P. Ramakrishnan vs State

S. Nagamuthu, J.

Heard.

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 u/s 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 u/s 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.

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.

Let me now proceed to consider the same. Under the Code of Criminal Procedure, 1898, the offence u/s 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 u/s

198 or Section 506 of the Indian Penal Code shall be non-bailable.

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 u/s 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.

When the Code of Criminal Procedure, 1973 was introduced, again the offence u/s 506(i) of IPC has been shown as bailable. However, no

fresh Notification has been issued u/s 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.

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.

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 u/s 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 u/s 506(i) of IPC was declared as non-bailable in exercise of the power conferred u/s 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 u/s 506(i) of IPC has been classified as bailable in the Code of Criminal Procedure, 1973 or not. The

notification issued u/s 10 of the Criminal Law Amendment Act will hold good thereby the declaration that the offence u/s 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.

In this regard, I may refer to a judgment of the Delhi High Court in Sant Ram Vs. Delhi State, G.R. Mittal Metropolitan Magistrate, 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 Code of Criminal Procedure, 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 Code, and in any case, the notification was issued under the

Amendment Act, 1932 which is not at all affected by the repeal of the Code of Criminal Procedure of 1898.

Subsequently, in Narendra Kumar and Others Vs. State and Others, , 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:

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 u/s 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.

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 Vs. State of U.P. and Others, 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 :

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

Code of Criminal Procedure, 1973. Since the Code of Criminal Procedure Of 1898 has been repealed by Section 484 of the Code of Criminal

Procedure 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 u/s 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.

However, when a similar question arose for consideration before a Division Bench of Gujarat High Court in Vinod Rao Vs. The State of

Gujarat and Another, , in para 14 of the judgment, the Gujarat High Court has held as follows:

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 Code of Criminal Procedure, 1898 cannot be regarded as a notification issued with reference to Code

of Criminal Procedure 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 Code of Criminal Procedure, 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 Code of Criminal

Procedure, 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:

(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. Code of Criminal Procedure, 1973 in place of the expression of ""Code of Criminal Procedure, 1898"". When we so read

it, it becomes clear that the notification issued u/s 10 with reference to Code of Criminal Procedure, 1898 should be read as having been issued

with reference to the Code of Criminal Procedure, 1973. So far as the impugned notification is concerned, it also refers to the Code of Criminal

Procedure, 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 Code of Criminal Procedure, 1898, as a

reference to Code of Criminal Procedure, 1973. Therefore, the effect of the notification issued u/s 10 in 1937 is to modify the relevant provisions

in the Code of Criminal Procedure, 1973. Therefore, the notification of 1937 as well as the subsequent notification issued in 1970 are relevant to

the instant case.

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 Ors. 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 u/s 506 of IPC is punishable with imprisonment for two years. But, it is non-cognizable according to Schedule n. By Notification u/s

10 of the Criminal Law Amendment Act, the offence u/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 ...

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.

While doing so, since, as of now, the offence u/s 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.

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 u/s 10 of the Criminal Law Amendment Act, 1932 is valid? and 2. Whether the offence u/s 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.