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CASE NO.: Appeal (crl.)  1137 of 2006

PETITIONER: Mohan Raj                                                                      

RESPONDENT: Dimbeswari Saikia & Anr.                                               

DATE OF JUDGMENT: 10/11/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No. 1451 of 2006)

S.B. Sinha, J.

       Leave granted.

       Interpretation and application of the provisions of the Criminal  Procedure Code, 1973 as amended by the State of Assam by the Code of  Criminal Procedure (Assam Amendment) Act, 1983 and the Criminal  Procedure Code (Assam Repealing) Act, 1986 falls for consideration in this  appeal which arises out of a judgment and order dated 8.3.2006 passed by  the Gauhati High Court in Criminal Revision Petition No.748 of 2005.   Appellant was working as a Superintendent of Police in Assam in the year  1983.  The State of Assam, allegedly, witnessed ethnic violence in the said  year.  The entire State of Assam was engulfed in ethnic clashes as the  elections were being opposed by a section of agitators.  The incidence of  violence including one at Nelli and other adjoining districts, viz., Nargaon  and Gopur Sunitpur had left more than 3000 persons from all communities  dead.  A purported report was received that a large number of extremist  elements were hiding in the jungle for the purpose of attacking the police  post and the minority refugee camp.  Appellant herein backed with other  CRPF personnel, allegedly went to the place of hiding and were waylaid by  500-600 extremists.  Police party was sought to have been attacked by the  extremists with guns, bows, etc.   The CRPF personnel returned the fire in  which 7 miscreants died and 12 others were arrested.  A First Information  Report bearing No.235/83 was registered against 12 accused persons under  Section 147/148/149/302/436/ 324/326 of the Indian Penal Code in relation  to the said incident.  A charge-sheet was filed in the Court of learned  Magistrate upon completion of investigation.  Charges were framed by the  learned Sessions Judge.  In regard to the death of the aforementioned 7  persons, however, first respondent, daughter of Dimbeswari Saikia, lodged a  complaint before the Judicial Magistrate, 1st Class, Golaghat against  appellant, who was at the relevant point of time Superintendent of Police and  other police officials.  In the said complaint petition, apart from Appellant  one T.K. Nag, Inspector Police Camp, Rajabari Tea Garden was also made  an accused.  It was contended by the first respondent that her deceased  husband was taken out from the house at 8.30 in the night.  He was caught  and assaulted and ultimately, Mony Saikia, Jiten Saikia, Tileswar Saikia,  Reba Kr. Saikia, Tikhar Ch. Baruah, Hiren Saikia and Bhadreswar Saikia  were killed.  Only Kamal Hazarika, witness No.1, managed to escape  although he sustained bodily injuries.   

       The Government of Assam promulgated an Ordinance on 7.7.1983  being Assam Ordinance No.III of 1983 (the Ordinance), in terms whereof  the provisions of Sections 167, 197 and 439 of the Criminal Procedure Code  were amended.  The said Ordinance was repealed and replaced by the Code

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of Criminal Procedure (Assam Amendment) Act, 1983 (the Act), which was  published in the Assam Gazette on 8.2.1984.  The assent of the President of  India was received in respect of the said Act.     

       Before embarking upon the issues involved in this appeal, we may, at  this juncture, notice that by reason of ’the Ordinance’ and ’the Act’, in  addition to the Judicial Magistrate, Executive Magistrates were also  empowered to try cases involving offences specified therein.  Amendments  in the Code of Criminal Procedure to the said effect were carried out, as  would be noticed immediately hereinafter.   

       In Sub-Section (1) of Section 167 of the Criminal Procedure Code, the  reference to "Judicial Magistrate" was construed as reference also to  "Executive Magistrate".  In Section 190 of the Criminal Procedure Code, in  Sub-Section (1) the words "any Executive Magistrate" were inserted after  "any Magistrate of the first class".  In Section 191 of the Criminal Procedure  Code, the reference to "Chief Judicial Magistrate" in relation to an offence  taken cognizance of by an Executive Magistrate, were construed as a  reference to the District Magistrate.  In Sub-Section (1) of Section 192 after  the words "any" the words "District Magistrate" were inserted.  Sub-Section  (2) of Section 192 of the Code was substituted as follows :

"(2)    Any Sub-divisional Magistrate or Magistrate of the  first class empowered in this behalf by District  Magistrate or Chief Judicial Magistrate, as the case  may be, may, after taking cognizance of an offence,  make over the case for enquiry or trial to such other  competent Magistrate as the District Magistrate or  Chief Judicial Magistrate may, by general or special  order, specify, and thereupon such Magistrate may  hold the enquiry or trial."              Sub-Section (5) of Section 197 of the said Amending Act contained a  non-obstante clause, which reads as under :          "(5)    Notwithstanding anything contained in this Code,-  

(a)     Where a complaint is made to a Court against  a public servant belonging to any class or  category specified under sub-section (3)  alleging that he has committed an offence, the  Court shall postpone the issue of process  against the accused and make a reference to  the State Government; or (b)     where an accused, either by himself or  through a pleader, claims before a Court that  he belongs to any class or category specified  under sub-section (3) and that the offence  alleged to have been committed by him arose  out of any action taken by him while acting or  purporting to act in or in connection with the  discharge of his official duty, the Court shall  forthwith stay further proceedings and make a  reference to the State Government."

                Clause (i) of Sub-Section (6) of Section 197 provides for that where a  reference is received from a Court, the State Government shall issue a  certificate to the Court stating that the accused person was or was not acting  or purporting to act in, or in connection with discharge of his official duty.   Clause (ii) thereof provides that if the State Government certifies that the  accused was acting or purporting to act in or in connection with the  discharge of his official duty, the Court shall dismiss the complaint or  discharge the accused.   

       After Section 439, Section 439-A was added by reason whereof

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restrictions were imposed on the power of the Court to grant bail.   

       In terms of the aforementioned provisions contained in Sub-Section  (6) of the Code of Criminal Procedure (Assam Amendment) Act, 1983, on  or about 2.8.1993 a reference was made to the Government by the learned  Magistrate purporting to be for issuance of a certificate as envisaged under  Section 197(5)(a) of the Code as amended.  It now appears that such  certificate was granted by the State Government in the form prescribed  under Section 197(6)(i), which reads as under :

"GOVERNMENT OF ASSAM

HOME (A) DEPARTMENT

NO.   : HMA.465/83/31, Dated Dispur, the 20th            November, 1985

From : Shri H.O. Barooah, A.C.B.,           Deputy Secretary to the Govt. of Assam To         The Sub-Divisional Judicial Magistrate,         GOLAGHAT

Sub  : Issue of certificate under Cr.P.C. 197, 6(a) in C.R.            Case No.688/83 (Golaghat Court).

Ref   : Your letter no.6GJ.1965/83, dated 16.8.83.

Sir,

       In inviting a reference to your letter cited above, I  am directed to state that whereas a reference has been  received from the Court of the Sub-divisional Judicial  Magistrte, Golaghat unde Sub-section (5) of Section 197  of Code of Criminal Procedure, 1973 as amended, the  State Govt. hereby issue the certificate under Sub-section  6(1) thereof that the accused Shri M. Mohan Raj, I.P.S.,  the then S.P., Sibasagar and other State Police  Officers/Personnel and CRPF Personnel were acting in  the discharge of their official duty.

                                                   Yours faithfully,    

                         Deputy Secy. to the Govt. of Assam,                 Home (A) Department"        

       In the meantime, however, First Respondent filed a revision  application before the High Court, inter alia, on the premise that the  Government had not issued any certificate.  A prayer was made to direct the  Government to issue a certificate as envisaged under Sub-Section (6) of  Section 197 of the Criminal Procedure Code.  A prayer for stay of further  proceedings in Sessions Case No.32(SG)/85 pending in the Court of  Sessions Judge, Jorhat was also made.   

       Before the High Court the certificate issued by the State was  produced.  It, in the aforementioned fact situation, opined that it was for the  Sub-Divisional Magistrate to pass an appropriate order in terms of Sub- Section 6(ii) of Section 197 of the Criminal Procedure Code.  It was also  observed that as the certificate has already been issued, the Criminal  Revision became infructuous.  It was directed:

"Therefore, this revision petition is disposed of  being infructuous.  The stay order passed in connection

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with Sessions Case No.32(SG)/85 is vacated.  Send  down the records of the courts below if received.   Intimate both the courts namely Sub-Divisional Judicial  Magistrate, Golaghat and Sessions Judge, Jorhat with  copy of this order."

       In the meanwhile, however, the State enacted the Criminal Procedure  Code (Assam Repealing) Act, 1986.  Section 2 thereof provides that the  Code of Criminal Procedure (Assam Amendment) Act, 1983 shall stand  repealed.  Section 3 of the said Repealing Act provides for transfer of cases  in the following terms :

"3.     Notwithstanding any order passed by any authority  under the Act repealed, all cases will be deemed to have  been pending before the Court competent to try such  cases under the Code of Criminal Procedure Act, 1973  and the said cases before any Executive Magistrate or  before any other Court or authority shall stand transferred  to the Court competent to try such cases under the Code  of Criminal Procedure Act, 1973 and the said Court shall  proceed to try such cases in accordance with the  provisions of the Code of Criminal Procedure Act,  1973."   

       According to Appellant, he came to know that the State of Assam had  accorded sanction on 27.4.1987 in the complaint case of the Second  Respondent without taking into consideration the purported certificate which  was issued on 20.11.1985.  Pursuant and in furtherance of grant of sanction  against Appellant the proceedings before the learned Sub-Divisional Judicial  Magistrate, Golaghat were reopened on 16.5.1987.

       Keeping in view the fact that the matter was also pending  investigation, a plea for postponement of the proceedings in the complaint  case was prayed for by another accused.  By an order dated 9.9.1987, the  complaint case was adjourned sine die, stating :

"The complaint against herself and another  witness-named Kamal Hazarika.  Thereafter, question of  sanction for prosecution of some of the accused persons,  who were Government servants arose and accordingly a  reference was made to the State of Assam for sanction  for prosecution of the said officers under provision of  Section 197(S)(a) of the Cr.P.C. read with Assam  Ordinance No.(iii) of 1983 and the proceeding was there  upon remained postponed awaiting such sanction.  Then  on 16.5.87 the proceeding was re-opened on receipt of  sanction for prosecution of said accused persons  accorded by the Government of Assam (Home  Department) vide its letter No.HMA.465/83/53, dated  27.4.87.  Thereafter, the complainant appeared, but on  behalf of Tarun Kanti Nag, a person named as accused in  this case, let this court know that another case being  Golaghat P.S. Case No.87/87 was registered in relation to  the offence, which was the subject matter of the present  enquiry and that an investigation by the police thereof  was in progress.  Certified copy of the F.I.R. of the said  police case was also filed on behalf of said T.K. Nag.  In  pursuance thereof, a report in the matter was called for  from the O/C of Golaghat Police Station, who also  submitted a report attached with a copy of the F.I.R. that  Golaghat P.S. Case No.87/87 was registered in relation to  the same offence and investigation thereof was in  progress. That being the position, provision of section 210 of  the Cr.P.C., I am alive in, in my opinion comes into

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operation to get the present proceeding of enquiry u/s 202  of the Cr.P.C. stayed so as to await a report to be made  by the Investigating Police Officer under provision of  section 173 of the said law. In consideration of all these above, the proceeding  of enquiry is hereby stayed till the receipt of report of  Investigation Police Officer of Golaghat Police Station  Case No.87/87 to be made u/s 173 of the Cr.P.C.  The  said Police Officer is hereby directed to submit his report  under the aforesaid section of law with intimation of this  court with reference to the present case within a period of  3 (three) months from today."    

       On or about 7.7.2005 the State Government refused to accord sanction  to prosecute the accused including Appellant in connection with FIR  No.87/87, whereafter a final report was also submitted by the Investigating  Officer on 9.8.2005 on the premise that the Government had refused to  accord sanction against the accused persons.  As soon as the police case  came to an end, the complaint case was re-opened purported to be on the  basis of the sanction granted by the State on 24.7.1987.   

       Appellant approached the Gauhati High Court for quashing all the  proceedings which prayer, by reason of the impugned judgment, has been  refused.    The High Court in its judgment, inter alia, opined that once  sanction had been granted by the State of Assam, there was no bar in  proceeding with the complaint case.  In regard to the purported certificate  granted by the State that Appellant was on his duty and therefore, could not  have been proceeded against, it was opined that the said certificate having  not been communicated to the Sub-Divisional Magistrate, Golaghat, the case  remained pending and thus, it could have been lawfully reopened, stating :

       "From the impugned order, we find that the  learned Addl. Chief Judicial Magistrate, Golaghat did not  accept the Final report as such and kept the same in  abeyance and decided to proceed with the Case  No.688/83.         In the present revision, the petitioner has prayed  for quashing of the proceeding in CR Case No.688/83 in  view of the certificate dated 20.11.85 stating interalia,  that the said proceeding is not tenable in law.  On perusal  of the materials available on record, we hold that the  certificate dated 20.11.85 in itself was not sufficient to  bring a judicial proceeding to an end.  The court was  required to pass appropriate order pursuant to the said  certificate.  Moreover, the certificate has become nonest  in view of the repealing Act and in view of the provisions  of section III of the repealing Act, the proceeding against  the petitioner and others was pending.  The State of  Assam has also accorded necessary sanction in favour of  the complainant to prosecute the accused persons and the  sanction was made way back in 1987 itself.  Hence, at  this stage of the enquiry proceeding relating to the death  of seven civilians in the year 1983; no interference is  called for as the impugned order does not suffer from any  infirmity or illegality."    

       Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of  Appellant, inter alia, would submit that keeping in view the provisions of  the Act, the entire prosecution stood vitiated, as the right to be discharged in  terms of Section 6 of the State Act having accrued, keeping in view the  provisions of Section 6 of the General Clauses Act, which is in pari materia  with Section 6 of the Assam General Clauses Act, 1915, his vested or  accrued right could not have been taken away.  

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       Validity or otherwise of the Ordinance or the Act or Assam Repealing  Act is not in question.  The provisions of the Act, in terms whereof, Sub- Section (5) of Section 197 was inserted, Court was under a statutory  obligation to postpone issue of process against the accused and make a  reference to the State Government, if he was a public servant belonging to  any class or category specified under Sub-Section (3).  A further statutory  obligation was also imposed upon the Court to stay further proceedings as  against the public servant upon making a reference to the State Government.   On receipt of a reference, the State Government has no other option, but, to  issue a certificate one way or the other.  Once the State Government certifies  that the accused was acting or purporting to act in or in connection with the  discharge of his official duty, it was imperative on the part of the Court to  dismiss the complaint or discharge the accused, as the case may be.  There  cannot, however, be any doubt whatsoever that before such a final order is  passed, the certificate is to reach the hands of the Court. The Certificate in  question, as noticed hereinbefore, was addressed to the Sub-Divisional  Magistrate, Golaghat.  It appears that the same was sent under registered  cover with acknowledgment due.  However, there is no evidence on record  to show that it was actually handed over to the postal authorities.  Be that as  it may, it is evident from the order dated 5.12.1985 passed by the High Court  in Criminal Revision Petition No.386 of 1985 that a communication of the  said order was directed to be made.  We may, therefore, presume that the  State of Assam did send the said communication.  In any event the High  Court communicated the said order to the Court of learned Magistrate where  the matter was pending.  The Sub-Divisional Magistrate, Golaghat was  bound to act accordingly.   

       The sanction to prosecute the Appellant was refused in the police  case.  It was, however, granted in the complaint case.  Under what  circumstances the latter decision was taken is not known.   

       We are, however, concerned with the effect of grant of the certificate.   The expression used in Clause (ii) of Sub-Section (6) of Section 197 of the  Assam Amendment Act is "If the State Government certifies".  Once such a  certificate is given, the Court has no other option but to dismiss the  complaint.  In view of the phraseology used in Clause (ii) of Sub-Section (6)  of Section 197, as inserted by the Assam Amendment Act, 1984, there  cannot be any doubt whatsoever that the accused derives a vested or accrued  right as soon as the said certificate is issued.  However, the said right would  be brought into effect only when the same is actually communicated.   

       In State of Punjab vs. Khemi Ram [AIR 1970 SC 214 : (1969) 3  SCC 28], a Bench of this Court opined :          "The last decision cited before us was that of State  of Punjab v. Amar Singh Harika [AIR 1966 SC 1313]  where one of the questions canvassed was whether an  order of dismissal can be said to be effective only from  the date when it is made known or communicated to the  concerned public servant. The facts of the case show that  though the order of dismissal was passed on June 3, 1949  and a copy thereof was sent to other 6 persons noted  thereunder, no copy was sent to the concerned public  servant who came to know of it only on May 28, 1951,  and that too only through another officer. On these facts,  the Court held, rejecting the contention that the order  became effective as soon as it was issued, that the mere  passing of the order of dismissal would not make it  effective unless it was published and communicated to  the concerned officer."

       We may notice that therein this Court distinguished earlier decision of  this Court in State of Punjab vs. Amar Singh Harika [AIR 1966 SC  1313], saying that in the former case the liability shall accrue only on  communication.

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       Such is not the case here.  Furthermore, the complainant was aware  that a certificate had been granted.  She could have preferred an appeal  thereagainst within a period of 60 days from the date of communication of  the said order.  She did not choose to do so.  Her right to appeal as against  the correctness or otherwise of the order granting certificate is, thus, also  lost.  The High Court furthermore committed a manifest error in opining that  by reason of Section 3 of the Assam Repealing Act the right of the appellant  was taken away.  When Act is repealed, Section 6 of the Assam General  Clauses Act, 1915, subject to just exception shall come into force, which  reads as under :

"6. Effect of repeal.  Where any Act repeals any  enactment hitherto made, or hereafter to be made, then,  unless a different intention appears, the repeal shall not \026

a)  revive anything not in force or existing at the          time at which the repeal takes effect; or b)      alter the previous operation of any enactment so          repealed or anything duly done or suffered          thereunder; or c)      affect any right, privilege, obligation, or          liability acquired, accrued or incurred under          any enactment so repealed; or d)      affect any penalty, forfeiture or punishment          incurred in respect of any offence committed          against any enactment so repealed; or e)      affect any investigation, legal proceeding or          remedy in respect of any such right, privilege,          obligation, liability, penalty, forfeiture, or          punishment as aforesaid;

and any such investigation, legal proceeding or remedy  may be instituted, continued or enforced, and any such  penalty, forfeiture or punishment may be imposed as if  the Repealing Act had not been passed."          

       It is now well settled that such Repealing Act shall be construed to  have not taken away the accrued right of a person.  In G.P. Singh’s  Principles of Statutory Interpretation (10th Edn.) 2006 at Page 631, it is  stated :

"Under the common law rule the consequences of repal  of a statute are very drastic.  Except as to transactions  past and closed, a statute after its repeal is as completely  obliterated as if it had never been enacted.  The effect is  to destroy all inchoate rights and all causes of action that  may have arisen under the repealed statute.  Therefore,  leaving aside the cases where proceedings were  commenced, prosecuted and brought to a finality before  the repeal, no proceeding under the repealed statute can  be commenced or continued after the repeal."

In State of Punjab vs. Mohar Singh, son of Pratap Singh [(1955) 1  SCR 893], this Court held :

"\005\005Whenever there is a repeal of an enactment, the  consequences laid down in Section 6 of the General  Clauses Act will follow unless, as the section itself says,  a different intention appears. In the case of a simple  repeal there is scarcely any room for expression of a  contrary opinion. But when the repeal is followed by  fresh legislation on the same subject we would

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undoubtedly have to look to the provisions of the new  Act, but only for the purpose of determining whether  they indicate a different intention. The line of enquiry  would be, not whether the new Act expressly keeps alive  old rights and liabilities but whether it manifests an  intention to destroy them\005."           In Pannalal Bansilal Pitti & Ors. vs. State of A.P. & Anr. [(1996) 2  SCC 498], this Court held :

"\005\005It is settled legislative device to employ non  obstante clause to suitably alter the pre-existing law  consistent with the legislative policy under the new Act  to provide the remedy for the mischief the legislature felt  most acute."

"Words are the skin of the language. The language  opens up the bay of the maker’s mind. The legislature  gives its own meaning and interpretation of the law. It  does so employing appropriate phraseology to attain the  object of legislative policy which it seeks to achieve."

In Milkfood Ltd. vs. GMC Ice Cream (P) Ltd. [(2004) 7 SCC 288],  it was held :

"\005\005The court is to interpret the repeal and savings  clauses in such a manner so as to give a pragmatic and  purposive meaning thereto."                   Submission of Mr. Rana Mukherjee that the doctrine of eclipse shall  apply cannot be accepted.  The said principle has no application in this case.   By application of the said principle, a vested or accrued right cannot be  taken away.

       Furthermore, by reason of Section 3 of the Assam Repealing Act, the  right of the accused accrued to him is not taken away.  Section 3 deals with  transfer of cases.  Although, the marginal note of a statutory provision may  not ordinarily be taken recourse to for interpretation thereof; in case of  ambiguity, reference thereto would not be irrelevant.  As Section 3 has been  enacted only for the transfer of cases from the court of Executive Magistrate  to a competent Court, the same, in our opinion, is a clear pointer to show  that the State in enacting the Repealing Act, 1986 did not have any intention  to deprive a person of his accrued or vested right.  What would be a vested  or accrued right has been dealt with in : (1) Pitta Naveen Kumar & Ors.  vs. Raja Narasaiah Zangiti & Ors. [2006 (9) SCALE 298]; (2) U.P.  Raghavendra Acharya & Ors. vs. State of Karnataka & Ors. [2006 (6)  SCALE 23]; (3) Dr. Saurabh Choudri & Ors. vs. Unin of India & Ors.  [(2004 (5) SCC 618)]; (4) Prafulla Kumar Das & Ors. vs. State of Orissa  & Ors. [(2003) 11 SCC 614].  For interpretation of a statute of this nature,  doctrine of purposive construction may have to be taken recourse to.  {See  (1) Bombay Dyeing & Mfg. Co. Ltd.(3) vs. Bombay Environmental  Action Group & Ors. [(2006) 3 SCC 434]; (2) Nathi Devi vs. Radha Devi  Gupta [(2005) 2 SCC 271]; (3) Lalit Mohan Pandey vs. Pooran Singh &  Ors. [(2004) 6 SCC 626]; (4) Indian Handicrafts Emporium & Ors. vs.  Union of India & Ors. [(2003) 7 SCC 589]; and (5) Balram Kumawat vs.  Union of India & Ors. [(2003) 7 SCC 628].}       

For the reasons aforementioned, the impugned judgment cannot be  sustained, which is set aside accordingly.  The appeal is allowed.  No costs.