| SooperKanoon Citation | sooperkanoon.com/140469 |
| Subject | ;Criminal |
| Court | Guwahati High Court |
| Decided On | Mar-15-1955 |
| Judge | Brij Narain, J. |
| Reported in | 1956CriLJ249 |
| Appellant | Ukakhasia Uchai Khasia |
| Respondent | Manipur State and ors. |
2. It appears from the complaint dated 15-3-1954 that according to the prosecution the petitioner went to the quarters of the opposite party No. 3 at about 9 A.M. on 15-3-1954 and told him that he had filed a petition in the court of She opposite party No. 8 a week back for getting settlement at Latingkhal Makha. The opposite party No. 3 told the petitioner that the petition might be lying with the Amin and an enquiry might be made in the office, but the petitioner refused to leave the room and offered the opposite party No. 3 a packet of Capstan cigarettes.
The opposite party No. 3 asked the petitioner to leave the room immediately. When the former stood up for going inside the quarter to take his bath, the petitioner still remained in the room and so the opposite party No. 3 got suspicious and he found that the petitioner had on that very moment inserted five 10-rupee notes under the cover of the table where the opposite party No. 3 was sitting. The petitioner was then handed over to the police along with the five 10-rupee notes and the packet of Capstan cigarettes in the presence of Sri Abani Kumar Dey, Sri Bijoy Singh and Sri Brajalala Singh.
3. The police of Jiribam investigated this case and the charge-sheet was submitted against the petitioner on 16-3-1954. The Deputy Commissioner, Manipur reported to the Chief Secretary to the Government of Manipur by means of his letter No. 2336/DC/Con, dated 24-7-1954 that he had no jurisdiction to try this case as the offence was exclusively triable by a Special Judge, vide Criminal Law Amendment Act, 1952 (Act XLVI of 1952). The Deputy Commissioner asked the Chief Secretary, Manipur to move the Government of India for appointing a Special Judge to try such cases as early as possible.
4. Later on, this case was sent up to the opposite party No. 2 along with a copy of the Memo. No. J/17/52 dated 11-11-1954 issued by the Assistant Secretary to the Government of Manipur, and the opposite party No. 2 proceeded with the trial of this case.
5. The contention of the petitioner is that the Memo. No. J/17/52 dated 11-11-1954 cannot legally confer any jurisdiction on the opposite party No. 2 to try the present case as the petitioner can only be tried by a Special Judge in view of the provisions of Sections 6(2) and 7 of the Criminal Law Amendment Act, 1952.
6. The main question which is to be determined in this revision is whether by virtue of Memo. No. J/17/54 dated 11-11-1954 the Manipur Government can confer jurisdiction on the learned Extra Assistant Commissioner to try the present case against the petitioner. The complaint filed against the petitioner referred to above, clearly shows that an offence under Section 161 read with Section 116, Penal Code, was alleged to have been committed by the present petitioner.
The learned Government Advocate has urged before me that as Section 116, I.P.C. has not been amended by the Criminal Law Amendment Act, 1952 the prosecution of the present petitioner under Section 161/116, I.P.C. could proceed in the court of Extra Assistant Commissioner (Opposite party No. 2) in accordance with the provisions of the Code of Criminal Procedure & under Section 7 of the Manipur State Courts Act, 1947. Section 116, I.P.C. is a general section and it is not confined to abetment in bribery cases. Section 116, I.P.C. runs as follows:
116. Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code' for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both;
and if the abettor or the person abetted is a public servant, whose duty is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for that offence, or with both.
7. This section provides a milder punishment for abetment in bribery cases, hut by the new Section 165(A) which has been inserted in the Indian Penal Code by Section 3, Criminal Law Amendment Act, 1952, the offering of a bribe is made a substantive offence by itself instead of a mere abetment. In Section 116 it has been clearly laid down that where no express provision is made for the punishment of such abetment the punishment to the accused will be given as provided in that section.
Now by insertion of Section 165(A), I.P.C. the Legislature has clearly and expressly made provisions for punishment and abetment in bribery cases and such abetment has been made a substantive offence. It, therefore, becomes clear that the present petitioner could only be prosecuted under Section 165(A) and not under the old provisions as laid down in Section 161 and Section 116 I.P.C. for even if two sets of provisions be deemed to be co-existing and the result of this co-existence would be destructive of the object for which the new law was passed, the earlier would be repealed by the later: Vide Maxwell on the Interpretation of Statutes (Tenth Edition) page 168.
If the present petitioner is legally deemed to be prosecuted under Section 165A, I.P.C. then the provisions of the Criminal Law Amendment Act, 1952 would govern the procedure and not the provisions of the Manipur State Courts Act.
8. The learned Govt. Advocate has next argued that as the Criminal P.C. has not been enforced in Manipur State the Criminal Law Amendment Act 1952 which amends the Code of Criminal Procedure, 1898, is also not enforceable in this State. This argument is based on a demi-official letter No. F.10(16)-PA/54 dated 21-9-1954 from the Ministry of States, New Delhi to the address of the Chief Commissioner, Manipur which runs as follows:
Sub: Alleged corruption by the officials of the Claims Department.
Ref : Your demi-official letter No. Claims/ 20/54 dated the 23rd August 1954.
The Minister for States desires that proceedings for prosecution should be taken up forthwith against Shri Charu-Gopal Singh and others after collecting all available evidence. The anomaly referred to in your letter in respect of trial of cases under Sections 161 and 165, I. P. C is under the consideration of the Ministry of Home Affairs but it is felt that as the Criminal Procedure Code is not applicable to the State of Manipur, amendments thereto, would not appear to necessitate any change in the procedure hitherto being followed & accordingly prosecution proceedings may be started in the present case immediately.
This Ministry may be kept informed of the progress of the case from time to time.
9. Obviously the facts that the Criminal Law Amendment Act 1952 also amends the Indian Penal Code, and the I.P.C. has been brought into force in the State of Manipur by the Merged States (Laws) Act 1949 and by the Part-C States (Laws) Act 1950, and so the amendment made in the Indian Penal Code by the Criminal Law Amendment Act 1952, would be operative in Manipur also, and the special procedure laid down by the Legislature for trial of an offence under Section 165A, I.P.C. should be strictly followed in that State as well, have been lost sight of when this letter was issued.
10. Criminal Law Amendment Act 1952, is thus fully applicable to Manipur State so far as the offence under Section 165(A), I.P.C. is concerned and the provisions laid down in Sections 6 and 7 of that Act must, therefore, be followed strictly, vide Ratanlal's Law of Crimes, 1953 Edition, page 395 where it has been clearly stated that for trial of offences under Section 165(A) the procedure laid down in the Prevention of Corruption Act (11 of 1947) as amended by Act LIX of 1952 should be followed.
The above-mentioned letter from the Ministry of States does not seek to amend the provisions of the Criminal Law Amendment Act 1952, and so it becomes clear that the present petitioner cannot legally be tried by any Magistrate or the opposite party No. 2, but he must be tried by a Special Judge appointed under Section 7 of the Criminal Law Amendment Act, 1952.
11. It was also argued by the learned Government Advocate that as the Code of Criminal Procedure is not enforced in Manipur State, no Special Judge could be appointed under the Criminal Procedure Code, as laid down by Sub-section 2 of Section 6, Criminal Law Amendment Act 1952. I think Sub-section 2 does not provide for appointment of a Special Judge under any section of the Code of Criminal Procedure (Act V of 1898)
It clearly lays down qualifications for persons who can be appointed Special Judges for the purpose of Criminal Law Amendment Act 1952 and these qualifications are that a person shall not be qualified for appointment as a Special Judge under this Act unless he is, or has been, a Sessions Judge or an Additional or Assistant Sessions Judge under the Code of Criminal Procedure, 1898 (Act V of 1898).
Thus the Special Judge must have exercised at least the powers of an Assistant Sessions Judge I.e., for sentencing an accused person upto 7 years' rigorous imprisonment. The opposite party No. 2 admittedly does not possess these qualifications and so he is legally incompetent to try the present petitioner in a case under Section 165(A), I.P.C.
12. Article 21 of the Constitution lays down as follows:
21. No person shall be deprived of his life or personal liberty except according to procedure established by law.
13. Any law or provision of law which affects the personal liberty and is inconsistent with Articles 21 and 22 of the Constitution, has been held to be void to that extent, vide - 'Sunil Kumar Bose v. Chief Secretary to the Govt. of West Bengal' AIR 1950 Cal 274 (A) - 'Venkataraman v. Commissioner of Police Madras' ; - 'Harpal Singh v. State' - 'Brahmeshwar Prasad v. State of Bihar'
14. In view of the provisions of Articles 21 and 22 of the Constitution and also in view of the rulings cited above the above-mentioned letter from the Ministry of States which is inconsistent with the provisions of the Criminal Law Amendment Act 1952, cannot be legally operative and binding and it cannot confer jurisdiction on the opposite party No. 2 to try the case under Section 165(A), I.P.C.
15. This Court has power to interfere under Article 227 of the Constitution where there is illegal exercise of jurisdiction by any court or any Tribunal within the territories of Manipur State, and as the opposite party No. 2 is proceeding with the trial of the petitioner even though he has no jurisdiction to try it, this Court in the exercise of its power of superintendence is bound to interfere and set aside the orders impugned and give proper directions vide - 'Maidhan Das Agarwalla v. R. B. Medhi' AIR 1953 Assam 220 (E) in which it has been held that on the construction of relevant Gazette notifications the Special Judge at Gauhati who succeeded in office his predecessor had at no time acquired any jurisdiction or seisin under Section 7, Criminal Law Amendment Act, 1952, over the case in which a Circle Inspector of Police stood charged with an offence punishable under Section 161, Penal Code and Section 5, Prevention of Corruption Act, 1947, and his orders relating to the hearing of the case were without jurisdiction; as Shri R.B. Medhi held an appointment of officiating nature at that time. In the case before me the opposite party No. 2 does not possess the necessary qualifications of a Special Judge as laid down in Section 6(2) of the Criminal Law Amendment Act, 1952.
16. As such the proceedings in this case pending in the court of the senior Extra Assistant Commissioner, opposite party No. 2 are quashed and this revision is allowed. It will be open for the State Government to get the case against the petitioner tried by any legally constituted court as contemplated under Sections 6(2) and 7 of the Criminal Law Amendment Act, 1952.