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1997 DIGILAW 26 (GAU)

Subal Gope v. State of Tripura

1997-02-14

H.K.SEMA, N.SURJAMANI SINGH

body1997
H. K. Sema, J.— Detenu Shri Jagadish Chandra Ghosh is a school teacher posted at Uptakhali Junior Basic School under Dharrrianagar Sub Division. He was arrested on 30.4.1996 in connection with Kamalpur PS Case No.65/1995 under section 396 IPC and section 27 of Arms Act for alleged commission of bank dacoity on 29.11.1995 at about 12.30 hours. He was produced before the learned Sub Divisional Judicial Magistrate, Kamalpur on 1.5.1996 and since then he has been remanded in the judicial custody even after the expiry of ninety days* period which expired on 29.7.1996. His bail application registered as Original Petition No.46 of 1996 was rejected by this Court on 24.6.1996. Another bail application registered as Criminal Original Petition No.6 of 1996 was also rejected by'this Court on 16.8.1996. The detenu has now been released on bail by this Court on 23.8.1996 passed in Civil Misc Application No.446 of 1996 on his furnishing a bond of Rs.5,000/- with two sureties of like amount to the satisfaction of learned Sub Divisional Judicial Magistrate, Kamalpur. The detenu is now on bail. 2. Tripura Legislative Assembly by the Third Amendment Act, 1992 (Tripura Act No.6 of 1992) (for short the Act) amended the CrPC, 1973 in its application to the State of Tripura. By the aforesaid amendment, sub-section (2) (a) of section 167 of the Principal Act has been amended as under: (a) for the words 'ninety days' wherever they occur, the words 'one hundred eighty days' shall be substituted; (b) for the Words 'sixty days' wherever they occur, the words 'one hundred twenty days' shall be substituted. The Act also amended section 439 by inserting 439A which is not relevant for the purpose of disposal of this case. The Amendment Act received assent of the President on 14.7.1992 and it was published in the Tripura Gazette on 29th July, 1992. Sub-section (4) of section 1 of the Act which is relevant for the present case reads: "(4) This Act shall remain in force for three years from the date of commencement. The Amendment Act received assent of the President on 14.7.1992 and it was published in the Tripura Gazette on 29th July, 1992. Sub-section (4) of section 1 of the Act which is relevant for the present case reads: "(4) This Act shall remain in force for three years from the date of commencement. Provided that the State Government may, from time to time, by notification in the Official Gazette, extend the period, as aforesaid, for such period not exceeding one year at a time as may be specified in the notification; so, however, that the total period of such extension (after the expiry of first three years) shall not exceed two years and wherein such notification is issued, a copy thereof shall be laid, as soon as may be, before the Legislative Assembly of Tripura." 3. The period of three years as enjoins in sub-section (4) of section 1 of the Act expires sometime .on 28th July, 1995. By a notification dated 5th August, 1995 the appropriate Govt in exercise of powers vested in it by the proviso to sub-section (4) of section 1 of the Act extended the period by one year upto and inclusive of the 28th day of July, 1996 during which the said Act shall remain in force. The notification was also made effective from 29th July, 1995. The respondent-Govt also issued another notification dated 5th August, 1996 extending the period of one year with effect from 29th July, 1996 ta28th July, 1997. 4. Being aggrieved, this writ petition has been preferred praying, inter alia, the following reliefs: (a) For quashing the impugned notification dated 5th August, 1995 (Annexure 6) and notification dated 5th August, 1996 (Annexure 7) being illegal, void and ultra vires of the Code of Criminal Procedure (Tripura Third Amendment) Act, 1992; (b) The detenu Shri Jagadish Chandra Ghosh be released forthwith holding the detention ultra vires of Article 21 of the Constitution of India; and (c) To pay compensation of Rs. 1,00,000 for the illegal detention of the detenu. 5. Mr. 1,00,000 for the illegal detention of the detenu. 5. Mr. BB Deb, the learned senior counsel for the petitioner urged the Following contentions: (a) The Tripura Act is a temporary legislation for a period of three years and once the Act spent its force and died a natural death it does not survive and therefore, Government cannot revive the Act by notification in its exercise of powers inkier the proviso to the Act; and (b) Consequently the notifications dated 5th August, 1995 and 5th August, 1996 issued by the Government are ultra vires the State Act and violative of Article 21 of the Constitution of India inasmuch as the liberty of the detenu has been deprived contrary to the procedure established by law. 6. In support of his contention Mr. Deb placed reliance, to the decision of the Federal Court reported in 1949 Crl LJ 897, Jatindra Nath Gupta vs. Provfece of Bihal. In that case the Federal Court was considering whether Bihal Maintenance of Public Order Act, 1947 can be revived after the expiry of one year for which it was made by amending of the Act after its expiry. In that case the fact of the case was like this. Bihal Maintenance of Public Order Act, 1947 was made for a period of one year. The Act had died a natural death on 16th March, 1948. However, it was sought to be amended by Bihal Amending Act V of 1949. It is, in these circumstances, the Federal Court had held that when the Act itself does not survive it cannot be revived by amending of the Act after the expiry. In other words, when the life of the Act itself expires it cannot be revived by bringing an amendment to the Act.. 7. Relying heavily on the aforesaid decision of the Federal Court it is contended by Mr. Deb mat in the instant case the amendment of the Act having been expired on 28th July, 1995 the Government has no power to extend the Act by a notification dated 5th August, 1995. While there is no quarrel with regard to the proposition of law laid down by the Federal Court, the fact of that case is distinguishable from file fact of the case in hand. In the present case mere is no question of amending the Act. While there is no quarrel with regard to the proposition of law laid down by the Federal Court, the fact of that case is distinguishable from file fact of the case in hand. In the present case mere is no question of amending the Act. The Act was further extended by a notification by the competent Government as visualized under proviso to sub-section (4) of section 1 of the Act itself. 8. A fascicule reading of sub-section (4) of section 1 of the Act with proviso it clearly manifests the intendment of the Legislature. It will be noticed that .while the main Act has been passed by the Trtpura Legislative Assembly, by proviso to sub-section (4) of section 1 of the Act the State Government has been empowered to extend the Act by a notification in the Official Gazette from time to time. Therefore, inteodment of the Legislature is very clear so as to empower the appropriate Government to extend a period by notification from time to time depending on the exigency of the circumstances after the expiry of the Act The Legislature in their wisdom worded the word loosely because no time limit has been given for issuing such notification extending the period. On the other hand, the language 'from time to time' employed in proviso to sub-section (4) of section 1 of the Act is adequately elastic to show that the appropriate Government can extend the Act after its expiry of three years by a notification not exceeding two years and one year at a time, even after the expiry of the main Act. la our view, therefore, the submission that the appropriate Government is not competent to extend a period by a notification after the period of three years expires is thoroughly misconstrued and counter to the proviso of sub-section (4) of section 1 of the Act itself. 9. When the Act empowered the appropriate Government to exercise the power in a particular manner, the power must be exercised in that manner. We are, therefore, of the view that the notification dated 5th August, 1995 (Annexure 6) and 5th August, 1996 (Annexure 7) are validly made and in proper exercise of power vested in it by proviso to sub-section (4) of section 1 of the Act. 10. For the reasons aforestated, there is no merit in this writ petition and the same is dismissed, however, without costs.