State Can Exercise Rule-Making Power Under Criminal Law Amendment Act 1932, Says Bombay HC Full Bench [Read Judgment]

A full bench of the Bombay High Court has examined whether the state retains powers conferred by Section 10 of the Criminal Law Amendment Act of 1932 to make certain offences cognizable and non-bailable, even though the Criminal Procedure Code 1898 was repealed and replaced by Criminal Procedure Code 1973.

Justices VM Kanade, SC Gupte and Revati Mohite Dere held that the state can, in fact, exercise its powers under Section 10 of the Criminal Law Amendment Act of 1932, by reading the words “Criminal Procedure Code 1973” instead of “Criminal Procedure Code 1898”.

The matter in question was referred to a full bench by the Chief Justice of Bombay High Court after contrary views were taken by a division bench (at Goa) in Vishwajit P. Rane vs State of Goa and Ors and a division bench (at Bombay) in Manish Digambar Advilkar vs. State of Maharashtra and 2 Ors. 

Brief Facts

The Criminal Procedure Code of 1973 was brought into force on April 1, 1974. With this, the Code of Criminal Procedure 1898 stood repealed.

But when the old CrPC was in force, the Criminal Law Amendment Act, 1932, was brought into force.

Section 10 of this Act conferred powers upon the Government of Maharashtra to make certain offences cognizable and non-bailable, notwithstanding anything contained in the old CrPC.

Relying on Section 10 of the Act of 1932, the state government issued a notification dated October 4, 1962, making offences punishable under Section 506 (criminal intimidation) of IPC as cognizable and non-bailable within the limits of Greater Mumbai only.

All the petitions heard by the full bench sought quashing of FIR registered under Section 506(II) of IPC and setting aside of state government’s 1962 notification.

What Was Argued

Appearing for one of the petitioners, Niteen Pradhan submitted that the Act of 1932 is ultra vires to the Constitution.

While the petitioner appearing in person Rajkumar Awasthi submitted that the Act of 1932 stood repealed by necessary implication.

Awasthi submitted the intent of the Parliament while enacting the new CrPC was different from when the old CrPC and Section 10 of the Act of 1932 were enacted.

He relied on the judgment of the apex court in Kishorebhai Khamanchand Goyal vs State of Gujarat and Ors to support this submission.

Awasthi also submitted that the notification could not have been issued by the state, as it cannot carry out an amendment to the first schedule of the new CrPC without obtaining a presidential assent under Article 254(2) of the Constitution. 

What Court Said

The bench observed that the Act of 1932 was enacted when the old CrPC of 1898 was in force and Section 10 delegates power to the state to amend the Act of 1932 by way of a notification as issued by the state in 1962, declaring the offence of criminal intimidation when committed within the limits of Greater Mumbai as cognizable and non-bailable.

The court differed from the view taken by the bench at Goa in Vishwajit P Rane (supra) and said: “Obviously, in our humble view, (the division bench) erred in treating the Notification as an exercise of power of amendment and it has failed to take into consideration Section 10 of the Criminal Law Amendment Act 1932 which confers delegated power to amend Sections 188 or 506 of the IPC in a specified area in the State of Maharashtra. It is a settled position in law that if a statute confers or delegates power to amend the main Act and Rules framed thereunder then such amendment would be valid.”

Thus, the 1962 notification was upheld and declared to be valid, meaning thereby that the offence of criminal intimidation still stands as a cognizable and non-bailable offence when committed within the limits of Greater Mumbai.

Read the Judgment here.