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TMI Blog2010 (4) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... said purpose, this Court requested Mr. R. Shanmugasundaram, learned senior counsel to assist this Court as Amicus Curiae. Accordingly, he has taken much pains to go deep into the provisions and also to bring to my notice various judgments of various High Courts. 3. Let me now proceed to consider the same. Under the Code of Criminal Procedure, 1898, the offence under Section 506(i) of IPC was shown as a bailable offence. In the year 1932, however, the Criminal Law Amendment Act, 1932 was brought into force. Section 10 of the said Act reads as follows: Power of State Government to make certain offences cognizable and non-bailable. (1) The State Government may by notification in the Official Gazette, declare that any offence punishable under Sections 186, 189, 188, 190, 295A, 298, 505, 506 or 507 of the Indian Penal Code, when committed in any area specified in the notification shall notwithstanding anything contained in the Code of Criminal Procedure 1898, be cognizable, and thereupon the Code of Criminal Procedure, 1898 shall, while such notification remains in force, be deemed to be amended accordingly. (2) The State Government may, in like manner and sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, it was deemed to have been amended as non-bailable as per the notification issued under the Criminal Law Amendment Act which itself is a Central Legislation. Thus, it is not by actually amending the Code of Criminal Procedure, 1898 by any local amendment. Had it been the case that the Code of Criminal Procedure, 1898 was amended, the said amendment would have perished along with the main Act when the same was repealed by the Code of Criminal Procedure, 1973. In such an event, since the Code of Criminal Procedure, 1973 classifies the offence under Section 506(i) of IPC as bailable, the same would have been in force in the State of Tamil Nadu. But, contrary to the same, as I have already stated, the Code of Criminal Procedure, 1898 was not amended and instead, the offence falling under Section 506(i) of IPC was declared as non-bailable in exercise of the power conferred under Section 10 of the Criminal Law Amendment Act. The said declaration will hold good until the same is withdrawn by the Government of Tamil Nadu under the said Act. Therefore, it is immaterial whether the offence falling under Section 506(i) of IPC has been classified as bailable in the Code of Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70 long years without any review of the factors and conditions that necessitated it, shall cease to be in operation from 15th January, 2004 till the Government takes a review of the overall situation and decides as to the necessity of its continuation. 10. The learned senior counsel Mr. R. Shanmugasundaram has, however, brought to the notice of this Court, a judgment of the Division Bench of Allahabad High Court in Virendra Singh and Ors. v. State of U.P. 2002 CRI. L.J. 4265 wherein speaking for the Bench, Hon'ble Mr. Justice M. Katju [as he then was] has held that Section 10 of the Criminal Law Amendment Act has become redundant and otiose in view of Section 484 of the Code of Criminal Procedure, 1973 which has repealed the Code of Criminal Procedure, 1898. The Bench has further held that similar notification issued by the Government of Uttar Pradesh is illegal. In para 7 of the aforesaid judgment, the Allahabad High Court has held as following : 7. Section of the Criminal Law Amendment Act, 1932 does not give power to the State Government to amend by a notification any part of the Code of Criminal Procedure, 1973. Since the Code of Criminal Procedure Of 1898 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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-enacted 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. Code of Criminal Procedure, 1973 in place of the expression of Code of Criminal Procedure, 1898 . When we so read it, it becomes clear that the notification issued under Section 10 with reference to Code of Criminal Procedure, 1898 should be read as having been issued with reference to the Code of Criminal Procedure, 1973. So far as the impugned notification is concerned, it also refers to the Code of Criminal Procedure, 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While doing so, since, as of now, the offence under Section 506(i) of IPC as per the Notification of the State Government has been all along treated as non bailable , I deem it appropriate to grant interim anticipatory bail to all these Petitioners. 15. In the result, the Registry is directed to place these petitions before My Lord The Hon'ble The Chief Justice to consider to refer the following questions to a Division Bench: (1) Whether the Notification issued by the Government of Tamil Nadu in G.O. Ms. No. S/4118-1/70 Public (S.C.) dated 03.08.1970 in exercise of the powers conferred under Section 10 of the Criminal Law Amendment Act, 1932 is valid? and 2. Whether the offence under Section 506(i) of IPC is non-bailable insofar as the State of Tamil Nadu is concerned? In the mean time, having regard to the facts and circumstances of the case, the Petitioners in these petitions are ordered to be released on interim bail in the event of arrest or on their appearance before the respective learned jurisdictional Magistrates concerned on each of them executing a bond for a sum of ₹ 10,000/- (Rupees ten thousand only) with two sureties each for a lik ..... X X X X Extracts X X X X X X X X Extracts X X X X
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