, it was argued that in view of provision of Section 138 of the Negotiable Instruments Act, a person cannot be held liable if the cheque was dishonoured on account of the bank Criminal Writ Petition No.30 of 2012 18 account having been closed. While repelling the contention, it was observed as under:
"8. Learned Counsel for the appellants, however, submitted that Section 138 being a penal provision, it should be strictly interpreted and if there is any omission by the Legislature, wider meaning should not be given to the words than what is used in the Section. In our view even with regard to penal provision, any interpretation, which withdraws life and blood of the provision and makes it ineffective and a dead letter should be averted. If the interpretation, which is sought for, were given, then it would only encourage dishonest persons to issue cheques and before presentation of the cheque close 'that account' and thereby escape from the penal consequences of Section
138."
In the above case, to curb mischief rule of purposive construction was adopted and due reference was made to previous decisions of Hon'ble the Supreme Court. It is pertinent here to reproduce the discussion, which reads as under:
"10. ... ... ... in the case of Swantraj and others v. State of Maharashtra, 1975(3) S.C.C. 322, this Court held that the every legislation is a social document and judicial construction seeks to decipher the statutory mission, language permitting, making the one from the rule 1 Heydon 's case of suppressing the evil and advancing the remedy. Court held that what must tilt the balance is the purpose of the statute, its potential frustration and judicial avoidance of the mischief by a construction whereby the means of licensing meet the ends of ensuring pure and potent remedies for the people. Court observed that this liberty with language is sanctified by great judges and textbooks. Maxwell instructs as in these words:-Criminal Writ Petition No.30 of 2012 19
'There is no doubt that 'the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress evasions for the continuance of the mischief. To carry out effectively the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, to an indirect or circuitous manner that which it has prohibited or enjoyed: quando aliquid prohibetur et omne pe quod devenitur ad illude.' The manner of construction has two aspects. One is that the Courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances which parties may have devised in the hope of thereby falling outside the Act. When the Courts find an attempt at concealment, they will, in the words of Wilmot, C.J. 'brush away the cobweb varnish, and shew the transactions in their true light."
Reference was also made to the famous words of Lord Denning in the case of 'Seaford Court Estates Ltd. v. Asher', 1949(2) All ER 155, which explains why the Courts on various occasions have adverted to the rule of mischief. In the said case, Lord Denning observed as under:
"11. ... ... ... The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or Criminal Writ Petition No.30 of 2012 20 have been guilty of some or other ambiguity. It would certainly save the judges trouble if the Acts of Parliament were drafted with divine pre- science and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
Even recently, it was held by Hon'ble the Supreme Court in the case of 'M/s. Philips Medical Systems (Cleveland) Inc. v. M/s. Indian MRI Diagnostic & Research Ltd.', AIR 2009 SC 1052 that it is a settled principle of interpretation that when an amendment is made to an Act, or when a new enactment is made, Heydon's mischief rule is often utilized in interpreting the same.
Hence, if the ratio of law laid down in Sunder Lal's case (supra) is allowed to prevail, it will promote evil and perpetuate mischief. A person having committed murder of a young bride within seven years of marriage for the greed of dowry, which is a social menace, will take benefit of the Release Act and the object of Section 304-B IPC to cause deterrence will obliterate. What is ironical, is that after holding a trial, Criminal Writ Petition No.30 of 2012 21 which is assigned to the Court not less than Sessions, the sentence awarded, which has been affirmed by the High Court and upheld by Hon'ble the Supreme Court, will have no effect as the convict will be set free under the Release Act. If the Release Act cannot keep pace with the amending legislation to the Indian Penal Code, the Courts have to play an active role to curb the mischief. Thus, literal interpretation of Rule 9 of the Rules in Sunder Lal's case (supra), in my opinion, cannot stand the test of judicial scrutiny. With all humility at my command, I regretfully cannot subscribe to the ratio of law propounded in Sunder Lal's case (supra).
Hence, question No.2 proposed be also examined by the Larger Bench in the above context.
Since both the questions proposed by me affect the liberty of a convict, present reference be listed in the motion hearing before a Larger Bench after obtaining appropriate orders from Hon'ble the Chief Justice.
A copy of this reference order be sent to all the Directors General of Police (Prisons), Punjab, Haryana and Union Territory Chandigarh so that in the cases of similar nature, till the reference is decided, further orders are kept in abeyance.
Copy of this order, duly attested by the Court Secretary of this Court, be also supplied to counsel for the State of Haryana, Punjab and Union Territory Chandigarh for onward transmission and compliance.
[KANWALJIT SINGH AHLUWALIA] JUDGE January 16, 2012 kadyan/rps