1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 38/2009 WITH CR.MISC.APPLICATION NO.15/1010 Shri Vishwajit P. Rane, r/o. 3rd Floor, Building No.25, Kamat Kinara, Caranzalem, Panaji, Goa. ....... Petitioner. V/s. 1. State of Goa, through the Secretary (Home), Government of Goa, Secretariat, Porvorim, Goa. 2. The Police Inspector, Incharge of Old Goa Police Station, Old Goa, Ilhas, Goa. ...... Respondents. 3. Shri Aires Rodrigues, Advocate residing at T-I, B-30, Ribandar Retreat, Ribandar Ilhas, Goa. ....... Intervenor. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. S.G. Bhobe and Mr. D. Lawande, Advocates for the petitioner. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for the respondents. Intervenor in person. 2 CORAM :- A.S. OKA & F.M. REIS, JJ. Date of reserving the Judgment : 14/07/2010 Date of pronouncing the Judgment : 21/07/2010 J U D G M E N T : (Per A.S. OKA, J.) 1. By this writ petition under Article 226 of the Constitution of India , the challenge is to a Notification dated 29th April/11th May, 2004 issued by the Government of Goa in purported exercise of powers conferred by sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932 (hereinafter referred to as “the said Act of 1932”). By the said notification, the Government of Goa purported to declare that any offence punishable under Sections 186, 189, 228, 298, 506 or 507 of the Indian Penal Code, 1860 (hereinafter referred to as “the Penal Code”) when committed within the State of Goa shall be cognizable. The notification further provides that any offence punishable under Section 188 or Section 506 of the Penal Code shall be non-bailable when committed within the State of Goa. 3 2. With a view of appreciate the submissions made by the parties, a few facts will have to be set out. At the instance of the Intervenor who is an Advocate, First Information Report dated 22nd August 2007(FIR No.130/2007) was registered by the Officer in charge of Old Goa Police Station, Old Goa in purported exercise of powers conferred by Section 154 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code of 1973”). The offence alleged is under Section 506(ii) of the Penal Code. The investigation was carried out on the basis of the First Information Report. On 8th May, 2009, the police filed a charge-sheet against the petitioner in the Court of the learned Judicial Magistrate, First Class, at Panaji for an offence punishable under Section 506(ii) of the Penal Code. It is stated in the said petition that the Intervenor filed a private complaint on 31st August, 2007 against the petitioner and his wife. It is stated that the private complaint as against the petitioner's wife was quashed by the Sessions Court, Panaji in a revision application. 3. The legal contention raised in the petition is that by 4 purported exercise of powers under Section 10 of the said Act of 1932, the State Government was not competent to amend the provisions of the said Code of 1973. It is submitted that the said Act of 1932 does not empower the State Government to amend any part of the said Code of 1973. It is submitted that as the said Code of 1973 is a law enacted by Parliament, it can be amended only in accordance with Article 254 of the Constitution. The first prayer in the petition is for quashing the said notification. The second prayer is for quashing the First Information Report registered at the instance of the Intervenor. 4. The learned Senior Counsel appearing for the petitioner, at the outset, invited our attention to the affidavit dated 1st July, 2009 filed by one Mr. Sidhivinayak Naik, Under Secretary (Home-II), Government Goa. In the affidavit, it is pointed out that in view of legal position, the Government of Goa has now decided to instruct the Public Prosecutors and the Additional Public Prosecutors to withdraw all prosecutions under Sections 186, 189, 228, 298, 506 and 507 of the Penal Code, as the said offences cannot be treated as cognizable and non-bailable. The learned senior counsel pointed out that the Code of Criminal Procedure, 1898 (hereinafter referred to as “the said 5 Code of 1898”) was repealed by Section 484 of the said Code of 1973 with effect from 1st April, 1974. He submitted that if any amendment is to be made to the said Code of 1973, the same can be only by of a legislation of the State. He submitted that the said Act of 1932 empowered the Government to amend certain provisions of the said Code of 1898. He submitted that as the said Code of 1973 is post- constitution legislation, without their being a legislation in accordance with Article 254 of the Constitution of India, the provisions of the said Code of 1973 cannot be amended. He invited our attention to Criminal Misc. Application No.15/2010 by which a prayer is made for seeking amendment of the petition for challenging the notification dated 27th June, 1973 which was amended by a corrigendum dated 5th July, 1973. He submitted that both the notification and the corrigendum have been issued in exercise of powers conferred by Section 10 of the said Act of 1932 by which the State Government purported to declare that certain sections, including Section 506 of the Penal Code shall be cognizable and non-bailable when committed within the Union Territory of Goa, Daman and Diu. He submitted that these notifications will have no effect after repeal of the said Code of 1898. He submitted that the date on which the First Information 6 Report was registered, the offence under Section 506 of the Penal Code was non-cognizable. He submitted that thus, registration of the First Information Report, subsequent investigation and the act of filing charge-sheet stand vitiated. He has placed reliance on certain decisions in support of his submission that permission under sub-section (2) of Section 155 of the said Code of 1973 is mandatory and the investigation carried out without complying with the requirement of the said provision is liable to be set aside. 5. Learned Advocate General appearing for the State of Goa submitted that there is no amendment carried out to the said Code of 1973 for declaring the offence under Section 506 of the said Code as cognizable. Inviting our attention to the said Act of 1932, he pointed out that sub-section (1) of section 10 thereof empowers the State Government to declare the offences punishable under certain sections, including Section 506 when committed in the specified area, as cognizable notwithstanding anything contained in the said Code of 1898. He pointed out that while enacting the said Code of 1973, the legislature has made some of the offences enumerated in sub-section (1) of Section 10 as cognizable offences. He submitted that the correct 7 position of law is that an offence punishable under Section 506 of the Penal Code is non-cognizable. 6. We have heard the Intervenor appearing in person who is an Advocate. When we made a query to the Intervenor appearing in person as to whether the offence under Section 506 of the Penal Code was cognizable on 22nd August, 2007 when the First Information Report at his instance was registered, he submitted that the offence was cognizable in view of the notification dated 27th June, 1973, which was amended by corrigendum dated 5th July, 1973. He invited our attention to an Order dated 23rd September, 2008 passed by the learned Single Judge of this Court in Criminal Writ Petition No. 47/2008. He pointed out that while disposing of the said writ petition, this Court recorded a statement of the learned Public Prosecutor that a charge-sheet will be filed after completing investigation on the basis of the said First Information Report registered at the instance of the Intervenor. He stated that as the said statement which was accepted by this Court was not complied with, he had to file a Contempt Petition No. 9 of 2009 in which again a statement of the Public Prosecutor was recorded that the charge-sheet will be filed. He pointed out that only 8 thereafter the charge-sheet was filed. He submitted that thus this Court recorded the statement of the learned Public Prosecutor that the charge-sheet will be filed in the case and, therefore, this Court approved the action of the police of carrying out investigation and did not find anything illegal about it. When a query was made by this Court to the Intervenor as to whether the investigation in the case has been carried out after obtaining an order of the learned Magistrate under Section 155(2) of the said Code of 1973, he stated that no such order has been passed by the learned Magistrate. Lastly, he invited our attention to the order on page 116 of the petition which has been passed in the private complaint filed by him. He submitted that no interference is called for. 7. Before we deal with the submissions on merits, it must be noted here that there are written submissions filed by the Intervenor appearing in person. The Intervenor has dealt with the contentions raised by the learned Advocate General as regards the contempt allegedly committed by him. However, we must note that before us, the learned Advocate General has not made any submissions as regards the alleged contempt and, therefore, we have not dealt with the 9 submissions forming part of the written submissions of the Intervenor appearing in person as regards the contempt. The Intervenor has also shown restraint and has confined his submissions to the merits of the controversy. 8. We have given careful consideration to the submissions. It is not in dispute that under the said Code of 1898, prior to 27th June, 1973, an offence punishable under Section 506 of the Penal Code was not made cognizable. 9. Submissions have been made on the basis of the notification dated 27th June, 1973 issued in purported exercise of powers conferred by sub-section (1) and sub-section (2) of Section 10 of the said Act of 1932. Section 10 of the said Act of 1932 reads thus: “Section 10 - Power of State Government to make certain offences cognizable and non-bailable (1) The[State Government] may, by notification in the[Official Gazette], declare that any offence punishable under Ss. 186, 188, 189, 190, 228, 295A, 298, 505, 506 or 507 of the Indian Penal Code, when 10 committed in any area specified in the notification shall, notwithstanding anything contained in the Code of Criminal Procedure, 1898, be cognizable, and thereupon the Code of Criminal Procedure, 1898, shall, while such notification remains in force, be deemed to be amended accordingly, (2) The[State Government] may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under section 188 or section 506 of the Indian Penal Code shall be non- bailable.” Sub-section (1) of Section 10 of the said Act of 1932 confers power on the State Government to declare that the offences punishable under the sections of the Penal Code mentioned therein, when committed in any area specified in the notification, notwithstanding anything contained in the said Code of 1898, shall be cognizable. As provided in sub- section (1) of Section 10, the power is to be exercised by issuing a notification in the Official Gazette. Sub-section (1) of Section 10 further provides that the effect of such notification is that the said Code of 1898 stands amended accordingly. 11 10. The Intervenor appearing in person has relied upon the notification dated 27th June, 1973 issued in purported exercise of powers under sub-section (1) and sub-section (2) of Section 10 of the said Act of 1932. The notification declares that the offences punishable under Sections 186, 188, 189, 228, 295-A, 298, 505 or 507 of the Penal Code ,when committed within the Union Territory of Goa ,shall be cognizable. The said notification further provides that the offences punishable under Section 188 or 506 of the Penal Code shall be non- bailable when committed within the said territory. By corrigendum dated 5th July, 1973, Section 506 was added to the first part of the notification dated 27th June, 1973. Thus, the effect of the said two notifications was that to that extent, the said Code of 1898 stood amended. Thus, under the said Code of 1898, the offence punishable under Section 506, when committed within the Union Territory of Goa, Daman and Diu, became cognizable and non-bailable. 11. The said Code of 1973 came into force on 1st April, 1974, as provided in sub-section (3) of Section 1 thereof. By Section 484 of the said Code of 1973, the said Code of 1898 was repealed. Sub- section (2) of Section 484 is a saving clause. Section 484 of the said 12 Code of 1973 reads thus : “ 484. Repeal and savings.—(1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed. (2) Notwithstanding such repeal,— (a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force: Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code; (b) all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments, not 13 being appointments as Special Magistrates, made under the Old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code; (c) any sanction accorded or consent given under the Old Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Code and proceedings may be commenced under this Code in pursuance of such sanction or consent; (d) the provisions of the Old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning of Article 363 of the Constitution. (3) Where the period prescribed for an application or other proceeding under the Old Code had expired on or before the commencement of this Code, nothing in this Code shall be construed as enabling any such application to be made or proceeding to be commenced under this Code by reason only of the fact that a longer period therefor is prescribed by this Code or provisions are made in 14 this Code for the extension of time.” It must be noted here that the notification dated 27th June, 1973 and corrigendum dated 5th July, 1973 were issued in exercise of power under Section 10 of the said Act of 1932. Clause (b) of sub-section (2) of Section 484 of the said Code of 1973 saves only the notifications issued under the said Code of 1898. The notifications issued under the said Act of 1932 were not saved. In any event, the effect of notification dated 27th June, 1973 read with corrigendum dated 5th July, 1973 was that the said Code of 1898 stood amended and the offences punishable under certain sections of the Penal Code were made cognizable and non-bailable. The said Code of 1898 was repealed by the said Code of 1973 and under the said Code of 1973, Section 506 was made a non-cognizable and bailable offence. It is pertinent to note that prior to 27th June, 1973, the offence punishable under Section 188 of the Penal Code was non-cognizable under the said Code of 1898. However, the said Code of 1973 made the said offence cognizable. Similarly, prior to 27th June, 1973, in the State of Goa, the offence punishable under Section 295-A of the Penal Code was non-cognizable, but under the said Code of 1973, it was made 15 cognizable. As stated earlier, the notification dated 27th June, 1973, had the effect of amending the said Code of 1898 for making the offence punishable under Section 506 of the Penal Code cognizable and non-bailable. On 1st April, 1974, the said Code of 1898 was repealed. Under the said Code of 1973, the offence punishable under Section 506 of the Penal Code is non-cognizable. Therefore, from 1st April, 1974 onwards, the offence punishable under Section 506 of the Penal Code is a non-cognizable offence. 12. Now that brings us to the notification dated 29th April/11th May, 2004 (Annexure A to the Writ Petition). Material part of the said notification reads thus : “ In exercise of the powers conferred by sub- sections (1) and (2) of section 10 of the Criminal Law Amendment Act, 1932 (Act 23 of 1932) and in supersession of the Notification No.HD-44-104/73- A dated 27.6.1973, published in the Official Gazette, series 1 No.14, dated 5.7.1973, the Government of Goa hereby declares that : (i) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974), any Offence punishable under sections 186, 189, 228, 298, 506 or 507 of the Indian Penal Code,1860 (45 of 16 1860) when committed within the State of Goa shall be cognizable; and (ii)any Offence punishable under section 188 or 506 of the Indian Penal Code, 1860 shall be non-bailable when committed within the State of Goa.” On a plain reading of Section 10 of the Act of 1932 it reveals that the power conferred by the said section was to amend the said Code of 1898 by making certain offences cognizable and non-bailable. Section 10 of the Act of 1932 does not empower the State Government to amend the First Schedule to the said Code of 1973 by making the offence punishable under Section 506 of the Penal Code cognizable and non-bailable. Even section 8 of the General Clauses Act,1897 will have no application. The said Code of 1973 is the law enacted by the Parliament. The said Code of 1973 is covered by Item 2 of List III (the concurrent list) of Seventh Schedule to the Constitution of India. The law made by the Parliament could have been amended only by an appropriate legislation by the State Government and no provision of the said Code of 1973 could have been amended only by issuing a notification. There is no power vesting in the State Government to amend the First Schedule to the said Code of 1973 by issuing a 17 notification. 13. In any event, the admitted position is that the notification dated 29th April/11th April, 2004 has not been published in the official gazette and, therefore, the said notification cannot be a notification contemplated by sub-section (1) of Section 10 of the said Act of 1932. Therefore, the clear legal position which emerges is that the offence punishable under Section 506 of the Penal Code, when committed within the State of Goa, is a non-cognizable offence. 14. Now coming back to the facts of the case, at the instance of the Intervenor, the First Information Report under Section 154 of the said Code of 1973 was registered by the Officer-in-charge of the police station. On the basis of the said First Information Report, investigation was carried out and a charge-sheet has been filed. Section 154 of the said Code of 1973 is applicable only when an information relating to the commission of a cognizable offence is given to the Officer in charge of a police station. In the present case, the information received was of commission of a non-cognizable offence. Hence, the said information could not have been reduced into writing in accordance 18 with Section 154 of the said Code of 1973. 15. The procedure to be followed when an information is given to an Officer in charge of a Police Station of a commission of non-cognizable offence has been incorporated in Section 155 of the said Code of 1973, which reads thus : “..155. Information as to non-cognizable cases and investigation of such cases.—(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate. (2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station 19 may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable.” 16. A Police Officer is not entitled to investigate a non- cognizable offence without an order of a Magistrate as required by sub-section (2) of Section 155 of the said Code of 1973. When a query was made by this Court, the Intervenor appearing in person categorically stated that no such order under sub-section (2) of Section 155 of the said Code of 1973 was passed. On this aspect it will be necessary to consider the decision of the Apex Court in the case of Keshav Lal Thakur vs. State of Bihar, ((1996) 11 SCC 557). In paragraph 3 of the said decision, the Apex Court has observed thus : “ 3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on 20 completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non-cognizable and therefore the police could not have registered a case for such an offence under Section 154 CrPC. Of course, the police is entitled to investigate into a non- cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) CrPC but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the Explanation to Section 2(d) CrPC, which defines ‘complaint’, the police is entitled to submit, after investigation, a report relating to a non-cognizable offence in which case such a report is to be treated as a ‘complaint’ of the police officer concerned, but that explanation will not be available to the prosecution here as that relates to a case where the police initiates investigation into a cognizable offence — unlike the present one — but ultimately finds that only a non-cognizable offence has been made out.” 21 (emphasis added) 17. In the present case the explanation to section 2(d) will not help the Police as it is applicable only when police after investigation of a cognizable offence find that a case of commission of non- cognizable offence is