IMPORTANT POINT
Repealing Act shall be construed to have not taken away the accrued right of a person.

Headnote:Criminal Procedure Code, 1973 - Section 197 (As amended by State of Assam by Code of Criminal Procedure (Assam Amendment) Act, 1983 - Statutory obligation on Court to postpone issue of process against accused if he was a public servant belonging to class or category specified under the provision and make reference to State Govt. - Once the State Govt. certified that accused was acting or purporting to act in or in connection with discharge of his official duty, Court was to dismiss complaint - In an exchange of fire between police and alleged extrimists, 7 miscreants were killed and 12 others were arrested who were charge-sheeted - Daughter of one of the dead miscreants filed complaint against appellant and another police official for offence - Appellant was Superintendent of Police at relevant time - Magistrate made reference to State Govt. for issuance of certificate as envisaged u/s 197(5)(a) of the Code - State Govt. issued certificate that appellant was acting in discharge of official duty - State Govt. passed Repealing Act, 1986 where by amendment Act, 1983 was repealed - State Govt. accorded sanction on 27-4-1987 in the complaint case where by proceedings before Magistrate were reopened - High Court refused to quash proceedings holding that once sanction had been granted there was no bar in proceeding with complaint - Appeal - Once the certificate was given by State Govt. in terms of Section 197 sub-section (6) clause (ii), Court had no other option but to dismiss complaint - Accused derived a vested or accrued right as soon as said certificate was issued - Repealing Act shall be construed to have not taken away the accrued right - Impugned judgment could not be sustained.
       Held : The provisions of the Act, in terms whereof, Sub-Section (5) of Section 197 was inserted, Court was under a statutory obligation to postpone issue of process against the accused and make a reference to the State Government, if he was a public servant belonging to any class or category specified under Sub-Section (3). A further statutory obligation was also imposed upon the Court to stay further proceedings as against the public servant upon making a reference to the State Government. On receipt of a reference, the State Government has no other option, but, to issue a certificate one way or the other. Once the State Government certifies that the accused was acting or purporting to act in or in connection with the discharge of his official duty, it was imperative on the part of the Court to dismiss the complaint or discharge the accused, as the case may be. There cannot, however, be any doubt whatsoever that before such a final order is passed, the certificate is to reach the hands of the Court.(Para 18)
       We are, however, concerned with the effect of grant of the certificate. The expression used in Clause (ii) of Sub-Section (6) of Section 197 of the Assam Amendment Act is "If the State Government certifies". Once such a certificate is given, the Court has no other option but to dismiss the complaint. In view of the phraseology used in Clause (ii) of Sub-Section (6) of Section 197, as inserted by the Assam Amendment Act, 1984, there cannot be any doubt whatsoever that the accused derives a vested or accrued right as soon as the said certificate is issued. However, the said right would be brought into effect only when the same is actually communicated.(Para 20)
       The High Court furthermore committed a manifest error in opining that by reason of Section 3 of the Assam Repealing Act the right of the appellant was taken away. When Act is repealed, Section 6 of the Assam General Clauses Act, 1915, subject to just exception shall come into force.(Para 23)
       It is now well settled that such Repealing Act shall be construed to have not taken away the accrued right of a person. (Para 24)
       Furthermore, by reason of Section 3 of the Assam Repealing Act, the right of the accused accrued to him is not taken away. Section 3 deals with transfer of cases. Although, the marginal note of a statutory provision may not ordinarily be taken recourse to for interpretation thereof; in case of ambiguity, reference thereto would not be irrelevant. As Section 3 has been enacted only for the transfer of cases from the court of Executive Magistrate to a competent Court, the same, in our opinion, is a clear pointer to show that the State in enacting the Repealing Act, 1986 did not have any intention to deprive a person of his accrued or vested right. (Para 29)

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Interpretation and application of the provisions of the Criminal Procedure Code, 1973 as amended by the State of Assam by the Code of Criminal Procedure (Assam Amendment) Act, 1983 and the Criminal Procedure Code (Assam Repealing) Act, 1986 falls for consideration in this appeal which arises out of a judgment and order dated 8.3.2006 passed by the Gauhati High Court in Criminal Revision Petition No.748 of 2005. Appellant was working as a Superintendent of Police in Assam in the year 1983. The State of Assam, allegedly, witnessed ethnic violence in the said year. The entire State of Assam was engulfed in ethnic clashes as the elections were being opposed by a section of agitators. The incidence of violence including one at Nelli and other adjoining districts, viz., Nargaon and Gopur Sunitpur had left more than 3000 persons from all communities dead. A purported report was received that a large number of extremist elements were hiding in the jungle for the purpose of attacking the police post and the minority refugee camp. Appellant herein backed with other CRPF personnel, allegedly went to the place of hiding and were waylaid by 500-600 extremists. Police party was sought to have been attacked by the extremists with guns, bows, etc. The CRPF personnel returned the fire in which 7 miscreants died and 12 others were arrested. A First Information Report bearing No.235/83 was registered against 12 accused persons under Section 147/148/149/302/436/324/326 of the Indian Penal Code in relation to the said incident. A charge-sheet was filed in the Court of learned Magistrate upon completion of investigation. Charges were framed by the learned Sessions Judge. In regard to the death of the aforementioned 7 persons, however, first respondent, daughter of Dimbeswari Saikia, lodged a complaint before the Judicial Magistrate, 1st Class, Golaghat against appellant, who was at the relevant point of time Superintendent of Police and other police officials. In the said complaint petition, apart from Appellant one T.K. Nag, Inspector Police Camp, Rajabari Tea Garden was also made an accused. It was contended by the first respondent that her deceased husband was taken out from the house at 8.30 in the night. He was caught and assaulted and ultimately, Mony Saikia, Jiten Saikia, Tileswar Saikia, Reba Kr. Saikia, Tikhar Ch. Baruah, Hiren Saikia and Bhadreswar Saikia were killed. Only Kamal Hazarika, witness No.1, managed to escape although he sustained bodily injuries.

3. The Government of Assam promulgated an Ordinance on 7.7.1983 being Assam Ordinance No.III of 1983 (the Ordinance), in terms whereof the provisions of Sections 167, 197 and 439 of the Criminal Procedure Code were amended. The said Ordinance was repealed and replaced by the Code of Criminal Procedure (Assam Amendment) Act, 1983 (the Act), which was published in the Assam Gazette on 8.2.1984. The assent of the President of India was received in respect of the said Act.

4. Before embarking upon the issues involved in this appeal, we may, at this juncture, notice that by reason of the Ordinance and the Act, in addition to the Judicial Magistrate, Executive Magistrates were also empowered to try cases involving offences specified therein. Amendments in the Code of Criminal Procedure to the said effect were carried out, as would be noticed immediately hereinafter.

5. In Sub-Section (1) of Section 167 of the Criminal Procedure Code, the reference to "Judicial Magistrate" was construed as reference also to "Executive Magistrate". In Section 190 of the Criminal Procedure Code, in Sub-Section (1) the words "any Executive Magistrate" were inserted after "any Magistrate of the first class". In Section 191 of the Criminal Procedure Code, the reference to "Chief Judicial Magistrate" in relation to an offence taken cognizance of by an Executive Magistrate, were construed as a reference to the District Magistrate. In Sub-Section (1) of Sec

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2006 Supreme(SC) 1103

IMPORTANT POINT Repealing Act shall be construed to have not taken away the accrued right of a person.

Cases Referred (11)

IMPORTANT POINT
Repealing Act shall be construed to have not taken away the accrued right of a person.