TaxTMI 
TaxTMI 
2006 (11) TMI 702
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....f 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 app....
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....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. 5. 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. Claus....
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....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. 7. 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 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. 8. 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 provide....
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....uance 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 210of the Cr.P.C., I am alive in, in my opinion comes into operation to get the present proceeding of enquiry Under Section 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 Under Section 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 f....
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....ecution 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. 11. 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 pa....
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....ent 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. 14. We may notice that therein this Court distinguished earlier decision of this Court in State of Punjab v. Amar Singh Harika (1966)IILLJ188SC , saying that in the former case the liability shall accrue only on communication. Such is not the case here. Furthermore, 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. When Act is repealed, Section 6 of the Assam General C....
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....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 themo.... 16. In Pannalal Bansilal Pitti and Ors. v. State of A.P. and Anr. [1996]1SCR603 , this Court held: It 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. 17. In Milkfood Ltd. v. GMC Ice Cream (P) Ltd. (2004)7SCC288, it was held: The 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 c....