TMI Blog2006 (11) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... In any event the High Court communicated the said order to the Court of learned Magistrate where the matter was pending. The Sub-Divisional Magistrate, Golaghat was bound to act accordingly. The complainant was aware that a certificate had been granted. She could have preferred an appeal there against within a period of 60 days from the date of communication of the said order. She did not choose to do so. Her right to appeal as against the correctness or otherwise of the order granting certificate is, thus, also lost. 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. 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 point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 The said Ordinance was repealed and replaced by the Code of Criminal Procedure (Assam Amendment) Act, 1983 (the Act), which was published in the Assam Gazette on 8.2.1984.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. Before embarking upon the issues involved in this appeal, we may, at this juncture, notice that by reason of 'the Ordinance' an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that where a reference is received from a Court, the State Government shall issue a certificate to the Court stating that the accused person was or was not acting or purporting to act in, or in connection with discharge of his official duty. Clause (ii) thereof provides that if the State Government certifies that the accused was acting or purporting to act in or in connection with the discharge of his official duty, the Court shall dismiss the complaint or discharge the accused. After Section 439, Section 439-A was added by reason whereof restrictions were imposed on the power of the Court to grant bail. 6. In terms of the aforementioned provisions contained in Sub-section (6) of the Code of Criminal Procedure (Assam Amendment) Act, 1983, on or about 2.8.1993 a reference was made to the Government by the learned Magistrate purporting to be for issuance of a certificate as envisaged under Section 197(5)(a) of the Code as amended. It now appears that such certificate was granted by the State Government in the form prescribed under Section 197(6)(i), which reads as under: GOVERNMENT OF ASSAM HOME (A) DEPARTMENT NO. : HMA.465/83/31, Dated Dispur, the 20th November, 1985 From : Shri H.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any authority under the Act repealed, all cases will be deemed to have been pending before the Court competent to try such cases under the Code of Criminal Procedure Act, 1973 and the said cases before any Executive Magistrate or before any other Court or authority shall stand transferred to the Court competent to try such cases under the Code of Criminal Procedure Act, 1973 and the said Court shall proceed to try such cases in accordance with the provisions of the Code of Criminal Procedure Act, 1973. According to Appellant, he came to know that the State of Assam had accorded sanction on 27.4.1987 in the complaint case of the Second Respondent without taking into consideration the purported certificate which was issued on 20.11.1985. Pursuant and in furtherance of grant of sanction against Appellant the proceedings before the learned Sub-Divisional Judicial Magistrate, Golaghat were reopened on 16.5.1987. 9. Keeping in view the fact that the matter was also pending investigation, a plea for postponement of the proceedings in the complaint case was prayed for by another accused. By an order dated 9.9.1987, the complaint case was adjourned sine die, stating: The complaint again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government had refused to accord sanction against the accused persons. As soon as the police case came to an end, the complaint case was re-opened purported to be on the basis of the sanction granted by the State on 24.7.1987. 10. Appellant approached the Gauhati High Court for quashing all the proceedings which prayer, by reason of the impugned judgment, has been refused. The High Court in its judgment, inter alia, opined that once sanction had been granted by the State of Assam, there was no bar in proceeding with the complaint case. In regard to the purported certificate granted by the State that Appellant was on his duty and therefore, could not have been proceeded against, it was opined that the said certificate having not been communicated to the Sub-Divisional Magistrate, Golaghat, the case remained pending and thus, it could have been lawfully reopened, stating: From the impugned order, we find that the learned Addl. Chief Judicial Magistrate, Golaghat did not accept the Final report as such and kept the same in abeyance and decided to proceed with the Case No. 688/83. In the present revision, the petitioner has prayed for quashing of the proceeding in CR Case No. 688/83 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, be any doubt whatsoever that before such a final order is passed, the certificate is to reach the hands of the Court. The Certificate in question, as noticed hereinbefore, was addressed to the Sub-Divisional Magistrate, Golaghat. It appears that the same was sent under registered cover with acknowledgment due. However, there is no evidence on record to show that it was actually handed over to the postal authorities. Be that as it may, it is evident from the order dated 5.12.1985 passed by the High Court in Criminal Revision Petition No. 386 of 1985 that a communication of the said order was directed to be made. We may, therefore, presume that the State of Assam did send the said communication. In any event the High Court communicated the said order to the Court of learned Magistrate where the matter was pending. The Sub-Divisional Magistrate, Golaghat was bound to act accordingly. 12. The sanction to prosecute the Appellant was refused in the police case. It was, however, granted in the complaint case. Under what circumstances the latter decision was taken is not known. We are, however, concerned with the effect of grant of the certificate. The expression used in Clause (i ..... 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Where any Act repeals any enactment hitherto made, or hereafter to be made, then, unless a different intention appears, the repeal shall not- a) revive anything not in force or existing at the time at which the repeal takes effect; or b) alter the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed; or d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed. It is now well settled that such Repealing Act shall be construed to have not taken away the accrued right of a person. In G.P. Singh's Principles of Statutory Interpretation (10th Edn.) 2006 at Page 631, it is stated: Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am 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. What would be a vested or accrued right has been dealt with in : (1) Pitta Naveen Kumar and Ors. v. Raja Narasaiah Zangiti and Ors. (2006)10SCC261 ; (2) U.P. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. (3) Dr. Saurabh Choudri and Ors. v. Union of India and Ors. AIR2004SC2212 ; (4) Prafulla Kumar Das and Ors. v. State of Orissa and Ors. AIR2003SC4506 . For interpretation of a statute of this nature, doctrine of purposive construction may have to be taken recourse to. {See (1) Bombay Dyeing Mfg. Co. Ltd.(3) v. Bombay Environmental Action Group and Ors. AIR2006SC1489 ; (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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