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High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. P GOVINDAN NAIR, THE HONOURABLE MR. JUSTICE ISMAIL, THE HONOURABLE MR. JUSTICE KOSHAL, THE HONOURABLE MR. JUSTICE RAMANUJAM & THE HONOURABLE MR. JUSTICE RAMAPRASADA RAO
M. Karunanidhi, Accused - Appellant
Versus
Union of India - Respondent
Case No : Criminal Revn. Case No. 50 of 1977
Decided On : 10 May 1977
CRIMINAL LAW - OFFENCES - PUBLIC MEN (CRIMINAL MISCONDUCT) ACT, 1973 (TAMIL NADU ACT 16 OF 1973) - S. 3 - OFFENCES UNDER - WHETHER REPEALED BY THE CENTRAL LAWS, VIZ., THE INDIAN PENAL CODE, 1860 (ACT 45 OF 1860), THE PREVENTION OF CORRUPTION ACT, 1947 (ACT 2 OF 1947) AND THE CRIMINAL LAW (AMENDMENT) ACT, 1952 (ACT 46 OF 1952) - HELD, NO - OFFENCES UNDER THE STATE ACT ARE DISTINCT AND SEPARATE AND OF A DIFFERENT IMPORT FROM THOSE UNDER THE CENTRAL LAWS - NO REPEAL OF THE STATE ACT BY THE CENTRAL LAWS - ART. 254(2) OF THE CONSTITUTION NOT ATTRACTED.
Fact of the Case:
The petitioner, the former Chief Minister of Tamil Nadu, was charged with various offences under the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 (State Act). He challenged the validity of the State Act on the ground that it was repugnant to the Central Laws, namely, the Indian Penal Code, 1860 (IPC), the Prevention of Corruption Act, 1947 (PCA) and the Criminal Law (Amendment) Act, 1952 (Criminal Law Amendment Act), and therefore, void under Art. 254(2) of the Constitution. He also contended that he was not a public servant and, therefore, could not be charged under the State Act.
Finding of the Court:
The Court held that the offences under the State Act were distinct and separate and of a different import from those under the Central Laws. The Court further held that the State Act was not repugnant to the Central Laws and, therefore, Art. 254(2) of the Constitution was not attracted. The Court also held that the petitioner was a public servant and, therefore, could be charged under the State Act.
Issues: 1. Whether the State Act was repugnant to the Central Laws and, therefore, void under Art. 254(2) of the Constitution? 2. Whether the petitioner was a public servant and, therefore, could be charged under the State Act?
Ratio Decidendi: 1. The Court held that the offences under the State Act were distinct and separate and of a different import from those under the Central Laws. The Court further held that the State Act was not repugnant to the Central Laws and, therefore, Art. 254(2) of the Constitution was not attracted. The Court relied on the following principles: (a) The test to be applied to find out whether the provisions of a State law are repugnant to the provisions in a Central law, for the purpose of Art. 254(2) of the Constitution, is the same as the test to be applied for implied repeal of an earlier law by a later legislative enactment resulting from irreconcilable inconsistency. (b) Irreconcilable inconsistency can arise, either from incompatibility between specific provisions in two enactments that of a Paramount Legislature and of a State Legislature, or because the Act of the Paramount Legislature was a complete code occupying the entire field of legislation on the subject or because, though the paramount Legislature did not make provisions for all the matters that could be provided for within the field of legislation but clearly indicated its intention to occupy the entire field, and the State Legislature made provisions in a State enactment for matters which would fall within the area of the Paramount Legislature, and thus provided a law for matters on which the Paramount Legislature evinced a clear intention not to have any law. (c) The State Act is intended to provide a high-power machinery for investigation into allegations of 'criminal misconduct' made against public men as defined in the Act, by a member of the public. The provisions in the State Act are intended to be supplementary to or cumulative upon the Central laws. (d) The offences under the State Act are distinct and separate and of a different import from those under the Central Laws. The status and character of the person who commits the offence is also an ingredient of the offence. The person committing an offence under S. 3 of the State Act must be a 'public man' as defined in that Act, while the person committing an offence under the Central Laws must be a 'public servant' as defined in S. 21 of the IPC. 2. The Court held that the petitioner was a public servant and, therefore, could be charged under the State Act. The Court relied on the following principles: (a) The definition of 'public servant' in S. 21(12) of the IPC is wide enough to include a Chief Minister. (b) The Supreme Court has held in Dattatraya Narayan Patil v. State of Maharashtra that a Minister is a public servant.
Final Decision: The Court dismissed the petitions challenging the validity of the State Act and the charges against the petitioner.
GOVINDAN NAIR, C.J.
Thiru M. Karunanidhi former Chief Minister of Tamil Nadu, is the petitioner in the criminal revision case as well as in the criminal miscellaneous petition. The revision is directed against the order of the Special Judge appointed under S. 6 of the Criminal Law Amendment Act, 1952, disposing of Cri. M.P. No. 2384 of 1976 in C.C. No. 27 of 1976. The prayer in Cri. M.P. No. 2384 of 1976 was to discharge the petitioner under S. 239 of the Cri.P.C., 1973. By the order sought to be revised the prayer was refused Cri. M.P. No. 429 of 1977 purports to be under S. 482 of the Cri.P.C. 1973, and the prayer therein is that the proceedings of the Special Judge in C.C. No. 27 of 1976 on his file be quashed.
2. The arguments advanced in the revision as well as in the criminal miscellaneous petition were the same and the revision case and the criminal miscellaneous petition are therefore being disposed of by this common judgment.
3. The Acts with which we are concerned are the I.P.C., the Code of Criminal Procedure, 1973, the Prevention of Corruption Act, 1947, the Criminal Law (Amendment) Act, 1952, and the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973. We shall refer to these enactments hereafter as the Penal Code, the Procedure Code, the Corruption Act, the Criminal Law (Amendment) Act, and the State Act and to the first four compendiously as the Central Laws.
4. The main points urged by counsel on behalf of the petitioner were : (i) The State Act contained provisions repugnant to the Central Laws, the Penal Code, the Procedure Code and the Corruption Act, and in view of Art. 254(2) of the Constitution, the State Act alone could be applied and investigated for offences thereunder can only be done under the State Act. The investigation made under the Procedure Code, which led to the first information report, and the sanction under S. 197 of the Procedure Code as well as the criminal complaint before the Special Judge are therefore without the authority of law. (ii) Even assuming that the Procedure Code and the Corruption Act were available, no action could be taken against the petitioner for most of the offences under the sections under which he had been charged, because he is not a public servant.
5. During the course of the arguments, which ranged over a very wide field the interpretation to be placed on S. 29 of the State Act, as it stood before and after it was amended in 1974 was dealt with. It was suggested that, if Section 29 as amended is interpreted to mean that the provision would enable action being taken for offences, falling under S. 3 of the State Act under the Central Laws, S. 29 itself would be invalid as it would be against the provisions of Art. 254(2) of the Constitution. Another argument urged in this connection was that S. 29 of the State Act having been enacted at a time when Art. 14 of the Constitution had not been suspended consequent on the Emergency, the section must be interpreted as not authorising actions being taken under the State Act or the Central laws indiscriminately. Only such an interpretation would make the section conform to the requirement of Art. 14 and every law made must be presumed to be made subject to Constitutional provisions and an interpretation which would violate any provision of the Constitution should not be placed on the section. It was further contended that the suspension of Art. 14 of the Constitution consequent on the declaration of Emergency was only with respect to what was termed as "Emergency Laws" and that the suspension would not, therefore, apply to the State Act, as it is not an Emergency Law, but one passed long before the Emergency was declared and hence, if S. 29 of the State Act permitted one or the other of the procedure, one under the State Act and the other under the Central laws, the State Act would be discriminatory and violative of Art. 14 of the Constitution and hence ultra vires the Constitution.
6. We shall now refer to the sali
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