TMI Blog2004 (7) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... nection with the alleged occurrence. 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(l)(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. As an application for extending the police remand was rejected a Criminal Revision was filed before the Sessions, Judge, Panchamahal, Godhra. The Special Court was constituted under Section 23 of the POTA on 6.3.2003. Sanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigating officer will have no scope to seek for police custody beyond the 30 days period; The same can never be the legislative intent. In order to appreciate the rival submissions, the provisions of Section 167(2) of the Code of Section 49(2)(b) of POTA need to be extracted. Section 167(2) along with its proviso reads as follows : Section 167(2): The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of 15 days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody. If the arguments of learned counsel for the appellant is accepted it would mean that what is specifically prov'ded in Section 49(2)(b) would be controlled by Section 167(2) of the Code. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey, [1880] 5 QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR (1961) SC 1596 and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta, AIR (1965) SC 1728); 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 precedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s. Price Waterhouse and Anr. AIR (1998) SC 74. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner, [1846] 6 Moore PC l, Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr., JT (1998) 2 SC 253). It is contrary to all rules of construction to read words into an Act unless i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. An intention to produce an unreasonable result , said Danackwerts, L.J. in Artemiou v. Procopiou, [1966] l QB 878, is not to be imputed to a statute if there is some other construction available . Where to apply words literally would defeat the obvious intention of the legislature and produce awholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC, [1966] AC 557 where at p. 577 he also observed: this is not a new problem, though our standard of drafting is such that it rarely emerges . It is then true that, when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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