1. Leave granted.
2. These appeals have been preferred against Judgments and Orders passed by the High Court of Bombay at Goa on 21st July, 2010 and 27th July, 2010 in Criminal Writ Petition No.38 of 2009 and in review petition, Stamp Number (Appln.) No.1918 of 2010 in Crl.W.P.No.38/2009 respectively.
3. The question raised before the High Court was whether notification issued under Section 10 of the Criminal Law Amendment Act, 1932 (a Central Legislation), declaring Sections 186, 188, 189, 228, 295-A, 298, 505 or 507 of the Indian Penal Code 1860 (45 of 1860) when committed in the Union Territory of Goa (now State), Daman and Diu, to be cognizable and Sections 188 or 506 of the I.P.C. to be non-bailable when committed, in the said territory.
4. The contention, in support of the challenge, was that such a notification would be repugnant to the provision of Code of Criminal Procedure and the State could not issue a notification in conflict with the Central Legislation.
5. On the other hand, the said Notification was supported with the plea that the same was issued under the Central Law and the question of repugnancy does not arise when the Central Law itself permits the State to issue such a notification.
6. The High Court upheld the challenge as follows:
"It must be noted here that the notification dated 27th June, 1973 and corrigendum dated 5th July, 1973 were issued in exercise of power under Section 10 of the said Act of 1932. Clause (b) of sub-section (2) of Section 484 of the said Code of 1973 saves only the notifications issued under the said Code of 1898. The notifications issued under the said Act of 1932 were not saved. In any event, the effect of notification dated 27th June, 1973 read with corrigendum dated 5th July, 1973 was that the said Code of 1898 stood amended and the offences punishable under certain sections of the Penal Code were made cognizable and non-bailable. The said Code of 1898 was repealed by the said Code of 1973 and under the said Code of 1973, Section 506 was made a non-cognizable and bailable offence. It is pertinent to note that prior to 27th June, 1973, the offence punishable under Section 188 of the Penal Code was non-cognizable under the said Code of 1898. However, the said Code of 1973 made the said offence congizable. Similarly, prior to 27th June, 1973, in the State of Goa, the offence punishable under Section 295-A of the Penal Code was non-cognizable, but under the said Code of 1973, it was made cognizable. As stated earlier, the notification dated 27th June, 1973, had the effect of amending the said Code of 1898 for making the offence punishable under Section 506 of the Penal Code cognizable and non-bailable. On 1st April, 1974, the said Code of 1898 was repealed. Under the said Code of 1973, the offence punishable under Section 506 of the Penal Code is non-cognizable. Therefore, from 1st April, 1974 onwards, the offence punishable under Section 506 of the Penal Code is a non-cognizable offence."
7. We have heard learned counsel for the parties.
8. The Notification in question is as follows:
"Home Department
--------
Notification
HD.44-104/73-A
In exercise of the powers conferred by sub-section (1) and (2) of Section 10 of Criminal Law Amendment Act, 1932 (23 of 1932) the Lt. Governor of Goa, Daman and Diu hereby declares that -
(i) notwithstanding anything contained in the Code of Criminal Procedure, 1898, any offence punishable under Sections 186, 188, 189, 228, 295-A, 298, 505 or 507 of the Indian Penal Code 1860 (45 of 1860) when committed within the Union Territory of Goa, Daman and Diu shall be cognizable; and
(ii) any offence punishable under Section 188 or 506 of the Indian Penal Code 1860 shall be non-baiable when committed within the Union Territory of Goa, Daman and Diu.
G.M. Sardessai, Under Secretary (Home)
Panaji, 27th June, 1973."
9. Section 10 of the Criminal Law Amendment Act, 1932, under which the said Notification has been issued, is as follows:
"10. Power of State Government to make certain offences cognizable and non-bailable.-
(1) The (State Government)[a*] may, by notification in the (Official Gazette), declare that any offence punishable under Sections 186, 188, 189, 190, 228, 295A, 298, 505, 506 or 507 of the Indian Penal Code, when committed in any area specified in the notification shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898, shall, while such notification remains in force, be deemed to be amended accordingly.
[a* Substituted for "Provincial Government" by A.L.O., 1950]
(2) The (State Government)[b*] may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under Section 188 or Section 506 of the Indian Penal Coded shall be non-bailable"
[b* Substitution for 'Local Gazette' by A.O., 1937]
10. There is no dispute that the 1932 Act is a Central Legislation and even today it is operative and power conferred under Section 10 can be exercised.
11. In these circumstances, merely because 1898 Code has been repealed and replaced by 1973 Cr.P.C., could not affect the situation. Section 484 of Cr.P.C. 1973 as well as Section 8(1) of the General Classes Act, 1897 saved a notification which may have been issued under Cr.P.C. of 1898. Section 8 of the General Clauses Act is as follows:
"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."
In these circumstances, we are unable to sustain the view taken in the impugned orders.
12. It is pointed out by learned counsel for the appellant that a contra view has been taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in Vinod Rao v. The State of Gujarat and Anr.- (1980) GLR 926, Sant Ram v. Delhi State and Anr. - 17(1980) Delhi Law Times 490, [LQ/DelHC/1980/298] Mata Sewak Upadhyay & Anr. v. State of U.P. & Ors. - 1995 JIC 1168 (All) (FB), P. Ramakrishnan v. State Rep. By the Inspector of Police - 2010-1-LW(Crl.)848 respectively. He also pointed out that a different view has been taken by the High Court of Allahabad in Pankaj Shukla v. Anirudh Singh - 2011(3)ADJ 472 without noticing the Full-Bench decision of the High Court of Allahabad in Mata Sewak Upadhyay (supra).
13. 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."
14. Contra view is on lines of the impugned order relevant part of which has been reproduced above.
15. We approve the view taken by the High Courts of Gujarat, Delhi, Allahabad and Madras in Vinod Rao, Sant Ram, Mata Sewak Upadhyay & Anr., and P. Ramakrishnan (supra) and disapprove the view taken by High Court of Allahabad in Pankaj Shukla (Supra).
16. In the result, the appeals shall stand allowed.
17. We, thus, hold that Notification dated 27th June, 1973 read with 5th July, 1973 are operative in the area mentioned therein. Consequently, the impugned orders shall stand set aside and the F.I.R. in question and the chargesheet filed shall stand revived.
