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2009 DIGILAW 101 (MP)

Jagga @ Jagat Singh v. State of M. P.

2009-01-21

A.K.SHRIVASTAVA, SUSHMA SHRIVASTAVA

body2009
ORDER Shrivastava, J. -- I A No. 14676/2008 which is third application for suspension of sentence and grant of bail has been filed on behalf of appellant No.3 Satish Soni. 2. Shri Patel, learned Additional Advocate General, has raised a preliminary objection that the first application of suspension of sentence (M.Cr.P. No.6127/2004) which was filed by this appellant was rejected by the Bench comprising Justice Rajeev Gupta (as His Lordship then was) and Justice Rakesh Saksena on 7.1.2005. The second bail application (IA No.223/2007) was dismissed by the Bench comprising of Justice S.S. Jha and Justice Rakesh Saksena on 19.1.2007, therefore this third application of suspension of sentence cannot be listed before this regular Bench and should be listed in a Bench in which one of the member is Justice Rakesh Saksena in view of the Full Bench decision of this Court Gopal and others v. State of M.P. [ 2005(1) JLJ 269 = 2005(1) MPJR 141 ], because Justice Rajeev Gupta (as His Lordship then was) has been elevated as Chief Justice and presently posted at High Court of Chhattisgarh and Justice S.S. Jha has demitted the office. By placing reliance on another Division Bench decision of this Court Badam Singh and others v. State of M.P. [ 2007(4) MPHT 99 ], it has been argued that while answering to the reference the Division Bench has held as under: "(I) The application for suspension of sentence dismissed as withdrawn or not pressed should be placed before the same Bench/Judge who passed the earlier order. (II) The order of granting/rejecting interim bail earlier, would be deemed to be the order of consideration of the first prayer and any successive prayer made in any number of application would come within the purview of successive prayer and shall be heard by the same Bench/Judge, who heard the application considering the interim prayer earlier, if the said Judge/Bench is available and it will be listed before other Bench/Judge only if the said Bench/Judge is not available for a sufficient duration, so that the prayer for interim suspension of sentence may not become infructuous." 3. Learned Additional Advocate General has invited our attention to rule 15 of the High Court of Madhya Pradesh Rules, 2008 (hereinafter referred to as "the Rules of 2008") which came into force with effect from 1.11.2008 and has submitted that under this rule the subsequent bail applications are to be listed before the same Judge/Bench who/which has decided the first application even if earlier application was dismissed for want of prosecution, or dismissed as not pressed or withdrawn. 4. Learned Additional Advocate General has also invited our attention to rule 16 of the Rules of 2008 which relates to "Tied up Matters" as has submitted that under this rule whenever a Judge is not available for any reason and in the opinion of the Chief Justice, a matter is tied up to him, looking to its urgency, is required to be decided early, it shall not be treated as tied up matter and may be listed before another bench, as per directions of the Chief Justice. By inviting our attention to the definition of "Tied up Matters" as envisaged in clause (23) of rule 4 of Chapter I of Rules of 2008, it has been argued that the tied up matter would include any order or judgment as required to be heard by a particular Judge or Bench and would include repeat applications for bail or suspension of sentence. 5. Learned Additional Advocate General has also placed reliance on the decisions of Supreme Court, they are Shahzad Hasan Khan v. Ishtiaq Hasan Khan [1987(11) MPWN 186= AIR 1987 SC 1613 ], Harjeet Singh v. State of Punjab [ AIR 2002 SC 281 ]. He has also placed reliance on two Full Bench decisions of this Court Narayan Prasad v. State of M.P. [ 1993 JLJ 225 = 1992(II) MPJR 298 ], and Santosh v. State of M.P. [ 2000(1) JLJ 240 = 2000(I) MPJR 349 ]. He has also placed reliance on another decision of Supreme Court Kalyan Chandra Sarkar v. Rajesh Ranjan [2004 AIR SCW 1581], and has submitted that in view of these decisions, this third application of suspension of sentence should be listed before a Bench in which one of the member is Justice Rakesh Saksena. 6. Considered the argument. 7. He has also placed reliance on another decision of Supreme Court Kalyan Chandra Sarkar v. Rajesh Ranjan [2004 AIR SCW 1581], and has submitted that in view of these decisions, this third application of suspension of sentence should be listed before a Bench in which one of the member is Justice Rakesh Saksena. 6. Considered the argument. 7. On going through the record, it is revealed that Registrar (J) put up the matter on 28.11.2008 before Hon 'ble the Chief Justice with following note: "The IA No.14676/2008 is an application for suspension of sentence and grant of bail, moved on behalf of the accused appellant No.3, Satish Soni, in Criminal Appeal No. 1744[04. Earlier application for suspension of sentence was dismissed vide Court Order dated 19.1.2007, by a D.B. comprising Hon'ble Shri Justice S.S. Jha and Hon 'ble Shri Justice Rakesh Saksena. As per rule 15 of Chapter IV of the High Court Rules and Orders, 2008, all subsequent applications under sections 389(1),438 and 439 of the Code of Criminal Procedure, 1973, shall be listed before the same Judge/Bench who/which had decided the first application, even if earlier application was dismissed as not pressed or withdrawn. Hon'ble Shri Justice S.S. Jha has since demitted the office. Therefore, submitted before Hon'ble the Chief Justice, in Chamber, for constitution of a Bench." 8. Hon'ble the Chief Justice on 13.1.2009 on administrative side directed the matter to be listed before regular Division Bench. In this manner the present bail application has been listed before us. 9. In order to deal with the objection raised by learned Additional Advocate General, it would be relevant to quote rule 15 of Chapter IV which reads thus: . "15. Subsequent applications for bail. In this manner the present bail application has been listed before us. 9. In order to deal with the objection raised by learned Additional Advocate General, it would be relevant to quote rule 15 of Chapter IV which reads thus: . "15. Subsequent applications for bail. -- All subsequent applications under sections 389(1), 438 and 439 of the Code of Criminal Procedure, 1973, shall be listed before the same Judge/Bench who/which had decided the first application even if earlier application was dismissed for want of prosecution, or dismissed as not pressed or withdrawn." It would be apposite to quote clause (23) of rule 4 of Chapter I of the said Rules which defines "Tide up Matter" and which reads thus: (23) "Tied up Matter" means a matter, which, by virtue of any law, rule, order or judgment, is required to be heard by a particular Judge or Bench and includes - (1) an assigned case; (2) a part heard case; (3) repeat application for bail or suspension of sentence; (4) an application for cancellation of bail or suspension of sentence granted by the High Court; (5) an application for grant of leave to appeal to Supreme Court; (6) an application under section 340 of the Code of-Criminal Procedure, 1973; (7) an application for review of a final order or judgment; but shall not include an application for stay/interim relief, review/recall of an interlocutory order or for vacation/modification of stay/ interim relief. Rule 16 of Chapter IV of the said Rules reads as under: "16. Tied up Matters. -- Whenever a Judge is not available for any reason and in the opinion of the Chief Justice, a matter tied up to him, looking to its urgency, is required to be decided early and cannot wait, it shall not be treated as tied up and may be listed before another bench, as per directions of the Chief Justice." 10. Undoubtedly according to rule 15 of the Rules 2008 all subsequent applications for bail under section 389(1) CrPC are required to be listed before the same Bench which had decided the first application even if earlier application was dismissed for want of prosecution or dismissed as not pressed or withdrawn. On going through the definition of "Tied up Matters" it would reveal that the earlier orders passed by the Division Bench would come within the ambit and sweep of "Tied up Matters". On going through the definition of "Tied up Matters" it would reveal that the earlier orders passed by the Division Bench would come within the ambit and sweep of "Tied up Matters". But if rule 22 of the Rules of 2008 is considered in its stricto sensu it would reveal that the impact of this rule 22 is just like a proviso to the Rules of Chapter IV on account of having an non obstante clause. For better understanding it would be condign to quote rule 22 which reads thus: "22. Notwithstanding anything hereinbefore contained in these Rules, the Chief Justice may, by a special or general order, direct a particular case( s) or a particular class( es) of cases to be listed before a particular bench." 11. When a statute deals with a subject-matter which is productive of many difficulties, not all of which can be perceived and provided against in advance, anomalies cannot be treated as a satisfactory guide in matters of construction, and the Courts can do no more than look at the language used and give it a fair and reasonable construction. It must also be remembered that a Court would only be justified in departing from the plain word of the statute when it is satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such a legislative object; and (4) the language of the Statute is susceptible of the modification required to obviate the anomaly. Therefore, the Court cannot decline to give effect to clear and unambiguous language to avoid an anomaly even if it was the result of an omission on the part of the draftsman which went undetected. (See Principles of Statutory Interpretation by Justice G.P. Singh, Seventh Edition 112). 12. In Stock v. Frank Jones (Tipton) Ltd. [(1978)1 All ER 948], Lord Simon has expressed his view which we quote as under : "All this is not to advocate judicial supineness; it is merely respectfully to commend a self-knowledge of judicial limitations, both personal and constitutional. (See Principles of Statutory Interpretation by Justice G.P. Singh, Seventh Edition 112). 12. In Stock v. Frank Jones (Tipton) Ltd. [(1978)1 All ER 948], Lord Simon has expressed his view which we quote as under : "All this is not to advocate judicial supineness; it is merely respectfully to commend a self-knowledge of judicial limitations, both personal and constitutional. To apply it to the argument on behalf of the appellant based on anomaly, a Court would only be justified in departing from the plain words of the Statute where it satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly." Lord Viscount Dilhorne in the same judgment has held that : "It is now fashionable to talk of a purposive construction of a Statute but it has been recognized since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it. If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the Court to remedy the defect. That must be left to the legislature." 13. The contention of learned Additional Advocate General would have been absolutely correct and acceptable if on administrative side the Chief Justice would not have directed to list this third bail application before the regular Bench and in that situation certainly in view of rule 15 of the Rules of 2008, this repeat third bail application should have been listed in the Bench comprising of Justice Rakesh Saksena as one of the member. But, the Chief Justice by exercising powers conferred to it under rule 22 of the Rules of 2008 has directed to list this third bail application before this regular Bench and therefore, according to us, if rules 15 and 22 of the Rules of 2008 are kept in juxtaposition and are read conjointly, according to us, there is no overlapping or anomaly in between the two rules. Rule 15 has its full force and effectiveness if no order is passed by the Chief Justice by exercising powers conferred to it under rule 22 of the Rules of 2008. If, the Chief Justice exercises its powers conferred to it under the said rule 22, then full meaning to it should be given and thus we do not find any anomaly in the aforesaid Rules of 2008. 14. According to us, statute must be read as a whole and one provision of that particular statute should be construed with reference to other provisions of that statute so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within that particular provision or between a particular provision and other parts of the statute. It is the duty of the Courts to avoid "a head on clash" between two provisions of the same Statute and, "whenever it is possible to do so, to construe provisions which appear to connict so that they may harmonise". On bare reading of rule 15 and 16 of Chapter IV as well as clause (23) of rule 4 of Chapter I, we do not find any "head on clash" with rule 22 of Chapter IV of the Rules of 2008. The Supreme Court in University of Allalwbad and others v. AlIlrit Chand Tripathi and others [ AIR 1987 SC 57 ], in para 8 has categorically held that two provisions of a statute should be construed harmoniously so as to eliminate any conflict without rendering an) provision of that statute superfluous. In another decision Krishan Kumar v. State of Rajasthan and others [ AIR 1992 SC 1789 ], again the Supreme Court has reiterated the same principle by holding that where there appear~ to be inconsistencies in two sections of the same Act, the principle of harmonious construction should be followed in avoiding a "head on clash". In another decision Krishan Kumar v. State of Rajasthan and others [ AIR 1992 SC 1789 ], again the Supreme Court has reiterated the same principle by holding that where there appear~ to be inconsistencies in two sections of the same Act, the principle of harmonious construction should be followed in avoiding a "head on clash". The Supreme Court further held that the provision of one section of statute cannot be used to deviate those of another unless it is impossible to reconcile the same. The Supreme Court in this decision also placed reliance on its earlier decision in Venkataramana Devaru v. State of Mysore [ AIR 1958 SC 255 ]. We think it apposite to quote para 11 of the decision of Krishan Kumar (supra), which reads thus: "11. It is settled principle of interpretation that where there appears to be inconsistency in two sections of the same Act, the principle of harmonious construction should be followed in avoiding a head on clash. It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other. The provisions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same. In Venkataramana Devaru v. State of Mysore [ AIR 1958 SC 255 at p.268], this Court observed: "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction." The essence of harmonious construction is to give effect to both the provisions. Bearing these principles in mind it is legitimate to hold that section 100(4) prescribed period of limitation of one year in respect of the scheme proposed under the provisions of the new Act, while in the case of a scheme under section 68C of the old Act, pending on the date of enforcement of the new Act, namely, 1.7.1989, the period of one year as prescribed under section 100(4) should be computed from the date of commencement of the new Act. This interpretation would give full effect to both the sections -- section 100(4) and section 217(2)(e) of the new Act." 15. This interpretation would give full effect to both the sections -- section 100(4) and section 217(2)(e) of the new Act." 15. Hence, according to us, the provisions of one provision of the Rules of 2008 cannot be used to defeat those of another "unless it is impossible to effect reconciliation between them". In this context we may also profitably place reliance on decision of Supreme Court D. Sanjeevayya v. Election Tribunal, Andhra Pradesh and others [ AIR 1967 SC 1211 ]. 16. At this juncture we are also placing reliance on Halsbury's Law of England (fourth edition) para 845 at page 513, in which it has been mentioned that while construing and interpreting a particular provision of law the ordinary meaning of the words should be taken into account. We think apposite to quote the relevant portion of para 845 which reads as under : "The fact that a particular meaning may be assigned to a term for the purposes of a particular statute by an interpretation section contained in it does not necessarily alter the generally accepted meaning of the term when used for other purposes. In the construction of an interpretation section it must be presumed that Parliament has been specially precise and careful in its choice of language, so that the rule that words are to be interpreted according to their ordinary and natural meaning carries special weight." It will also be fruitful to borrow sufficient light from para 856 at page 522 which speaks about the ascertaining the intention of Parliament and we think apposite to quote that para also: "856. Ascertaining the intention of Parliament. The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument. The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. This intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not represent the real intention of Parliament." We are also placing reliance on para 860 at page 524 which speaks about the construction of statute so as to make it operative. 860. 860. Statutes must be so construed so as to make them operative. -- If it is possible, the words of a statute must be construed so as to give them a sensible meaning. A statute must, if possible, be construed in the sense which makes it operative and does not defeat the manifest intentions of the legislature, and nothing short of impossibility so as to construe it should allow a Court to declare a statute unworkable. Thus where a statute has some meaning, even if it is obscure, or several meanings, even though there is little to choose between them, the Court must decide what meaning the statute is to bear, rather than reject it as a nullity. It is not permissible to treat a statutory provision as void for mere uncertainty; however, if the uncertainty cannot he resolved, and the provision can be given no sensible or ascertainable meaning it must be regarded as meaningless. Where the main object and intention of a statute are clear, it should not be reduced to a nullity by a literal following of language, which may be due to want of skill or knowledge on the part of a draftsman, unless such language is intractable." [emphasis supplied] 17. Indeed, according to us there is no "head on clash" between the aforesaid rules for the simple reason that rule 22 of Chapter IV is having a non obstante clause authorizing the Chief Justice to pass a special or general order directing to hear a particular case(s) or a particular class(es) of cases to be listed before a particular' Bench and this non obstante clause, according to us, should be construed as proviso to other rules. The non obstante clause in said rule 22 is in the beginning of that rule in order to give a view enacting part of the section in case of conflict and overriding effect over the other rules mentioned in non obstante clause. Thus according to us a non obstante clause may be used as legislative device to modify the ambit of the provision of law mentioned in the non obstante clause or to override any specified circumstance. Thus according to us a non obstante clause may be used as legislative device to modify the ambit of the provision of law mentioned in the non obstante clause or to override any specified circumstance. On this point, we may profitably place reliance on three decisions of Supreme Court they are Union of India and another v. G.M. Kokil and others [ AIR 1984 SC 1022 , para 10], Pannalal Bansilal Patil and others v. State of Andhra Pradesh and another [ AIR 1996 SC 1023 , para 22], and T.R. Thandur v. Union of India and other [ AIR 1996 SC 1643 , para 8]. The decision of G.M. Kokil (supra), was further placed reliance by the Supreme Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. and another [ (2005)7 SCC 234 . 18. Thus for all practical purposes rule 22 of Chapter IV of the Rules of 2008 on account of its non obstante clause is having overriding effect over the other rules and we accordingly hold so. 19. We do not find any merit in the contention of learned Additional Advocate General that in view of the decisions of the Supreme Court as well as the Full Bench decision of this Court placed reliance by him the rule 22 should not have been enacted and it cannot override the law laid down in those decisions. The State has not challenged any vires of this rule and therefore the said contention cannot be decided while hearing this repeat application of bail. 20. The preliminary objection raised by learned Additional Advocate General is overruled. 21. Since none is appearing on behalf of appellant No.3, hearing of IA No. 14676/2008 is hereby adjourned.