2006 (11) TMI 702 - SC - Indian Laws

Appeal allowed; certificate communication deemed effective, complainant failed 60-day appeal, Section 3 does not extinguish accrued rights

Mohan Raj Versus Dimbeswari Saikia and Ors.

The SC allowed the appeal and set aside the High Court judgment, holding the certificate communication to the Sub-Divisional Magistrate was effectively ... Sanction for prosecution - Offence punishable u/s 147/148/149/302/436/ 324/326 of the Indian Penal Code - 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 - HELD THAT:- 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 complainant was aware that a certificate had been granted. She could have preferred an appeal there against 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. 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. Thus, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. Issues Involved:1. Interpretation and application of the provisions of the Criminal Procedure Code, 1973 as amended by the State of Assam.2. Validity of the proceedings against the appellant based on the certificate issued under Section 197 of the Criminal Procedure Code.3. The effect of the Assam Repealing Act, 1986 on the vested rights of the appellant.Issue-wise Detailed Analysis:1. Interpretation and application of the provisions of the Criminal Procedure Code, 1973 as amended by the State of Assam:The appeal concerns the interpretation and application of the Criminal Procedure Code, 1973, as amended by the State of Assam through the Code of Criminal Procedure (Assam Amendment) Act, 1983, and the Criminal Procedure Code (Assam Repealing) Act, 1986. The amendments empowered Executive Magistrates to try cases involving specified offences and imposed certain procedural obligations on courts regarding public servants accused of crimes. Specifically, Section 197(5) of the amended Code required courts to refer complaints against public servants to the State Government for certification before proceeding. The appellant, a Superintendent of Police, was implicated in a violent incident during ethnic clashes in Assam in 1983, leading to the filing of a complaint against him.2. Validity of the proceedings against the appellant based on the certificate issued under Section 197 of the Criminal Procedure Code:The appellant argued that the proceedings against him were invalid due to a certificate issued by the State Government under Section 197(6)(i) of the amended Code, which stated that he was acting in the discharge of his official duty. This certificate was supposed to result in the dismissal of the complaint or discharge of the accused. The High Court, however, opined that the certificate was not sufficient to end the judicial proceedings and that the case remained pending due to the lack of communication of the certificate to the Sub-Divisional Magistrate, Golaghat. The Supreme Court noted that the certificate, once issued, conferred a vested right on the appellant, which should have led to the dismissal of the complaint. The Court emphasized that the certificate needed to be communicated to the court, and the lack of evidence of such communication was a critical issue.3. The effect of the Assam Repealing Act, 1986 on the vested rights of the appellant:The Assam Repealing Act, 1986, repealed the amendments made by the 1983 Act. Section 3 of the Repealing Act provided for the transfer of cases to competent courts under the original Criminal Procedure Code, 1973. The appellant contended that his vested right to be discharged, as conferred by the certificate under the amended Section 197, could not be taken away by the Repealing Act. The Supreme Court supported this view, stating that the repeal did not affect the appellant's accrued rights. The Court referred to Section 6 of the Assam General Clauses Act, 1915, which preserves rights and liabilities acquired under repealed enactments unless a different intention is evident. The Court concluded that the Repealing Act did not manifest an intention to destroy the appellant's vested rights.Conclusion:The Supreme Court set aside the impugned judgment, holding that the appellant's vested right, as evidenced by the certificate issued under Section 197 of the amended Code, could not be nullified by the Repealing Act. The appeal was allowed, and the proceedings against the appellant were quashed.