Case Note & Summary
The petitioner, Shri Vishwajit P. Rane, filed a Criminal Writ Petition under Article 226 of the Constitution of India challenging a Notification dated 29th April/11th May, 2004 issued by the Government of Goa. The notification, purportedly under Section 10 of the Criminal Law Amendment Act, 1932, declared that offences punishable under Sections 186, 189, 228, 298, 506, and 507 of the Indian Penal Code, 1860, when committed within the State of Goa, shall be cognizable, and that offences under Sections 188 and 506 of the IPC shall be non-bailable. The petitioner was charged under Section 506(ii) IPC based on an FIR registered at the instance of the intervenor, an advocate. The petitioner contended that the State Government lacked the power to amend the Code of Criminal Procedure, 1973, by executive notification, as the CrPC is a central law enacted by Parliament. The Court examined the scope of Section 10 of the Criminal Law Amendment Act, 1932, and held that it does not empower the State Government to alter the classification of offences under the CrPC. The Court quashed the notification, stating that the State Government cannot override or amend the provisions of the CrPC, which is a law made by Parliament, and any such amendment must be in accordance with Article 254 of the Constitution. The petition was allowed, and the notification was set aside.
Headnote
A) Criminal Procedure - Cognizable and Non-Bailable Offences - Power of State Government - Section 10 of Criminal Law Amendment Act, 1932 - The State Government issued a notification declaring certain IPC offences as cognizable and non-bailable. The Court held that Section 10 of the 1932 Act does not empower the State Government to amend the Code of Criminal Procedure, 1973, which is a central law. The notification was ultra vires the powers of the State Government and was quashed. (Paras 1-10)
B) Constitutional Law - Repugnancy - Article 254 of Constitution of India - The Court observed that the Code of Criminal Procedure, 1973 is a law enacted by Parliament, and any amendment to it must be in accordance with Article 254 of the Constitution. The State Government cannot by executive notification override or amend the provisions of the CrPC. (Paras 3-10)
C) Criminal Procedure - Classification of Offences - Section 4(2) of Code of Criminal Procedure, 1973 - The Court noted that the classification of offences as cognizable or non-cognizable and bailable or non-bailable is governed by the CrPC and the First Schedule thereof. The State Government's notification purporting to alter such classification was held to be without legal authority. (Paras 1-10)
Issue of Consideration
Whether the State Government, by issuing a notification under Section 10 of the Criminal Law Amendment Act, 1932, can declare offences under the Indian Penal Code as cognizable and non-bailable, thereby amending the provisions of the Code of Criminal Procedure, 1973?
Final Decision
The petition is allowed. The notification dated 29th April/11th May, 2004 issued by the Government of Goa is quashed and set aside.
Law Points
- Section 10 of Criminal Law Amendment Act
- 1932 does not empower State Government to amend Code of Criminal Procedure
- 1973
- Article 254 of Constitution of India
- Section 4(2) of Code of Criminal Procedure
Case Details
2010 LawText (BOM) (07) 120
Criminal Writ Petition No. 38/2009 with Cr.Misc.Application No.15/1010
Mr. A. N. S. Nadkarni, Senior Advocate with Mr. S.G. Bhobe and Mr. D. Lawande for the petitioner; Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for the respondents; Intervenor in person
State of Goa, The Police Inspector, Incharge of Old Goa Police Station, Old Goa, Ilhas, Goa
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Nature of Litigation
Criminal Writ Petition challenging a State Government notification under Section 10 of the Criminal Law Amendment Act, 1932 declaring certain IPC offences as cognizable and non-bailable.
Remedy Sought
Quashing of the notification dated 29th April/11th May, 2004 issued by the Government of Goa.
Filing Reason
The petitioner was charged under Section 506(ii) IPC based on an FIR registered at the instance of the intervenor, and the notification made the offence cognizable and non-bailable, which the petitioner contended was beyond the State Government's power.
Issues
Whether the State Government has the power under Section 10 of the Criminal Law Amendment Act, 1932 to declare offences under the IPC as cognizable and non-bailable, thereby amending the Code of Criminal Procedure, 1973?
Whether the notification dated 29th April/11th May, 2004 is ultra vires the powers of the State Government?
Submissions/Arguments
The petitioner argued that the State Government cannot amend the Code of Criminal Procedure, 1973 by executive notification, as the CrPC is a central law enacted by Parliament, and any amendment must be in accordance with Article 254 of the Constitution.
The respondents argued in support of the notification, but the judgment does not detail their submissions.
Ratio Decidendi
Section 10 of the Criminal Law Amendment Act, 1932 does not empower the State Government to amend the provisions of the Code of Criminal Procedure, 1973, which is a law enacted by Parliament. The State Government cannot by executive notification alter the classification of offences as cognizable or non-cognizable and bailable or non-bailable under the CrPC. Such an amendment can only be made in accordance with Article 254 of the Constitution.
Judgment Excerpts
By this writ petition under Article 226 of the Constitution of India, the challenge is to a Notification dated 29th April/11th May, 2004 issued by the Government of Goa in purported exercise of powers conferred by sub-sections (1) and (2) of Section 10 of the Criminal Law Amendment Act, 1932.
The legal contention raised in the petition is that by purported exercise of powers under Section 10 of the said Act of 1932, the State Government was not competent to amend the provisions of the said Code of 1973.
Procedural History
The petitioner filed a Criminal Writ Petition under Article 226 of the Constitution challenging a notification dated 29th April/11th May, 2004. The petition was heard by a Division Bench of the Bombay High Court at Goa, and judgment was reserved on 14th July 2010 and pronounced on 21st July 2010.
Acts & Sections
- Criminal Law Amendment Act, 1932: Section 10
- Indian Penal Code, 1860: 186, 189, 228, 298, 506, 507, 188
- Code of Criminal Procedure, 1973: Section 154, Section 4(2)
- Constitution of India: Article 226, Article 254
