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Madras High Court
Ganesan vs State Rep.By on 21 December, 2011
Author: M.Jaichandren
Bench: M.Jaichandren
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 21/12/2011CORAMTHE HONOURABLE MR.JUSTICE.M.JAICHANDRENANDTHE HONOURABLE MR.JUSTICE.S.NAGAMUTHUCrl.O.P.(MD)No.14156 of 20111.Ganesan2.Nallaiah... Petitioners/Accused 1 & 3VsState rep.byThe Inspector of Police,Illuppur Police Station,(Crime No.182 of 2011)Pudukottai District.... RespondentsPetition filed under Section 438 of the Criminal Procedure Code to enlargethe petitioners/accused on bail in the event of their arrest by the Inspector ofPolice, Illuppur Police Station, Pudukottai District in Cr.No.182 of 2011.!For Petitioners... Mr.R.Jegadeeswaran^For Respondent... Mr.R.Ramachandran Addl.Public Prosecutor******:ORDER(Order of the Court was made by M.JAICHANDREN,J)This matter has been placed before us, as per the order of the Hon'bleAdministrative Judge, on a reference made by one of us (Justice S.Nagamuthu), toexamine the following questions:-
1)"Whether the Notification issued by the Government of Tamil Nadu inG.O.Ms.No.S/4118-1/70, Public (S.C.), dated 03.08.1970 in exercise of the powerconferred under Section 10 of the Criminal Law Amendment Act, 1932, is valid?and
2) Whether the offence under Section 506(i) Indian Penal Code is non -
bailable insofar as the State of Tamil Nadu is concerned?."
2.The Criminal Original Petition, in Crl.O.P.(MD).No.14156 of 2011,has been filed praying that this Court may be pleased to enlarge thepetitioners, who are the accused Nos.1 and 3, in Crime No.182 of 2011, on thefile of the Iluppur Police Station, Pudukkottai District, on bail, in the eventof their arrest.
3.The petitioners in the Criminal Original Petition had stated thatthey were apprehending arrest, by the respondent police, for the offences, saidto have been committed by them, under Sections 294(b), 323 and 506(i) of theIndian Penal Code, 1860, in Crime No.182 of 2011, on the file of the IluppurPolice Station, Pudukkottai District. The petitioners had contended that theoffence punishable, under Section 506(i) of the Indian Penal Code, is non-bailable, as per the Government Order, in G.O.Ms.No.S/4118-1/70, Public (S.C.),dated 03.08.1970, issued in exercise of the power conferred, under Section 10 ofthe Criminal Law Amendment Act, 1932, whereas, the offences said to have beencommitted, under the other Sections of the Indian Penal Code, mentioned above,are bailable in nature.
4.In such circ*mstances, the petitioners had moved this Court, byfiling the present Criminal Original Petition, seeking 'anticipatory bail'.Therefore, the question had arisen as to whether the offences, said to have beencommitted, under Section 506 (i) of the Indian Penal Code, is bailable or non-bailable in nature.
5.The learned counsel for the petitioners had placed before thelearned single Judge, the decision, in P.Ramakrishnan v. State, 2010 (3) MWN(Crl.) 69 [Crl.O.P.Nos.7452, 8517 and 8747 of 2010, order dated 21.04.2010]. Ithad been contended that the notification issued by the State Government, inG.O.Ms.No.S/4118-1/70, Public (S.C.), dated 03.08.1970, had declared the offencepunishable, under Section 506(i) of the Indian Penal Code, as 'non-bailable'.The decisions of the Delhi High Court, in Sant Ram Vs. Delhi State, (1980 (17)DLT 490), and Narendra Kumar and others Vs. State, (2004 Crl.L.J 2594), had alsobeen placed before the learned single Judge of this Court. The Delhi High Courthad held, in Sant Ram Vs. Delhi State, 1980 (17) DLT 490, that the offencespunishable, under Section 506 of the Indian Penal Code are congnisable, as wellas non-bailable, in the union territory of Delhi, as per the notification 232Home, Delhi, dated 11.1.1933, issued in exercise of the powers conferred bysection 10 of the Criminal Law Amendment Act, 1932. However, a Division Bench ofthe Allahabad High Court, in Virendra Singh vs. State of U.P., (2002 Crl.L.J.4265), had held that the notification issued by the State Government of UttarPradesh declaring that an offence punishable, under Section 506 of the IndianPenal Code, committed in any of the districts of Uttarpradesh, shall, notwithstanding anything contained in the code of criminal procedure, 1973, (ActNo.2 of 1974), be cognizable and non-bailable, is illegal. Paragraphs 6, 7 and 8of the said decision reads as follows:
"6. Section 10 of the Criminal Law Amendment Act, 1932 gives power to theState Government to declare certain offences including Section 506, I.P.C. to becognizable and non-bailable and on issuance of the said notification the Code ofCriminal Procedure, 1898 shall stand amended accordingly.
7. Section 10 of the Criminal Law Amendment Act, 1932 does not give powerto the State Government to amend by a notification any part of the CriminalProcedure Code 1973. Since the Cr.P.C. of 1898 has been repealed by Section 484of the Cr.P.C. Act, 1973 we are of the opinion that Section 10 of the CriminalLaw Amendment Act, 1932 has become redundant and otiose. Hence in our opinion nonotification can now be made under Section 10 of the Criminal Law Amendment Act,1932. Any such notification is illegal for the reason given above. Hence wedeclare notification No. 777/VIII-9 4(2)-87, dated July 31, 1989, published inthe U.P. Gazette, Extra Part 4, Section (kha), dated 2nd August, 1989 by whichSection 506, I.P.C. was made cognizable and non bailable to be illegal. Section506, I.P.C. has to be treated as bailable and non -cognizable offence.
8. There is another reason also why the aforesaid notification of 1989 isillegal. The Cr.P.C. of 1973 is a Parliamentary enactment. An act can only beamended by another Act or by an Ordinance, not by a simple notification.Moreover, a Central Act cannot be amended even by a U.P. Act unless the assentof the President is taken vide Article 254(2) of the Constitution. Thenotification of 1989 purports to amend a Central Act (the Cr.P.C. of 1973) evenwithout the assent of the President."
6. However, a Division Bench of the High Court of Gujarat, in Vinod Rao v.State of Gujarat, 1981 Crl.L.J 232, had taken a different view holding that anoffence committed, under Section 506 of the Indian Penal Code, would becongnisable and non-bailable, as per the notification, dated 15.11.1937, issuedby the then Government of Bombay.
7.The learned single Judge had noted that, in K.M.Sundaram and anothervs. Inspector General of Police, Madras and others, 1970 LW (Crl.) 299, thequestion as to whether an offence, said to have been committed, under Section506 of the Indian Penal Code, is bailable or non-bailable, had been left open.The relevant portion of the judgment of the Division Bench reads as follows:
"The offence under Section 506 of Indian Penal Code is punishable withimprisonment for two years. But, it is non-cognizable according to Schedule II.By notification under S.10 of the Criminal Law Amendment Act, the offence underSection 506, Indian Penal Code was declared to be cognizable and non-bailable.Though the validity of this Notification was questioned in the Affidavit filedby 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 itopen...."
8. As such, on considering similar notifications in various states, it hasbeen found that the different High Courts have arrived at different conclusions,in their decisions relating to the question as to whether an offence, said tohave been committed, under Section 506(i) of the Indian Penal Code, is bailableor non-bailable in nature. It is seen that conflicting views have been expressedby the various High Courts and therefore, there has been a necessity for aDivision Bench of this Court to settle the issue, at least insofar as it relatesto the State of Tamil Nadu, as it has been ambiguous, till date.
9.In such circ*mstances, this reference has been placed before thisCourt, to answer the questions referred to above.
10.The learned counsel appearing on behalf of the petitioners hadplaced before this Court a decision of the Goa Bench of the Bombay High Court,in Vishwajit P.Rane Vs. State of Goa, (2011 CRI.L.J.1289), wherein, it had beenheld as follows:-
"12.Now that brings us to the notification dated 29th April/11th May, 2004(Annexure A to the Writ Petition). Material part of the said notification readsthus:
"In exercise of the power conferred by sub-sections (1) and (2) of Section10 of the Criminal Law Amendment Act, 1932, (Act 23 of 1932) and in supersessionof the Notification No.HD-44-104/73-A dated 27.6.1973, published in the OfficialGazette, series 1 No.14, dated 5.7.1973, the Government of Goa hereby declaresthat:
(i) notwithstanding anything contained in the Code of Criminal Procedure,1973 (Act 2 of 1974), any Offence punishable under Sections 186, 189, 228, 298,506 or 507 of the Indian Penal Code, 1860 (45 of 1860) when committed within theState of Goa shall be congnizable; and
(ii) any Offence punishable under Section 188 or 506 of the Indian PenalCode, 1860 shall be non-bailable when committed within the State of Goa."
On a plain reading of Section 10 of Act of 1932 it reveals that the powerconferred by the said section was to amend the said Code of 1898 by makingcertain offences cognizable and non-bailable. Section 10 of the Act of 1932does not empower the State Government to amend the First Schedule to the saidCode of 1973 by making the offence punishable under Section 506 of the PenalCode cognizable and non-bailable. Even Section 8 of the General Clauses Act,1897 will have no application. The said code of 1973 is the law enacted by theParliament. The said Code of 1973 is covered by Item 2 of List III (theconcurrent list) of Seventh Schedule to the Constitution of India. The law madeby the Parliament could have been amended only by an appropriate legislation bythe State Government and no provision of the said Code of 1973 could have beenamended only by issuing a notification. There is no power vesting in the StateGovernment to amend the First Schedule to the said Code of 1973 by issuing anotification.
13. In any event, the admitted position is that the notification dated29th April/11th April, 2004 has not been published in the official gazette and,therefore, the said notification cannot be a notification contemplated by sub-section (1) of Section 10 of the said Act of 1932. Therefore, the clear legalposition which emerges is that the offence punishable under Section 506 of thePenal Code, when committed within the State of Goa, is a non-cognizableoffence."
11.The learned counsel appearing on behalf of the petitioner had alsoplaced before this Court a decision of the Supreme Court, in Directorate ofEnforcement Vs. Deepak Mahajan, AIR 1994 Supreme Court 1775, wherein, it hadbeen held as follows:-
"32. True, normally Courts should be slow to pronounce the legislature to havebeen mistaken in its constantly manifested opinion upon a matter resting whollywithin its will and take its plain ordinary grammatical meaning of the words ofthe enactment as affording the best guide, but to winch up the legislativeintent, it is permissible for courts to take into account of the ostensiblepurpose and object and the real legislative intent. Otherwise, a bare mechanicalinterpretation of the words and application of the legislative intent devoid ofconcept of purpose and object will render the legislature inane. In cases ofthis kind, the question is not what the words in the relevant provision mean butwhether there are certain grounds for inferring that the legislature intended toexclude jurisdiction of the courts from authorising the detention of an arresteewhose arrest was effected on the ground that there is reason to believe that thesaid person has been guilty of an offence punishable under the provisions ofFERA or the Customs Act which kind of offences seriously create a dent on theeconomy of the nation and lead to hazardous consequences. Authorities, a few ofwhich we have referred to above, show that in given circ*mstances, it ispermissible for courts to have functional approaches and look into thelegislative intention and sometimes it may be even necessary to go behind thewords and enactment and take other factors into consideration to give effect tothe legislative intention and to the purpose and spirit of the enactment so thatno absurdity or practical inconvenience may result and the legislative exerciseand its scope and object may not become futile.
33. In the light of the above exposition of the principle of law, we have noreason to believe and in fact do not believe that the provisions of the FERA andCustoms Act were passed for any other purpose rather than their ostensiblepurposes, the vital of which being the economic development of the country andaugmentation of revenue."
12.The learned single Judge, while referring the matter to be placedbefore a Division Bench, had noted that, under the Code of Criminal Procedure,1898, an offence under Section 506(i) of the Indian Penal Code had been shown asa 'bailable offence'. However, in the year 1932, the Criminal Law AmendmentAct,1932, had been brought into force. Section 10 of the said Act reads asfollows:-
"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, 228,295A, 298, 505, 506 or 507 of the Indian Penal Code, (45 of 1860) when committedin any area specified in the notification shall, notwithstanding anythingcontained in the Code of Criminal Procedure 1898, be cognizable, and thereuponthe Code of Criminal Procedure, 1898 shall, while such notification remains inforce, be deemed to be amended accordingly.
(2) The State Government may, in like manner and subject to the likeconditions, and with the like effect, declare that an offence punishable underSection 188 or Section 506 of the Indian Penal Code shall be non-bailable."
13. It had also been noted that, in exercise of the powers conferred,under Section 10 of the Criminal Law Amendment Act, 1932, the Government ofTamil Nadu has issued G.O.Ms.No.S/4118-1/70, Public (S.C.), dated 03.08.1970.The relevant portion of the Government order reads as follows:
"In exercise of the powers conferred by sub-section (2) of section 10 ofthe Criminal Law Amendment Act, 1932 (Central Act 23 of 1932), the Governor ofTamil Nadu hereby declares that an offence punishable under Section 188 orsection 506 of the Indian Penal Code (Central Act 45 of 1860), when committed inany place in the State of Tamil Nadu shall, notwithstanding anything containedin the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), be non-bailable."
14. At this juncture, we may state that, in exercise of the powersconferred under the said Section, the Government of Tamil Nadu had issuedG.O.Ms.No.S/4118-1/70 Public (S.C.), dated 03.08.1970, published in the TamilNadu Government Gazette NO.260, Extraordinary Part II Section 1 Madras, dated3rd August, 1970, thereby declaring that any offence punishable under Sections188 and 506(i) of the Indian Penal Code, when committed in any place in theState of Tamil Nadu shall, not withstanding anything contained in the Code ofCriminal Procedure, 1898, be cognizable and non-bailable. After the saidGovernment Order had been issued, as per Section 10 of the Criminal LawAmendment Act, 1932, the Code of Criminal Procedure, 1898 was deemed to havebeen amended accordingly.
15. When the Code of Criminal Procedure, 1973, was introduced, once againthe offence under Section 506 (i) of Indian Penal Code had been shown asbailable. However, no fresh Notification has been issued, under Section 10 ofthe Criminal Law Amendment Act, 1932. In such circ*mstances, a considerableamount of confusion had arisen as to whether the notification issued earlier,when the repealed Code was in force, would be applicable, in respect of thepresent Code as well.
16. 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 theConstitution of India. There can also be no controversy regarding the fact thatthe State Legislature is empowered to make local amendments, in respect of theprovisions of the Code. The constitutional requirement are that, after suchamendment, it should get the assent of the President of India, so as to have anover-riding effect. Admittedly, the present case, neither the Code of CriminalProcedure, 1898, nor the Code of Criminal Procedure, 1973, was amended by StateLegislature, by means of any amending Act, requiring the assent of the Presidentof India. However, in the Code of Criminal Procedure, 1898, insofar as theclassification of Section 506(i) of the Indian Penal Code, as bailable, isconcerned, it was deemed to have been amended, as non-bailable, as per thenotification issued under the Criminal Law Amendment Act, 1932, which is aCentral Legislation. Thus, it is not by actually amending the Code of CriminalProcedure, 1898, way of a local amendment, Section 506(i) of theIndian PenalCode was made non-bailable. If it had been the case of the Code of CriminalProcedure, 1898, being amended, the said amendment would have perished, alongwith 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, classifiesthe offence, under Section 506(i) of the Indian Penal Code, as bailable, thesame would have been in force in the State of Tamil Nadu. On the contrary, as wehave already stated, the Code of Criminal Procedure, 1898, had not been amended.Instead, the offence falling under Section 506 (i) of the Indian Penal Code hadbeen declared to be non-bailable, in exercise of the powers conferred underSection 10 of the Criminal Law Amendment Act, 1932. The said declaration wouldhold good until the same is withdrawn by the Government of Tamil Nadu, under thesaid Act. Therefore, in spite of the fact that the offence falling under Section506(i) of the Indian Penal Code has been classified as bailable, in the Code ofCriminal Procedure, 1973, the notification issued, under Section 10 of theCriminal Law Amendment Act, 1932, would hold good. As such, the declaration thatthe offence, under Section 506(i) of the Indian Penal Code, is non-bailable andcognizable shall have the necessary statutory force and the same shall have anover-riding effect over the Code of Criminal Procedure, 1973.
17.It is an admitted fact that the notification issued by theGovernment of Tamil Nadu, in G.O.Ms.No.S/4118-1/70, Public (S.C.), dated03.08.1970, had not been challenged by the petitioners. The said notificationhas not been declared to be invalid, till date. Since, the said notification isin force, an offence, under Section 506(i) of the Indian Penal Code would benon-bailable in nature. However, this Court is of the considered view that thecontinuation of the notification, issued in the year, 1970, calls for a review.Therefore, it would be appropriate for the Government of Tamil Nadu to reviewthe said notification and to consider as to whether an offence committed, underSection 506(i) of the Indian Penal Code, is to continue as a non-bailableoffence, especially, in view of the fact that the offences, under Sections 324and 325 of the Indian Penal Code, are bailable in nature. The State Governmentshall also consider as to whether the liberty of a citizen, guaranteed under theprovisions of the Constitution of India, is to be curtailed, by way of theGovernment Order, in G.O.Ms.No.S/4118-1/70, Public (S.C.), dated 03.08.1970, inthe prevailing socio-legal scenario.
18. In a catena of cases, the Supreme Court of India, as well as thevarious High Courts, have declared the fundamental right of life and personalliberty of a person to be of paramount importance.
18.1. In Siddharam Satlingappa Mhetre Vs. State of Maharashtra (2011(1)SCC 694), the Supreme Court had held as follows:
"36. All human beings are born with some unalienable rights like life,liberty and pursuit of happiness. The importance of these natural rights can befound in the fact that these are fundamental for their proper existence and noother right can be enjoyed without the presence of right to life and liberty.Life bereft of liberty would be without honour and dignity and it would lose allsignificance and meaning and the life itself would not be worth living. That iswhy "liberty" is called the very quintessence of civilized existence. ??
116. Personal liberty is a very precious fundamental right and it should becurtailed only when it becomes imperative according to the peculiar facts andcirc*mstances of the case?"
18.2. The importance of life and liberty was recognised in the followingwords by Pathak, CJ., in Kehar Singh V Union of India (AIR 1989 SC 653).
"To any civilised society, there can be no attributes more important thanthe life and personal liberty of its members. That is evident from the paramountposition given by the Courts to Article 21 of the Constitution. These twinattributes enjoy a fundamental ascendancy over all other attributes of thepolitical and social order, and consequently the Legislature, the Executive andthe Judiciary are more sensitive to them than to the other attributes of dailyexistence"
18.3. In MENEKA GANDHI Vs. UNION OF INDIA (1978) 1 SCC 248 the SupremeCourt had held as follows:
"Personal liberty makes for the worth of the human person. Travel makesliberty worthwhile. Life is a terrestrial opportunity for unfolding personality,rising to higher states, moving to fresh woods and reaching out to reality whichmakes our earthly journey a true fulfillment not a tale told by an idiot full ofsound and fury signifying nothing, but a fine frenzy rolling between heaven andearth. The spirit of man is at the root of Article 21. Absent liberty, otherfreedoms are frozen."
18.4. The Supreme Court, while reiterating the importance of thefundamental right of life and personal liberty, had held, in MANJIT SINGH Vs.C.B.I., (2011 11 SCC 578), that the people and the Constitution have vestedtheir faith in the Supreme Court to keep vigil and see to it that these hallowedprinciples are not trampled upon by the necessities of the hour and vicissitudesof time.
19. As such, unless the situation really warrants the declaration of anoffence, under Section 506(i) of the Indian Penal Code, as cognizable and non-bailable, by the state Government, by exercising its power, under Section 10 ofthe Criminal Law Amendment Act, 1932, any such declaration would place thefundamental right of life and personal liberty in substantial peril. Thus, weare of the opinion that it is for the state Government to consider as to whetherto keep the Government order in force any further or to withdraw the same.
20.In view of the above, this Court answers the reference, stating thatthe Government order, issued by the Government of Tamil Nadu, inG.O.Ms.No.S/4118-1/70, Public (S.C.), dated 03.08.1970, in exercise of thepowers conferred, under Section 10 of the Criminal Law Amendment Act,1932,continues to be in force. Therefore, an offence committed, under Section 506(i)of the Indian Penal Code, is non-bailable in nature, as per the said Governmentorder.
21. The Criminal Original Petition is directed to be placed before theappropriate Court, for further orders, as it may find it necessary.
ssm/lanTo
(i) The Inspector of Police, Illuppur Police Station, Pudukkottai District.
(ii)The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
