By Aabad Ponda

“Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, though outspoken, comments of ordinary men.” (vide Andre Paul Terence Ambard Versus The Attorney-General of Trinidad and Tobago AIR 1936 PC 141)

While I have the highest respect which cannot be described by mere words for the Hon’ble Supreme Court of India I feel that the above Judgement may be required to be reconsidered at some stage by the Hon’ble Apex Court and I attempt to pen down my reasons for the same as under.

The issue which arose in the above Judgment was with reference to 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 was saved even after the enactment of the Criminal Procedure Code. The Apex Court relied on Section 8 of the General Clauses Act and over – ruled the decision of the Goa Bench of the Bombay High Court inter alia holding that the same was saved by Section 8 of the General Clauses Act. By means of the said notification Section 506 (Part II) of the Indian Penal Code was treated as Non – Bailable and cognizable in Goa. There are similar notifications in other parts of India like Greater Bombay in Maharashtra where similar notifications are issued prior to the Criminal Procedure Code, 1973 being enacted. Hence this Judgement is of considerable importance directly touching upon the spinal cord of personal liberty of citizens since the very registration of an FIR and arrest and detention in custody are the seminal issues that directly get engulfed as a result of the interpretation given to the said situation.

While there can be no quarrel to the fact that Section 8 of the General Clauses Act does apply to a situation of this kind and it saves all prior notifications issued even under Section 10 of the Criminal Law Amendment Act, 1932, yet the question is whether merely because the notification is saved does it prevail over the Criminal Procedure Code, 1973 that is subsequently enacted?

In order to appreciate the aforesaid controversy it is necessary to quote Section 8 of the general Clauses Act which reads as under –

“Section 8 in 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 Construction of references to repealed enactments –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 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.

The discussion on Section 8 by the Hon’ble Supreme Court in the above Judgement of Aires Rodrigues is quoted as under –

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

In order to appreciate the controversy it is necessary to quote Section 8 of the General Clauses Act again but by emphasizing certain portions thereof –

“Section 8 in 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 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.”

The relevant aspect that requires serious reconsideration is in the above portion which has been emphasized. The spirit of Section 8 of the General Clauses Act (Supra) to the effect that it saves earlier notifications cannot be doubted but what is relevant is 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 engrafting the CrPC 1973 which came into force on 25th Janurary 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.

This argument gets further fortified by a bare perusal of Section 5 of the CrPC 1973. This re enacts and reiterates the principle of Section 8 Supra. For a ready reference Section 5 of the CrPC 1973 is quoted as under –

“Section 5 in The Code Of Criminal Procedure, 1973

5. Saving. 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 special law within the meaning of Sections 41 and 42 respectively of the Indian Penal Code.

The conjoint reading of Sections 5 of the Criminal Procedure Code and Section 8 of the General Clauses Act clearly indicate that normally a special or local law or even a notification is saved and nothing contained in the Criminal Procedure Code 1973 shall affect the provisions of such notification / local or special law. HOWEVER, THERE IS ONE EXCEPTION TO THIS RULE VIZ IF THERE IS A DIFFERENT INTENTION AND PROVISION TO THE CONTRARY.

With utmost respect it is submitted that the impact of Section 5 of the Cr,P.C. is also required to be seen before the fate of this important legal issue is laid to rest and also the said aspect of different intention as found in Section 8 needs to be re – looked at.

This is an important issue touching Article 21 of the Constitution of India as liberty of certain citizens covered under the said notification is at stake and requires to be seriously re-looked at because the very registration of an FIR for an offence U/s. 506 (Part II) is in question apart from the power to remand the person to custody treating such an offence as non – bailable.

—The writer is an Advocate practicing in the Bombay High Court on the Criminal Side