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State of Sikkim Vs. Palden Bhutia - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1981CriLJ695
AppellantState of Sikkim
RespondentPalden Bhutia
Cases ReferredSociety v. State of Punjab
Excerpt:
- - 1898 may have been adopted in sikkim but as it failed to indicate the date of the pronouncement by the competent authority it offers no assistance in resolving the procedural problem. , 1976. though this enactment ought to have acted as a magic-wand to drive away the clouds of ambiguity but unfortunately the courts in sikkim failed to comprehend the full impact of this legislative measure, with the result that haziness still permeated the procedural atmosphere. where any court is satisfied that a case pending before it involves a question as to the validity of any act, ordinance or regulation, or of any provision contained in an act, ordinance or regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such act, ordinance, regulation.....man mohan singh gujral, c.j.1. this reference under article 228 of the constitution of india and section 432 of the cr. p.c. made by the learned sessions judge of sikkim at gangtok by his order dated 28th of nov., 1979, brings to the forefront the question of the constitutional validity of the sikkim criminal procedure act. 1976 (hereinafter called the 'sikkim act') in the light of the provisions of article 371-f (k) of the constitution of india. the answer to this question would finally settle the procedure to be followed by the courts in sikkim in respect of the trials of criminal cases pending therein. the circumstances leading to this reference may first briefly be stated.2. the controversy involved has a close link with the judicial history of sikkim during the last three decades......
Judgment:

Man Mohan Singh Gujral, C.J.

1. This Reference under Article 228 of the Constitution of India and Section 432 of the Cr. P.C. made by the learned Sessions Judge of Sikkim at Gangtok by his order dated 28th of Nov., 1979, brings to the forefront the question of the constitutional validity of the Sikkim Criminal Procedure Act. 1976 (hereinafter called the 'Sikkim Act') in the light of the provisions of Article 371-F (k) of the Constitution of India. The answer to this question would finally settle the procedure to be followed by the Courts in Sikkim in respect of the trials of criminal cases pending therein. The circumstances leading to this Reference may first briefly be stated.

2. The controversy involved has a close link with the judicial history of Sikkim during the last three decades. Though from the historical point of view the period does not relate to distant past yet the procedural atmosphere is surrounded with such mystery as if excavation of pre-historic culture is needed to unravel it. So far as the Penal law is concerned, the position as it prevailed before July, 1953 is somewhat hazy but by and large the provisions of the Indian Penal Code were broadly guiding the destinies of the criminals but after July, 1953 a Notification bearing No. 160/OS dated 10th of July, 1953 was promulgated and the I.P.C. 1860 was in terms made available to the Courts for basing their decisions regarding the criminality of the persons brought before them. The procedural aspect, however, still remained obscure as no legislative mandate is traceable till August, 1963 when a Notification bearing No. 73/H dated the 30th Aug., 1963 makes reference to the Code of Criminal Procedure, 1890 and carries the implication that sometime before the issuance of this Notification, the Code of Criminal Procedure, 1898 had been bought into force to settle the procedural guidelines for the trial of criminal cases. There being no indication in this Notification of the date on which the Cr. P.C. 1898 was adopted in Sikkim or the date for which this Code was brought into force, the Notification, instead of offering any assistance in resolving the controversy, kept the uncertainty alive till Sikkim became part of India. To explain this a brief reference to the Cr. P.C. 1898 is necessary. This Code has been the subject-matter of numerous amendments till its repeal in 1974 but in the present strife the amendment brought about by the Amendment Act 26 of 1955 are mainly involved. By this Amendment Act, Section 251 was amended and new Section 152-A was introduced in the Cr. P.C. 1898. The departure in the procedure considerably curtailed the opportunity for cross-examination which was earlier available to the accused in a warrant case instituted on police report and the acceleration of the trial appears to be the motivating force behind this procedural innovation.

3. To have a clear, though a bird's eye view, of the problem, a brief reference to Article 371-F (k) of the Constitution is indicated. By this provision, the laws which were in force in Sikkim on the appointed day (26th Apr., 1975) were preserved and continued till their repeal or amendment by appropriate authority. If the Cr. P.C. 1898 was adopted in 1953, at the time the Indian Penal Code was extended to Sikkim, as is commonly the impression, and the subsequent amendments were not extended, the procedure in the trial of warrant cases instituted on police report would be as was provided in Chap. XXI before its amendment by Act 26 of 1955 and this would be the law in force in Sikkim on the appointed day. In that case, Section 251-A would not be attracted and the trial would be conducted without the procedural charge introduced by this provision. The Notification of 1963 though highly probabilises the existence of an earlier Notification whereby the Cr. P.C. 1898 may have been adopted in Sikkim but as it failed to indicate the date of the pronouncement by the competent authority it offers no assistance in resolving the procedural problem. In this situation three alternatives can be visualised, i.e., (a) the procedure for the criminal trials may have been controlled by the Code as it stood before the 1955 Amendment, or (b) as it stood after the 1955 Amendment, or (c) that the Code in terms may not have been adopted and the Courts may have continlied to follow the basic procedure provided in the Code of 1898. As to which of these possibilities represented the precise state of affairs, certainty alludes the final conclusion but it may be added that in case the third alternative was to provide the keynote, uniformity in procedure must have been the casualty. In any case, whatever may have been the position, because of the absence of a clear legislative mandate, this state of uncertainty continued till the appointed day and was somewhat heightened thereafter. Realising this unhappily situation, the State Legislature stepped in and enacted the Sikkim Criminal Procedure Act, 1976 and brought it into force with immediate effect, i.e. from 29th Mar., 1976. Though this enactment ought to have acted as a magic-wand to drive away the clouds of ambiguity but unfortunately the Courts in Sikkim failed to comprehend the full impact of this legislative measure, with the result that haziness still permeated the procedural atmosphere. So much so that even after three years of the enforcement of the Sikkim Criminal Procedure Act, 1976. the learned Sessions Judge felt compelled to make a Reference to this Court under Section 432 of the Cr. P.C. However in fairness to the learned Sessions Judge it may be mentioned that this confusion mainly stems from the persistent impression (for which there was probably some factual basis) that along with the Notification dated 10th of July 1953 whereby the I. P, C. was adopted as the law in Sikkim, another Notification extending the Cr. P.C. 1898 was also issued. This impression is obvious from the Office Order of the Acting Chief Justice dated 25th of July, 1975 which indicated that the Code of 1898 as it stood before Amendment of 1955 was being followed in Sikkim and this position was reiterated in Passang Lama v. State of Sikkim 1975 Cr LJ 1350.

4. Though in the case of State v. Madan Mohan Rasaily (Criminal Revn. No. 3 of 1978) the High Court got an opportunity to put the matter beyond the pale of controversy but unfortunately the question was not considered in detail as it was neither argued at length nor was it found necessary to resolve this apparent conflict for the decision of that case. Probably, the Court was influnced by the view, for which there is ample authority, that constitutional questions may not be decided if the case can be disposed of on other grounds. In Madan Mohan Rasaily's case the Court was concerned with the duty of the prosecution to produce the original documents along with the charge-sheet In considering the scope of the obligation of the prosecution to produce the original documents along with the charge-sheet. In considering the scope of the obligation of the prosecution to produce the original documents though a passing reference was made to the Sikkim Criminal Procedure Act, 1976, and the prevailing impression that the Cr. P.C. 1898 as it stood before the amendment of 1955 was the law in force on the appointed day but the constitutionality of the Sikkim Criminal Procedure Act, 1976 was not examined in the light of Article 371-F (k) and the case was disposed of on the basis of the other contentions put forth by the parties. In fact, Bhattacharjee, J., while agreeing with the main conclusion, added that it was not necessary to decide whether the Cr. P.C. 1898 was applicable as it stood in 1953 or after amendment by the 1955 Act.

5. The learned Sessions Judge proceeded on the premises that the Cr. P.C. 1898 as it stood on. 10th of July, 1963 was the law in force on the 'Appointed day' as defined in Article 371-F of the Constitution and that the Sikkim Criminal Procedure Act, 1976 being in conflict with the constitutional mandate contained in Article 371-F (k) was ultra vires and ought to be struck down. He also sought support for this view from some observations in Madan Mohan Rasaily's case and on the basis of this reasoning he found himself compelled to make a reference under Section 432 of the Cr. P.C. And this is how the matter has come before this Court to finally determine what procedural paths the lower Courts should follow while trying warrant cases instituted on the basis of police reports.

6. The above narration having provided the factual backdrop the stage is now set for clearing the legalistic hurdles. To bar the reference at the threshold the learned Counsel for the accused projected the incompetency of the reference as an obstacle, on the plea that neither Section 432 of the Cr, P. C, nor Article 228 of the Constitution were attracted. When faced with this situation the learned Advocate-Gene-ral, who appeared for the State of Sikkim, did not make use of Article 228 of the Constitution as a shield to stave off the technical onslaught of incompetency and only projected Section 432 of the Cr. P.C. as the statutory harbour to protect the reference. A close examination of Article 228 of the Constitution would reveal that to fall within the scope of this provision, a reference must involve a substantial question of law relating to the interpretation of the Constitution, the determination of which would be necessary for the disposal of this case. As will be shortly discussed, the interpretation of Article 371-F (k) does not give rise to any substantial question of law as the extent and scope of similar provisions to inhibit the competent legislatures to legislate retrospectively has been the subject-matter of numerous decisions by the High Courts and the Supreme Court and no substantial question relating to the interpretation of the Constitution survives for decision by this Court. Moreover, it is the interpretation of Section 2 of the Sikkim Criminal Procedure Act, 1976 which is mainly involved and this does not fall within the scope of Article 228 of the Constitution.

7. Sub-section (1) of Section 432 of the Cr. P.C. which is relevant at this stage is as follows:

Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which the Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.

The above provision does not cover the same ground as Article 228 of the Constitution and in fact, in one sense, it is much wider in its sweep than Article 228. Section 432 relates to the validity of an Act, Ordinance, Regulation, etc. and is not confined merely to an interpretation of the Constitution. In order to attract this provision the Court has to form an opinion that such Act, Ordinance, Regulation, etc., is invalid or inoperative but has not been so declared by the High Court or the Supreme Court.

8. Keeping in the forefront the requirements of Section 432 of the Cr. P.C. 1898, the learned Sessions Judge proceeded on the assumption that immediately before the appointed day, the procedural law in force was the Cr. P.C. 1898 as it stood on 10th of July, 1953 and thereby drew the inference that the Sikkim Criminal Procedure Act, 1976 which retrospectively enforces the applicability of the Cr. P.C. 1898 as amended by Act 26 of 1955 would suffer from the vice of uncon-stitutionality because of the mandate of Article 371-F (k) preserving the laws in the same form or shape as these stood before the appointed day. The observation in Madan Mohan Rasaily's case, Cri. Revn. No. 3 of 1978 (Sikkim), that the trial of warrant case on police report was governed by the procedure contained in Chap. XXI of the Code before its amendment in 1955, were also pressed into service by the learned Sessions Judge for drawing the conclusion that the Sikkim Criminal Procedure Act, 1976 was unconstitutional and ought to be struck down. There is no gainsaying the fact that before the trial of the case, in which reference has been made, can proceed the procedural path, which is beset by the in-terpretational wrangle on the scope and effect of Section 2 of the Sikkim Act, has to be cleared. Viewed in the light of the requirements of Section 432 of the Code of Criminal Procedure, the reference covers all the necessary ingredients and suffers from no infirmity. The Court was clearly faced with the procedural difficulty which could not be resolved unless the constitutionality of the Sikkim Act was tested in the light of the provisions of Article 371-F (k) of the Constitution.

9. In support of his challenge to the validity of the reference, Mr. J.C. Ghosh, learned Counsel for the accused, relied on Emperor v. Ratan Singh. (1948) 52 CWN 369 but this case has absolutely no bearing on the matter in dispute before us, In Ratan Singh's case the Reference was made because the Presidency Magistrate doubted the correctness of certain decisions of the Calcutta High Court relating to a case under the Indian Arms Act. The High Court rightly pointed out that 'S. 432 does not give them power to refer points of law settled by decisions of this Court, where the Magistrate doubts the correctness of those decisions'. Constitutional validity of any Act, Ordinance, Regulation, etc, was not involved in this at all and Section 432, Cr. P.C. was, therefore, not attracted. Reference was then made to M. Rajarama Reddi's case AIR 1952 Mad 578: 1952 Cri LJ 1235 and reliance was placed on the following observations extracted from this judgment:

A subordinate Court should only make a reference to the High Court, when it is satisfied that a case pending before it involves a real or substantial question as to the validity of any Act or regulation. A mere plea that an Act is 'ultra vires' will not suffice. If it is not so satisfied it should go on with the trial, leaving it to the aggrieved accused to move the High Court under Article 228, and to continue the trial until such an application is admitted and the trial stayed.

10. In Rajarama Reddi's case, an order of the Taluk Supply Officer was challenged on the ground that his order was passed under Section 3 of the Essential Supplies (Temporary Powers) Act and it should have been notified in the official gazette. The validity of the Essential Supplies (Temporary Powers) Act was also challenged. The learned Judges rejected both these contentions and also came to the conclusion that these points had been earlier decided in AIR 1952 Mad 576 : 1952 Cri LJ 1235. Keeping in view the background in which the above observations were made, there is no scope for contending that even where a substantial question and not merely a specious plea as to the validity of an Act is involved, reference under Section 432, Code of Cr. P.C. cannot be made.

11. The rejection of the preliminary objection as untenable has cleared the deck for an in-depth analysis of the Sikkim Act in the light of Article 371-F (k) and the legislative competence of the Sikkim Legislature to pierce the protective barrier of this constitutional provision by giving retrospective effect to Section 2 of the Sikkim. Act. The relevant provisions are extracted below for facility of reference:

Article 371-F (k) - 'Notwithstanding anything in this Constitution, all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority.

Section 2 of the Sikkim Act-'The provisions of the Cr. P.C. 1898 subject to the exceptions and modifications mentioned in the Schedule below have been the law in force in the territories comprised in the State of Sikkim immediately before the commencement of the Constitution (Thirty-sixth Amendment) Act, 1975 and is and shall be in force as the law relating to criminal procedure in the State of Sikkim until amended or repealed by a competent Legislature or other competent authority.

12. A bare reading of Section 2 of the Sikkim Act will leave no manner of doubt that the Cr. P.C. 1898 incorporating all the amendments that this Act has suffered up to 1974 when it was repealed including the amendments by Act of 1955, was projected as the procedural law in Sikkim subject only to the exceptions and modifications mentioned in the Schedule, with which we are not concerned in the present reference. A further analysis will reveal that Section 2 of the Sikkim Act is in two parts, in the sense that the first part conferred retrospective operation to the Cr. P.C. 1898 as it stood before its repeal (subject to the Schedule of the Act) while the second part enforced the statute prospectively. The expression that 'the provisions of the said Cr. P.C. 1898... have been the law in force in the territories comprised in the State of Sikkim immediately before the commencement of the Constitution (Thirty-sixth Amendment Act, 1975)' carries the implication that whatever, in actuality, may have been the law in force immediately before the appointed day in the State of Sikkim with regard to the procedure followed by the Criminal Courts for the trial of criminal cases, at least as a result of the Sikkim Act, the Cr. P.C. 1898 with all the amendments incorporated in it, but subject only to the exceptions and modifications shown in the Schedule, would be considered to be the law in force immediately before the appointed day. The further expression that the Cr. P.C. 1898 'is and shall be in force as the law relating to criminal procedure in the State of Sikkim until amended or repealed by a competent Legislature or other competent authority' emphasises the prospective operation of the Cr. P.C. 1898.

13. The line of reasoning adopted by the learned Sessions Judge in brief is that the Cr. P.C. 1898 as it stood on 10th of July, 1953 was the law in force immediately before the appointed day within the meaning of Article 371-F (k) of the Constitution and that the Sikkim Act which brought into operation the Cr. P.C. as it stood after the 1955 Amendment as the law before the appointed day was clearly violative of the above constitutional provision. The further implication which this argument carries is that the Sikkim Legislature could not amend any law which was in force in Sikkim on or before the appointed day with retrospective effect from a date prior to the appointed day even though no objection could be raised with regard to the legislative competence of the Sikkim Legislature on the basis of the subject-matter of the legislation.

14. In reply, the learned Advocate-General has emphasised the utter futility of the above reasoning so far as the decision of the present case is concerned, on the simple, though effective, plea that the cases now pending in Sikkim could be validly governed by the procedure indicated in Section 2 of the Sikkim Act as not even a remote challenge has been and could earnestly be posed to the prospective operation that has been given to the Cr. P.C. 1898 by the Sikkim Act. The subject-matter of this Act is appropriately covered by Item 2 to Entry 3 to the Seventh Schedule of the Constitution which is the Concurrent List and the power of the Sikkim Legislature to enact laws in respect of matters in this List are only subject to the limitation placed by Article 254 of the Constitution which renders any law made by the State Legislature on any matter in the Concurrent List invalid in case such law is repugnant to any law made by Parliament unless it has been reserved for the consideration of the President and has received his assent. The Sikkim Act is not in conflict with any Parliamentary law on the subject and in fact has the effect of extending the Parliamentary Act to Sikkim and in this situation the validity of the Sikkim Act is beyond questioning so far as its prospective operation is concerned. The subject matter of the Sikkim Act being within the legislative sphere of the Sikkim Legislature and no doubts having been expressed about the absence of inhibitions and limitations regarding its competence, at least, to legislate prospectively, the operational ambit of Section 2 of the Sikkim Act in respect of the cases instituted after the enforcement of this Act cannot be the subject-matter of challenge any more. From this it would logically follow that the criminal case which has caused this reference to be made would be governed by the Sikkim Act and this conclusion is not only plausible, but wholly beyond the pale of controversy. This unimpeachable view would further generate the consequence that the Cr.P.C. 1898 as it stood in 1973, subject to exceptions and modifications mentioned in the Schedule to the Sikkim Act would guide the destinies of the accused in all cases instituted or to be instituted after the coming into force of the Sikkim Act.

15. The question of prospective operation of the Sikkim Act having been answered with satisfying finality I proceed to deal with another contention raised by Mr, Ghosh. The learned Counsel for the accused has sought the assistance of an argument which though somewhat interesting and ingenious is without much basis and is in fact an argument of frustration. The reasoning, in short, proceeds thus: By virtue of a Notification, which though not traceable, but was issued on 10th of July, 1953 or as a consequence of the practice followed by the Criminal Courts in Sikkim, the Cr. P.C. 1898 before its amendment by Act 26 of 1955 was the law in force immediately before the appointed day and that reference to the Code of Criminal Procedure, 1898 in the Sikkim Act was intended by the Legislature to be a reference to the Code before its amendment in 1955. The basis for this argument is sought in the assumption that the Legislature had only declared the law by the Sikkim Act and had not intended to introduce any alteration or innovation in the procedural law. To say the least, the entire argument is based on fantasy saving no factual links. To start with, the assertion that a Notification was issued on 10th of July, 1953 extending the Cr. P.C. 1898 to Sikkim is wholly devoid of any material or evidentiary support. No doubt that at one time there was an impression in the Sikkim Courts that such a Notification had been issued but as existence of such a Notification could not be established the impression will have to be branded as conjectural. A reference in the Office Order dated 25th July, 1975 issued by the then Acting Chief Justice and the casual observation in the case of Madan Mohan Rasaily (Cri Revn No. 3 of 1978) that the Cr. P.C. 1898 prior to its amendment in 1955 was operative in Sikkim before the appointed day are again the manifestations of the same impression and cannot furnish a factual basis for the existence of such a Notification.

16. To determine the existence or otherwise of the Notification supposed to have been issued on 10th of July, 1953, in respect of the procedure to be followed by the Sikkim Courts, or to highlight the factual position with regard to the state of the procedural law before the appointed day, a reference was invited by Mr. Ghosh and also by the learned Sessions Judge in the order of reference, to the Statement of Objects and Reasons appended to the Sikkim Act, but before we take the interpretative aid of this source it would be imperative to determine the extent to which and the purpose for which this source can be pressed into service. The matter has been considered in a number of cases by the Supreme Court and from a review of these judgments, the position that emerges may be stated thus.

Though reference to the statement of objects and reasons cannot be made as an aid to interpretation or for ascertaining the meanings of a particular word or words in a statute, nevertheless it is permissible to refer to the objects and reasons for the correct appreciation of:

(i) what was the law before the Act was passed;

(ii) what was the mischief or defect for which the law had not provided;

(iii) what remedy the Legislature had appointed; and

(iv) the reasons for the remedy.

17. A reference to the objects and reasons is thus permissible to ascertain what procedural law was governing the criminal trials in Sikkim when the Bill was moved. In the objects and reasons there is a mention that 'The I.P.C. 1860, with certain modifications, was adopted as the law in Sikkim by a notification bearing. No. 160/O. S. dated 10th July, 1953', and it is added that, 'though such a notification adopting the Cr. P.C. 1898, in Sikkim is not readily traceable, the provisions of the said Cr. P.C. have thereafter been applied and followed as the law of criminal procedure in Sikkim'. It is further mentioned that 'in fact the provisions of the Cr. P.C. 1898, have since been applied and followed in Sikkim with this modification that the provisions relating to commitment enquiry as contained in Chap. XVIII of the Code and the provisions relating to trials before Court of Session as contained in Chap. XXIII of the Code have not been applied and the trial of cases triable by the Court of Session has also been conducted according to the provisions contained in Chap. XXI of the Code dealing with the procedure for the trial of warrant-cases by the Magistrates'. Reference was then made to another notification dated 2nd of July, 1975 and from this an inference was drawn that 'the provisions of the Cr. P.C. 1898 have been treated as the law in force immediately before the appointed day'. Reference in the statement of objects and reasons is also made to the case of Passang Lama v. State of Sikkim 1975 Cr LJ 1350 and to the observation therein that the Cr. P.C. 1898 'in terms is not applicable in the State of Sikkim.'

18. The statement of objects and reasons is bereft of any material to support the assertion that the Cr. P.C. 1898 before its amendment by Act 26 of 1955 was the law in force in Sikkim before the appointed day and in fact the only firm conclusion available is that the Code, subjcct to the exceptions and modifications mentioned in the Schedule, was the law applicable to the criminal trials in Sikkim. The contention of Mr. Ghosh, therefore, is unable to find any factual basis in the statement of object and reasons and is liable to be brushed aside as a matter of no consequence.

19. Another limb of this argument may appropriately be considered at this stage. It was urged that as two interpretations of the expression 'Code of Criminal Procedure, 1898' occurring in the Sikkim Act were possible, the one in favour of the accused, which gave him greater opportunity of cross-examining the witnesses, should be adopted. This argument wholly loses sight of the fundamental rule of interpretation that where the words are clear and unambiguous no further aid to construction is needed and the words used in the statute should be allowed to have their full play. Rules of construction can only be pressed into service if either the words used in the context of their ordinary meanings would give rise to some ambiguity or the language used is capable of more than one meaning but not otherwise. In the present case, there is no ambiguity at all and the legislative mandate in Section 2 of the Sikkim Act is couched in clear and lucid words capable of one and only one meaning and not inviting or even welcoming any other interpretative aid. There is no occasion for reading in the expression 'Code of Criminal Procedure, 1898' a reference to the Code as it stood before the 1955 Amendment. Consequently the only plausible conclusion available is that from the date the Sikkim Act came into force, the Cr. P.C. 1898, with the exceptions and modifications mentioned in the schedule provides the only procedural channel through which criminal trials' must of necessity steer.

20. This brings us to the challenge posed to the retrospective operation of the Sikkim Act which it would be necessary to meet in case we proceed on the assumption that the Criminal Courts in Sikkim were being guided by the Cr. P.C. 1898, before its Amendment in 1955 and this was the law in force immediately before the appointed day. Though for an answer to the reference an examination of this aspect of the matter may not strictly be necessary, but it would be fruitful to view the Sikkim Act from all aspects so as to obviate the necessity of any further interpretative probe and to ensure that no part of the controversy survives to plague the future criminal trials.

21. The power of Parliament and the State Legislatures within their respective spheres is plenary in quality and no inhibitions and limitations waylay their wide legislative powers in their respective fields highlighted by the relevant lists in the Seventh Sch. to the Constitution. The ambit of their powers not only covers prospective legislation but even retrospective legislation falls within their pale and this interpretation of Articles 245 and 246 of the Constitution is not res integra. In Jamnadas v. Commr. of Income-tax AIR 1951 Bom 438, while considering the legislative competence of Parliament, Chagla, C.J., who spoke for the Bench, observed that the legislative competence conferred upon Parliament by Article 245 was in the widest possible terms and further noticed that 'if the subject-matter is within the legislative competence of the Indian Parliament, then there is no restriction placed upon its power to legislate in the whole field with regard to the subject under Article 245(1)'. In Jadao Bahuji v. Municipal Committee, Khandwa AIR 1961 SC 1486, the Supreme Court ruled that retrospective legislation was open to the Provincial Legislatures. Again, the following observations made by the Supreme Court in J. K. Jute Mills Co. v. State of Uttar Pradesh AIR 1961 SC 1534 would apply proprio vigore:

As the power of a Legislature to enact a law with reference to a topic entrusted to it being thus unqualified, subject only to any limitation imposed by the Constition, in the exercise of such a power, it will be competent for the Legislature to enact a law, which is either prospective or retrospective.

22. In State of Mysore v. Achiah Chetty AIR 1969 SC 477, Hidayatullah, C.J., while speaking for the Court, reiterated 'the supremacy of the Legislatures in India within the Constitutional limits of their jurisdiction', and added that this supremacy was as complete as that of British Parliament.

23. No challenge is in fact posed to the above interpretation of Articles 245 and 246 of the Constitution of India and the real controversy is to the effect of Article 371F (k) of the Constitution.

24. In view of the above authoritative exposition of the relevant law though no controversy about the legislative competence of Parliment and the State Legislatures to legislate retrospectively survives yet to fight the last-ditch battle the weaponry of Article 371F has been brought forth to thwart or at least to contain the authority of the State Legislature and even Parliament in the field of retrospective legislation. To defuse the argumentative missiles of this weapon, it would be necessary to appreciate the content and strength of the reasoning deployed. To encircle the legislative competence a two pronged assault has been made and the two limbs of the argument, though have a common base in Article 371F (k) of the Constitution, have deployed different thought processes to provide the instruments for throttling the legislative power so far as retrospective legislation is concerned.

25. The effect of Article 371F (k) of the Constitution, according to Mr. J. C. Ghose, is not only to continue the laws in force in the State of Sikkim before the appointed day but to keep them alive in the same form and shape in which they existed during the relevant time. In a way, he emphasised, the pre-merger legislative atmosphere was frozen, as the power of the Indian Parliament to legislate did not extend to the territories of Sikkim immediately before the appointed day and the present State Legislature was not even in existence. These legislative bodies could possibly not deal with the existing laws in a manner so as to alter their effect at a time earlier to the appointed day, contends the learned Counsel. The second limb of the argument lays emphasis on the expression 'shall continue in force until amended or repealed' occurring in Article 371 F (k) and it is sought to be inferred that the amendment or repeal could not be made with retrospective effect. In a sense the above arguments raise two questions. Does Article 371F (k) provide a protective shield to the laws' in force in Sikkim immediately before the appointed day so as to render the conpetent legislature's amendatory powers ineffective to tough the laws in force immediately before the appointed day in respect of any period prior to the appointed day? Does the expression 'until amended or repealed' occurring in the above provision forces the conclusion that the amendments can only be prospective and not retrospective

26. Both the above questions have earlier been considered by the Federal Court and the Supreme Court and reference in this connection may first be made to the case of United Provinces v. Atiqa Begum AIR 1941 FC 16. In this case, somewhat similar arguments were deployed jo inveigle the legislative competence of the State Legislatures to legislate retrospectively under the Government of India Act 1935 and Section 292 of the Act was projected as a bulwark against the inroad by the Legislature into any period of time prior to the date of amendment. As the material part of Section 292 of the Government of India Act, 1935 is similar to Article 371F (k) pf the Constitution, with which we are concerned, the view finally taken would afford valuable assistance in meeting the challenge posed by the above arguments. While construing the above provision of the Government of India Act, 1935, the Federal Court referred to the corresponding provision of the Union of South Africa Act, 1909 and the British North America Act, 1867, and came to the conclusion that there was no reason for Parliament to place any fetter upon the power of the Indian Legislature. Gwyer, C.J., while dealing with the above provision made the following observation:

It must always be remembered that within their own sphere the powers of the Indian Legislature are as large and ample as those of Parliament itself, and the burden of proving that they are subject to a strange and unusual prohibition against retrospective legislation must certainly lie upon those who assert it. I can see nothing in the language of Section 292 which suggests any intention on the part of Parliament to make them subject to that prohibition, nor, so far as that may be relevant, any explanation why Parliament should have desired to do so.

27. In Atiqa Begum's case, the High Court had laid great emphasis on the use of the expression 'shall continue in force ...until altered or repealed or amended' and it was thought that this section was more than a mere saving or a preserving Section and that it implied that the alteration, repeal or amendment of any previously existing law could not be made with retrospective effect at all, It was suggested before the Federal Court that the word 'until' puts a time limit on the powers of the Legislature. The answer to this argument was provided by Sulaiman, J., in the following words:

There is no doubt that the word 'until' does ordinarily connote a point of time. 'Until altered, repealed or amended' is equivalent to saying 'until the alteration, repealment or amendment'. This can have two possible meanings--first, until the date from which the alteration, repealment or amendment takes place, and second, the date on which the Act altering or repealing or amending the previous law is actually passed, or rather when it comes into force. If the Act is retrospective, it would obviously operate from a date earlier than that on which it comes into force. If the view taken in the High Court were to prevail, then no legislation altering, repealing or amending the law which was in force when the Government of India Act was passed, no matter how long afterwards it comes to be passed, can have any retrospective provision so as to affect any transactions prior in time to the date when such Act is actually passed. It would follow that not only the Provincial Legislature but also the Central Legislature would be debarred from giving any retrospective effect whatsoever to any Act by which not only a previous Act but any other law is altered, repealed or amended. This is a drastic consequence which, it is difficult to believe, could have been contemplated.

28. The Federal Court in arriving at the above conclusion relied heavily on the following observation of Lord Selborne in the Privy Council case of Rex. v. Burah in (1878) 3 AC 889:

The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at; variance with it,) it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restriction.

29. No decision of the Privy Council has thrown any doubt on the soundness of the exposition of law made in Burah's case and even in some Indian decisions the position has been reaffirmed. It would suffice to notice some of the observations made in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461. In this case, K. S. Hegde and A. K. Mukherjee, JJ. expressed the view that the decision in Burah's case (1878) 3 AC 889 was only relevant to the interpretation of conditional legislation and that the rule was not attracted while considering the question whether there were any limitations on any of the powers conferred under any Statute or Constitution. The other Judges who formed this Bench have, however, not accepted this interpretation of Burah's case. Palekar, J. in Kesavananda Bharati's case (at 1811-12) relied on the above observations made by Lord Selborne. Similarly, Khanna, J. after quoting from Lord Selbourne's observations commented thus (at 1838): 'Although the above observations were made in the context of the legislative power, they have equal, if not greater, relevance in the context of the power of amendment of the Constitution'. Again Mathew, Beg and Chandrachud, JJ. also accepted the principle enunciated in Burah's case and Chandrachud, J. (as his Lordship then was) made the following observations:

In considering the petitioner's argument on inherent limitations, it is well to bear in mind some of the basic principles of interpretation. Absence of an express prohibition still leaves scope for the argument that there are implied or inherent limitations on a power, but absence of an express prohibition is highly relevant for inferring that there is no implied prohibition. This is clear from the decision of the Privy Council in Queen v. Burah (1878) 5 Ind App 178 (195) (PC). This decision was followed by this Court in State of Bombay v. Naurottamdas Jethabhai, 1951 SCR 51 at p. 81 : AIR 1951 SC 69 and in Inder Singh v. State of Rajasthan, 1957 SCR 605 (616-17) : AIR 1957 SC 510. In saying this, I am not unmindful of the fact that Burah's case and the two cases which followed it, bear primarily on conditional legislation.

30. No doubt, Chandrachud, J., has observed that Burah's case primarily related to conditional legislation but in spite of these observations the fundamental principle was extended to the interpretation of the written Constitution.

31. The decision in Atiqa Begum's case AIR 1941 FC 16 has also been relied upon in a number of decisions. Reference may be made to Jadao Bahuji v. Municipal Committee, Khandwa AIR 1961 SC 1486 wherein Hidayatullah, J., while speaking for the Bench, relied on the observations of Gwyer, C.J. in Atiqa Begum's case AIR 1941 FC 16 and added that the powers of the Indian Legislatures were large and plenary.

32. To continue the discussion regarding the merits of the two arguments raised by Mr. Ghose and how these contentions have been repelled in earlier decisions, it will suffice to refer to two more cases, that is, Gopalan v. State of Madras AIR 1953 Mad 260 and Jamnadas v. Comrar. of Income-tax AIR 1951 Bom 438. In both these cases the power of the Indian Legislature to legislate retrospectively in respect of laws which were kept alive by Article 372 was under consideration and the view adopted thereon would inform the interpretation of Article 371F (k) of the Constitution, as both these provisions deal with similar situations and are materially identical in their language and impact. Whereas Article 371F (k) affords protection to the laws in force when the Constitution (Thirty-sixth Amendment) Act was passed. Article 372(1) saves laws which were in force in India when the Constitution came into force and because of this similarity in the field of operation and the sweep of language used in the two provisions the relevance of the interpretation placed on Article 372(1), in construing Article 371F (k) is more than obvious. The basics having been settled and the basis provided, let us proceed to expose the further thought processes contrived to extend the legislative tentacles of the Indian Legislatures to reach beyond the commencement of the Constitution so as to permit amendment, alteration or repeal of pre-Constitutional law,s to be effective even during the pre-Constitution period, as the same weapon-aryi could be deployed to enable the Sikkim Legislature to travel beyond the appointed day and exercise its amendatory power against the pre-merger laws of Sikkim Rajamannar, C.J. in Gopalan's case projected the following reasoning to reach the logical conclusion, -

When an alteration, repeal or amendment is itself contemplated under Article 372(1) and an alteration, repeal or amendment can be retrospective, it follows that Article 372(1) would not render any alteration, repeal or amendment which is declared to be retrospective, invalid.

33. In Jamnadas v. Commr. of Income-tax AIR 1951 Bom 438 the question before the Court was whether some property tax deductions could be claimed by the assessee under Sections 9(1)(iv) and 9(1)(v) of the Income-tax Act, 1922 and the Supreme Court took the view in New Piece Goods Bazar Co. Ltd. v. Commr. of Inocme-tax, Bombay 52 Bom LR 764 : AIR 1950 SC 165 that these were permissible deductions. To countermand the effect of this judgment an ordinance was promulgated which was later on enacted as a Parliamentary Act (LXXI of 1950) by which an explanation was added to Sub-section (1) of Section 9 of Income-tax Act, 1922 and it was also provided that this explanation shall be deemed always to have been added, thereby carrying the implication that the provision was amended with retrospective effect. The validity of this Parliamentary Act was challenged on the basis of Article 372(1) and the principal argument raised was that the laws which are protected by Article 372 have been saved in the same form and shape in which they were at the date when the Constitution came into force and that these laws cannot be amended retrospectively as these were in existence at a time when the Indian Parliament was itself not in existence. The above contention was repelled on the basis that the Parliament was sovereign in its own sphere and that it would not be proper to put any limitation or qualification upon the legislative competence of the Indian Parliament unless the Constitution itself provided any such check. While interpreting Article 372(1) it was further observed that- 'Article 372(1) does not lay down any limitation upon the power of the Parliament to amend a pre-existing law. Its power of amendment is wide and untrammelled, and in the exercise of that power if the Parliament has chosen to amend the Indian Income-tax Act and to declare that the law was always what it has declared it to be, in our opinion that is perfectly within the scope and ambit of the powers conferred upon the Indian Parliament by the Constitution'.

34. When examined in the light of the above interpretation of Article 372(1), Section 2 of the Sikkim Act and Article 371F (k) of the Constitution yield the result that, even if before the enactment of the Sikkim Act, Criminal Procedure Code, 1898 prior to its amendment in 1955 was the law in force, yet after the enforcement of the Sikkim Act it would be deemed to have been amended retrospectively in view of Section 2 of the Sikkim Act.

35. In view of the above discussion, the only plausible answer which can be provided to those two questions is that Article 371F (k) does not stand in the way of the State Legislature amending any law in force from a date prior to the appointed day, and the expression 'until amerided or repealed' does not place any limitation on the competence of the Legislature to enact retrospectively, within its own sphere.

36. The above conclusion being available for answering the reference, it may firstly be stated that, strictly speaking, the question referred to this Court does not in reality arise as the case out of which the reference has arisen, was instituted after the coming into force of the Sikkim Act and would, therefore, be governed by the provisions of this statute. In any case, keeping in view the legislative competence of the Sikkim Legislature it is clear that the Cr. P.C. 1898, as it stood before its repeal in 1974, subject to the exceptions and modifications provided in the Schedule to the Sikkim Act, would be the law in force in Sikkim immediately before the appointed day. The reference having been answered, the case is sent back to the trial Court for disposal in accordance with the decision indicated above.

A.M. Bhattacharjee, J.

37. I agree with my Lord the Chief Justice that, whether the Sikkim Criminal Procedure Act, 1976, is to be regarded to have merely declared the law or to have really made the law, on and from its commencement, the law relating to Criminal Procedure in Sikkim is and shall be deemed to have been, what was contained in the Cr. P.C. 1893, as amended from time to time and as it existed immediately before it ceased to exist in 1974 as a result of its repealment by the new Cr. P.C. 1973, subject to the exceptions and modifications mentioned in the Schedule to the said Sikkim Act. I would, however, in view of the great importance of the question before us, proceed to state my own reasons for agreeing with the conclusions arrived at by my Lord and if I am required to advance any further justification for my separate, though concurring, judgment, I would only quote from Justice Mathew's observations in Kesavananda Bharati's case AIR 1973 SC 1461 at p. 1904 as hereunder:

I entertain little doubt that 'in important cases' it is 'desirable' for the future development of the law that 'there should be plurality of opinions' even 'if the conclusion reached is the same'. There are 'dangers in there being only one opinion'. Then the statements in it have tended to be treated as definitions and it is not the function of a Court to frame definitions. Some latitude should be left for future developments. 'The true ratio of a decision generally appears more clearly from a comparison of two or more statements in different words' which 'are intended to supplement each other'. See Lord Reid in Gallie v. Lee (1970) 3 WLR 1978. In Cassell & Co. Ltd. v. Broome (1972) 1 All ER 801 (821), Lord Chancellor Lord Hailsham said that Lord Devlin's statement of the law in Rookes v. Barnard 1964-1 All ER 367, has been misunderstood particularly by his critics and that the view of the House of Lords has suffered to some extent, from the fact that its reasons were given in a single speech and that whatever might be the advantages of a judgment delivered by one voice, the result may be an unduly fundamentalist approach to the actual language employed. In Graves v. New York (1938) 306 US 466, Frankfurter, J. in his concurring judgment, characterized the 'expression of individual opinions by the' justices as a 'healthy practice' rendered impossible only by the increasing volume of the business of the Court.

(Underlining hereinto mine)

38. The question or rather the main question that has arisen for our consideration in this reference, which I hold to be maintainable for the reasons stated by my Lord, relates to the construction of Section 2 of the Sikkim Criminal Procedure Act, 1976, read with the Schedule thereto, and I would, therefore, quote them hereunder for facility of discussion:

The provisions of the Code of Criminal Procedure, 1898 subject to the exceptions and modifications mentioned in the Schedule below have been the law in force in the territories comprised in the State of Sikkim immediately before the commencement of the Constitution (Thirty-sixth Amendment) Act, 1975 and is and shall be in force as the law relating to criminal procedure in the State of Sikkim until amended or repealed by a competent Legislature or other competent authority.

SCHEDULE

The provisions of Chaps. XVIII and XXIII of the Cr. P.C. 1898, do not and shall not apply and all cases triable by the Court of Session are and shall be filed in such Court and the trial before the Court of Session is and shall be according to the provisions of Chap, XXI of the Code.

39. The Act contains only one other Section, being Section 1, which provides for its short title and immediate commencement.

40. The provisions quoted hereinabove clearly go to show that they purport to make three declarations, namely, that, in Sikkim, the provisions of the Cr. P.C. 1898 (subject to the modifications mentioned in the Schedule of the Act) -- (1) have been, (2) are, and (3) shall be in force as the law relating to Criminal Procedure. With 'the provisions of the Code' as the subject, the use of the singular verb 'is' is obviously a grammatical error if not a printing mistake; but it is immaterial as the error or mistake is not at all likely to lead to any erroneous or mistaken conclusion. There is a presumption that the Legislature knows the law and it is good enough if it does; but the Legislature is neither presumed nor required to know grammar.

41. The Statements of Objects and Reasons accompanying the Bill for this Act seek to label the same as 'a declaratory Act'. In one sense, every enactment is declaratory, the very purpose of Legislation being to declare the law, whether by making a new one or by adopting or adapting an existing one. In legal terminology, how-lever, the expression 'declaratory Act' has come to mean, as observed by Coldridge, C.J. (in Jones v. Bennet (1890) 63 LT 705, a legislation 'to declare the law or to declare that which has always been the law and there having been doubts which have arisen, 'Parliament declares what the law is and enacts that it shall continue what it then is.' (Underlining hereinto mine). I have, however, not been able to understand that if and when the Legislature 'declares what the law is' whether it can at all be necessary to 'enact' further that 'it shall continue what it then is'. It is obvious that if something is the law or is declared to be the current or the existing law, 'it shall' and cannot but 'continue as it then is' without any express proclamation or enactment to that effect, until the Legislature chooses to amend 'or repeal the same, I, therefore, feel that after declaring that the Cr. P.C. 1898 (subject to some modifications) is the law, it was not at all necessary to declare or enact that the same ''shall be in force as the law relating to Criminal Procedure in the State of Sikkim' or that it shall so remain in force 'until amended or repealed by a competent Legislature or other competent authority', except ex abundanti cautela and that the result would have been the same even without these expressions. But without the preceding declaration as to the provisions of the Cr. P.C. 1898. having been the law in force, 1 would have thought that the latter portion of Section 2 of the Sikkim Criminal Procedure Act, providing that the Cr. P.C. 1898, 'shall be in force as the law relating to Criminal Procedure in the State of Sikkim', has really 'made' the law in the usual legislative sense and not merely 'declared' it as the expression is generally understood with reference to 'declaratory Acts'. But as I find that according to the dictum of Coldridge, C.J., quoted hereinabove an enactment is to be classed as 'declaratory' not only when it declares what the law was or has been or is, but even when it proceeds further to declare that the law so declared shall continue to be the law, I would leave the matter at that without exerting any further to ascertain as to Whether there was only a declaration after a finding and ascertainment of the law or really a making of the law by the Legislature when it enacted the Sikkim Criminal Procedure Act, 1976, and Section 2 thereof. I would rather, for the present, console myself by what Shakespeare said through Romeo when he exclaimed 'what's in a name? and that the 'rose', by any other name, would smell as sweet', because whether labelled as 'declaratory' or otherwise, the wide impact of this legislation would not be affected in the least. I would, however, add, before I part with this topic, that whether a legislation is merely a law-finding or really a law-making measure may assume great importance in a particular context and in this case at hand I might have had to declare, if it was necessary, that under the cover and disguise of finding and ascertaining the law and expressly proclaiming and professing only to do so, the Legislature has done clear law-making.

42. Be that as it may, whether to be classed as 'declaratory' or not, the Sikkim Criminal Procedure Act has, as already noted clearly provided that the Cr. P.C. 1898 (subject to some exceptions noted in the Schedule of the Act) has been the law in Sikkim before its incorporation in the Union of India by the Constitution (Thirty-sixth Amendment) Act, 1975, and is also the law in Sikkim since thereafter and shall also continue to be the law in Sikkim thenceforward, until amended or repealed by a competent Legislature or other competent authority. There is no, as there cannot be any, dispute about this.

43. But what has been disputed, and very seriously, is the exact meaning and connotation of the expression 'Code of Criminal Procedure, 1898' as used in the Sikkim Act. I would have thought the expression to be quite simple and would have thought further that the expression having been used in 1976, would obviously mean the Code as it stood then or if it has ceased to exist on that date, to be the Code as it stood last before it has so ceased to exist, that is. as it stood immediately before its repealment in 1974. But as pointed out by Vivian Bose, J. (in Seksa-ria Cotton Mills Ltd. v. State of Bombay AIR 1953 SC 278 at p. 282 'it is not till one is learned in the law that subtleties of thought and bewilderment arise at the meaning of plain English words which any ordinary man of average intelligence, not versed in the law, would have no difficulty in understanding' and here also, subtleties of thought have been sought to be introduced by Mr. J. C. Ghose, the learned lawyer appearing for the accused, by contending that the expression 'Code of Criminal Procedure, 1898' in Section 2 of the Sikkim Criminal Procedure Act, 1976, even though unqualified, meant and should mean the Code as it stood in 1953 without the later amendments. Mr. Ghose has developed his argument in the following manner.

44. The I.P.C. of 1860 was adopted in Sikkim in 1953 by a Notification dated 10th of July. Though a similar Notification adopting the Cr. P.C. 1898, is not now traceable, the provisions of the said Code, however, as will also appear from the Statements of Objects and Reasons, 'have thereafter been applied and followed as the law of Criminal Procedure in Sikkim'. Apart from urging that since the Code of Criminal Procedure began to be followed from or from soon after 1953, the amendments introduced thereto by the Amendment Act of 1955 and the subsequent Amendments could not be applied and followed in Sikkim, Mr. Ghose has also urged that in fact also the Cr. P.C. which was and is being followed in Sikkim, was the Code as it stood in 1953 without the subsequent Amendment, and that the same would be borne out by the records of criminal cases in Sikkim Courts. The submission of Mr. Ghose is probably not without basis because it appears from the decision of this Court in Passang Lama v. State-of Sikkim 1975 Cr LJ 1350 that the then Acting Chief Justice R. Sachar also applied in that case the provisions of Chapter XXI of the Code of Criminal Procedure as it stood before that 1955 Amendment. From the Office Order of the said Acting Chief Justice dated 25th July, 1975, which has also been referred to by my Lord in his judgment it also appears that the said Acting Chief Justice found that warrant cases, whether instituted on Police Report or otherwise, were being tried according to the provisions contained in Chap. XXI as it stood before the Amendment of 1955. And in the Order of Reference also the learned Sessions Judge has categorically stated that 'so far, this Court (i.e. the Court of Session) has been following the procedure as laid 'down in Chap. XXI of the Cr. P.C. as it stood on July 10, 1953, for the trial of all criminal warrant cases instituted whether on Police Report or on complaint'. In Rinzing Choda v. State 1978 Cri LJ 1270 it was observed by this Court 'that some confusion exists in the subordinate Courts as to the applicability of the special provisions contained in Section 251-A, inserted by the Cr. P.C. (Amendme nt) Act of 1955, providing for procedure to be adopted in cases instituted on police reports and that even in such cases', the procedure as it obtained before the amendment of 1955 'has been followed in many cases'. In State of Sikkim v. Madan Mohan Rasaily Criminal Revn. No. 3 of 1978, decided on 5-12-1978 (Sikkim) it was also observed that the Cr. P.C. as applied and followed in Sikkim, was the Code as it stood on 10th July, 1953 though the precise question did not arise for determination or decision in that case. All these might go to show, I may repeat, that the submission of Mr. Ghose to the effect that the provisions of the Cr. P.C. 1898, which had so long been followed and applied in Sikkim, were of the Code as it stood in 1953 and before the 1955 and the later amendments, may not be without basis.

45. But all our endeavour to ascertain this point, namely, whether or not the Code which was so long being followed and applied in Sikkim before its incorporation in the Union of India was the Code as it stood in 1953 without the later Amendments, would be entirely futile except for historical researches, which may not have much relevance in a Court of law. For, as I shall presently show, even if it is established or assumed that the Cr. P. G, 1898, followed and applied in Sikkim, was the Code as it stood in 1953 without the later Amendment, on and from the commencement of the Sikkim Criminal Procedure Act, 1976, we are obliged to hold that the law relating to Criminal Procedure in Sikkim, not only after this Act is, but even before this Act was, the Cr. P.C. 1898, as it stood last with all its amendments, whether before or after 1953, subject, of course, to some exceptions noted in the Schedule of the said Sikkim Act.

46. There can be no doubt that when any reference is made to an enactment, whether by its Title or by its Number and Year, without any qualification whatsoever, such reference is always taken to mean the enactment as amended up-to-date and only when any particular amendment of the said enactment in question is of any special significance in a given context, that reference is made to the enactment as amended by that particular amendment. In Sikkim, where as many as 88 enactments operating in the rest of India have been extended by notifications under Article 371-F (n) of the Constitution as well as by Parliamentary Legislation, such extensions have always been made by referring to the Short Titles as well as the Numbers and Years of those enactments and I am sure that no one would ever contend that any of these enactments has been extended to Sikkim, not as it stood amended by all the amending Acts up to the date of such extension, but without any or some of the amendments.

47. The Cr. P.C. 1898, was amended by a series of Amendment Acts both prior to and after 1953 and, therefore, according to the natural and ordinary meaning, as noted above, any reference to the said Code in any other enactment or instrument shall ordinarily and naturally mean the Code as amended by the latest amendment on the date when such reference is made. There can be no justification for not applying this natural and ordinary meaning of the expression 'Code of Criminal Procedure, 1898' as used in the Sikkim Criminal Procedure Act, 1976, unless there are irresistibly compelling reasons to adopt any unnatural and extraordinary meaning.

48. The General Clauses Act, 1897, which is the Legislative Dictionary in India, has been extended to Sikkim on 16-5-1975 and enforced on 11-8-1975. Section 6-A thereof, as pointed out by Rajagopala Ayyangar, J., in the decision of the Supreme Court in Collector of Customs V. Sampathu Chetty AIR 1962 SC 316 at p. 334, provides that the function of an amending legislation is almost wholly to effect the incorporation of the proposed amendments in the parent Act sought to be amended 'and when that is accomplished, they die as it were a natural death', which is subsequently formally effected by express repealment. The amendments effected by an amending Act become part and parcel of the amended Act and continue to be so irrespective of the further existence or non-existence of the amending Act; the amending Act, after effecting the amendments, dies de facto, though a formal repealment may be necessary for its de jure extinction. It is, therefore, obvious that after an enactment has been amended, any reference to the said enactment, without any qualifying words, shall and cannot but mean and be construed as a reference to the enactment as amended by the amending Act.

49. As already noted, there is a presumption in law that the Legislature knows the law, a presumption emanating from the British Jurisprudence, The Britishers having endowed their Legislature with omnipotent legislative power, had also to concede and accept its omniscient knowledge in law and had, therefore, to deny their Courts any power to review the laws made by their Legislature because a law, found and declared to be bad or incompetent or invalid on judicial review by Courts, would be incompatible with such omnipotence and omniscience. In our country, however, where the power of judicial review has been constitutiona-lised and institutionalised and cur Courts have quite frequently struck down laws made by Legislatures as bad or illegal, it may be difficult to allow that presumption to have its full run and play. But the presumption though not as strong as in United Kingdom, is still very much there in our country as an established canon of interpretation of legislative laws and I, for my part, would very much like that our approach to the laws made by our Legislatures should be inspired by the presumption that the Legislatures know the law, unless their ignorance in a given case, is palpably demonstrated. As Mathew, J. has observed in (his dissenting judgment in) State of Punjab v. Khan Chand AIR 1974 SC 543 at p. 554, we should have due 'respect for a co-ordinate branch of the Government' and 'our duty of deference to those who have the responsibility for making the laws has great relevance in this context'.

50. I will, therefore, presume that the Sikkim Legislature knew, as it ought to be presumed to have known, about the Cr. P.C. 1898, and whether the said Code was being applied and followed in Sikkim with or without thp amendments introduced by the post-1953 amending Acts. And if the Cr. P.C. 1898, was and has so long been followed and applied without the post-1956 amendments, the Sikkim Legislature would surely have known it and would not have used the expression 'Code of Criminal Procedure, 1898' without any qualification in the Sikkim Criminal Procedure, Act, 1976, when it knew or at least is presumed to know that the user of the expression 'Code of Criminal Procedure, 1898' without any qualification would, under the general principles of interpretation of Statutes and also the principles of Section 6-A, General Clauses Act, 1897, mean the Code with all the amendments incorporated therein, whether prior or subsequent to 1953.

51. But even if-the Sikkim Legislature knew that the Cr. P, C, 1898, was and has so long been applied in Sikkim without the post-1953 amendments and yet has used the expression 'Code of Criminal Procedure, 1898' in the Sikkim Act without any qualification, knowing fully well, as it must be presumed to know, that such expression would mean the Code with all its amendments, then it must be presumed that it intended to effect a deliberate change in the said law and to change it with retrospective operation, though under the garb of declaration. I asked Mr. Ghose and ' also the learned Advocate-General that even if the law in Sikkim was really the Cr. P.C. 1898, without the post-1953 amendments, was there anything to prevent the Sikkim Legislature to enact, whether by way of declaration of law or making of law, that the Code with all its amendments was or is the law or, to use the usual and familiar expression, 'shall always be deemed to have been the law' in Sikkim? The learned Advocate-General answered the question with an emphatic negative and submitted that the very purpose of retrospective legislation is to make the law different from what it really was even for and during the pre-legislation period. Mr. Ghose, however, contended, supporting the line of reasoning of the learned Sessions Judge in his order of reference that the Sikkim Legislature could do so but for the provisions of Clause (k) of Article 371-F of the Constitution. The contention, in short, is that under Clause (k) as aforesaid 'all laws in force...in the State of Sikkim... shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority', and, therefore, if the Cr. P.C. 1898,' as applied in Sikkim, was the Code without the post-1953 amendments, that must, as such, continue in force until such time a competent Legislature or other competent authority chooses to amend or repeal the same and that any legislation declaring that the law was, or shall be deemed to have been, something different than what it really was, would be violating the provisions of Clause (k) as aforesaid and as such would be void being unconstitutional.

52. Such an argument based on the analogous provision of Section 292. Government of India Act, 1935, whereunder also 'all the laws in force in British India' were ordained to continue in force 'until altered or repealed or amended by a competent Legislature of other competent authority', found favour with a Full Bench of the Allahabad High Court in Atiqa Begum's case AIR 1940 All 272 at p. 280, but was repelled by the Federal Court which reversed the said Full Bench decision in United Provinces v. Atiqua Begum AIR 1941 FC 16 where Sulaiman, J. observed (at p. 31) that 'there is nothing in Section 292, Government of India Act, which debars the Central or a Provincial Legislature, which has altered, repealed or amended a previously existing law, from giving the new provision a retrospective effect from dates earlier than when the Act is passed'.

53. It is true that the law decided or declared by the Federal Court is not binding on us in this High Court. Under Section 212, Government of India Act, 1935, the laws declared by the Federal Court and the Privy Council were to 'be recognised as binding on' and was to 'be followed by all Courts in British-India' and were, therefore, 'laws in force' within the meaning of Article 372 and were accordingly continued thereunder as laws in force and as binding on and to be followed by all Courts in the territories formerly comprised in British India, subject to alteration by the Supreme Court or by legislative process. But the territories comprised in the State of Sikkim, not having been included in British-India as defined in Section 311, Government of India Act, 1935, and not having been subject to the jurisdiction of the Indian Federal Court or the Privy Council at any time, the laws declared by those authorities did not and could not have any binding authority in Sikkim and as such could not be 'law in force' within the meaning of Clause (k) of Article 371-F, to be continued as the law in Sikkim. But even if this decision was not otherwise binding on us here, I would have treated the same as binding by the authority of its reasons, if not by reason of its authority. But r.ow that this decision has been approved by the Supreme Court in M. P. V. Sundararamier v. State of Andhra Pradesh AIR 1958 SC 468 at p. 486, Jadao Bahuji v. Municipal Committee Khandwa AIR 1961 SC 1486 at pp. 1489-90 and several other decisions, we must accept and follow the law declared therein as the law of the land. That being so, I will hold, as I must, that the Sikkim Legislature was competent to amend the 'law in force' in Sikkim and, that too, with any extent of retrospective operation and has, therefore, acted fully within its competence and not beyond its vires in declaring that the Cr. P.C. 1898, meaning thereby the Code with all its amendments from the first to the last, was and has been the law in Sikkim, even if or even though the Code which was and has been in force was the Code without the post-1953 amendments. My conclusion, therefore, is that the Sikkim Legislature has not in any way acted in violation of the mandate of Clause (k) of Article 371-F when it declared that the Cr. P.C. 1898, not only is and shall be the law from the date of the commencement of the Sikkim Criminal Procedure Act, 1976, but also has been the law even at any time before, even if or even though the Code with all its amendments was not and has not been the law.

54. Mr. Ghose then contended, though not with his usual force, that even if the Sikkim Legislature could do such retrospective interference with the law in force in : Sikkim at the date of its incorporation in the Union of India, it could do so only by express amendments, that is, by clear declaration or proclamation that it was amending or changing the law as it then was and not by or under the camouflage of an apparently innocuous declaratory legislation, purporting only to declare the existing law. But as pointed out by Sulaiman, J. in that Atiqa Begum's case AIR 1941 FC 16 at pp. 31-32, 'it is not necessary' that alteration of law, whether by amendment or repeal, 'must be' 'by express language' and that 'repeal and certainly alteration or amendment can be effected by necessary implication also'. A Full Bench of the Punjab High Court has held in Ambala Ex-Servicemen Transport Co-operative Society v. State of Punjab AIR 1959 Punj 1 at p. 4 that 'there is no reason to restrict the meaning of the word 'repeal' in Article 372 'merely to express repeal' and to exclude implied one. While I fully agree with this view and would proceed a step further to say that there can be no reason to restrict the meaning of the word 'amended' in Article 371-F (k) merely to express amendment and to exclude implied one, I have failed to undertand why Gossain, J. in making that observation in that case also observed (at p. 4) that 'there is no reported ruling on the point one way or the other' when the Federal Court decision in Atiqua Begum's case was a clear authority on the point and was a binding authority so far as the Punjab High Court was concerned, even if the Supreme Court decision in M.P.V. Sundararamier's case AIR 1958 SC 468, which has approved was not the said Atiqua Begum's case, then available to his Lordship.

55. For the reasons as aforesaid, I would, in respectful agreement with my Lord the Chief Justice, conclude and answer the Reference as hereunder:

The expression 'Code of Criminal Procedure, 1898' in Sikkim Criminal Procedure Act, 1976, is to be construed to mean the Code of Criminal Procedure, 1898, as it stood with all the amendments introduced thereto by the Central Legislature in India immediately before its repealment in 1974 by the Cr. P.C. 1973, and that the Code, with all such amendments, whether prior or subsequent to 1953, has been and is the law relating to Criminal Procedure in the State of Sikkim, until, as it is obvious, the same is amended or repealed by a competent Legislature or other competent authority.


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