The object of the aforestated provisions is to preserve and maintain the legality of powers under Section 10 of the Criminal Law Amendment Act, 1932: High court of Allahabad

Court No. 85 Case : APPLICATION U S 482 No. 236221 Applicant : Rakesh And 2 Others Opposite Party : State Of U.P. Through Secretary Home At Lucknow And Anr Counsel for Applicant : Satish Solanki Counsel for Opposite Party : G.A Hon ble Dr. Yogendra Kumar Srivastava J Heard Sri Satish Solanki learned counsel for the applicants and Ms. Sushma Soni learned Additional Government Advocate appearing for the State opposite party. The present application under Section 482 of the Code of Criminal Procedure 19731 has been filed seeking to quash the entire proceedings of Criminal Case No. 3721arising out of Case Crime No. 02421 under Section 504 & 506 police station Jamunapur District Mathura pending in the court of learned Judicial Magistrate The only ground which is urged to seek quashing of the proceedings is that the F.I.R. having been lodged under Sections 504 and 506 of the Indian Penal Code 18602the matter could not have been investigated in the absence of any order under Section 155(2 CrPC having been passed by the Magistrate and nor could the police report have been filed. It is submitted that filing of the charge sheet and taking of cognizance on the same being illegal the proceedings cannot be sustained Learned counsel for the applicants also draws reference to a decision of this court in Virendra Singh Vs. State of Uttar 1 The Code of 1973 2 The Penal Code Pradesh3 to contend that the U.P. Amendment in terms of which the offence under Section 506 was made cognizable and non bailable has been held to be illegal. Controverting the aforesaid submissions learned Additional Government Advocate submits that the question with regard to the validity of the Notification dated 31.07.1989 whereunder any offence punishable under Section 506 of the Penal Code when committed in the State of Uttar Pradesh has been made cognizable and non bailable was subject matter of consideration before a Full Bench of this court in Mata Sewak Upadhyay and another Vs State of U.P. and others4 and the Notification was held to be valid. It is further submitted that in a matter relating to a similar controversy which had arisen from the State of Goa the Supreme Court in Aires Rodrigues Vs. Vishwajeet P.Rane and others5 has approved the view taken in the decision in the case of Mata Sewak Upadhyay and in view thereof the contention sought to be raised questioning the validity of the Notification issued by the State of U.P. in respect of making the offence under Section 506 to be cognizable and non bailable cannot be sustained In order to appreciate the controversy the Notification No 777 VIII 9 4(2) 87 dated 31.07.19896 would be required to be The Notification in question reads as follows “Any offence punishable under Section 506 I.P.C. when committed in any district of Uttar Pradesh shall be notwithstanding anything contained in the Code of Criminal Procedure 1973 be cognizable and 2002 2 AllCriC 609 1995 JIC 1168(FB 2017) 11 SCC 62 6 Noti. No. 777 VIII 9 4(2) 87 dt. 31 7 1989 published in U.P. Gazettee Ext. Pt. A Sectiondt. 2 8 1989 The aforesaid Notification was issued in exercise of powers under Section 10 of the Criminal Law Amendment Act 19327 which reads as follows “10.Power of State Government to make certain offences cognizable and non bailable.—(1) Thebe cognizable and thereupon the Code of Criminal Procedure 1898 shall while such notification remains in force be deemed to be amended accordingly 2) Thea view was taken that since the Code of Criminal Procedure 1898 stood repealed in terms of Section 484 of the Code 1973 Section 10 of the Amendment Act 1932 had become redundant and otiose and no Notification could have been issued under Section 10 of the said Act of 1932 and for the said reason the Notification issued by the State Government whereunder the offence under Section 506 was made cognizable and non bailable was held to be The question as to whether merely for the reason that the Code of 1898 stood repealed and replaced by the Code of 1973 any Notification issued under the code of 1898 would ipso facto be rendered redundant otiose or nugatory would therefore be required to be considered. The provision with regard to repeal and savings under the Code of 1973 is under Section 484 and the same reads as follows 7 Amendment Act 1932 Substituted for “Provincial Government” by A.L.O. 1950 Substituted for “Local Gazette” by A.O. 1937 “484. Repeal and savings.—(1) The Code of Criminal Procedure 1898is 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 1898as in force immediately before such commencement 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 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 d) the provisions of the Old Code shall continue to apply in relation to every prosecution against a Ruler within the meaning to 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 this Code for the extension of time.” The savings provisions consequent to repeal of the Code of Criminal Procedure 1898 are contained in sub section of Section 484. Clauseprovides that all notifications published proclamations issued powers conferred forms prescribed local jurisdictions defined sentences passed and orders rules and appointments not 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. The legal fiction created by the deeming provision provides that notwithstanding the repeal all notifications published under the Old Code which are in force before the commencement of the Code of 1973 shall be deemed to have been made under the corresponding provisions of the new Code The effect of a legal fiction has been explained by Lord Asquith in East End Dwellings Co. Ltd. Vs. Finsbury Borough Council10 in the following manner “If you are bidden to treat an imaginary state of affairs as real you must surely unless prohibited from doing so also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs it does not say that having done so you must cause or permit you imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” Applying the legal fiction created by the deeming provision under clauseof sub sectionof Section 484 any notification issued under the repealed Code of 1898 would continue to be in force under the corresponding provisions of the new Code. This interpretation would be in conformity with the object of sub sectionof Section 484 which provides for a smooth transition from the old Code to the new Code The manner of construction of references to repealed enactments is provided for under Section 8 of the General Clauses Act 1897 which reads as under “8. Construction of references to repealed enactments.—(1) Where this Act or any Central Act or Regulation made after the 10 1952 AC 109 132 commencement of this Act repeals and re enacts with or without modification any provision of a former enactment then references in any other enactment or in any instrument to the provision so repealed shall unless a different intention appears be construed as references to the provision so re enacted 2) Where before the fifteenth day of August 1947 any Act of Parliament of the United Kingdom repealed and re enacted with or without modification any provision of a former enactment then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall unless a different intention appears be construed as references to the provision so re enacted.” The provisions contained in sub sectionof Section 8 of the General Clauses Act have been explained in N.S. Bindra’s The General Clauses Act11 as follows “Clause of s 8 usually contemplates at least three sets of legislation: one which has been repealed the other which has been re enacted and the third which has made reference to the provisions of the repealed enactment. In these circumstances the provisions of cl 1) have directed that references in the third statute to the provisions of the repealed statute shall be construed as reference to corresponding provisions in the re enacted statute.” The object of the aforestated provisions being to preserve and maintain the legality of things done under previous Acts consequent to changes made in law or repeal of enactments it would follow that if provisions of one statute are incorporated by reference in a second statute and the earlier statute is repealed the second statute would continue to be in force with the incorporated provisions of the repealed statute treated as being in force as a part of it According to Maxwell’s Interpretation of Statutes12 where the provisions of one statute are by reference incorporated in another and the earlier statute is afterwards repealed the provisions so incorporated continue in force so far as they form part of the second enactment. 11 N.S. Bindra’s The General Clauses ActTenth Edn. 2002 12 Maxwell’s Interpretation of Statutes 11th Edn p 393 The observations made by Brett LJ in Craies Statute Law would be apposite in this regard and the same may gainfully be reproduced as follows: “There is a rule of construction that when a statute is incorporated by reference into a second statute the repeal of the first statute by a third does not affect the second as the incorporated provisions have become part of the second statute.” It would therefore follow that in a situation where the earlier statute is not merely repealed but repealed and re enacted it is the re enacted provision that would take place of the corresponding provision in the repealed enactment in so far as the incorporation in the second statute is concerned and the later Act would be totally unaffected by the amendment or repeal of the former Act. Putting it in another way if a provision of one statute is incorporated in another any subsequent amendment in the former statute or even its total repeal would not affect the provision as incorporated in the later statute. When an Act is repealed and re enacted unless a different intention is expressed by the legislature the reference to the repealed Act would have to be considered as a reference to the provision so re enacted. The principle of construction of a reference statute has been explained in Sutherland’s Statutory Construction13 in the “A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted.” The same principle has been enunciated in Corpus Juris Secundum in the following terms “… Where the reference in an adopting statute is to the law generally which governs the particular subject and not to any specific statute or part thereof … the reference will be held to include the law as it stands at the time it is sought to be applied with all the changes made 13 Sutherland’s Statutory Construction third edn art 5208 09 from time to time at least as far as the changes are consistent with the purpose of the adopting statute.” It is therefore seen to be a well settled principle of statutory construction that if an earlier legislation is incorporated into a later legislation the provisions of the earlier law incorporated in the later law become a part and parcel of the later law the amendments made to the earlier law or even its repeal subsequently would not affect the later law There being no dispute that the Amendment Act 1932 is a central legislation and is still operative the power conferred under Section 10 of the said enactment would continue to be exercisable and merely because the Code of 1898 has been repealed and replaced by the Code of 1973 would have no effect on the situation. A conjoint reading of Section 484 of the Code of 1973 and Section 8(1) of the General Clauses Act 1897 would thus have the effect of saving the Notification issued under the Code of Applying the the rule of construction laid down in Section 8 of the General Clauses Act it would follow that in Section 10 of the Amendment Act 1932 the expression “Code of Criminal Procedure 1973” must be read in place of the expression “Code of Criminal Procedure 1898” and when so read it would become clear that the Notification issued under Section 10 with reference to Code of Criminal Procedure 1898 would have to be read as having been issued with reference to the Code of Criminal Procedure 1973. The rule of construction laid down in Section 8 of the General Clauses Act 1897 also requires that reference to the repealed enactment made in any instrument be construed as reference to the repealing enactment or the new enactment which has been brought into force and the expression “instrument” used in Section 8 of the General Clauses Act 1897 would necessarily include a Notification such as the Notification issued under Section 10 of the Amendment Act 1932. It would follow that reference to Code of 1898 in Section 10 of the Amendment Act 1932 and in the Notification issued thereunder would be required to be read as being in reference to the Code of 1973 and the Notification issued under Section 10 would have to be construed in a manner so as to have the effect of modifying the relevant provisions of the Code of 1973. A similar view taken by the Gujarat High Court in the case of Vinod Rao Vs. State of Gujarat14 was considered and approved by the Supreme Court in the decision in Aires Rodrigues of the General Clauses Act 1897 it was held that in terms of the aforestated provisions a Notification which may have been issued under the Code of 1898 would be saved and the repeal of the Code of 1898 and its replacement by the Code of 1973 would not affect the situation. The judgement of the Full Bench of this court in Mata Sewak Upadhyaywas also approved In view of the position of law having been clarified in the decision in the case of Aires Rodrigues and the view taken by the Full Bench in the case of Mata Sewak Upadhyay supra) with regard to the validity of the Notification dated 31.7.1989 issued by the State Government making the offence under Section 506 as cognizable and non bailable having been approved the controversy with regard to the question stands 141 Guj LR 926 That being the legal position the investigation into the offence pursuant to lodging of the F.I.R. under Sections 504 and 506 of the Penal Code and the placing of the police report under Section 173 thereof upon which cognizance was taken by the Magistrate and process has been issued cannot be said to suffer from any illegality so as to persuade this court to exercise its inherent jurisdiction under Section 482 of the Code No other ground was urged The application therefore fails and is dismissed Order Date : 29.11.2021

Summary: Petitioner seek a direction to the respondent to recall of witness power to be invoked to meet the ends of justice for strong and valid reasons with cautions and circumspection, and the same issue was held in the judgement passed by a single bench judge Hon’ble Dr Yogendra Kumar Srivastava, J. In the matter – Rakesh And 2 Others the V/s State Of U.P. Through Secretary Home At Lucknow And Anr [APPLICATION U/S 482 No. – 23628 of 2021]dealt with an issue mentioned above. The present application under Section 482 of the Code of Criminal Procedure, 19731 has been filed seeking to quash the entire proceedings of Criminal Case No. 379 of 2021 (State Vs. Rakesh and others) arising out of Case Crime No. 0245 of 2021 under Section 504 &amp; 506, police station-Jamunapur, DistrictMathura, pending in the court of learned Judicial Magistrate, Mathura. In the decision in the case of Virendra Singh (supra), a view was taken that since the Code of Criminal Procedure, 1898 stood repealed in terms of Section 484 of the Code 1973, Section 10 of the Amendment Act, 1932 had become redundant and otiose and no Notification could have been issued under Section 10 of the said Act of 1932 and for the said reason, the Notification issued by the State Government whereunder the offence under Section 506 was made cognizable and non-bailable was held to be illegal. The court perused the facts and arguments presented in the case That being the legal position, the investigation into the offence pursue lodging of the F.I.R. under Sections 504 and 506 of the Penal Code and the placing of the police report under Section 173 thereof, upon which cognizance was taken by the Magistrate and process has been issued, cannot be said to suffer from any illegality so as to persuade this court to exercise its inherent jurisdiction under Section 482 of the Code.