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Vinod Rao Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1981CriLJ232; (1980)2GLR926
AppellantVinod Rao
RespondentThe State of Gujarat and anr.
Cases ReferredKangshari Haldar v. State of West Bengal
Excerpt:
.....law amendment act, 1932, as well as the validity of the notification issued thereunder. the state government may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under section 188 or section 506 of the indian penal code shall be non-bailable. the implication of the article is that all litigants similarly situated are entitled to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination. in such a case the court will strike down both the law as well as the executive action taken under such law. that map shows that the revenue survey number on which patrakar colony stands at present was a part of village vadaj in 1970. we are satisfied with this evidence. ,..........10 of the criminal law amendment act, 1932. sub-section (1) of section 10 reads as follows:the state government may, by notification in the official gazette, declare that any offence punishable under sections 186, 188, 189, 190, 228, 295a, 298. 505 506 or 507 of the i. p. c, when committed in any area specified in the notification shall, notwithstanding any thing contained in the cr. p.c. 1898, be cognizable, and thereupon the cr. p.c., 1898, shall, while such notification remains in force, be deemed to be amended accordingly.sub-section (2) of section 10 provides as follows:the state government may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under section 188 or section 506 of the indian penal code shall be.....
Judgment:

S.H. Sheth, J.

1. The petitioner is a journalist and has been residing in the City of Ahmedabad. It appears that there were some quarrels in the area where the petitioner has been residing. Therefore, one Mr. Ramamurthy lodged information with the police against the petitioner at Naranpura Police Station Ahmedabad. The information disclosed that the petitioner had committed three offences punishable under the I. P. C, One was under Section 352, another was under Section 506(2), and the third was under Section 504 of the Code.. The petitioner was thereupon called to the Police Station and was taken in police custody. Within 24 hours he was produced before the Magistrate who enlarged him on bail. Thereafter the police filed against the petitioner charge-sheet in the Court of the Metropolitan Magistrate, City of Ahmedabad.

2. The petitioner thereupon filed this petition in which he prays for quashing the chargesheet filed against him by the police. In support of the prayer which he has made, he has urged that since the offences alleged to have been committed by him are non-cognizable, the police could not have filed the charge-sheet against him and that he could not have been arrested by the police without a warrant. It is in this context that at an earlier stage it was brought to the notice of this Court that under Sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932, notification had been issued by the local Government which made offence punishable under Section 506 of the I.P.C. cognizable and non-bailable. Thereupon the petition was amended by the petitioner with the leave of the Court, By the amended petition the petitioner challenges the vires of Section 10 of the Criminal Law Amendment Act, 1932, as well as the validity of the notification issued thereunder.

3. We are, therefore, required in this case to decide whether Sub-sections (11 and (2) of Section 10 of the Criminal Law Amendment Act, 1932, are intra vires Article 14 or ultra vires it and whether the notification or notifications issued thereunder are valid.

4. In order to examine the first contention which has been raised by Mr. Pandit on behalf of the petitioner, it is necessary to turn to Section 10 of the Criminal Law Amendment Act, 1932. Sub-section (1) of Section 10 reads as follows:

The State Government may, by notification in the Official Gazette, declare that any offence punishable under Sections 186, 188, 189, 190, 228, 295A, 298. 505 506 or 507 of the I. P. C, when committed in any area specified in the notification shall, notwithstanding any thing contained in the Cr. P.C. 1898, be cognizable, and thereupon the Cr. P.C., 1898, shall, while such notification remains in force, be deemed to be amended accordingly.

Sub-section (2) of Section 10 provides as follows:

The State Government may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under Section 188 or Section 506 of the Indian Penal Code shall be non-bailable.

The First Schedule to the Cr. P.C. shows that offence punishable under Section 506 unless it is a threat to cause death or grievous hurt, etc., is non-cognizable and bailable and that it is triable by any Magistrate. It is this non-cognizable and bailable offence which is sought to be rendered cognizable and non-bailable under the scheme of Section 10. So far as Section 10 is concerned, the vires thereof can be challenged only in relation to the policy which it incorporates and the power which it confers upon the State Government. Can it be said that conferment of such a power upon the State Government is irrational or can it be said that conferment of such power permits arbitrary discrimination? Mr. Pandit who appears on behalf of the petitioner has argued that the petitioner is deprived of his rights under the Cr. P.C. and that he is subjected to the greater rigour than persons residing in areas other than the City of Ahmedabad are subjected to. He has in that behalf invited our attention to the decision of the Supreme Court in Shree Meenakshi Mills Ltd v. Visvanatha Sastri : [1954]26ITR713(SC) . All that has been laid down in that decision is that Article 14 guarantees to all persons the right of equality before the law and equal protection of the laws within the territory of India. The equal protection of the laws and right of equality conferred by Article 14 not only guarantee equal protection as regard substantive laws but procedural laws also come within its ambit. The implication of the Article is that all litigants similarly situated are entitled to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination.

5. On behalf of the Central Government the Deputy Secretary in the Ministry of Home Affairs has filed an afidavit-in-reply. He has tried to justify the validity of Section 10. It has been stated in the affidavit-in-reply that the difference between a cognizable offence and a non-cognizable offence is that in case of a cognizable offence, a police officer may arrest an offender without warrant and that in case of a non-cognizable offence, a police officer has no authority to arrest an offender without warrant. According to him this is the only difference which is made by rendering a non-cognizable offences cognizable under the scheme of Section 10 of the Criminal Law Amendment Act, 1932. He has next stated that in cities in which there are large and voluminous political and industrial activities, the prevention of certain serious offences acquires a different complexion and that it becomes very necessary to provide power to a police officer to arrest without warrant persons likely to commit such offences there. He has also stated that Section 506 relates to an offence which is being frequently committed where the political activities and industrial activities are carried on on a very large extent. The necessity of making an offence cognizable in a particular area also depends upon the degree of need for such preventive measures against those offences and also at the same time to reasonably safeguard the liberty of the people without undue interference by the police. An averment has been made in the petition to show that Criminal Law Amendment Act, 1932, was enacted in order to curb civil disobedience movement, It has been further stated that since India became independent, there is no civil disobedience movement and that, therefore, Criminal Law Amendment Act, 1932, has become obsolete. In other words, what the petitioner has tried to show is that a situation which led to the enactment of Criminal Law Amendment Act, 1932, is now non-existent and that, therefore, the said Act has no application It has been stated in the affidavit filed on behalf of the Central Government that the civil disobedience movement was the immediate factual situation which led to the enactment of the Criminal Law Amendment Act, 1932. However, it has been further stated that the general object of the statute was different from that immediate factual situation. Civil disobedience movement constituted the actual background which prompted the Central Legislature to enact that law. It has been further stated that the Criminal Law Amendment Act, 1932, discloses a legislative policy, in so far as Section 10 is concerned, which guides, regulates and controls the action of the State Government taken thereunder.

6. In our opinion, the affidavit-in-reply filed on behalf of the Central Government satisfactorily explains the background against which Criminal Law Amendment Act, 1932, was enacted. Actual background in the context of which a particular law was made is unlikely to exist for a long time in a dynamic society. Social conditions ate bound to vary from time to time. Therefore, we are required to find out whether there are situations and conditions which are likely to exist in the country and which may require the State Government to invoke Section 10. It cannot be gainsaid that though the days of civil disobedience movement which was directed against the British rule are gone, we are living in an era which is full of industrial activities. It also cannot be gainsaid that independent India is full of political activities of a conflicting nature. This unprecedented expansion of industrial and political activities which is generally confined to cities has very little effect in the villages in so far as the maintenance of social order is concerned. Therefore, in urban areas in which there is a very large expansion of industrial and political activities, a different procedure may be required to maintain social order and to prevent the commission of offences. It cannot be gainsaid that commission of offences in urban areas is much more frequent than in rural areas. Therefore, in order to meet peculiar situations emerging from different social conditions which come into existence from time to time, in urban areas, on account of unprecedented expansion of industrial and political activities, if a special law is made which confers power upon the State Government to do a certain thing which it cannot do in rural areas, we do not think the law which confers such a power on the State Government is ultra vires Article 14 or otherwise hit by it. Society is always dynamic. Situations in different parts of the society go on changing from time to time. At one and the same time different situations develop and exist in different parts of the Society. These are basic facts of life which, in our opinion, cannot be controverted. Therefore, if the legislature has made a law which provides a remedy against a peculiar situation which is developing or is likely to develop in a particular region or area, it cannot be said that it is discriminatory and that it is liable to be struck down. In a dynamic society there cannot be dull uniformity nor can there be rigidity. Different situations must be controlled in different ways. Persons differently situate in different areas cannot be dealt with by one broomstick. Different methods have got to be devised for different sections of society in order to meet different situations and to solve different problems relating to law and order. In order to solve the problems which arise in urban areas on account of unprecedented expansion of industrial and political activities, if a different law has been enacted, that law, in our opinion, is not discriminatory and does not deny equality.

7. Mr. Vakil has invited our attention to certain decisions in this behalf. We do not think detailed reference to them is necessary in this case. In Budhan Choudhry v. State of Bihar : 1955CriLJ374 , the question which arose related to Section 30 of the Cr. P.C. 1898. It was urged before the Supreme Court that Section 30 was ultra vires Article 14 because it provided in respect of Assam, Madhya Pradesh, Punjab, Oudh, Madhyta Bharat, Hyderabad, Mysore, Patiala and East Punjab States Union and Rajasthan, in all Part C States and in certain other areas of the other States, a different procedure by investing the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death. Section 30 was not uniformly made applicable to the whole of India. Answering the challenge to Section 30, the Supreme Court has observed that there is an obvious classification on which the Section is based and that the Legislature understands and correctly appreciates the needs of its own people which may vary from place to place. According to the Supreme Court a classification based on geographical or territorial considerations is a valid classification if it has a rational nexus with the situation which it seeks to deal with,

8. In Ram Krishna Dalmia v. S.R. Tendolkar : [1959]1SCR279 , the Supreme Court has laid down the scope of Article 14 and observed that a statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the Guidance of the exercise of discretion by the Government in the matter of selection or classification. The Supreme Court has further observed that after such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law. Proceeding further the Supreme Court has laid down that a statute may not make a classification of the persons or things for the purpose of applying its provisions and may leave it to the discretion of the Government to select and classify the persons or things to whom its provisions are to apply but may at the same time lay down a policy or principle for the guidance of the exercise of discretion by the Government in the matter of such selection or classification; the Court will uphold the law as constitutional.

9. The next decision to which Mr. Vakil has invited our attention is in Jyoti Pershad v. Union Territory of Delhi : [1962]2SCR125 . It was a case under the Slum Areas (Improvement and Clearance) Act, 1956. The relevant principle to which Mr. Vakil has invited our attention is that rule against discrimination does not apply to cases where the legislature has laid down the policy and indicated the rule or the line of action which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provision conferring the power, no question of violation of Article 14 can arise unless it be that the rules themselves or the policy indicated lay down different rules to be applied to persons or things similarly situated. Where there is a transgression by the authorities of the limits laid down or an abuse of power, the actual order will be set aside in appropriate proceedings not so much on the ground of a violation of Article 14 but as really being beyond the power of the authority concerned.

10. The last decision to which Mr. Vakil has invited our attention is in Kangshari Haldar v. State of West Bengal : [1960]2SCR646 . The only principle to which Mr. Vakil has invited our attention is that if any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed.

11. We have no doubt in our minds that the social conditions and the situations which exist in urban areas are very much different from those which exist in rural areas. We are able to imagine that different kinds of situations may exist in different urban areas. We are also able to imagine the existence of different kinds of situations in different rural areas. Therefore, in order to meet different situations which arise in different areas, if a law has been enacted to meet unusual situations which arise in a particular area, it cannot be struck down on the ground that it is discriminatory and violates Article 14. The expansion of industrial and political activities in the urban areas must not lead to frequent commission of offences - indeed non-cognizable. If an offence, otherwise non-cognizable, is committed in urban areas, without the police having the power to arrest an offender, it is likely to lead to unhealthy developments in the society, Therefore, the policy and philosophy which Section 10 of the Criminal Law Amendment Act,_ 1932 incorporates art) such as have rational nexus with the maintenance of law and order in urban areas where there is a large expansion of industrial and political activities. It is not a capricious law which has been made to curb or curtail the human rights nor is it a law which is intended to pounce upon the urban citizens unduly more heavily then upon the rural areas, We are, therefore, of the opinion that Section 10 has been enacted to achieve a definite object and that its provisions have a rational nexus with that object. In our opinion, therefore, Section 10 is not ultra vires Article 14 of the Constitution. The first contention which has been raised by Mr. Pandit, therefore, fails.

12. The second contention which Mr. Pandit has raised relates to the validity oi the notification issued by the local Government under Sub-sections (1) and (2) of Section 10. In order to examine the contention which Mr. Pandit ha.5 raised, it is necessary to refer to the notification. It was issued on 15th November, 1937 by the then Government of Bombay. There is no dispute about the fact that it is still in force. In the first para of that notification it has been sated -.notwithstanding anything contained in Cr. P.C., 1898, any offence punishable under Section 506 of the I.P.C. 1860, when committed within the Municipal Limits of the cities of Ahmedabad and Sholapur shall be cognizable.

The second para of the notification provides:.notwithstanding anything contained in Cr P.C. 1898, any offence punishable under Section 506 of the I.P.C. 1860, when committed within the municipal limits of the Cities of Ahmedabad and Sholapur shall be non-bailable.

The first declaration was made under Sub-section (1) of Section 10 and the second declaration was made under Sub-section (2) of Section 10. We are concerned in this case with the impugned notification in its application to the city of Ahmedabad. In 1937 offence punishable under Section 506 of the I.P.C. was made cognizable if it was committed within the Municipal limits of the City of Ahmedabad. It is undisputed that the Municipal limits; of City of Ahmedabad in 1937 did not extend to Patrakar Colony where the offence in the instant case is said to have been committed. Municipal limits of the city of Ahmedabad in the notification issued in 1937 must necessarily mean the municipal limits of the city of Ahmedabad as they were in 1937. Different considerations would have prevailed with us if the notification had stated that the offence punishable under Section 506 of the I.P.C. would be congnizable when committed within the Municipal limits of the city of Ahmedabad fixed from time to time. Therefore, by virtue of its own force, the notification issued on 15th November, 1937 cannot render offence punishable under Section 506 of the I.P.C., if committed in Patrakar Colony which is now in the city of Ahmedabad, cognizable. In our opinion, therefore, the notification dated 15th November, 1937 has no application to the instant case.

13. Mr. Nanavati who appears on behalf of the State Government has produced before us another notification issued by the Government of Gujarat on 31st July, 1970 under Sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932. It renders cognizable and non-bailable an offence punishable under Section 506 of the I.P.C. if committed inter alia in the villages under the jurisdiction of Navrangpura police station. One of the villages mentioned therein is Vadaj. Unfortunately, this notification which Mr. Nanavati has shown to us was not produced on the record of this case earlier by the State Government. They ought to have done so. There is no excuse for not producing it on record. If the State Government wants to rely upon a notification, it must produce it in Court and give a reasonable opportunity to the other side to meet it, In the instant case we have taken it on record and looked into it because that notification was shown to Mr. Pandit at the time when the petition was admitted. Obviously, therefore, the petitioner had a reasonable opportunity of meeting it. The question which has arisen for our consideration is whether Patrakar Colony is a part of Vadaj as specified in the second notification referred to above. Mr. Nanavati asked us to take judicial notice of the fact that the area in which Patrakar Colony is situate was a part of Vadaj in 1970 when the second notification was issued. We do not think we can take judicial notice of such a fact - a fact which can easily be proved and a fact which is not within the ordinary knowledge of common man. We, therefore, called upon him to produce evidence to show that Patrakar Colony where the offence punishable under Section 506 of the I.P.C. is alleged to have been committed was a part of village Vadaj in 1970 when the second notification was issued. In response to the direction issued by us, the Talati of village Vadaj has shown us the map of the village. That map shows that the revenue survey number on which Patrakar Colony stands at present was a part of village Vadaj in 1970. We are satisfied with this evidence. Obviously, therefore, the second mentioned notification applies to the instant case.

14. The last contention which Mr. Pandit has raised is that the notification issued under Sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932, with reference to Cr. P.C., 1898 cannot be regarded as a notification issued with reference to Cr. P.C. 1973. The argument which Mr. Pandit has raised is that the fact of issuing a notification under Sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932, was to amend the Cr. P.C., 1898. That Code has now been repealed. Therefore, the amendment which was made to that Code by the impugned notification could not be continued or read in the Cr. P.C., 1973. Mr. Pandit has in our opinion approached the question from a wrong angle and has, therefore, made an ill founded submission. In our opinion, the correct approach is to construe Section 10 in light of the rule of construction laid down in Section 8 of the General Clauses Act, 1897. Section 8 provides as follows:

8. (1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted,

(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enanted.

Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, we must read in Section 10 of the Criminal Law Amendment Act, 1932. Cr. P.C., 1973 in place of the expression of 'Cr. P.C., 1898'. When we so read it, it becomes clear that the notification issued under Section 10 with reference to Cr. P.C., 1898 should be read as having been issued with reference to the Cr. P.C., 1973. So far as the impugned notification is concerned, it also refers to the Cr. P.C., 1898. The rule of construction laid down in Section 8 of the General Clauses Act, 1897 also requires us to construe reference to the repealed enactment made in any 'instrument' as reference to the repealing enactment or the new enactment which has been brought into force. The expression 'instrument' used in Section 8 of the General Clauses Act, 1897, in our opinion, necessarily includes a notification such as the impugned notification. Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, 1897, we read both in Section 10 of the Criminal Law Amendment Act, 1932 and in the impugned notification reference to Cr. P.C., 1898, as a reference to Cr. P.C., 1973. Therefore, the effect of the notification issued under Section 10 in 1937 is to modify the relevant provisions in the Cr. P.C., 1973. Therefore, the notification of 1937 as well as the subsequent notification issued in 1970 are relevant to the instant case.

15. The next question which we are required to consider is whether the impugned notification of 1937 and the subsequent supplementary notification of 1970 are ultra vires Article 14. The argument which has been raised by Mr. Pandit is that there is no rational basis on which residents of the City of Ahmedabad can be isolated for a different treatment from the residents of other areas of the State. If we have no doubt in our minds that there is no rational basis for such a distinction, it must amount to hostile discrimination and the notification must be struck down. But we are unable to reach that, conclusion because the reasons which have been stated in general terms by the Central Government in support of the validity of Section 10 are the reasons which render both the notifications valid and place them beyond challenge under Article 14. For the purpose of deciding whether the impugned notification is valid or not, it is necessary to read both the notifications together. The combined effect of the notification issued in 1937 and the notification issued in 1970 is to render offence punishable under Section 506 of the I.P.C. cognizable and non-bailable if it is committed within the Municipal limits of the City of Ahmedabad as specified in both these notifications. It cannot be gainsaid that Ahmedabad is a highly industrialized city and, therefore, it has been witnessing a large volume of industrial activities of varied character and nature. Ahmedabad is an important city of the State of Gujarat and it has been witnessing a very large volume of political activities as well. The industrial and political activities in the city of Ahmedabad are not comparable with any such activities in any other part of the State. Therefore, if the State Government has chosen the city of Ahmedabad with its peripheral areas for a special treatment in order to effectively control the law and order situation and the social life in the city, it cannot be said that the State Government has unduly discriminated against the residents of the city of Ahmedabad in this behalf. In our opinion, the combined effect of these two notifications is to draw a distinction between the city of Ahmedabad and the rest of the State of Gujarat in view of different problems which arise in the city and not to discriminate against the residents of the city. Therefore, we are unable to come to the conclusion that the impugned notifications suffer from any constitutional infirmity under Article 14. So far as the applicability of those notifications is concerned, we have already stated that the second notification applies to the area where the offence punishable under Section 506 of the I.P.C. was alleged to have been committed by the petitioner. That area - Patrakar Colony- is within the limits of Vadaj village which is now a part of the City of Ahmedabad. The last challenge which Mr. Pandit has raised, therefore, is without any substance and fails.

16. In the result the petition fails and is dismissed. Rule is discharged.


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