Vishnu Sahai & Others vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

(CLMA No. 756 of 2019)

(CLMA No. 758 of 2019)

The applications, to condone the delay in preferring these review applications, are not opposed, and the delay is, therefore, condoned. Delay condonation applications stand allowed.

(MCC No. 44 of 2019)

(MCC No. 45 of 2019)

These two applications are filed seeking recall of the order passed by a Division Bench of this Court in SPA No. 739 of 2018 and SPA No. 740 of 2018 dated 19.09.2018. The challenge, in both the writ petitions, was to the validity of Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976), as applicable to the State of Uttarakhand, as being ultra vires, and as violative of Articles 14, 19 and 21 of the Constitution of India.

On the writ petitions being dismissed, the petitioners had carried the matter in Appeal before the Division Bench.

The Uttar Pradesh State Legislature had, by the amended Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976), omitted Section 438 of the Code of Criminal Procedure, 1973. The 1976 Amendment Act continued to remain in force even when the State of Uttarakhand was created on 09.11.2000. Though the Uttar Pradesh State Legislature deleted the amendment, and restored Section 438 of the Code of Criminal Procedure, 1973, by an amendment made long after the State of Uttarakhand was created, Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 continued to apply to the State of Uttarakhand.

In its order, recall of which is sought, a Division Bench of this Court declared Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 inapplicable to the State of Uttarakhand on the ground that the said legislation had not been adapted by the Government of Uttarakhand in terms of Section 87 of the U.P. Reorganisation Act.

While the U.P. Amendment Act, 1976 continued to be a law in force in the State of Uttarakhand in view of Section 86 of the Uttar Pradesh Reorganisation Act, even if it is presumed that such a law required adaptation under Section 87, the Government of Uttarakhand had adapted the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976, by notification dated 02.11.2002. The order of the Division Bench, recall of which is now sought, is based on the premise that an adaptation order had not been passed by the Government of Uttarakhand. Since it is now evident that such an adaptation order was, in fact, passed on 02.11.2002, the order passed by the Division Bench, in Special Appeal Nos. 739 of 2018 and 740 of 2018, must be, and is accordingly, recalled.

Sri Aditya Singh, learned counsel for the appellants-writ-petitioners would submit that the validity of Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 necessitates examination in the Special Appeals.

The Special Appeals are restored to file and shall be listed before the regular bench hearing these matters.

The recall applications stand disposed of accordingly. No costs.