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2014 DIGILAW 514 (ORI)

Janmejaya Sahu v. State of Orissa

2014-08-20

S.K.MISHRA

body2014
ORDER 20.08.2014Heard learned counsel for the petitioners, Mr. Dhananjaya Mund and learned Addl.Standing Counsel, Mr. Anupam Rath. This order arises out of an application under Section 438 of the Code of Criminal Procedure, 1973 (for short ‘the Code’). The petitioners are apprehending arrest for the alleged commission of offence under Sections 341, 323, 324 and 294/34 of the I.P.C. The learned Addl.Standing Counsel submits that since all the offences are bailable in nature, an application for anticipatory bail is not maintainable. However, the learned counsel for the petitioners submits that, as per the Criminal Amendment, 2005, Section 324 IPC has been made non-bailable. It was also contended that in the case, out of which this present application arises, two other persons were arrested and produced before the learned S.D.J.M., Athamallik treating the offence under Section 324 IPC to be non-bailable. The learned Magistrate has remanded the accused persons to judicial custody. The present petitioners are apprehending arrest for commission of the aforesaid offences in G.R. Case No.200/2014 of the Court of S.D.J.M., Athamallik, arising out of Handapa P.S. Case No.79/2014. The Delhi High Court in an unreported case of Mr. Chandra Kanjappa Kuchchikurwe v. State of Maharashtra and another had the occasion to examine whether the offence under Section 324 IPC is non-bailable in nature. After taking into consideration the scheme of amendment, it has held that Section 324 IPC, as it stands today, is bailable in nature. By the Code of Criminal Procedure (Amendment) Act of 2005, (Act No.25 of 2005), extensive amendments to the Code of Criminal Procedure, 1973, (Code) were introduced. By Section 42 of the said Act, the First Schedule to the Code was amended. By Clause (f) (iii) thereof, the offence punishable under Section 324 of the IPC was made “non-bailable.” However, the said Act did not come in force, at once. Sub-Section (2) of Section 1 of the said Act provided as follows : (2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in the Official Gazette appoint. By the Code of Criminal Procedure (Amendment) amending Act, 2006 (Act 25 of 2006), the aforesaid Amendment Act of 2005 came to be amended. Section 2 of the 2006 Act (Act 25 of 2006), provided for amendment of Section 1 of the 2005 (Act 25 of 2005). By the Code of Criminal Procedure (Amendment) amending Act, 2006 (Act 25 of 2006), the aforesaid Amendment Act of 2005 came to be amended. Section 2 of the 2006 Act (Act 25 of 2006), provided for amendment of Section 1 of the 2005 (Act 25 of 2005). By the said Section, Sub-Section (2) of the 2005 Act was amended as follows : 2. Amendment of Section 1 of Act 25 of 2005 - In the Code of Criminal Procedure (Amendment) Act, 2005, in Section 1, Sub-Section (2), after the words “by notification in the Official Gazette, appoint:”, the words “and different dates may be appointed for different provisions of this Act” shall be inserted. After the amendment, Sub-Section (2) of Section 1 of the 2005 Act (Act 25 of 2005) reads as under : (2) Save as otherwise provided in this Act, it shall come into force on such date as the Central Government may, by notification in the Official Gazette appoint, and different dates may be appointed for different provisions of this Act. Thus, provision was made for different dates being appointed for bringing different provisions of the said 2005 Act in force. Notifications bringing various provisions of the 2005 Act in force have been issued from time to time. The question that arises is whether the provisions of Clause (f)(iii) of Section 42 of the 2005 Act have been brought in force by appointing a date therefor. It transpires that no notification giving effect to the said amendment i.e. making the offence punishable under Section 324 of the IPC “non-bailable” has been issued by the Central Government, so far. If no notification giving effect to the amendment in question i.e. amendment to the Fifth Column in the entry relating to “Section 324 of the IPC, has been issued till today, (such position is evident from the table of amendments given at Page-AIX of the Criminal Manual written by Justice M.R. Mallick) it means that the offence punishable under Section 324 of the IPC, continues to be a “bailable” offence. All the offences allegedly committed by the applicant are bailable. As such an application for anticipatory bail is not maintainable. Hence, the petitioners are given liberty to surrender before the learned S.D.J.M., Athamallik within 21 days and pray for bail. On such event, their application shall be considered in the light of the aforesaid observations. All the offences allegedly committed by the applicant are bailable. As such an application for anticipatory bail is not maintainable. Hence, the petitioners are given liberty to surrender before the learned S.D.J.M., Athamallik within 21 days and pray for bail. On such event, their application shall be considered in the light of the aforesaid observations. The BLAPL is disposed of accordingly. Urgent certified copy of this order be granted as per rules. BLAPL disposed of.