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Anand Reddi Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 191 of 1957 and Criminal Revn. Petn. No. 143 of 1957
Judge
Reported inAIR1959AP144; 1959CriLJ300
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195, 195(1), 485, 485A, 486 and 487; Indian Penal Code (IPC), 1860 - Sections 174; Code of Civil Procedure (CPC) , 1908; ;Constitution of India - Article 254
AppellantAnand Reddi
RespondentThe State of Andhra Pradesh
Appellant AdvocateVasanta Rao Mukhedkar and ;Neelakanta Rao Deshpande, Advs.;T.V. Sarma, Adv.
Respondent AdvocateD. Narasaraju, Adv. General and ;R.V. Rama Rao, Public Prosecutor
Disposition Revision dismissed
Excerpt:
criminal - repugnancy - sections 195, 485-a and 487 of criminal procedure code, 1898, section 175 of indian penal code, 1860 and article 254 of constitution of india - whether there was conflict between sections 485-a and 487 of criminal procedure code - section 487 is prohibitory provision excluding jurisdiction of court in which offence was committed in contempt of its authority - section 485-a is enabling provision conferring jurisdiction on court to take cognizance of offence committed in contempt of its authority - latter should be treated as exception to former - in event of repugnancy between two provisions one enacted later should prevail - held, both provisions provide for different situations and there is no repugnancy between two. - - if any witness being summoned to..........inasmuch as under section 487(1), except as provided in sections 480 and 485, criminal p. c., no judge of a criminal court or magistrate, other than a judge of a high court, shall try any person for any offence referred to in section 195, when such offence is committed before himself or in contempt of his authority and since there is no reference in that section to section 485-a, there is an irreconcilable conflict between the two sections and a lacuna in section 487, criminal p, c. in support of this contention reliance is placed on the a.i.r. commentary on section 485-a which is in these words: 'the offence described in sub-section (1) of the section is an offence falling under section 174 of the penal code which is referred to in section 195(1)(a) of this code. except as provided in.....
Judgment:

P. Chandha Reddi, C.J.

1. This matter was referred to a Bench by our learned brother, Basi Reddy J., as it was thought that it raised an important question of law as to whether there was a conflict between Section 485-A which was inserted by Act XXVI of 1955 and Section 487 of the Code of Criminal procedure.

2. The question arises in the following circumstances. The petitioner was convicted by the First Class Magistrate, Vikarabad, under Section 485-A of the amended Criminal Procedure Code and sentenced to a fine of Rs. 10/-. This was confirmed in revision by the Sessions Judge, Hyderabad, Aggrieved by this order, the petitioner has approached this Court under Section 439, Criminal P. C.

3. It is argued in support of this petition that the offence punishable under Section 485-A, Criminal P. C., is identical with that made punishable under Section 174, I. P. C. and, by virtue of Section 195, Criminal P. C. an offence under Section 174, I. P. C., could not be taken cognizance of except on the complaint to writing of the public servant concerned or his superior. It is further maintained that inasmuch as under Section 487(1), except as provided in Sections 480 and 485, Criminal P. C., no Judge of a Criminal Court or Magistrate, other than a Judge of a High Court, shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority and since there is no reference in that Section to Section 485-A, there is an irreconcilable conflict between the two sections and a lacuna in Section 487, Criminal P, C.

In support of this contention reliance is placed on the A.I.R. commentary on Section 485-A which is in these words:

'The offence described in Sub-section (1) of the Section is an offence falling under Section 174 of the Penal Code which is referred to in Section 195(1)(a) of this Code. Except as provided in Sections 480 and 485 of the Code, Section 487 prohibits a Judge of a Criminal Court or a Magistrate, other than a Judge of a High Court, from trying a person for an offence referred to in Section 195 when the offence is committed inter alia in contempt of his authority.

As the heading of Chapter 10 of the Penal Code shows, the offence under Section 174, Penal Code, is committed in contempt of the lawful authority of the public servant. Thus in order to give effect to the provisions of this Section an amendment of Section 487 by way of making this section an exception to that section was necessary. In the absence of such amendment this section, it is submitted, will remain a dead letter on the statute book.'

The commentary in the M. L. J. Publication of the Criminal Procedure Code is on the same lines.

4. Section 485-A as introduced by Act XXVI of 1955 reads:

'If any witness being summoned to appear before a Criminal Court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the Court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such witness should be tried summarily, the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to fine not exceeding one hundred rupees.

'(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials in which an appeal lies' Section 487, Criminal P. C., is in these words:

'Except as provided in Sections 480 and 485, no Judge of a Criminal Court or Magistrate, other than a Judge of a High Court, shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice as such Judge or Magistrate in the course of a judicial proceeding.'

Section 195(a)(1), Criminal P. C., runs thus:

'No Court shall take cognizance of any offence punishable under Sections 172 -188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned', or of some other public servant to whom he is subordinate.'

5. On a leading of Sections 487 and 195(1), Criminal P. C., it is manifest that only offences falling under Section 195, Criminal P. C., are governed by Section 487.

6. The point in dispute is whether there is an irreconcilable conflict between the provisions of Section 485-A and Section 487, Criminal P. C., and whether the former is ineffectual by reason of its non-inclusion in the latter. Section 485-A was enacted by the Central Legislature by Act XXVI of 1955, There can be no doubt that it was within the legislative competence of the Parliament to have enacted the statute. Under Article 254 of the Constitution of India, the Parliament has overriding and plenary powers of legislation and, in exercise of that authority, it could amend, repeal, modify or add to any existing law. The first question to be answered is whether the absence of mention of Section 485-A in Section 487, Criminal P. C., has rendered Section 485-A a dead letter and consequently no effect could be given to it.

As we have already stated, Section 487, Criminal P C., governs offences which fall within the purview of Section 195. Section 195(1)(a) has enumerated offences punishable under Sections 172 - 188 of the Indian Penal Code. It is not necessary for us to notice the offences catalogued in Clause (b) of Section 195(1), as the offence that is said to have been committed in the present case does not fall within the category of those set out in that sub-section. The commentaries mentioned above as well as the learned counsel for the petitioner proceeded on the assumption that the offence for which the petitioner was convicted is one punishable under Section 174, 1. P. C.

7. We have, therefore, to see whether Section 485-A takes in Section 174, I. P. C. Section 174, I. P. C., recites:

'Whoever, being legally bound to attend in person or by an agent at a certain place and tune in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both;

or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine, which may extend to one thousand rupees, or with both.'

It is clear that the punishment provided by Section 174, I. P. C., is simple imprisonment which may extend to one month or fine which may extend to five hundred rupees or both in one eventuality and simple imprisonment for a term which may extend to six months, or fine which may extend to one thousand rupees or both, if the summons is to attend a Court of Justice, whereas under Section 485-A, Criminal P. C., the maximum punishment is only a fine not exceeding one hundred rupees.

8. Such being the position, Section 485-A does not deal with an offence falling under Section 174, I. P. C. On the other hand, it creates a distinct offence providing for a maximum sentence of Rs. 100/- fine. It also makes a provision for the trial of the offence itself. The intendment of the section as could be gathered from the language is that an offence of the description evisaged in the section should be dealt with summarily and that resort need not be had to Section 195, Criminal P. C., etc.

It is a self-contained provision creating an offence and also the machinery for the trial of such an offence. It is thus a combination of a substantive provision creating an offence of a less serious nature and also a procedure for the trial of such an offence. Hence, it is outside the purview of Section 487, Criminal P. C., which is a prohibitory provision. That section excludes the jurisdiction of Courts in which the offence is committed before itself or in contempt of its authority.

But Section 485-A, Criminal P. C., is an enabling provision conferring jurisdiction on a Court to take' cognizance of an offence committed in contempt of its authority. Therefore, the latter should be treated as an exception to the former. It is a well recognized rule of construction of statutes that a specific provision will prevail over the general provision, unless on a consideration of the statute in its entirety a contrary intention of the legislature is indicated as contained in the maxim 'generalia specialibus non derogant'.

9. In this contest, we may usefully refer to a passage in Maxwell's Interpretation of Statutes at page 172 (Tenth edition). The passage is extracted below:

''Where a general intention is expressed, and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one. Even when the later, or later part, of the enactment is in the negative, it is sometimes reconcilable with the earlier one by so treating it. If, for instance, an Act in one Section authorised a corporation to sell a particular piece of land and in another prohibited it from selling 'any land', the first section would be treated, not as repealed by the sweeping terms of the other, but as being an exception to it.'

10. This principle is enunciated in De Winton v. Brecon-Corpn., (1859) 28 LJ Ch 598 (600); Taylor v. Oldham Corpn. (1876)4 Ch D 395 and Churchill v. Crease, (1828) 130 ER 1028 at p. 1030. There is, therefore, no difficulty at all in reconciling Section 487, Criminal P. C., with Section 485-A. They provide for different situations and there is no repugnancy at all between the two. Consequently, the question of Section 485-A being a dead letter does not arise.

That Section 485-A concerns offences of the same category as those covered by Sections 485 and 487, I. P. C., is also made evident from Section 486 of the Code which provides for appeals from convictions in contempt cases. In this position it cannot be said that the legislature omitted Section 485-A in Section 487 by oversight or that there is a lacuna in Section 487, Criminal P. C., which has to be tilled up by the legislature itself.

11. Assuming that there is such an irreconcilable conflict between the two sections, there can be little doubt that it is the amended provision which embodies the latest expression of the legislative will or intent that should prevail. One of the principles of interpretation of statutes is that in the event of there being an inconsistency between two provisions of law, the one last enacted should prevail, in view of the assumption that it is the last expression of the legislative will or in lent that should prevail.

This rule is stated in Crawford's 'The Construction of Statutes' at page 669, thus-

'The Court should consider every provision, and the various provisions should be construed together, irrespective of the time of the passage of the various sections. It should seek to harmonize the several provisions and to give each full effect. In the event, however, that certain provisions are irreconcilable, the one last enacted or adopted will prevail, by virtue of the assumption that it is the last expression of the legislative will or intent.'

To the same effect is the statement at page 263 of the same treatise. So, even if it is thought that these two sections could not be harmonized, effect should be given to Section 485-A having regard to the doctrine indicated above.

12. The learned counsel for the petitioner contends that the correct rule in regard to conflict between the various statutory provisions is that contained at page 182 of Crawford's 'The Construction of Statutes'. The rule is in these terms:

'Of course, if the amendatory statute is wholly void, the statute sought to be amended is not affected but remains in force. It is as inoperative as if it had never been enacted; or the act sought to be amended is, at least, reinstated in its effectiveness upon the established invalidity of the amendment.'

13. This passage has no relevancy at all in the context of the present enquiry, as we are not dealing with an amendatory statute which is wholly void. That statement does not touch the question as to what should happen if there is a conflict between two provisions of a statute.

14. Our attention is drawn to a passage in paragraph 310 of the same volume which is as follows:

'As is thus apparent, the Courts do not look with favour upon implied repeals, and the presumption is always against the intention of the legislature to repeal legislation by implication. The absence of an express provision, in a statute for the repeal of a prior law gives rise to this presumption, which is accentuated where the various statutes were enacted at the same session of the legislature.'

15. This principle has no application to the instant case. This is not a case of any implied repeal. As we have already indicated above, Section 485-A is an exception to Section 487 and it does not seek to repeal any of the provisions of Section 487, Criminal P. C. This argument also is inadmissible and has to be rejected.

16. It was lastly urged by the learned counsel for the petitioner that it is unreasonable to invest a Court with jurisdiction to try offences committed in derogation of its authority and he invoked the theory that no one should be a judge in a case in which be himself is interested or is a prosecutor. But we are not concerned with the reasonableness of it, as it is a matter of legislative policy. If the legislature is invested with authority to legislate in regard to a particular topic, the Court cannot adjudicate upon the reasonableness of such a measure. It follows that the Magistrate had jurisdiction to take proceedings under Section 485-A and convict the petitioner of the offence created by that Section. No other matter was argued before us.

17. In these circumstances, the Criminal Revision case is dismissed.


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