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State of Sikkim Vs. Gyalpo Tshering Tamang and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSikkim High Court
Decided On
Judge
Reported in1985CriLJ1423
AppellantState of Sikkim
RespondentGyalpo Tshering Tamang and ors.
Cases ReferredState of Nagaland v. Ratan Singh
Excerpt:
.....to that state. and this is precisely what has been sought to be done by the state of sikkim by the sikkim criminal procedure act of 1976. as has been pointed out by mr. commercial tax officer [1975]2scr612 .a repeal connotes abrogation or obliteration of one statute by another from the statute book as completely 'as if it had never been passed' or 'as if it had never existed'.but this proposition, though appearing to be well settled and generally accepted, cannot be of universal application. for it is equally well settled that when an enactment, say statute 'a',is incorporated by reference in a later enactment, say statute 'b',then the repeal of the statute 'a' by another later enactment, say statute 'c',would not affect, the continued and effective operation of the repealed statute 'a'..........and that is why the merged states (laws) act, 1949 had to be passed extending a number of all-india enactments to those territories merged into the territories of india. similarly, even though the part b states became part of the union of india by and under the constitution, that could not, by itself, result in automatic extension of the all-india enactments to those states and the part b states (laws) act, 1951 had to be passed for extending central acts to those states. the very provisions of clauses (k) and (n) of article 371f, inserted by the constitution (thirty-sixth amendment) act, 1975, whereunder sikkim was incorporated in the union of india, would go to show that even in spite of and notwithstanding such incorporation, the laws, that were in force in sikkim immediately.....
Judgment:

A.M. Bhattacharjee, Actg. C.J.

1. The main question involved in these two cases is whether, under the provisions of Article 254 of the Constitution, the Sikkim Criminal Procedure Act of 1976 is void to the extent of its repugnancy to the provisions of the Cr. P.C. 1973, the Sikkim Act admittedly not having received the assent of the President. There should be no doubt that if the Cr. P.C. of 1973, a law made by Parliament, was in operation in the State of Sikkim when the Sikkim Criminal Procedure Act of 1976 was enacted by the Sikkim State Legislature, then, both the enactments being with respect to matters enumerated in the Concurrent List, the Sikkim Act would be void to the extent of its inconsistency with the Parliamentary Code under the provisions of Clause (1) of Article 254 of the Constitution, as admittedly the Sikkim Act ;has not received the assent of the President in accordance with the provisions of Article 254(2).

2. Sikkim has been incorporated in the Union of India in May, 1975 and, therefore, the Cr. P.C. of 1973, having been enacted at a time when Sikkim was not a part of the Union of India, could not, on its own, extend to the territories then comprised in Sikkim. It is not disputed that the Code of 1973 has not 1985 Cri. L J.190 DC thereafter been formally extended to the State of Sikkim by any Parliamentary Legislation by amending the territorial extent clause of the Code or otherwise, or by any Presidential Notification under Clause (n) of Article 371F, whereunder the President is empowered to extistatafy enactment to the State of Sikkim which is in operation in any other State in India.

3. Mr. Moulik, the learned Counsel for the petitioner in the second case, has, however, urged that as the Code of 1973, under Section 1(2) thereof, extends to the whole of India (except the State of Jammu & Kashmir), it would not only apply to the territories comprised in India at the date of the enactment of the Code, but would also automatically apply to all such territories as may subsequently be comprised in the Union of India. I am afraid that this contention of Mr. Moulik cannot but be rejected as being against all recognised canons of interpretation of statutes and the accepted principles of International Law. The expression 'India' in Section 1(2) of the Code or, for the matter of that, in any legislation, must be taken to have meant 'India' as it stood at the date of enactment of the legislation in question, and, therefore, the expression 'India' in Section 1(2) of the Code, enacted in 1973, could not and would not include Sikkim and the Code could not extend to Sikkim even on its subsequent incorporation in the Union of India, without a formal extension to that effect.

4. As is well known, a large number of Acceding States, which ceded full jurisdiction to the then Government of the Dominion of India finally merged in the adjoining Governor's Provinces or constituted new Chief Commissioner's Provinces by orders under Section 240A of the Government of India Act, 1935 and thus became incorporated in the Dominion of India. But that could not by itself bring in operation in the territories comprised in those States the enactments then extending to the whole ,of the Dominion of India and that is why the Merged States (Laws) Act, 1949 had to be passed extending a number of all-India enactments to those territories merged into the territories of India. Similarly, even though the Part B States became part of the Union of India by and under the Constitution, that could not, by itself, result in automatic extension of the all-India enactments to those States and the Part B States (Laws) Act, 1951 had to be passed for extending Central Acts to those States. The very provisions of Clauses (k) and (n) of Article 371F, inserted by the Constitution (Thirty-Sixth Amendment) Act, 1975, whereunder Sikkim was incorporated in the Union of India, would go to show that even in spite of and notwithstanding such incorporation, the laws, that were in force in Sikkim immediately before such incorporation were, under the provisions of Clause (k), to continue as before until altered or repealed by competent authority, but the President was empowered under Clause (n) to extend by proper Notifications enactments operating in other States to the State of Sikkim. The provisions of Clause (n) of Article 371F, authorising such extension of laws operating in the rest of India, would have been meaningless and without any purpose if all the earlier all-India enactments were to rush into the State of Sikkim immediately with its incorporation in the Union of India. The principle of International Law, as accepted and applied by the Privy Council in Mayor of Lyons v. East India Co. (1836-37) 1 Moo. Ind. App. 175 at 270-271 and in Advocate General of Bengal v. Ranee Surnomoye Dossee (1861) 9 Moo. Ind. App 387 at p. 426 and by the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh : 1954CriLJ1480 and also in Promod Chandra Dev v. State of Orissa : AIR1962SC1288 , is that on the acquisition of a new territory by a sovereign State, whether by conquest, cession or otherwise, the laws in force in the territories of the new sovereign do not start running to the acquired territory overthrowing the laws in force in the latter, but that the laws in force in the latter territory continue until altered by the new sovereign whether by extending its own laws or otherwise. Those to whom in matters relating to laws, West appears to be the whole world may be reminded that this was the ancient Indian International Law also as would appear from the text in the Yajnavalkya Samhita to the effect, namely, 'Yasmin Deshe Ya Achara Vyavahara Kulasthiti, Tathaiba Paripalyosou Yada Vasamupagate', that is, the new sovereign is .to continue the old laws and customs as prevailing in the territories which have come under his subjection. Mr. Moulik thus having failed to refer to any principle or authority in support of his contention, and all the relevant principles and authorities being squarely against his contention the same cannot but be rejected. I must, however, note that Mr. Udai P. Sharma, the learned Counsel for the State Government, has fairly submitted that he ~v cannot agree with and accept the contention of Mr. Moulik, even though Mr. Sharma was appearing in the first case for the State where the State as a petitioner has urged against the vires of the Sikkim Criminal Procedure Act of 1976. I must also note that Mr. A. Deb, the learned Standing Counsel for the Union of India has also similarly submitted that he also repudiates the contention of Mr. Moulik as noted hereinbefore. Therefore, if the Cr. P.C. 1973 is not in operation in Sikkim at any point t of time whether as a result of extension under Clause (n) of Article 371F or under any legislation to that effect or, as urged by Mr. Moulik, as a ' result of the incorporation of Sikkim in the Union .of India in 1975, then there cannot be any scope of any Sikkim Law relating to Criminal Procedure being inconsistent with or repugnant to the said Code of 1973 within the meaning of Article 254 of the Constitution so as to render the Sikkim Law void to the extent of such inconsistency or repugnancy. Concurrent List subject would become a prohibited field for State Legislation without Presidential assent only when the field is already effectively occupied by a Union Law applying to that State. But if the Concurrent Subject Law made by Parliament does not apply to a State, the jurisdiction of the Legislature of that State to legislate on such subject for the concerned State would remain absolutely unfettered. The contention of Mr. Moulik on this score, therefore, is without any substance and must be rejected.

5. Mr. Moulik has then contended that the Sikkim Criminal Procedure Act of 1976, declaring in 1976 that the Cr. P.C. of 1898 is and has been the law in Sikkim, was incompetent and illegal because the said Code of 1898, having been repealed by the Code of 1973 with effect from 1st April, 1974, can no longer be referred to and relied on as an effective piece of legislation. A 'foreign State' has been defined in Article 367(3) of the Constitution as meaning 'any State other than India' and, therefore, Sikkim, not being a part of India before its incorporation in 1975, was, notwithstanding its status of protectorate ship and associate Statehood, a foreign State before such incorporation. Now, if a foreign State has adopted the law of another State as its law, whether formally or in principle, the repeal of that law by the latter State cannot affect the operation of that law in the former State and, therefore, even after such repeal, nothing would prevent the former State from declaring that the relevant law was or is or shall continue to be its law. And this is precisely what has been sought to be done by the State of Sikkim by the Sikkim Criminal Procedure Act of 1976. As has been pointed out by Mr. Deb. the learned Standing Counsel' for the Union of India, and as was pointed out in the Statements of Objects and Reasons accompanying the Bill for the Sikkim Criminal Procedure Act of 1976, some observations of Sachar, C. J. in Passang Lama v. State of Sikkim 1975 Cr. LJ 1350 gave rise to some doubts as to the applicability of the Code of Criminal Procedure of 1898 in Sikkim and the Sikkim Act of 1976 was passed to remove those doubts. As observed in Craies on Statute Law (Seventh Edition, page 58), if a doubt is felt as to what the law is on some particular subject and an Act is passed to explain and declare the law, such an Act is called a Declaratory Act which may be defined as an Act to remove doubts existing as to the law and these observations have been referred to with approval by the Supreme Court in Central Bank of India v. Their Workmen : [1960]1SCR200 . 'A Declaratory Act means 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'. Observations of Coleridge, C. J., quoted with approval in Devendra v. Jogendra AIR 1936 Cal 593 at p. 616.

The argument of Mr. Moulik that after an enactment is repealed, the repealed enactment absolutely ceases to exist and can no longer be referred to as an effective piece of legislation or source of law is also not correct. It is true that the general impression is, as pointed out by the Supreme Court in India Tobacco Co. v. Commercial Tax Officer : [1975]2SCR612 . a repeal connotes abrogation or obliteration of one statute by another from the Statute Book as completely 'as if it had never been passed' or 'as if it had never existed'. But this proposition, though appearing to be well settled and generally accepted, cannot be of universal application. For it is equally well settled that when an enactment, say Statute 'A', is incorporated by reference in a later enactment, say Statute 'B', then the repeal of the Statute 'A' by another later enactment, say Statute 'C', would not affect, the continued and effective operation of the repealed Statute 'A' as referred to in Statute 'B' and this clearly demonstrates that the repealed Statute 'A', is not, in spite of its repealment, entirely thrown out of existence, but continues to have some existence which is both legal as well as efficacious. This principle, so clearly stated by Lord Brett in Clarke v. Bradlaugh (1881) 8 QBD 63 at p. 69 and by Lord Esher in In Re. Wood's Estate (1886) 31 Ch. D 607 at p, 615, was applied by the Privy Council in Secy, of State v. Hindustan Cooperative Insurance Society AIR 1931 P.C. 149 where it was observed by the Judicial Committee (at 152) that 'in this country it is accepted that where a Statute is incorporated by reference into a second Statute, the repeal of the first Statute does not affect the second'. This principle has also been equally accepted and applied by the Supreme Court in a series of cases and reference may be made among others, to State of Madhya Pradesh v. M.V. Narasimhan : 1975CriLJ1639 and to Mahindra & Mahindra Ltd. v. Union of India AIR 1979 SC 798 at pp. 810-811.

6. Reference in this connection may also be made to the provisions of Section 6(a) of the General Clauses Act, 1897, whereunder repeal of an enactment shall not bring in operation any enactment repealed by the former. As pointed out by the Supreme Court in Ameer-Un-Nissa Begum v. Mahboob Begum : AIR1955SC352 , under the principles of the English Common Law, when a repealing enactment was repealed by another enactment, such repeal revived the enactment repealed by the former ab initio. And that is why express provisions had to be enacted in England in Section 11(1) of the English Interpretation Act of 1889, analogous to Section 6(a) of the Indian General Clauses Act, to prevent such revival. But, at any rate, this would go to show that if the repealed Act was to revive Automatically with the repealment of the Act which repealed it, the former could not be completely lost and non est and specific statutory prohibition was required 'to countermand its revival.

7. Even the General Clauses Act, which by Section 6(a) prohibits revival of a repealed enactment with the repeal of the Act repealing the same, clearly provides in Section 7 that a repealed Act may nevertheless be revived by an express statement to that effect in a later legislation. This will also go to show that a repealed enactment is not irretrievably lost for all purposes and may be revived by a mere legislative statement to that effect without fresh enactment. So, even though the Cr. P.C. of 1898 was repealed by the Code of 1973, Criminal Procedure being a Concurrent List Subject, the Sikkim Legislature could revive it for the purpose of the State of Sikkim by an express legislation like the Sikkim Criminal Procedure Act of 1976 and the Cr. P.C. of 1973 not being in operation in Sikkim, the Code of 1898 would have effectively operated in Sikkim after such revival by the Sikkim Act of 1976.

8. One word more before I conclude. As would appear from the Forty-first Report of the Law Commission of India (pages 1-2) and also the decision of the Supreme Court in. State of Nagaland v. Ratan Singh : 1967CriLJ265 and other decisions following the same, under the relevant Rules applicable in the State of Nagaland, the principles, though not the letters, of the Cr. P.C. of 1898 are still to be followed in Criminal Trials in that State and this position appears to have continued even after the enactment of the Cr. P.C. of 1973, as under the proviso to Section 1(2) of that Code, the provisions of the Code, other than those relating to Security for Keeping Peace and Good Bahaviour, Maintenance of Public Order and Tranquillity and Preventive Action, do not apply to the State of Nagaland. Irt the State of Nagaland, therefore, the Cr. P.C. of 1898 would still have, to be referred to as a legislation in effective existence to ascertain the principles of its provisions for applying them to the criminal trials. Therefore, even in an Indian State like the State of Nagaland, the Cr. P.C. of 1898, in spite of its being repealed by the Code of 1973, is still very much an existing source of law. For all these reasons it is not possible to agree with Mr. Moulik that the Sikkim Legislature could not legally and validly refer to the Code of 1898 in its Sikkim Criminal Procedure Act of 1976 and declare the same to be and to have been the law simply because the said Code on that date stood repealed by the new Code of 1973. Both the Miscellaneous Applications are accordingly dismissed. The records of the cases withdrawn to go down at once for disposal according to law.

Ripusudan Dayal, J.

9. I agree.


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