ORDER
Judgement pronounced by V.S. Sirpurkar, J.
1. The issue which falls for consideration before the learned single Judge of this Court (K.P. Sivasubramanian, J.) and which has now been referred to us for decision is as under:-
'Whether the Metropolitan Magistrate or the Judicial Magistrate of First. Class will have the power to impose a higher punishment of fine than the limit spelt out from the relevant provision regarding the powers of such Magistrate under the Criminal Procedure Code, 1973 in respect of the offence under Section 138 of the Negotiable Instruments Act, 1881.'
2. The following factual matrix would be necessary to understand the controversy:- The accused Selvaraj, who was a petitioner before the learned single Judge of this Court in Crl.R.C. No.247 of 1997, was convicted by the Judicial Magistrate, No.1, Tiruchirappalli for offence under Section 138 of the Negotiable Instruments Act, 1881 on the ground that the cheque issued by him in favour of the complainant was dishonoured by the Bank, by his judgment dated 31.5.1996 in C.C.No.593 of 1995, The trial Court imposed a fine of Rs.25,000 against the accused and in default he was directed to undergo simple imprisonment for a period of two months. He filed an appeal against the said judgment which was rejected by the Principal Sessions Judge, Tiruchirappalli in C.A.No.126 of 1996 by his judgment dated 10.2.1997. It was canvassed before the learned single Judge in the aforementioned revision that the trial Court has exceeded its limits in awarding a fine of Rs.25,000 as the Judicial Magistrate of First Class was empowered under Section 29(2) of the Criminal Procedure Code to award a fine up to 5000 rupees only and therefore, the trial Court had erred in awarding the sentence of fine beyond that limit. On behalf of the complainant, it was contended that the offence under Section 138 of the Negotiable Instruments Act provided a punishment of term which may extend to one year, or with fine which may extend to twicethe amount of the cheque, or with both. It was also argued that under Section 142 of the said Act, the aid Magistrate was empowered to try any offence punishable under Section 138 of the Negotiable Instruments Act and, therefore, considering the non obstinate clause at the beginning of Section 142 of the Act, the Magistrate was perfectly justified in passing the sentence of fine which was more than 5000 rupees. In short, it was contended that as per the correct interpretation of Section 142(c) of the Act, a judicial Magistrate of the First Class or as the case may be, a Metropolitan Magistrate, could inflict a higher punishment than the limits set up by Section 29(2) of the Criminal Procedure Code. The complainant relied on a decision of a single Judge of this Court reported in A.Y. Prabhakar v. Naresh Kumar N. Shan, 83 Com. Cases 191 which supported the contention of the complainant and also relied on four other rulings of other High Courts including the High Court of Andhra Pradesh and Kerala. The learned single Judge, however, took a view that the said judgment as also the judgments of the other High Court could not be said to be laying down the correct law as in all those judgments, the judgments of Supreme Court reported in A.R. Antualy, v. Ramdas Sriniwas Nayak and another, : 1984CriLJ647 was not taken note of. The learned judge of this Court (K.P. Sivasubramaniam, J.) in the last para of his referring order notes.
'Though I could have proceeded further to dispose of this revision in accordance with my conclusions on the basis of the said decision of the Supreme Court by remitting the matter to the J.M.F.C. to comply with Section 325(1) of the Code, yet having regard to the fact that the issue pertains to the question of jurisdiction of the Magistrates before whom large number of similar complaints are now pending throughout the State and in order to avoid conflicting views, it is desirable to have a pronouncement by a larger Bench.'
It is in this view of the order that the matter has been referred to the Full Bench for its decision.
3. Before we take up the exercise of interpreting the powers of the Judicial Magistrate of First Class or as the case may be the Metropolitan Magistrate (hereinafter referred to as 'the Magistrate' for the sake of brevity), it would be better to see the various relevant provisions on the subject both from the Negotiable Instruments Act, 1881 (hereinafter called as 'the Act') and also the Criminal Procedure Code (hereinafter called as 'the Code').
4. Section 138 and Section 142 of the Act were brought on the legal anvils by resorting to the Banking Public Financial Institution and Negotiable Instruments Laws (Amended) Act, 1988 (Act 66 of 1988). Section 138 thus introduced runs as under:
'138. Dishonour of cheque for insufficiency, etc., of funds in the accounts
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: (Italics Supplied)
(proviso and explanation are not relevant for out purpose)
Section 142 of the Act runs as under:-
'142. Cognisance of offences
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) no court shall take cognisance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause-of-action arises under clause (c) of the proviso to section 138;
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138.'
The emphasised portion of Section 138 of the Act suggests that an offence under Section 138 of the Act is punishable both with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both.
5. On this backdrop, it will be proper to see Section 29 of the Code:
29. Sentences which Magistrates may pass:-
(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.
(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first Class,'
Sub-section (2) and (4) of Section 29 of the Code suggest that the powers of a Magistrate of the First Class and Metropolitan Magistrate regarding possible sentence are identical and limited to the fine of Rs.5000, while there are no such constraints regarding the fine on the powers of the Chief Judicial Magistrate or the Chief Metropolitan Magistrate.
6. On the backdrop of these provisions in the Negotiable Instruments Act and the Criminal Procedure Code, it is the contention of Mr. Packiaraj, learned Counsel for the petitioner/accused that the concerned Magistrate has erred in awarding fine of Rs.25,000 which was beyond his powers as defined in Section 29(2) of the Code, while Mr. Raghavachari, learned Counsel for the respondent contends that the limitation on the power of the Magistrate introduced by Section 29 of the Code world not apply particularly because of the non obstinate clause appearing at the opening of Section 142 of the Act. The learned counsel further contends that Sections 138 and 142 of the Act have a character of a special law in contradistinction with the Indian Penal Code and Criminal Procedure Code and as such if the Judicial Magistrate of First Class or the Metropolitan Magistrate, as the case may be, has jurisdiction to try any offence punishable under Section 138 of the Act, then because of the force of the non obstinate clause obliterating the relevant provisions in the Criminal Procedure Code, such Metropolitan Magistrate or the Judicial Magistrate would have the jurisdiction to award any sentence as prescribed in Section 138 of the Act which is also a Penal Section. The question that would boil down for the purposes of the present controversy would be the true and correct interpretation of Section 142(c) of the Act as also the effect of the non obstinate clause on that sub-section.
7. Mr. Packiaraj, learned counsel appearing for the petitioner, firstly contends that the plaint reading of Section 142 of the Act would suggest that the operation of the non obstante clause is limited and it is meant only for three eventualities as contemplated under Section 142 of the Act. According to the learned counsel, clause (a) of the Section 142 suggests that the cognisance can be taken only on the basis of the complaint in writing by the payee or the holder of the cheque. The learned Counsel points out that ordinarily as per Section 190 of the Criminal Procedure Code, cognisance can be taken by the Magistrate- (a) upon receiving a complaint of facts which constitute such offence; or (b) upon a police report of such facts; or (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. The learned Counsel contends that non obstante clause has an effect of limiting this power of the Magistrate to Section 190(1)(a) of the Code alone, thereby prohibiting the Magistrate from taking cognisance in respect of an offence under Section 138 of the Act upon a Police report or upon information received from any person and limiting that power of taking cognisance to a complaint by a payee of the cheque or the holder thereof. Therefore, according to the learned Counsel, the non obstante clause would have the effect of wiping out Section 190(1)(b) and 190(1)(c) as also modifying Section 190(1)(a) to some extent by providing that the complaint should only be by a payee of the cheque or the holder thereof and not any other person.
8. Similarly, as regards Section 142(b) of the Act, the contention is that it provides a period of limitation of One month in contradistinction with Section 468(1)(b) of the Code which provides that the limitation for taking cognisance for an offence punishable with imprisonment for a term not exceeding one year would be one year only. According to the learned Counsel, this provision has been wiped out and modified by limiting the limitation to one month.
9. In the same way, the learned Counsel points out that clause (c) of Section 142 of the Act merely provides that a Court inferior to the Metropolitan Magistrate or the Judicial Magistrate of First Class shall have no power to try an offence under Section 138 of the Act. According to the learned Counsel, in that, this Section gives a safeguard that the Court, below a particular level would not be competent to try the offence punishable under Section 138 of the Act. The learned Counsel argues that in this also, Section 190 of the Code which suggests a power in the Chief Judicial Magistrate to empower any Magistrate of the Second Class to take cognisance under sub-section (1) of Section 190 of the Code has been set at naught by the non obstante clause. The learned Counsel, therefore, argues that while interpreting Section 142(c) of the Act, it will have to be first seen as to what is that which is prevented or modified by the non obstante clause and it is then that the due interpretation will have to be given to clause (c). The learned Counsel further argues that while seeing the effect of the non obstante clause, it will not be possible to read something in the controlled provision of the main enactment which is not there and thereby to increase the scope thereof. In short, the learned Counsel suggests that if the language of Section 142(c) of the Act only suggests the limitation on the power of inferior Courts (than the Metropolitan Magistrate or the Judicial Magistrate of First Class, then the said sub-clause (c) of Section 142 would have to be read only to that limited extent and to read something in that clause to create more power in the Magistrates in contradistinction with Section 29 of the Code would be doing violence to that language of the provision and would also among to incorrectly reading the non obstante clause.
10. Mr. Raghavachari, learned Counsel for the respondent, however, argues that it would not be a correct way to approach Section 142 of the Actwhich opens with the non obstante clause. According to the learned Counsel,ignoring the non obstante clause first, it will have to be decided as to the truepotential and meaning of main enactment and meaning of Section 142(a)(b) and(c) and more particularly (c). Once the correct interpretation of sub-clause (c) isdone realising its full potential on the basis of its language, then because of theforce of the non-obstante clause and the unquestionable language thereof, all thatwhich is contrary to the correct interpretation of Section 142(c) will have to betaken as wiped out or set aside by the non obstante clause. The learned Counselfurther strenuously contends that while interpreting Section 142(c), each wordtherein would have to be given its due meaning with the further realisation thatsubsequent provision of law has to be preferred to the earlier provision of law.According to the learned Counsel, giving full scope to sub-clause (c) of Section142 while interpreting the same and then reading the non obstante clause assetting at naught every contrary provision thereto in the Code would clearly bringout a position that a Magistrate, who would try an offence under Section 138 ofthe Act, can have a power to award any sentence of find as provided in Section138 of the Act irrespective of the limitation on such powers as spelt out in Section29 of the Code.
11. It will have, therefore, to be considered as to whether Section 142(c) can be read to have been restricted by the non obstante clause or whether the non obstante clause is to be read as setting aside any contrary provision in the Code to Section 142(c) of the Act after correctly interpreting the same.
12. The correct interpretation of a provision which is prescribed by a non obstante clause and the true impact of the non obstante clause on such provision was considered by the Apex Court in Aswini Kumar v. Arabinda Base, : [1953]4SCR1 .
That was a case where the Supreme Court was considering the true effect and interpretation of Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. The petitioner therein, a lawyer claimed a right to act and plead in Calcutta High Court and more particularly in the original side thereof on the basis of the said Section 2. The relevant part of the Section was as under:
'Notwithstanding anything contained in the Indian Bar Councils Act, 1926. or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practice in that High Court every Advocate of the Supreme Court shall be entitled as of right to practice in any High Court whether or not he is an Advocate of that High Court.'
The petitioner therein contended that an Advocate of the Supreme Court becomes entitled as of right to appear and plead as well as to act in all the High Courts including the High Court in which he is already enrolled, without any differentiation being made for this purpose between the various jurisdictions exercised by those Courts. It was contended that the word 'Practice' used in the section included both the functions of acting of pleading and that there was nothing in Section 2 to warrant the cutting down of that statutory right and restricting it to pleading only on the original side of the Calcutta High Court. The respondents therein, however, pleaded that the non obstante clause in the first part of the Section furnished the key to the proper interpretation of its scope and since that clause superseded only those provisions of the Bar Councils Act and of any other law which excluded persons not entered in the roll of Advocates of a High Court from the right to practice in that Court, the enacting clause must be construed as conferring only a right co-extensive with the disability removed by the opening clause. It was their contention that the Section was designed only to enable Advocates of the Supreme Court, who were not enrolled as Advocates of any High Court to practice nevertheless in that High Court and that the petitioner, who was already an Advocate of the Calcutta High Court, could not derive any additional right from the section in relation to that Court, as he did not fall within the purview of the Section.
13. Firstly, the Apex Court interpreted the word 'practice' and held that it could not be read in a restricted manner and as such the word 'practice' included both pleading and acting. They also held that any Supreme Court Advocate could practice in the High Court as of right. They also further held that under Section 2 of the new Act, every Advocate of the Supreme Court was entitled as of right to practice in any High Court and that to power was reserved to Calcutta or Bombay High Court to cut down this statutory right and confine it to pleading alone on the original side of those High Courts. It was concluded by the Apex Court, therefore, that the legislature used the word 'practice' both in the Bar Councils Act and in the Supreme Court Advocates (Practice in High Courts) Act in its full sense of acting and pleading, but while in the case of Advocates of the Calcutta and Bombay High Courts, it had expressly preserved and continued the power of those Courts to restrict or exclude the right of practice on the original side, it has reserved no such overriding power under the new Act, with the result that any restrictive rule cutting down the statutory right would be repugnant to Section 2 and, therefore, void and inoperative. In short, the Apex Court gave a full meaning to the main enactment in Section 2 according to its potential. In paragraph 24 of the judgment, the Apex Court disapproved the reasoning of the High Court which was based on the non obstante clause in Section 2. It was observed,
'We find the learned Judges begin by inquiring what are the provisions which that clause seeks to supersede and then place upon the enacting clause such construction as would make the right conferred by it co-extensive with the disability imposed by the superseded provisions.'
The Apex Court took exception to the observations of the High Court to the effect:
'If we examine a little more closely what the section in fact supersedes or repeals ...... The disability which the section removes and the right which it confers are co-extensive.'
The Apex Court observed:
'This is not, in our judgment, a correct approach to the construction of Section 2. It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is in consistent with the new enactment.
In paragraph 25 of the judgment, the Apex Court disapproved of the conclusions reached by the Calcutta High Court to the effect that section 2 conferred to new right on an Advocate of the Supreme Court in relation to the High Court in which he is already enrolled, but gives him the right to practice in the High Courts in the roll of which he was not entered as an Advocate and, therefore, the petitioner was not within the purview of the section in relation to the Calcutta High Court where he was already recorded as an advocate. The second conclusion disapproved by the Apex Court was that the only provisions superseded by the non obstante clause were sections 8(1) and 4(2) of the Bar Councils Act and Rule 38 of Chapter v of the Original Side Rules of the Calcutta High Court and a similar rule framed under Section 15 (b) of the Bar Councils Act by the Calcutta Bar Council prescribing the conditions subject to which Advocates of other High Courts were permitted to practice in the original and Appellate Sides of that Court and the corresponding rules then in force in the Bombay High Court. As regards the first conclusion, the Apex Court pointed out that the true scope of the enacting clause has to be determined on a fair reading of the words used in their natural and ordinary meaning and, therefore, the words used in the enactment 'every Advocate' and 'whether or not he is an Advocate of that High Court' made it plain that the section was designed to apply to the Advocates of the Supreme Court not only in relation to the High Court of which they were not Advocates but also in relation to those High Courts in which they had been already enrolled. The learned Judges also disapproved by the observations of the Calcutta High Court that the words 'whether or not etc.,' were not very apposite as 'no one who is an Advocate of a particular High Court requires to be an Advocate of the Supreme Court in order to practice in the Court.' At the end of this paragraph, the Apex Court went on to record:
'It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute.'
In short, firstly, the Apex Court determined the true scope of the enacting clause on the fair reading of the words used in their natural and ordinary meaning. The Apex Court then observes in paragraph 27 which would truly bring out the treatment given by the Apex Court to the non obstante clause:
'Nor can we read the non obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Councils act and the Original Side Rules of the Calcutta and Bombay High Courts. If as we have pointed out, the enacting part of Section 2 covers all Advocates of the Supreme Court, the non obstante clause can reasonably be read as overriding 'anything contained' in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statute must, where it is clear, be taken to conlrol the non obstante clause where both cannot be read harmoniously; for, even apart from such clause, a later law abrogates earlier laws clearly inconsistent with it. Posteriores leges priores contrarias abrogant (Broome's Legal Maxims, Edn. 10 p. 347). Here, section 2 entitles every Advocate of the Supreme court as of right to practice in any High Court in India.
The phrase 'entitled as of right' has evidently been adopted from the Bar Councils Act and we have already indicated our view that the word 'practice' as applied to a legal practitioner in India includes, in the absence of any limiting or restrictive context, both the functions of acting and pleading. The phrase 'entitled as of right to practice' is an emphatic affirmation of a right to plead and to act independently of the will or discretion of any other person. Could it be said that sections 9(4) and 14(3), Bar Councils Act, are consistent with the existence of such a right? As we have seen already, section 9 (4) preserves the powers of the High Courts at Calcutta and Bombay, among other things. 'to grant or refuse, as they think fit' the applications of persons to practice in those High Courts in the exercise of their original jurisdiction. How could a person be said to be entitled as of right to practice in a High Court if that Court has unfettered power to reject his application to practice on an important side of its jurisdiction? Similarly, how could a person be said to be entitled as of right to plead in a High Court if that Court has the power to frame a rule which precludes him from pleading in the Original jurisdiction of that Court unless he is instructed by an Attorney? Obviously, sections 9(4) and 14(3), Bar Councils Act, and Section 2 of the new Act entitling an Advocate of the Supreme Court as of right to practice in any High Court cannot stand together.
'Whether by force of the non obstante clause liberally construed as indicated above of of the well established maxim of construction already referred to, the new Act must have the effect of abrogating the powers reserved and continued in the High Courts by the aforesaid provisions of the Bar Councils Act, We cannot, therefore, agree with the learned Judges below that the said two provisions have not been superseded or repealed by section 2. As we have already observed, if such reservations had also been inserted in the new Act, the analogy with section 14(1) (a), Bar Councils Act would have been complete, and the petitioner as an Advocate of the Supreme Court be prevented by rules made in appropriate terms from acting on the Original Side of the Calcutta and Bombay High Courts. But in the absence of such reservations in the new Act, his claim in these proceedings must succeed.'
We have deliberately quoted the whole paragraph 27 to highlight the approach of the Apex Court while interpreting the non obstante clause and determining its effects on the main enactment. The approach as suggested by the Apex Court is, therefore, clear that it will not be a proper approach firstly, to Judge as to what is all that, which is intended to be controlled by the non obstante clause and then to hold that the permissible part of the enactment being co-extensive with the non obstante clause. On the other hand, the Apex Court clearly holds that it would be the first endeavour to give a proper meaning to the words of the main enactment and then to treat as set at naught any contrary provision mentioned in the non obstante clause.
13.(a) The Apex Court has also held in this ruling that while interpreting the main enactment, every word therein should be given its due meaning without brushing aside some words as being inapposite and surplusage. Thirdly, the Apex Court has also upheld the principle that a later law abrogates earlier laws clearly inconsistent with it. This decision has stood the test of time and has hot been varied so far. It was followed, in A.V. Fernandez v. State of Kerala, : [1957]1SCR837 , South India Corporation (P) Ltd v. Secretary, Board of Revenue, : [1964]4SCR280 , Chandravarkar Sita Rama Rao v. Ashalata S. Guram, : [1986]3SCR866 , V.C. Shukla v. State, : 1980CriLJ690 , Union of India v. G.M. Kokil, : (1984)IILLJ20SC , R.S. Raghunath v. State of Karnataka, : AIR1992SC81 , M. Venugopal v. Divisional Manager, L.I.C. Machilipatnam, : (1994)ILLJ597SC . It is, therefore, clear from all these cases that while interpreting the concerned Section 142(c), the course suggested by the Apex Court in Ashwini Kumar's case, : [1953]4SCR1 , will have to be followed and in that it will have to be first ascertained what the enacting part of the Section provides on a fair construction of the words used according to the natural and ordinary meaning and then the non obstante clause would have to be understood as operating to set aside as no longer valid anything contained in the relevant existing laws which is inconsistent with the new enactment. The other statutory principles which we have already referred to above would also have to be borne in mind. We would have an occasion to refer to some of the cases in the later part of the judgment in a different context.
13(b). However, the learned Counsel for the petitioner Mr. Packiaraj, strenuously argued that the law laid down in Aswini Kumar's case, : [1953]4SCR1 , was not strictly followed by the Supreme Court in the latest decision reported in Union of India v. Thamisharasi, : 1996(54)ECC7 . It was pointed out by the learned Counsel that there, the Supreme Court was considering the true interpretation of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1988 (in short 'N.D.P.S. Act') so as to assess its effect on the proviso to sub-section (2) of Section 167 of the Code. In short, the controversy before the Supreme Court was whether the aforementioned provision under Section 167 of the Code could be invoked by an accused arrested for commission of an offence under N.D.P.S. act to claim release on bail on the expiry of the total period specified if the complaint is not filed within that period. The learned Counsel points out that the question arose as the charge-sheet was not filed within the period specified in sub-section (2) of Section 167 of the Code in case of a person who was arrested for the offence under the N.D.P.S. Act, as Section 27 thereof specifically provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence punishable for a term of imprisonment of five years or more under the Act shall be released on bail or on his on own bond unless -- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. The learned Counsel points out that ordinarily under the Code of Criminal Procedure, when the charge-sheet is not filed within the time stipulated in Section 167 of the Code, the accused is entitled to released on bail and the question came whether the accused of an offence under the N.D.P.S. Act could so be released on bail in the absence of a charge-sheet having been filed within the time as prescribed under Section 167 of the Code? It was pointed out by Mr. Packiaraj that in this case in spite of the specific non obstante clause, it was held by the Supreme Court that the non obstante clause did not affect the provisions of Section 167 of the Code. The learned Counsel, therefore, contends that similarly, in the case on hand, it has to be held that Section 29 of the Code does not stand abrogated because of Section 142(c) and more particularly the non obstante clause therein.
13 (c). It will be seen that the nature of Section 37 of the N.D.P.S. Act which fell for consideration in Thamisharasi's case, cited supra, is entirely different from Section 142(c) of the Act which has fallen for consideration here. The Supreme Court, while considering the impact of the non obstante clause in Section 37 of the N.D.P.S. Act, has also taken into consideration Section 36-A of the Same Act and more particularly Section 36-A (1) (b) which clearly mentions Section 167, sub-section (2) and sub-section (2-A). In paragraph 8, the Supreme Court proceeds to hold as follows:
'Section 36-A makes it clear that a person accused of or suspected of the commission of an offence under the N.D.P.S. Act is to be forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of Section 167 Cr.P.C.; and the Special Court constituted under Section 36 of the Act exercises, in relation to the person so forwarded to it, the same power which a Magistrate having jurisdiction may exercise under Section 167 Cr.P.C. in relation to anaccused person forwarded to him under that Section. The clear reference to the power of the Magistrate under Section 167 Cr.P.C., particularly sub-section (2) thereof, is an indication that no part of sub-section (2) of Section 167 of the Code is inapplicable in such a case unless there be any specific provision to the contrary in the N.D.P.S. Act.'
The Supreme Court also further relied on Section 36-C of the N.D.P.S. Act and held that the provisions in the Criminal Procedure Code relating to bail and bonds were applicable to the proceedings before a Special Court under the N.D.P.S. Act except as otherwise provided under that Act. The Supreme Court took a note on Section 51 of the N.D.P.S. Act which also made it clear that the Criminal Procedure Code is applicable to all warrants issued and arrests, searches and seizures made under the N.D.P.S. Act. Ultimately the Supreme Court posed a question,
'Whether Section 37 of the N.D.P.S. Act is an inconsistent provision ofthis kind to exclude the applicability merely of the provision to sub-section (2)of Section 167 Cr.P.C. when sub-section (2) of Section 167 is expressly madeapplicable by the N.D.P.S. Act?'
Ultimately, the Supreme Court gave an answer in paragraph 10 that the limitation on granting the bail specified in clause (b) of sub-section (1) of Section 37 came in only when the question of granting bail arises on merits. It further pointed out that this provision was not attracted when the grant of bail was automatic on account of the default in filing the complaint within the maximum period of custody permitted during investigation by virtue of sub-section (2) of Section 167 Cr.P.C. It further pointed out that the only fact material to attract the proviso to sub-section (2) of Section 167 was the default in filing the complaint within the maximum period specified therein to permit custody during investigation and not the merits of the case.
14. Thus, the Supreme Court held in favour of the applicability of Section 167 particularly because even in the other part of the Act viz., Section 36 of the N.D.P.S. Act, the applicability was clearly indicated. The Supreme Court also pointed out with reference to the Terrorist and Disruptive Activities (Prevention) Act, 1987 that sub-sections (8) and (9) of the TADA Act were corresponding to sub-sections (1) and (2) of Section 37 of the N.D.P.S. Act. While there was a provision for modified application of Section 167 as provided by sub-section (4) of Section 20 by which the period specified under Section 167 was increased, there was no such provision in the N.D.P.S Act. According to the Apex Court, such absence of the provision like sub-section (4) of Section 20 was a telling factor. In this behalf, the Supreme Court went on to mention:
'It is also significant that notwithstanding the substitution of Section 37 in the N.D.P.S. Act in its present form by Act 2 of 1989 subsequent to the enactment of the TADA Act, there is nothing in Section 37 of the N.D.P.S. Act similar to sub-section (4) of Section 20 of the TADA Act even though there is striking similarity of the provision with sub-sections (8) and (9) of Section 20 of the TADA Act. In our opinion, the legislative intent of not excluding the applicability of the proviso to sub-section (2) of Section 167 Cr.P.C. in cases of arrest made for commission of offences under the N.D.P.S. Act, is quote evident.'
15. For all these reasons, it is quite clear that the provision, which fell for consideration in Thamisharasi's case though seemingly identical with the present provision under Section 142(c) of the Act, is in fact quite different because of a specific other provision in shape of Section 36-a and 36-C of the N.D.P.S. Act. This case cannot be resorted to by the accused to suggest that the law laid down in Aswini Kumar's case : [1953]4SCR1 , has been varied in any way in the aforementioned decision. The position that boils down, therefore, is that for interpreting Section 142(c) of the Act. While interpreting this provision as commenced by the Apex Court in Aswini Kumar's case : [1953]4SCR1 , and number of further cases, it will have to be borne in mind that there is no legislative surplusage in the Section and thus every word will have to be given its due meaning and then taking recourse to the non obstants clause, it will have to be held that anything contrary in the Code to the interpretation of Section 142(c) would cease to apply and would stand set aside.
16. On the backdrop of this discussion, we will now proceed to consider a fair interpretation of the abovementioned provision. We are also mindful of the caution given by the Apex Court in Ashwini Kumar's case : [1953]4SCR1 , which caution has been repeated thereafter in number of decisions that while interpreting the main enactment like sub-clause (c) of Section 142 of the Act, the clause cannot be cut down or inflated unnaturally. While considering the interpretation of Section 142(c) of the Act, we propose to go back to some of the abovementioned cases also.
17. According to the learned Counsel for the accused, Section 142(c) of the Act is limited to a negative command that any Court inferior to the Magistrate's Court shall not try any offence under Section 138 of the Act. However, the learned Counsel for the complainant, contends that there is inherent positive content to this Section and that is regarding the jurisdiction of a Metropolitan Magistrate and or a judicial Magistrate of First Class to try an offence under Section 138 of the Act. The learned Counsel goes on to argue that once this clause recognises a jurisdiction of the Magistrate to try an offence under Section 138 of the Act, it has to be held that the Magistrate would have all the powers to award a punishment as per Section 138 of the Act. For this, the learned Counsel Mr. Raghavachari gives a great stress on the words 'shall try any offence punishable' under Section 138 of the Act. This stress is on the words 'try', 'any offence', and 'punishable' under Section 138 of the Act. According to the learned Counsel, once the Court has a power to try, it also has the power to punish because unless there is a discharge or as the case may be, a punishment awarded, the trial would not be complete. In support of his argument, the learned Counsel relies on a Privy Council decision reported in Basil Ranger Lawrence v. Emperor, . The learned counsel specifically relies on the observations to the following effect:
'It is an essential principle of our criminal law that the trial of an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings including sentence.'
The learned Counsel, therefore, contends that wherever 'trial' js contemplated, it includes the passing of the sentence also. The term 'trial' or 'tried' is defined in Stroud's Judicial Dictionary (Fourth Edition at p. 2827) as follows:
'(1) A 'trial' is the conclusion, by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal. Therefore, the hearing of the reference of an action 'and all matters in difference' is not a trial...
(2) The trial (Criminal Justice Act 1948 (11 & 12 Geo. 6, c. 58), s. 23 (1) was not complete until sentence had been passed or the offender had been ordered to be discharged.'
The said interpretation at Serial No.2 seems to have been based on a ruling reported in Rex v. Grant, 1951 (1) K.B. 500. The Court in that case was considering the effect of non-service of the notice on the accused as required under Section 23 of the Criminal Justice Act, 1948 for the purposes of sentencing him. Those provisions required the service of notice three days before the trial. The Court held,
'In our opinion, these considerations show that it is open to the police or other appropriate authority to serve notice of previous convictions before the prisoner is brought before quarter sessions; and when that is done quarter sessions can pass any sentence as regards which it is requisite that the notice shall be served. If it is served three days before the prisoner is brought up for sentence, that is all that is required, and we cannot hold in this case that the 'trial' was the incomplete trial which takes place before justices, for, in our opinion, for this purpose the trial is not complete until sentence has been passed or the prisoner has been ordered to be discharged.' (Italics supplied).
18. Thus, it is clear that the sentencing is an integral part of the trial. On this basis, the learned Counsel argues that if the Court recognises a power in the first Class Magistrate, though that provision is couched in the negative language, then it will have to be held that the Judicial Magistrate of First Class has the power to give sentence for an offence under Section 138 of the Act. It may be seen here that the accused has no quarrel with the proposition that the First class Magistrate can try and impose a sentence for an offence under Section 138 of the Act. What is being stated is that his power of sentencing has to be seen controlled by Section 29 of the Code. The learned counsel for the accused, therefore, says that even if the power to try includes the power to punish, there is nothing provided in the Section to suggest that this sentencing power would not be controlled by Section 29 of the Code. To overcome this argument, the learned Counsel for the complainant argues, in our opinion rightly, that there is nothing in clause (c) to suggest a limited power of inflicting a sentence of fine. If the Magistrate has a power to try 'any' offence under Section 138, then, he must be deemed to have power of awarding any punishment prescribed therein. According to the learned Counsel, the reference in the clause (c) of Section 142 of the Act is not only to the offence under Section 138 of. the Act, but to 'any' offence punishable under Section 138, meaning thereby an offence under Section 138 of 'any' magnitude. If the First Class Magistrate has a power to try an offence of any magnitude punishable under Section 138, then giving the full impact to all thewords of the clause, it will have to be held that the Magistrate has the power to give any punishment prescribed by Section 138 of the Act. The user of the word 'punishable' in this clause appears to be with a purpose to arm the Magistrate with the power to pass any punishment under Section 138 of the Act irrespective of his limitations under Section 29 of the Code. A conjoint reading of the term 'shall try any offence punishable under Section 138 of the Acrwould undoubtedly justify a Magistrate of the First Class trying an offence under Section 138 of the Act and also awarding punishment under the same. The legislature could have avoided the words 'any' and 'punishable' and in that case, the clause would have been 'no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try offence under Section 138'. However, the clause uses the word 'any' before the word 'offence' and qualifies the same. Similarly, the legislature has used the word 'punishable' which has a direct reference to the offence under Section 138 of the Act. It will be seen that Section 138 contemplates only one offence and that is a cheque being returned by the bank unpaid either because of the insufficiency of the funds in the account or because the said cheque exceeds the amount arranged. In short, it is the offence of the cheque being dishonoured for insufficiency of funds in the account. If, thus, there is only one offence contemplated under Section 138, of the cheque being dishonoured on account of the insufficiency of the funds in the account, there was ordinarily no need to use the Word 'any' qualifying the word 'offence' in clause (c) of Section 142 of the Act. However, it does appear that the word 'any' was introduced to qualify the word 'offence' in the said provision with an idea to cloth the Magistrate of the First Class with an over all jurisdiction to try an offence of any magnitude under Section 138. Similarly, the user of the word 'Punishable' qualifying the word 'offence' under Section 138 appears to be deliberate with the purpose to clothe the Magistrate with the powers to award any sentence under Section 138 of the Act. If this is the fair interpretation of clause (c) of Section 142, then anything which is contrary to the same including Section 29 of the code limiting the sentencing power of the Magistrate of the first class or as the case may be, of the Metropolitan Magistrate would have to be held as set aside owing to the non obstante clauses which precedes clauses (a), (b) and (c) of Section 142 of the Act as per the law laid down in Aswini Kumar's case, : [1953]4SCR1 .
19. The learned Counsel for the accused, however, strenuously argues that the words 'any' and 'punishable' qualifying the word 'offence' under Section 138 are mere legal surplusage. However, because of the clear-cut pronouncement of law in Aswini Kumar's case, : [1953]4SCR1 which has been followed throughout till 1994 and which even stands today, we cannot pursue ourselves to hold that these words are meaningless or to put it in the language of the learned Counsel 'casually used'.
20. The import of the word 'any' has been considered in V.C. Shukla's case, . There, the Apex Court was considering the question of true interpretation of Section 11(1) of the Special Court Act. Though in minority, P.N. Shinghal, J. has held that since under that Section, the appeal was provided as of right from any sentence or order not being an interlocutoryorder to the Supreme Court both on facts and on law, the said provision was clearly more liberal than the provisions of the Code such as Sections 372 to 379. In this behalf, the learned Judge says,
The words to which emphasis has been supplied are significant, or are, atany rate, not without significance. They provide that if 'any' 'order' of theSpecial Court is not of an interlocutory nature, it is the 'right' of the aggrievedparty to prefer an appeal against it to this Court.'
In the same way, in paragraph 77, the learned Judge relied on the decision repotted in The Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, : (1950)NULLLLJ921SC in which it was held by Fazal Ali, J. that the user of the words 'any order' along with the other difference of language had 'greatly widened' the scope of Article 136 of the constitution in regard to the appeal thereunder as compared to Articles 132, 133 and 134 which provided an appeal from a 'final order'. Thus, the user of the word 'any' by the legislature in clause 142(c) has to be significantly noted and it has to be held that the said clause empowers a First class Magistrate or a Metropolitan Magistrate to try an offence under Section 138 of the Act, of any dimension. If the interpretation put forward by the accused has to be accepted, then, a Magistrate may not be able to give a sentence of fine as provided in Section 138 for a returned cheque of more than Rs.25,000 thereby the whole conspectus of his power to try an offence under Section 138 would shrink to a great extent. If the legislature felt that a Magistrate of the First Class could try any offence punishable under Section 138, then, it would be cutting down the powers spelt under Section 142(c) by interpreting that the Magistrate's powers of inflicting sentence of fine are limited and controlled by Section 29 of the Code in spite of a non obstante clause steering at that provision which would have the effect of ignoring all the provisions of the Code. Therefore, we are not in agreement with the learned Counsel for the accused when he submits that clause (c) of Section 142 of the Act is negative in tone or is a mere safeguard.
21. In his referring judgment, the learned single Judge, relying on the statement of objects and reasons held that clause (c) of Section 142 of the Act was a mere safeguard against the trial of those offence by the inferior Courts. The learned Judge also went on to hold that these clauses were introduced to provide a safeguard to genuine and honest bank customers that they are not harassed or put to inconvenience. On the basis, the learned Judge compared these provisions with the non obstante clause in Section 5-A of the Prevention of Corruption Act, 1947 whereunder it was provided that notwithstanding anything contained in the Code, no officer below a certain specified rank shall investigate an offence punishable under the Act and proceed further. The learned Judge then relied on the dictum of the Supreme Court in A.R. Anthulay v. Ramdas Sriniwas Nayak, 1984 SCC 277 where the Supreme Court held that to exclude the applicability of Sections 195 to 199, the Court would require unambiguous statutory provision and a tangled web of argument for drawing a far fetched implication cannot be a substitute for an express statutory provision. A question and come up in this case, whether the non obstante clause in Section 5-A of the Prevention of Corruption Act brought an embargo on filing a private complaint being taken cognisance ofunder Section 200 of the Code. The learned Judge has then quoted the observations of the Supreme Court holding that the Criminal Procedure Code is the parent statute which provides for an investigation, inquiring into and trial of cases by criminal Courts of various designations. On the basis of all these, the learned Judge infers that since Section 142(c) is a mere safeguard as Section 5-A of the Prevention of Corruption Act, it would be totally against the very object of the non obstante clause to confer more powers on the Metropolitan Magistrate and the Judicial Magistrate of First Class. According to the learned single Judge, the decision in A.R. Antulay's case, 1984 SCC 277 is not only a decision on a provision in pari materia but also a direct decision on the scope of Section 4 of the Code. This decision was very heavily relied on by the learned Counsel for the accused Mr. Packiaraj and so also the referring order of the learned single Judge. With respect, we are unable to agree with the inference drawn by the learned Single Judge.
22. Firstly, in Aswini Kumar's case, : [1953]4SCR1 itself the Apex Court has cautioned against the use of statement of objects and reasons in interpreting a particular statute. According to the Apex Court, such statement seeks only to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. The Apex Court further holds but those objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have remained the same throughout till the Bill emerges from the House as an Act of the Legislature, for they do not form part of the Bill and are not voted by the members. The statement of objects and reasons appended to the Bill should be ruled out as an aid to the construction of a statute.
23. In a later case reported in State of West Bengal v. Subodh Gopal Base, : [1954]1SCR587 , S.R. Das, J., who is a party to this decision, however, used the statement of objects and reasons, but not for the purposes of construction of the statute, but to test as to under what circumstances the Act was brought on statute. It has also been held in the decision reported in State of West Bengal v. Union of India, : [1964]1SCR371 , Sinha, C.J. that it is well settled that the Statement of objects and reasons accompanying a Bill, when introduced in Parliament cannot be used to determine the true meaning and effect of the substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. It is, therefore, clear that the statement of objects and reasons could not be resorted to, to draw a conclusion that Section 142(c) was brought in, only to provide a safeguard to genuine and honest bank customers. Even if it is accepted for argument sake that these statements could be looked into, it will be seen that by reading that provision in its correct perspective and to read more powers in the Judicial Magistrate of First Class or the Metropolitan Magistrate in terms of Section 138 of the Act would, in any case, not bring any cloud On the so called safeguard. We are also unable to agree with the view expressed by the learnedSingle Judge that A.R. Antulay's case, 1984 SCC 277 concludes the matter in so far as the powers of the Magistrate under Section 142(c) is concerned. The decision, according to our considered opinion, is not apposite to the controversy in question. It merely considers the maintainability of a private complaint for an offence under the Prevention of Corruption Act in the absence of an investigation by the Police Officers. Even the expressions in paragraph 16 of the said decision which have been heavily relied upon by the learned Counsel here do not in any manner support the submissions of the learned Counsel.
24. In order to buttress his contention, the learned Counsel for the accused took us to some other enactments which are also the Special Acts where the additional or enhanced powers were conferred upon the Magistrates by inserting specific provision. The learned Counsel argues that though such provisions are to be found empowering the Magistrates to pass harsher sentences irrespective of the limitations of Section 29 of the Code, no such power has been specifically given in the Negotiable Instruments Act. According to the learned Counsel, the absence of such specific empowerment would suggest that it was never the intention of the legislature to permit the Magistrate of the First Class to award higher sentence than the one prescribed by Section 29 of the Code. Firstly, the learned Counsel invites our attention to Section 32(2) of Drugs and Cosmetics Act, 1940 which suggests that no Court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the First Class shall try an offence punishable under this Chapter. The learned Counsel also invites our attention to Section 36 of the Drugs and Cosmetics Act, 1940 which specifically provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, it shall be lawful for any Metropolitan Magistrate or any Judicial Magistrate First Class to pass any sentence authorised by this Act in excess of his powers under the said Code. In the same manner, the learned Counsel invites out attention to the provisions of Section 7 of the Dowry Prohibition Act, 1961. Section 7(1)(a) of the Dowry Prohibition Act suggests that notwithstanding anything contained in the Code of Criminal Procedure, 1973, (a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act. Clause (b) of this Section suggests that no Court shall take cognisance of an offence under this Act except upon -- (i) its own knowledge or a police report of the facts which constitute such offence, or (ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognized welfare institution or organisation; Clause (c) suggests that it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under this Act. The learned Counsel also invites our attention to Section 16 of the Prevention of Food Adulteration Act and points out that the penalties as suggested in Section 16 were much more than what the Magistrate could order and that there is a provision in Section 21 of the same Act specifically empowering the Magistrate to pass any sentence authorised by the Act.
25. Similarly, our attention was also invited to the provisions of the Foreign Exchange Regulation Act, 1973 and more particularly to Section 61 therein where a specific provision has been enacted empowering theMagistrate of the First Class or the Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding three years or of fine exceeding five thousand rupees on any person convicted of an offence punishable under Section 56 of that Act. From all these examples, the learned Counsel suggests that wherever the legislature felt the need to enhance the power of the Magistrate to punish, there had been specific provisions made in different Acts and there being no such provision in the present Act, Section 142(c) of the Act cannot be read to provide such powers to the Magistrate. In fact, in his referring judgment, the learned single Judge has also relied on the aforementioned provisions to hold prima facie that the absence of such provisions in the present Act would speak against the Magistrate and his powers for enhanced punishments.
26. Before we take up to consider these empowering provisions separately, it will be better to see if there is any guidance to be found in the Negotiable Instruments Act itself. It can be seen that Chapter XVII came to be introduced by Act 66 of 1988 and introduced for the first time an element of crime and punishment therefor in this Act which otherwise dealt with only the civil rights. The Act otherwise provides the consequences of the dishonouring of the cheque, the liability arising therefrom which were essentially the civil liability. It is for the first time that a penalty was introduced for the dishonour of cheque, that too for the limited reasons of insufficiency of funds in the account of the drawer. For the purposes of interpreting Section 142(c) of the Act, it will be essential for us to go to Section 138 of the Act which Section not only defines the offence, but also provides the punishment therefor. Without taking recourse to Section 138 of the Act, it will not be possible to realise the real scope of Section 142(c) of the Act. It has already been pointed out that Section 138 of the Act creates this offence by a deeming clause. Itsuggests that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid because of the amount in the account being insufficient or because of the fact that it exceeds the arrangement made with the bank, then, such person shall be deemed to have committed an offence. The opening clause of Section 138 of the Act defines such offence and then proceeds with the following terminology: ....deemed to have committed an offence and shall without prejudice to any other provisions of this Act by punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. (Italics supplied). We have deliberately provided an emphasis for the clause 'without prejudice to any other provisions of this Act' as this clausewould throw a flood of light on Section 142(c) also including any other provisions elsewhere in the Act. It will be seen that the other provisions in the Act provide for the civil consequences which may ensue if the cheque is dishonoured and the words 'without prejudice to any other provisions of this Act' suggest that it would be in addition to those civil consequences that this punishment can be awarded. However, we do not think that is the only import of the clause. This clause, which is in the newly introduced Chapter XVII, does not exclude from its operation, the other provisions of this Chapter and in addition it also applies to the provisions in the other Chapters (which is clearfrom the language of the clause) which spell out the civil liabilities on account of the dishonouring of the cheque. It is for this reason, it can be said that a person, who is deemed to have committed an offence, shall, without prejudice to Section 142(c), be punished with imprisonment for a term which may extend to one year, or with fine which may extened to twice the amount of the cheque, or with both. It is already pointed out that Section 142(c) of the Act, though couched in the negative language, recognises the jurisdiction of the metropolitan Magistrate or the Judicial Magistrate or the First Class to try any offence punishable under Section 138 of the Act. According to us, therefore, when the punishment provided under Section 138 of theAct can be awarded without prejudice to any other provisiops of the Act including Section 142(c), the plaint meaning of the words would be that a Metropolitan Magistrate or a Judicial Magistrate of the First Class, who is the lowest Court for trying the offence, would also be able to award the sentence as provided in Section 138 of the Act. The prejudice, which is spelt out and avoided by the clause in Section 138 of the Act, would not only be applicable to the other consequences provided by the other provisions, but also engulf the limitations on the punitive powers of the Metropolitan Magistrate and Judicial Magistrate of the First Class. It has to be appreciated that the legislature was well aware of the limitations on the punitive powers of the Metropolitan Magistrate and the Judicial Magistrate of the First Class and once it provides those to be the Courts of the minimum level for trying an offence under Section 138 of the Act, the introduction of the clause 'without prejudice to any other provisions of this Act' has to be viewed as clothing the Magistrates with the powers to award enhanced punishment of the fine as provided under Section 138 of the Act. Unfortunately, this clause has been lost sight of and has not been considered in the reference Order or even in the other similar judgments of this Court and some other Courts. All those cases which have ignored this important clause which appears just prior to the clause providing the punishment will have to be taken as judgments per incariam.
27. Let us now take into consideration the provisions of the other Acts which have been relied upon by Mr. Packiaraj, learned Counsel for the accused. A general comment can be offered as regards all the other enactments, viz., The Drugs and Cosmetics Act, 1940, Dowry Prohibition Act, 1961, Prevention of Food Adulteration Act, 1954; and Foreign Exchange Regulation Act, 1973 that such clause which is present in Section 138 of the Act, is absent in all the penal provisions therein.
(i) An examination of Sections 13, 27, 27-A, 28, 28-A, 28-B, 29 and 30 of the Drugs and Cosmetics Act, 1940 would invariably go to show that such clause is conspicuously absent therein. As regards Sections 32 and 36 of that Act on which great reliance was placed, it will be seen that there is no non obstante clause prior to Section 32(2) which provides for the minimum level of Courts to try an offence punishable under this Chapter. Sections 32 and 36 of the Drugs and Cosmetics Act, therefore, cannot be compared with the provisions of the present Act. This is apart from the fact that Sections 32 and 33-M of the Drugs and Cosemetics Act cover only the offences in their respective Chapters viz., Chapter IV and Chapter IV-A, while Section 36 of that Act is general in operation.As regards Dowry Prohibition Act, 1961 also, the clause 'without prejudice to any other provisions of this Act' is conspicuously absent in the penal provisions of Sections 3, 4 and 4-A of that Act. Again, the language of Section 7(1)(a) of that Act is different as compared to Section 142(c), as Section 7(1)(a) of the Act does not use the term 'punishable'. We have already seen the significance of that term, while considering the language of Section 142(c). These provisions also cannot be pressed into service of the accused.
(iii) As regards the provisions of Prevention of Food Adulteration Act, 1954,Section 20(2) of that Act, which provides the minimum level of theCourts for trying the offence, does not have a non obstante clause asavailable before Section 142(c) of the Act. Perhaps because of that, theprovision had to be made for a non obstante clause limiting its operationto Section 29 of the Code. Again, in the penal clauses more particularlyunder Section 16, there is no clause as used in Section 138 of the Actbefore introduction of the punishment.
(iv)The learned Counsel for me accused invited our attention to the provisions of Foreign Exchange Regulation Act, 1973 and more particularly to Section 61 of that which suggests a power specifically created in Mag-istrates to pass an enhanced sentences notwithstanding Section 29 of the Code. The criticism that we have made earlier applies to these provisions also inasmuch as no penal provision in this Act including Sections 56, 18-A or Section 13 is armed with the clause which is to be found in Section 138 of the Act.
28. It can be generally said that the basic structure of Sections of various enactments, which are relied upon by the learned Counsel, differs with the structure of Sections 138 and 142(c) of the present Act. Therefore, the argument that since there is no specific provision creating the power to give enhanced punishment of fine, the Magistrate has no jurisdiction to give enhanced punishment of fine has to be felled.
29. Heavy reliance was placed by the learned Counsel for the accused on the decision of the single of this Court in T. Unnikrishnan v. Namala Kidav (Crl.R.C.No. 512 of 1993 dated 29.1.1998) where the learned single Judge of this Court has taken a view that Section 142(c) of the Act is limited in its operation and as such the Magistrate wilt have no jurisdiction to inflict a fine of more than Rs. 5,000. Unfortunately, the celebrated decision of the Apex Court in Aswini Kumar's case, cited supra, and the subsequent cases which clarify as to how in general non obstante clause operates and its effect on the main enactment, were not brought to the notice of the learned single Judge. We have already discussed the law laid down by the Supreme Court on the subject of interpreting the non obstante clause and we have come to the conclusion that firstly a full scope has to be given to the main enactment and then with the aid of the non obstante clause all that which is contrary to the said main enactment as fully interpreted has to be set aside. We have already shown that in the light of the decisions of the Apex Court, Section 142(c) has to be given its full scope and we have also shown as to what is the precise scope of Section 142(c) of the present Act.
30. Secondly, though the examples of Drugs and Cosmetics Act, Foreign Exchange Regulation Act, Prevention of Food Adulteration Act, etc., were pressed into service before the teamed Judge, the effect of a specific language of Section 138 of the Act was not brought to the notice of the learned Judge. According to us, the clause 'without prejudice to any other provisions of this Act' makes a very substantial differences and has a noticeable impact on the interpretation of Section 142(c). The learned Judges has also interpreted the words 'authorised by law' which term is used only in respect of Chief Judicial Magistrate or the higher Courts, but not in case of a Judicial Magistrate of the First Class or a Metropolitan Magistrate. The learn Judge was of the opinion that on that basis when there is no specific authorisation by the Special Act. like Negotiable Instruments Act in favour of the Magistrate to impose a higher sentence than the one sanctioned by Section 29 of the Code, the Magistrate would be powerless to impose such a sentence. In our opinion, since the whole Section 29 of the Code would stand wiped out because of the force of the non obstante clause in Section 142, the terminology would not have any impact on the power of the Magistrate to impose a higher sentence of fine than the one prescribed in Section 29 of the Code.
31. For this reason, we are unable to agree with the reasons and the conclusions reached by the learned single Judge in that case.
32. On the other hand, it has been shown by the learned Counsel for the complainant that a view has been taken by this Court in accordance with what we have expressed above in the decision in A.Y. Prabhakar v. Naresh Kumar N. Shah, 1995 (83) C.C. 191, basing the interpretation completely on the non obstante clause and holding that the Magistrate had a jurisdiction to impose a heavier fine than the one sanctioned in Section 29(2) of the Code. By the very same learned Judge, Crl.O.P.Nos. 1856 and 1857 of 1991 dated 12.6.1991 Mani Thiagangdn v. M. Mohan have been decided in the similar manner.
33. The learned Counsel for the complainant also relied upon a Division Bench judgment of the Andhra Pradesh High Court in B. Mohan Krishna v. Union of India, : 1995(1)ALT468 where while holding that this legislation is not ultra vires the powers of the Union Parliament, the Division Bench also interpreted the provisions of Sections 138 and 142 of the present Act. In paragraph 54, this precise clause 142(c) favours consideration of the Division Bench. The learned Judges have held as under.
'When Section 142 was enacted, the Union Parliament was aware of the fact that the jurisdiction of the Metropolitan Magistrate or a Judicial Magistrate of the First Class was limited to imposing a sentence of imprisonment for a term not exceeding three years and fine not exceeding Rs. 5,000. that is why, the section begins with a non-obstante clause. Further, under Section 4(2) of the Code of Criminal Procedure, offences under any law either than the Indian Penal Code, although to be tried in accordance with the provisions of the Code, although to be tried in accordance with the provisions of the Code, the same shall be 'subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences.'
Therefore, a Judicial First Class Magistrate or a Metropolitan Magistrate trying an offence under Section 138 has power to impose fine in excess of Rs. 5,000 if the fact situation so warrants.
We are in complete agreement with the conclusions reached. We have already shown in details as to how the said power can be read in the Magistrate consideringthe over all language of the non obstante clause as also Sections 138 and 142(c) of the Act.
34. The two Kerala High Court cases have reiterated the same view relying upon the view expressed by this Court in A.Y.Prabhakar's case, 1995 (83) C.C. 191. The two Kerala High Court Judgments are;
(1) K.P. Sahadevan v. T.K Sreedharan ; (2) Jaya Baby v. Vijayan 1994 (81) C.C.572.
The second decision relied upon by the learned Counsel for the complainant is extremely interesting as the learned single Judge of the Kerala High Court K.T. Thomas, J. (as His Lordship then was) has chosen to take a view which can be termed as a 'pragmatic view'. The argument raised there, was that where the cheque is for more than Rs. 2,500, then, the matter should be tried only by a Chief Judicial -Magistrate, as the Magistrate of the First Class or the Metropolitan Magistrate could not award a sentence of enhanced fine as contemplated under Section 138 because of Section 29 of the Code. The learned Judges observed:
'If the above argument gains acceptance the consequences is that alt Chief Judicial Magistrates Courts would be inundated with a spate of complaints since most of the cheques would be for amounts far in excess of half the figure up to which a Judicial Magistrate of first class can impose the fine sentence. Parliament would not have intended to create such a situation when it provided in section 142 of the Act that no Court inferior to that of a Judicial Magistrate of fust class (or Metropolitan Magistrate) shall try such offence.'
We are in respectful agreement with these expressions.
35. It was argued that even if no jurisdiction was found in Magistrate, the Magistrate can make a reference under Section 325 of the Code where he is of the opinion that the higher sentence is to be given. We may say only this much that merely because of that power in the Magistrate to refer under Section 325 of the Code, it cannot cut down the Magistrate's own power as spelt out in Section 142(c) read with Section 138 of the Act. After all, we cannot ignore the fact that if that is the only alternative, then, as expressed in Jaya Babu's case, cited supra, by K.T. Thomas, J. (as His Lordship then was), the Chief Judicial Magistrates' Courts will be inundated with such reference alone. If these provisions' were introduced only with an idea, to provide protection to the honest bank customers and with a view to provide credibility to the cheques and the other instruments, it cannot be brooked that the legislature would have intended so. Then, a practical view has to be taken providing an easy, quick and effective remedy to the complainants, who have already suffered on account of the cheque having been dishonoured and thereafter, in not receiving the amount covered under the cheque. In that view also, the view that we have taken would be more in keeping with the statement of objects and reasons for introduction of this Chapter to the Negotiable instruments Act.
36. In short, we are of the opinion that a Metropolitan Magistrate or a Judicial Magistrate of the first class trying an offence punishable under Section 138 would have the power to award punishment more than five thousand rupees which is a limit provided by Section 29 of the Code owing to the express language of Section 142(c) read with Section 138 of the Act. We answer the reference accordingly.