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2004(6) Supreme 61
SUPREME COURT OF INDIA
(From Gujarat High Court)
S.N. Variava & Arijit Pasayat, JJ.
Maulavi Hussein Haji Abraham Umarji -Appellant
versus
State of Gujarat & Anr. -Respondents
Criminal Appeal No. 759 of 2003
Decided on 29-7-2004
Counsel for the Parties :
For the Appellant : Colin Gonsalves, Sr. Advocate, Ms. Aparna Bhat and Vipin M. Benjamin Advocates.
For the Respondent : U.U. Lalit, Sr. Advocate, Aruna Gupta and Mrs. Hemantika Wahi, Advocates.
Held : The proviso inserted by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2) of the Code and not in respect of Section 167(2). Therefore, what is introduced by way of an exception by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2)(b). That being the position, the interpretation suggested by learned counsel for the appellant cannot be accepted. It is to be noted that the acceptance of application for police custody when an accused is in judicial custody is not a matter of course. Section 49(2)(b) provides inbuilt safeguards against its misuse by mandating filing of an affidavit by the investigating officer to justify the prayer and in an appropriate case the reason for delayed motion. Special Judge before whom such an application is made has to consider the prayer in its proper perspective and in accordance with law keeping in view the purpose for which the POTA was enacted, the reasons and/or explanation offered and pass necessary order. Therefore, the apprehension of learned counsel for appellant that there is likelihood of misuse of the provision is without substance. In any event, that cannot be a ground to give an extended meaning to the provision in the manner suggested by the learned counsel for the appellant. (Para 22)
(ii) INTERPRETATION OF STATUTE -Proviso to a section-Proviso is added to qualify or create an exception to what is in the enactment-It carves out an exception to main provision to which it has been enacted as proviso and to no other.
Held : When one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso." Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647) (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (Para 10)
JUDGMENT
Arijit Pasayat, J.-The scope and ambit of Section 49(2) of the Prevention of Terrorism Act, 2002 (in short the POTA ) fall for consideration in this appeal. Since the legal issue involved in this appeal relates to the question as to during what period prayer for police custody can be made, brief reference to the factual aspects is sufficient.
2. On 27.2.2002 some persons died at Godhra in the State of Gujarat and several persons were injured when allegedly a train was attacked and set ablaze. The first information report was lodged and various persons were arrested in connection with the alleged occurrence.
3. Initially, the case was registered for alleged commission of offences punishable under various provisions of Indian Penal Code, 1860 (in short the IPC ), Indian Railways Act, 1989 (in short the Railways Act ) and the Prevention of Damage to Public Property Act, 1984 (in short the Public Property Act ) read with Section 135 of the Bombay Police Act, 1951 (in short the Bombay Act ). Subsequently, an application was filed in the Court of Judicial Magistrate, First Class, Railway seeking addition of offences punishable under Section 3(1)(a), (b) and 3(2) of the POTA. The appellant was arrested on 6.2.2003. He was remanded to police custody till 11.2.2003 and subsequently the police custody was extended till 13.2.2003. As the application for addition of offences covered by POTA was not pressed earlier, a subsequent application was filed and the Additional Sessions Judge accepted the prayer.
4. As an application for extending the police remand was rejected a Criminal Revision was filed before the Sessions Judge, Panchmahal, Godhra. The Special Court was constituted under Section 23 of the POTA on 6.3.2003. Sanction order as required under Section 50 of POTA was also passed so far as the appellant is concerned. The revision application which was filed questioning rejection of the prayer for police custody was withdrawn and an application in terms of Section 49(2)(b) of POTA was filed on 24.4.2003. The prayer was accepted by the learned Special Judge, POTA. Questioning legality of the said order, an appeal under Section 34(1) of POTA was filed before the High Court of Gujarat which came to be dismissed by the impugned judgment.
5. Mr. Colin Gonsalves, learned senior counsel appearing for the appellant submitted that true import of Section 49(2) has not been kept in view by the Special Court and High Court. The same is not intended to give unbridled power to the investigating agency to seek police custody. That would negate the statutory limit provided in Section 167 of the Code of Criminal Procedure, 1973 (in short the Code ). For harmonizing construction of the provisions it has to be held that Section 49(2)(b) has application only for the period of 30 days and not beyond it. If the construction put by the High Court is accepted, it would mean that for a period slightly less than 180 days the accused can be in police custody which can never be the legislative intent. Section 49(2)(b) is at the most a procedural provision intended to aid the operation of Section 167(2) of the Code and it cannot be given an extended meaning which would frustrate the legislative intent to restrict the period of police custody.
6. Great emphasis is laid on the expression "in police custody for a term not exceeding 15 days in the whole" in sub-section (2) of Section 167 and "otherwise than in the custody of the police, beyond the period of 15 days" in the first proviso of sub-section (2) of Section 167. It is submitted that in Section 49(2)(a) the period of "15 days" in Section 167(2) of the Code has been substituted to be "30 days". Therefore, according to learned counsel for the appellant, Section 49(2)(b) can be resorted to only during the period of 30 days.
7. In response, learned counsel for the respondents submitted that if the interpretation suggested by learned counsel for the appellant is accepted it would make the second proviso to
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