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Above: Criminal intimidation remains non-bailable in certain states, bailable in others

Why the SC may want to revisit its judgment in the Aires Rodrigues vs Vishwajit P Rane case

~By Aabad Ponda

While I have the highest respect for the Supreme Court of India, I feel that the court might want to revisit a particular judgment. The reference (see Box) is a notification issued prior to the coming into force of the Criminal Pro­cedure Code, 1973, by virtue of Section 10 of the Criminal Law Amend­ment Act, 1932. The question that was raised was whether the said notification could be enforced even after the enactment of the new code.

The apex court relied on Section 8 of the General Clauses Act (section detailed later) and overruled the decision of the Goa bench of the Bombay High Court, arguing that the notification was saved by this section.

That notification said that Section 506 (Part II) (see adjacent box) of the Indian Penal Code would be treated as non-bailable and cognizable in Goa. There are similar notifications issued in other parts of India, such as Greater Mumbai, before the enactment of the CrPC 1973. This judgment is important, because it touches on personal liberty. The very registration of an FIR and arrest depends on the interpretation of the situation.

Section 8 of the General Clauses Act does apply to a situation of this kind and it keeps all prior notifications issued alive, even notifications under Section 10 of the Criminal Law Amendment Act, 1932 (see Box on Section 10). However, the question that remains is: Merely because the notification is saved does it prevail over the Criminal Procedure Code, 1973 which was subsequently enacted?

Section 8 of the general Clauses Act says:

Construction of references to repealed enactments: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 modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.”

In the discussion on Section 8 the Supreme Court said:

“It is not necessary to refer to all the above judgments. View taken in support of the notification remaining valid and operative in Vinod Rao (supra) is, inter alia, as follows:

“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. CrPC 1973 in place of the expression of “CrPC 1898”. When we so read it, it becomes clear that the notification issued under Section 10 with reference to CrPC 1898 should be read as having been issued with reference to the CrPC 1973. So far as the impugned notification is concerned, it also refers to the CrPC 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 Clause 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 CrPC, 1898, as a reference to CrPC, 1973. Therefore, the effect of the notification issued under Section 10 in 1937 is to modify the relevant provisions in the CrPC 1973. Therefore, the notification of 1937 as well as the subsequent notification issued in 1970 are relevant to the instant case.”

Remember, Section 8 incorporates the clause: “unless a different intention appears”.

The spirit of this section is in the wording, which means that if with respect to the same field a subsequent law is laid down which clearly expresses a different intention then the subsequent law shall even as per Section 8 of the General Clauses Act prevail.

Section 506 (Part II) of the CrPC 1973 has been made bailable and non- cognisable by virtue of the schedule to the said Code. The intention of the legislature in drafting the CrPC 1973 which came into force on January 25, 1974, in making the said Section 506 (Part II) of the CrPC 1973 bailable and non-cognizable clearly shows that a different intention appears as per Section 8 also.

Section 5 of the CrPC 1973 further fortifies it. It says:

“Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

The provisions of Section 10 of the Criminal Law Amendment Act, which gives the power to issue notifications applicable only to particular subjects and/or particular parts of India, is clearly a special law within the meaning of Sections 41 and 42 of the Indian Penal Code.

Read Section 5 of the CrPC and Section 8 of the General Clauses Act together and you find that normally a special or local law or even a notification is saved, but the exception happens when there is a different intention and provision to the contrary.

—The author is a lawyer at the Bombay HC on the criminal side

The notification and the old code

In January, the Supreme Court bench of Justices AK Goel and U U Lalit had observed that despite the Criminal Procedure Code of 1898 having been repealed and replaced by CrPC 1973, a notification issued under Criminal Law Amendment Act of 1932 is still relevant and the notification with reference to the old Code of 1898 should be read as having been issued with reference to Code of Criminal Procedure, 1973.

The Supreme Court had given this verdict in the Aires Rodrigues vs Vishwajit P Rane (2017 SCC OnLine SC 219) case.

The verdict was specific to a notification. In that notification (June 27, 1973) Goa, which was then a Union Territory, had declared that Sections 186, 188,189, 228, 295-A, 298, 505 or 507 of the Indian Penal Code, when committed in the Union Territory of Goa, Daman and Diu, to be cognizable and Sections 188 or 506 of the IPC to be non-bailable when committed in the said territory.

The Supreme Court was adjudicating on the judicial realm of the notification, because that notification was done with reference to the old code.

Section 506 (Part II)

This refers to criminal intimidation. As per the section, the punishment is imprisonment for a term which may extend to two years, or with fine, or with both. However, if that threat is of death or to cause grievous hurt, destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life or to rob the chastity of a woman then the punishment could be imprisonment of up to seven years and fine. Normally one can get bail in all states of India, and this was an exception, as per the notification.

Section 10 in The Criminal Law Amendment Act, 1932

Verbatim

  1. 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, 295A, 298, 505, 506 or 507 of the Indian Penal Code (45 of 1860 ), when committed in any area specified in the notification shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898 ), be cognizable, and thereupon the Code of Criminal Procedure, 1898 (5 of 1898 ), shall, while such notification remains in force, be deemed to be amended accordingly.

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