Punjab-Haryana High Court
Anuj & Another vs State Of Haryana & Another on 8 July, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: July 08, 2013
CRM No.M-26407 of 2012
Anuj & another ...Petitioners
Versus
State of Haryana & another ...Respondents
Present: Mr. Balwinder Singh, Advocate, for the petitioners.
Mr. Pardeep Singh Poonia, Addl. AG, Haryana &
Mr. Kshitij Sharma, AAG, Haryana, for respondent No.1.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
The matter has been referred to the Larger Bench vide order dated 30.08.2012 on a petition filed under Section 482 Cr.P.C. read with Articles 226/227 of the Constitution of India, wherein prayer is made for quashing of an FIR registered under Sections 323 & 506/34 IPC. One of the ground to seek quashing of the FIR is that the notification amending Code of Criminal Procedure by making Section 506 IPC as cognizable and non- bailable, is illegal. In support of such argument, the reliance is placed upon the Division Bench judgment of Allahabad High Court in Virendra Singh & others Vs. State of U.P. & others 2002 Cri. L. J. 4265.
Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 2
It is by virtue of a notification dated 10.10.1986, the State of Haryana notified the offence under Section 506 IPC as a cognizable and non- bailable. Such notification has been issued in exercise of powers conferred by sub-section (1) & (2) of Section 10 of the Criminal Law Amending Act, 1932.
The other petitions, which are fixed for today i.e. CRM No.M- 10564 of 2012 titled 'Ganga Singh & others Vs. Union Territory, Chandigarh & another' and CRM No.M-34514 of 2011 titled Pavittar Singh and others Vs. Union Territory, Chandigarh & another' wherein notification in issue is one published by the Administrator for and on behalf of Chandigarh Administration, Union Territory, Chandigarh on 25.02.2011, whereby the offences under Sections 186, 190, 228, 298, 505, 506 & 507 IPC were notified to be cognizable and the offences under Sections 188 & 506 IPC were notified as to be non-bailable with further direction that this declaration shall remain valid for a period of one year from the date of issuance of the notification.
The argument of Mr. Hundal, learned counsel appearing on behalf of the petitioners in CRM No.M-34514 of 2011, is that the first schedule appended to the Code of Criminal Procedure, 1973 (for short 'the Code') specifies the offences, which are cognizable or non-cognizable and bailable or non-bailable. Such Code has repealed the Code of Criminal Procedure, 1898 (for short 'the Old Code'). Since the Central Act has made the offence in question as bailable and non-cognizable, therefore, the notification issued by the State of Haryana making the offence as non-bailable and cognizable is inconsistent to the Central Act and thus repugnant to the Central Statute, thus, cannot be enforced. In support of such argument, Mr. Hundal relied upon the judgment of Allahabad High Court in Virendra Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 3 Singh's case (supra) and also the judgment of Bombay High Court reported as Vishwajit P. Rane Vs. State of Goa & others 2011 Crl. L. J. 1289.
On the other hand, learned counsel for the State argued that Section 484 of the Code has not repealed or modified Criminal Law Amendment Act, 1932 in any manner. Therefore, even after the enactment of Code, the State Government has the power to issue notification to declare certain offences, as mention in Section 10 thereof to notify as cognizable and non-bailable. He referred to Section 8 of the General Clauses Act, 1897 to contend that when a Statute is repealed, then the reference to said Statute in any provision would correspondably be referable to the new Statute. Therefore, the reference to Old Code in Section 10 of the Criminal Law Amendment Act, 1932 would relate to Code. He also relies upon the judgments of Gujarat High Court, Madras High Court and Delhi High Court in Vinod Rao Vs. The State of Gujarat & another 1981 Crl. L. J. 232; Ganesan & another Vs. State rep. by The Inspector of Police (Crl.O.P.(MD) No.14156 of 2011 decided on 21.12.2011) and Sant Ram Vs. Delhi State, G.R.Mittal Metropolitan Magistrate 1980 (17) DLT 490 respectively in support of his arguments.
Before we consider the respective arguments raised by the learned counsel for the parties, certain statutory provisions need to be extracted. The same are as under:
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 notification, 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.Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 4
xxx xxx xxx"
Code of Criminal Procedure, 1973 "484. Repeal and savings - (1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed.
(2) Notwithstanding such repeal -
(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force :
Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code;
(b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code;
(c) xx xx"
The Criminal Law Amendment Act, 1908 "An Act to provide for the more speedy/trial of certain offences, and for the prohibition of association dangerous to the public peace.
Whereas it is expedient to provide for the more speedy trial of certain offences, and for the prohibition of associations dangerous to the public peace:-
It is hereby enacted as follows:
1. Short title and extent - (1) This Act may be called the Indian Criminal Law Amendment Act, 1908.Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 5
(2) It extends to the whole of India except the territories which, immediately before the 1st November, 1956 were comprised in Part B States.
(3) xxx xxx xxx
17. Penalties - xx xx
*(3) An offence under sub section (1) shall be cognizable by the police, and notwithstanding anything contained in the Code of Criminal Procedure, 1908 (5 of 1908) shall be non-bailable."
Note - * (Inserted by Act 23 of 1932) The Criminal Law Amendment Act, 1932 (Act 23 of 1932) "An act to supplement the Criminal Law Whereas it is expedient to supplement the Criminal Law and to that end to amend the Indian Press (Emergency Powers) Act, 1931, and further to amend **(xx xx) the Indian Criminal Law Amendment Act, 1908 for the purposes hereinafter appearing:
Note - ** ('temporarily' omitted by Criminal Law Amendment Act, 1935) It is hereby enacted as follows:
1. Short title, extent, duration and commencement - This Act may be called the Criminal Law Amendment Act, 1932.
(2) It extends to the whole of India except the territories which immediately before 1st November, 1956 were comprised Part B States.
(3) ***( xxx xxx xxx) Note - *** (sub-section (3), limiting the duration of the Act to three years from commencement was repealed by Criminal Law Amendment Act, 1935) xxx xxx xxx
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 Section 186, 188, 189, 190, 228, 295-A, 2298, 505, 506 or 507 of the Indian Penal Code, 1860 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 Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 6 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 188 or section 506 of the Indian Penal Code 1860 shall be non- bailable".
A perusal of the various statutory provisions shows that Criminal Law Amendment Act, 1932 was enacted to make the offences under Indian Penal Code as cognizable and non-bailable notwithstanding anything contained in the Old Code. The statute was enacted for a limited duration of three years, but by a subsequent amendment in 1935, the limited duration of the Statute was omitted. Thus the Criminal Law Amendment Act, 1932, in the absence of any modification or repeal by any subsequent Central Legislation continues to be valid law in terms of Article 13 of the Constitution of India. The Criminal Law Amendment Act, 1932 has not been modified or repealed when the Code was enacted nor the Code gives overriding effect to its provisions over all or any other statute. Therefore, the Criminal Law Amendment Act, 1932 is valid and operative legislation not affected by the subsequent enactment of Code.
Though the schedule has made the offences under Sections 188 & 506 as non-cognizable and bailable, but in terms of powers conferred on the State Government under Section 10 of the Criminal Law Amendment Act, 1932, the State Governments are empowered to notify specific offences as cognizable and non-bailable. There is no express and implied prohibition in the Code from prohibiting the State to make such offences as cognizable and non-cognizable except the provisions contained in Article 254 (2) of the Constitution of India. But since a Central Statute i.e. Criminal Law Kumar Vimal Amendment Act, 1932 permits the State Government to issue notification so 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 7 as to make certain offences as cognizable and non-bailable, therefore, the State Governments are competent to issue the notification such as notification dated 10.10.1986.
Mr. Hundal has relied upon judgment of Allahabad High Court in Virendra Singh's case (supra). We are unable to persuade ourselves to the findings recorded therein that Section 10 of the Criminal Law Amendment Act, 1932 does not give power to the State Government to amend by way of notification any part of the Code. Section 8 of the General Clauses Act, 1897 was not brought to the notice of the Court. Still further, the notification issued by the State Government under Section 10 of the Criminal Law Amendment Act, 1932 is in exercise of the powers conferred on the State Government in respect of certain offences to notify the same as cognizable and non-bailable. Such power is exercised in terms of an earlier Statute unaffected by the enactment of the Code. Even after the enactment of Code, the Criminal Law Amendment Act, 1932 does not become redundant and otiose, as the reference to Old Code in Criminal Law Amendment Act, 1932 shall be deemed to be Code in view of Section 8 of the General Clauses Act, 1897.
Another reasoning given by the Allahabad High Court is that Central Act can be amended by another Central Act and not by simple notification. However, the impugned notification dated 10.10.1986 is not a notification to amend the Central Act, but to exercise powers conferred on the State Government under a separate Central Act.
The Bombay High Court in Vishwajit P. Rane's case (supra) has taken a view that the notifications dated 27.06.1973 and 05.07.1973 have Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 8 been issued in exercise of the powers conferred under Section 10 of the Criminal Law Amendment Act, 1932 and are not saved by sub-section (2) of Section 484 of the Code and from 01.04.1974, the date of commencement of Code, the offence punishable under Section 506 IPC is a non-cognizable offence. Referring to Section 8 of the General Clauses Act, the Court said that the said provision is not applicable, as Code has been enacted in exercise of the powers conferred on the Parliament in List III of the 7th Schedule and, therefore, the law made by Parliament could have been amended only by a suitable legislation. The Court overlooked the fact, that there is no reference to the repeal or modification of the any other statue other than the Old Code in Section 484 of the Code. The Code also does not give overriding effect to it over any or all Central or State Statues. Therefore, the said judgment suffers from same infirmity as in Virendra Singh's case (supra).
The judgments referred to by learned counsel for the respondents in Vinod Rao; Ganesan and Sant Ram cases (supra), pertain to the notifications issued prior to the commencement of Code. Therefore, such notifications would be valid in terms of Section 484(2) of the Code. Still further, the question raised before this Court i.e. validity of the notification issued after the enactment of the Code under the Criminal Law Amendment Act, 1932 was not an issue arising for consideration in the cases relied upon by the learned counsel for the respondents.
Having said so, we find that even though the judgments relied upon by the learned counsel for the respondents are not relevant, but still we find that the notification issued by the State Government are within the jurisdiction of the State Government in terms of Section 10 of the Criminal Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 9 Law Amendment Act, 1932 read with Section 8 of the General Clauses Act, 1897 as discussed above.
Another argument raised is in respect of notification dated 25.02.2011 issued by the Administrator, Chandigarh Administration, U.T., Chandigarh in exercise of the powers conferred by Section 10 of the Criminal Law Amendment Act, 1932. It is contended that even if provisions of Section 10 are legal and valid, still the notification under Section 10 could be issued only by Central Government and not by the Administrator.
The similar question has been examined by a Division Bench of this Court in a judgment reported as Punjab Financial Corporation, Chandigarh Vs. The Union Territory, Chandigarh & others (1991) 1 ILR (P&H) 140, wherein it has been held that in relation to Union Territory, the appropriate Government is Central Government. But the powers of the Central Government are exercised by the President through an Administrator appointed by Him. Reference was made to the notification dated 1St November 1966 issued under Article 239 of the Constitution, whereby the President has appointed Administrator of the Union Territory of Chandigarh. The Administrator is delegatee of the President. The Court observed like this:
"(3) So far as the first aspect of the matter as highlighted by the learned counsel for the petitioners is concerned, the same, to my mind, stands conclusively answered by the latest pronouncement of the Supreme Court, reported as Goa Sampling Employees' Association v. General Superintendent Co. of India Pvt. and others, AIR 1985 SC 357. While examining the arguments that in relation to a Union Territory there is no State Government and the Central Government, if at all can be said to be one, is the only Government and in the absence of a State Government, the Central Government will also have all the powers of the State Government, and therefore, the Central Government would be the appropriate Government for the purpose of making reference, their Lordships, after analysing the various provisions of the Constitution, posed the question":Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 10
"Would it be constitutionally correct to describe the Administration of a Union Territory as State Government?" and answered it in the following manner. It clearly transpires that the concept of the State Government is foreign to the administration of Union Territory and Article 239 provides that every Union Territory is to be administered by the President. The President may act through an Administrator appointed by him. Administrator is the delegatee of the President. His position is wholly different from that of a Governor of a State. Therefore, at any rate the Administrator of a Union Territory does not qualify for the description of a State Government. Wherever the expression "State Government" is used in relation to the Union Territory, the Central Government would be the State Government. Therefore, the Central Government is the appropriate Government Clause (f) of Rule 2 of 1957 Rules framed under the Act further takes the matter beyond the pale of controversy when it says in relation to an industrial dispute in a Union Territory for which the appropriate Government is the Central Government reference to the Central Government or the Government of India shall be construed as reference to the Administrator of the Territory. It is thus abundantly clear that for purposes of these references, the Central Government was the State Government and in view of Section 8(b)(iii) of the General Clauses Act, the Administrator of the Union Territory has to be taken to be the Central Government if his action was otherwise within the authority given to him.
4. The second aspect of the argument of the learned counsel for the petitioners that the Administrator has not acted within his authorization as notified - vide Annexure R.1/1, appears to be equally meritless. The scope of the words 'any law' does not need to be reduced to any State law or State Act, meaning thereby to exclude the Central Acts. 'Any law' would essentially mean all State and Central Acts. The only implication of this notification is that all powers and functions under any law (as used in the earlier part of the notification) would henceforth, i.e. after the issuance of this notification, be performed by the Administrator of the Union Territory. The expression 'any such law' in the latter part of the notification only refers to the law under which the Administrator acts or is supposed to act."
In the reply filed, the reference is also made to the notification dated 25.02.1988, whereby the Administrator has further delegated powers as specified to the Advisor to the Administrator. Therefore, it is contended that the notification has been validly issued by Chandigarh Administration. Kumar Vimal 2013.07.12 13:33 I attest to the accuracy and integrity of this document Chandigarh CRM No.M-26407 of 2012 11
We find no illegality in the notification issued. Recently, somewhat similar argument that the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 would not be applicable to the premises owned by Administration or a Company wholly controlled by it as Chandigarh Administration is State Government, therefore, the Central Act would not be applicable was raised in CWP No.15438 of 2008 titled 'Krishan Kumar & another Vs. The Chandigarh Industrial and Tourism Development Corporation Ltd. & another' decided on 24.02.2012. Such an argument was negated.
In view of the above discussion, we find that the notifications issued are not illegal.
Having answered the reference, the petitions be placed before the learned Single Bench for further proceedings in accordance with law.
(HEMANT GUPTA)
JUDGE
08.07.2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.07.12 13:33
I attest to the accuracy and
integrity of this document
Chandigarh