Court of Judicial Magistrate of the Second Class

Should Not Such a Court be Established

(By K. Aravindaksha Menon, Retd. District Judge, Ernakulam)

Constitution of Criminal Courts and offices are provided for, by Chapter II of the Code of Criminal Procedure, 1973. S. 6 of the Code lays down, there shall be in every State the following classes of criminal Courts namely

I.

ii.

III. Judicial Magistrate of the Second Class

Section 11 reads as below

11. Courts of Judicial Magistrates -(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:

1) Provided that the State Government may, after consultation with the High Court, establish for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class, to try any particular case or particular class of cases, and where any such special court is established, no other Court Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.

2) The presiding officers of such courts shall be appointed by the High Court.

3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class or any member of the Judicial service of the State, functioning as a Judge in a Civil Court."

The Code dictates there shall be the courts of the Judicial Magistrates of the first class and of the second class.

S. 14(1) is as below

Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under S. 11 or under S. 13 may exercise all or any of the powers with which they may respectively be invested under this Code:

(Provided...............)

(2)......................

(3)......................

The expression 'respectively' requires to be emphasised. This would indicate that the Magistrate of the First Class may exercise only such of those powers that may be conferred on him. So also the Judicial Magistrate of the Second Class may exercise only such of those powers that are conferred on him.

S. 26 in Chapter III specifies the Courts by which offences are triable. Any offence under the Indian Penal Code may be tried by the High Court or the Court of Session or any other court by which offence is shown in the first Schedule to be triable. The Schedule mentions cases triable by the courts of the Judicial Magistrate of the first class and "any Magistrate". There is no mention of the Judicial Magistrate of the second class in the Schedule in the last column under the heading 'by what court triable.' Therefore the thinking appears to be that an offence triable by the Magistrate of the Second Class can be tried by the Judicial Magistrate of the first class. But this approach overlooks that "any Magistrate" should be Magistrate on whom respective powers are conferred. Any Magistrate authorised to try offences may try only such of those offences, to try which, powers under S. 14(1) are conferred when that be so, the Judicial Magistrate of the first class may exercise only such of those powers that are conferred on him under S. 14 of the Code. It does not look that the Judicial Magistrate of the first class can exercise, the powers of the Magistrate of the Second Class unless such powers are also conferred.

It appears that of late, in view of the notification G.O. (P) No. 190/91/Home. Dated, Thiruvananthapuram 31st December, 1991 establishing a common service called the Kerala Judicial Service in the place of then existing Kerala Civil Judicial Service and Kerala Criminal Judicial Service, powers of the Judicial Magistrate of the Second Class are not being conferred at all. By the notification a common Service is formed by integrating the members of the Kerala Judicial Service consisting of subordinate Judges and Munsiffs and the members of the Kerala Criminal Judicial Service consisting of Selection Grade Chief Judicial Magistrates, Chief Judicial Magistrates Senior Grade Judicial Magistrates of the first class, Judicial Magistrates of the first class and Judicial Magistrates of the Second Class.

The notification has not and could not abolish courts of the Judicial Magistrate of the Second Class. Courts of the Judicial Magistrate can exercise only such of those powers that may be conferred on them under S. 14. S. 32 provides that in conferring powers under the Code the High Court or the State Government may empower persons specially by name or in virtue of their offices or classes of officials generally by their titles. Therefore, the Munsiff Magistrate, since the notification referred to above have to be conferred powers of the Judicial Magistrate of the first class and of the second class to satisfy the requirements of the Code as otherwise trial of cases triable by the court of the Judicial Magistrate of the Second Class by the Munsiff Magistrate on whom powers of the Second Class Magistrate are not conferred may not be good in law. It appears that'only powers of the Judicial Magistrate of the first class are conferred on the Munsiff Magistrates since the notification of 1991 mentioned above.

May be, the question is worth discussion.

Does Article 129 Confers Power on the Supreme Court

try Contempt Committed Against other Courts Also?

(By Dr. Pooja Jha*, Advocate, Supreme Court)

Article 129 of the Constitution of India reads as follows :

"129. Supreme Court to be court of record-The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for the contempt of itself”.

Including the power to punish for the contempt of itself:

These words occuring in Art. 129 of the Constitution was construed by the Apex Court to mean that the said words confers power on the Supreme Court to punish for the contempt committed against courts subordinate to it including the High Court. This view was taken in Delhi Judicial Service Association v. State of Gujarat1in He V.C. Mishra2 and followed in Income Tax Appellate Tribunal v. V.K. Agarwa3

Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406

This case arose out of the arrest of Chief Judicial Magistrate, Nadiad in the State of Gujarat by police officers. Writ Petition and contempt petitions were filed in the Supreme Court. A preliminary objection was taken as regards the maintainability of the contempt proceedings under Art. 129. A three Judge Bench of the Supreme Court speaking through K.N. Singh, J. (as he then was) overruled the preliminary objection and held that Art. 129 confers power on the Supreme Court against contempt committed against subordinate courts also. For this proposition, the Supreme Court heavily relied on the word "including" occurring in Art. 129. The learned Judge observed in this connection which are as follows4:

"Art. 129 declares the Supreme Court a Court of record and it further provides that the Supreme Court shall have all the powers of such a court including the power to punish for contempt of itself (emphasis supplied). The expression used in An. 129 ,it is not restrictive instead it is extensive in nature. If the Framers of the Constitution intended that the Supreme Court shall have power to punish for contempt of itself only, there was no necessity for inserting the expression "including the power to punish for contempt of itself. The article confers power on the Supreme Court to punish for contempt of itself and in addition, it confers some additional power relating to contempt as would appear from the expression "including". The expression "including" has been interpreted by Courts, to extend and widen the scope of power. The plain language of Art. 129 clearly indicates that this Court as a court of record has power to punish for contempt of itself and also something else which could fall within the inherent jurisdiction of a court of record. In interpreting the Constitution, it is not permissible to adopt a construction which would render any expression superfluous or redundant. The courts ought not to accept any such construction. While construing Art. 129, it is not permissible to ignore the significance and impact of the inclusive power conferred on the Supreme Court. Since the Supreme Court is designed by the Constitution as a Court of record and as the Founding Fathers were aware that a superior court of record had inherent power to indict a person for the contempt of itself as well as of courts inferior to it, the expression "including" was deliberately inserted in the article. Art. 129 recognised the existing inherent power of a court of record in its full plenitude including the power to punish for the contempt of inferior courts. If Art. 129 is susceptible to two interpretations, we would prefer to accept the interpretation which would preserve the inherent jurisdiction of this Court being the superior court of record, to safeguard and protect the subordinate judiciary, which forms the very backbone of administration of justice. The Subordinate Courts administer justice at the grass-root level, their protection is necessary to preserve the confidence of people in the efficacy of courts and to ensure unsullied flow of justice at its base level".

Re Vinay Chandra Mishra (1995) 2 SCC 584

This case arose out of contempt committed by a practising advocate before a Division Bench of the Allahabad High Court. The Learned Judge against whom the contempt was committed brought the matter to the attention of the acting Chief Justice of that Court who in turn brought it to the knowledge of the Chief Justice of India. The CJI constituted a Bench to hear and decide the contempt action. This case differed from Nadiad case in that the Nadiad case arose out of contempt committed against a subordinate court which was heard and decided by the Supreme Court whereas in re V.C. Mishra, the contempt was committed against the High Court but decided by the Supreme Court. It is submitted that the Supreme Court cannot try contempt committed against the subordinate courts since Art. 129 does not confer such a jurisdiction on the Supreme Court, a fortiori, if the contempt is against the High Courts as Art. 215 confers express power and jurisdiction on the High Courts to punish for the contempt of it.

A three Judge Bench of the Supreme Court in Re V.C. Mishra followed the Nadiad case and held that Arts. 129 and 142 provides sufficient powers on the Apex Court to try contempt committed against High Courts.

In Income Tax Appellate Tribunal v. V.K. Agarwal the question was whether the Supreme Court has jurisdiction to punish for contempt of the Income Tax Appellate Tribunal. A two Judge Bench of the Supreme Court followed the Delhi Judicial Service Association case and V.C. Mishra's case and held that the Supreme Court has jurisdiction to punish for contempt of the Income Tax Appellate Tribunal.

It is submitted that the reasoning given by the Supreme Court in the Nadiad case that the word "including" is to be construed widely, is applicable, when it occurs in a definition clause.

If the definition is inclusive and not exhaustive, a narrow meaning cannot be given to the word "including". But Art. 129 does not define anything. The reason for inclusion of the word "including" in Art. 129 is this. Art. 129 makes the Supreme Court, a Court of record. The Article could have stopped there as a Court of record in England has the inherent power to punish for the contempt committed against it. But an important power, such as the contempt power cannot be made to be construed. That is why, Art. 129 after stating that the Supreme Court is a court of record, went further and conferred express contempt powers on it. A court of record possesses many powers which includes contempt power. This was conveyed expressly by the Constitution makers by stating that the Supreme Court shall have all the powers of a Court of record including the power to punish for the contempt of itself. This intention of the founding fathers can be seen from the speeches made on the floor of the Constituent Assembly by the Honourable Dr. Ambedkar which are as follows5:

"The Hon'ble Dr. B.R. Ambedkar: Mr. President, the amendment which I have moved covers practically all the points which have been raised both by Mr. Kamath as well as by Mr. Jaspat Roy Kapoor.

Sir, the new Art. 108 is necessary because we have not made any provision in the Draft Constitution to define the status of the Supreme Court. If the House will turn to Art. 192, they will find exactly a similar article with regard to the High Courts in India. It seems therefore necessary that a similar provision should be made in the Constitution in order to define the position of the Supreme Court. I do not wish to take much time of the House in saying what the words 'a court of record' mean. I may briefly say that a court of record is a court the records of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any Court. That is the meaning of the words 'Court of record'. Then, the second part of Art. 108 says that the court shall have the power to punish for contempt of itself. As a matter of fact, once you make a court a court of record by statute, ihe power to punish for contempt necessarily follows from that position. But, it was felt that in view of the fact that in England this power is largely derived from Common Law and as we have no such thing as Common Law in this country, we felt it better to state the whole position in the statute itself. That is why Art. 108 has been introduced".                          (Emphasis supplied)

Thus it can be seen from the speech of Dr. Ambedkar, the reason as to why specific contempt power was conferred on the Supreme Court and for that purpose the word "including" was inserted. The debates were not brought to the attention of the Supreme Court in Delhi Judicial Service Association Case and in re V.C. Mishra. Had it been brought, the Court would have taken a different view. Therefore it is submitted that Art. 129 confers powers on the Supreme Court to initiate, try and punish contempt committed against itself only.

_______________________________________________________________________

Foot Note:

*Advocate, Supreme Court and visiting faculty in the Department of Legal Studies, University of Madras.

1. (1991)4SCC406

2. (1995) 2 SCC 584

3. (1999)1 SCC 16

4. Ibid, at pp445,446

5. Constituent Assembly Debates Vol. VIII, Book No. 3, Third Reprint, 1999, P. 382.

Cyber Crimes Ahead

(By Delvin Jacob Mathews, Advocate, Kochi)

Its been more than four years since the then Central Vigilance Commissioner N. Vittal rang a bell of caution regarding the evolution of Cyber Crime in India. Much has happened since then including the enactment of the Information Technology Act and even now, no cyber criminal in India seems to be worried about the law enforcement agencies and their work seems to be going on still so smoothly. Though countries like the U.S., U.K., etc. have their own extensive cyber law enforcement mechanisms, no agency in India, a country which is heralded as an Information Technology super power seems to take the evolution of cyber crimes seriously.

What is a cyber crime? No one seems to have evolved a fundamental definition for the term. Some experts believe that computer crime as it is otherwise called, is nothing more than ordinary crime committed by hi-tech computers and that current criminal laws on the books should be applied to the various laws broken, such as trespass, larceny and conspiracy. Some others view it as a new category of crime requiring a comprehensive new legal framework to address the unique set of challenges that traditional crimes do not deal with such as jurisdiction, international co-operation, intent and the difficulty of identifying the perpetrator. Eric, J. Sinord and William. R Reilly, the cyber law analysts from the United States seems to have a different view about it. They view cybercrimes in such a way that it has to be approached as both traditional crime committed by new methods and as crime unique in character requiring new legal framework. But all the varied opinions merge to opine that the cyber crime is one of the fastest evolving areas of criminal behaviour and a significant threat to our national security and economic safety.

The instinct of human brutality has been given a laser edge with the advent of technology. Computers cannot kill or injure a person directly but the indirect disaster that can be caused our lives and economy can be a mammoth figure if analyzed. The threat that cyber criminals can cause to human civilization has come out from celluloid or wild imaginations of a science fiction novelist into our lives and society. The 11th of September 2001 saw the turning point in the history of Internet and web related activities. The attacks on World Trade Center displayed an example of how terrorism has been conceived, planned and executed using the Internet. The ever increasing list of various headings in cyber crimes include but not only include hacking and cracking, extortion, child pornography, money laundering, fraud, forgery, scams, software pirating and corporate espionage. The law enforcement officials have been frustrated by the inability of the legislators to keep cyber crime legislation ahead of the fast moving technological curve.

Any discussions about cyber crimes would lead us to spare a thought for cyber criminals. Cyber criminals can range from teenagers who vandalize websites to terrorists who target a nation and everything in between. Cyber crime was once the domain of disaffected genius teenagers and now has become the battle ground for mature and sophisticated brains that seek to gain some vested illegal and dangerous aims. Cyber criminals like their non-virtual traditional criminal counterparts, seek opportunity and are attracted to vacuums in law enforcement and as has been previously stated, when legislators and law enforcement agencies find it extremely difficult to keep pace, the cyber criminal gets enough of that lacuna in law enforcement.

Further complicating cyber crime law enforcement is the area of legal jurisdiction. A typical cyber crime investigation involves multiple law enforcement agencies and multiple countries. Never before has it been so easy to commit a crime in one jurisdiction while hiding behind the jurisdiction of another. From the beginning of Internet, jurisdiction has continued to create challenges to legal minds, institutions and Governments in the context of the peculiar inherent character of the Internet. Different principles were being evolved in different national jurisdictions in this regard. Initially the courts all over the world considered mere access to the Internet as a sufficient ground for assuming jurisdiction over Internet related transactions. This principle was redefined by the 'Zippo Case' in the United States of America. The principles that evolved out of the 'Zippo Case' required the courts to look at something more than mere internet access in order to assume jurisdiction which would come in the form of interactivity of the website or any other factor.

Then in 2001, came the famous Yahoo! France case which redefined the principles of determination of jurisdiction in cyber cases. The facts of the case may be discussed as follows. Two groups in France complained to French Court that Yahoo! France's auction websites sold Nazi memorabilia which is banned under French law and requested them to be removed from the website. The French Court ordered Yahoo! France to remove all Nazi memorabilia and contents from its website, an order which was complied by Yahoo! France. But Yahoo! later moved an American Court for declaration that the directions given by a French Judge were not enforceable in the United States and that Yahoo! being an American company was not bound by the decision of the French Court. In a historical judgment, the American District Court of California held the contentions of Yahoo! to be valid and held that the French judgment was passed in peculiar facts relating to France and that such judgment would not be applicable in American Law on American citizens and legal entities. A judgment, which has got far reaching significance and consequences on the entire subject of cyber crime related territorial jurisdiction.

The scenario emerging after the September 11, 2002 attacks saw the adoption of the International Cyber Crime Treaty. 30 members of the European union apart from the U.S., Canada, South Africa and Japan have already signed the treaty. This becomes the first combined attempt by any nations for the regulation of cyber crimes and for the exchange of information concerning cyber crime and cyber criminals. Though the treaty is yet to be implemented, it promises to fill up the void about the need for having an international regulatory mechanism for the control of cyber crime.

The lack of law enforcement in cyber space is another big issue. Finding cyber criminals in various countries can be even more challenging than finding the person sending Anthrax through mail. Not all countries may agree upon all the issues relating to cyber crimes. The Governments worldwide view hackings and other cyber crimes in various perspectives.

Then comes the issue of prevention of cyber crimes. As has been established, prevention is better than cure. The most secure defense against cyber crime is to make sure that computers that run critical infrastructures are not physically connected to any other computers and to the Internet. Maintenance of clear and consistent security policies, installation of fire walls, use of alpha numeric passwords and frequent changing of them all will add their little bit in defending our cyber space. The legal fraternity in the country has got to move ahead and shall have to recognize the emerging challenges that might have to be faced in the future regarding cyber crimes. Successful criminal prosecution and civil litigation will require that members of the legal community familiarise themselves with the various hacking techniques to ensure that the perpetrators are tried and convicted under the relevant statutes. A misapplication of the law could allow a hacker to walk free.

A Comprehensive Study on 1990(1) KLT 120 and

the Relevant Statutory Provisions

(By S.H. Jayakesan, Law Secretariat, Thiruvananthapuram)

A recent reference to the dictum laid down in the order in Manojkumar v. State of Kerala reported in 1990 (1) KLT 20 has resulted the necessity to have a meticulous reading of sub-s. (2) of S. 436 and S. 446-A of the Code of Criminal Procedure, 1973 (for short "the Code"). Though it was reported more than a decade ago, it appears that the decision may be the one curtailing the discretion of the Court or Police Officer (as the case may be) under sub-s. (2) of S. 436 of the Code to grant bail to the accused, who violated the conditions of the bail bond which once he had executed.

In the said case, scope and applicability of S. 446-A of the Code in relation to forfeiture of (he bond, which the accused had once executed and his release on subsequent appearance/ production was the main concern for decision. Accordingly, it was ruled that in cases involving bailable offences, if the bail is cancelled due to violation of the conditions of the Bond and on reappearance/production of the accused, the Magistrate will have to entertain the application for bail and grant bail in accordance with law. It was also observed in that case that there was no justification on the part of the Magistrate in refusing to accept the application for bail, since the offences involved were bailable.

But the above said position does not appear to be an appropriate or a full-fledged one in view of the provisions contained in the proviso to clause (b) of S. 446A of the Code, read with sub-s. (2) of S. 436 thereof. In other words, when we consider sub-s. (2) of S. 436 and S. 446-A of the Code together, it could be seen that even if the offences involved are bailable, on re-appearance of the accused on cancellation of the bond executed under the Code, the accused has no boundless right to get himself enlarged on bail and the Court has discretionary power in granting bail in such circumstances.

This position could be elucidated with the help of the above said two provisions, ie., S.446-A and sub-s. (2) of S. 436 of the Code.

"S. 446-A. Cancellation of bond and bail bond.-Without prejudice to the provisions of S.446, where a bond under this Code is for appearance of a person in the case and it is forfeited for breach of a condition-

(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and

(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:

Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient."

So, as disclosed by the proviso to clause (b) of S. 446-A of the Code, the right conferred on an accused to get himself enlarged on bail on reappearance is subject to such restrictions or conditions contained in the relevant provision in the Code.

Now, again coming back to the words "subject to any other provision" appearing in the above said proviso, we can find that sub-s. (2) of S. 436 of the Code has relevance in the matter of granting bail to an accused who had committed breach of the conditions contained in the bail bond.

Sub-s. (2) of S. 436 of the Code reads as follows:

"(2) Notwithstanding anything contained in sub-s. (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under S. 446".

Therefore, it is very clear that the right of the accused (of the nature mentioned supra) to get himself released on bail is subject to the provision contained in sub-s. (2) of S. 436 of the Code. If it was an unfettered right conferred on the accused, then, the provision, ie., proviso to clause (b) of S. 446-A would have been drafted excluding the words- "subject to any other provision", appearing therein and sub-s. (2) of S. 436 of the Code would not have found a place in the Code. Moreover, it is also pertinent to note that both the provisions, viz., S. 446-A and sub-s. (2) of S. 436 of the Code comes under the very same Chapter - XXXIII - Provisions as to Bail and Bonds.

In Johny Wilson v. State of Rajasthan (1986 Crl. L.J. 1235 Rajastan - DB) it was held that on forfeiture of the Bond, the accused has no right to be released on bail on his furnishing fresh securities. But it would be within the discretion of the Court to release him or not to release upon the execution of fresh persona! or surety bond.

In view of the above aspects, it may be concluded that an accused involved in bailable offence, who had violated the conditions of the Bond, which once he executed under the Code, has no absolute right to get himself enlarged on bail, when on a subsequent occasion in the very same case he appears before the Court or brought in custody. In other words, in such cases discretion of the Court, as provided under sub-s. (2) of S. 436 of the Code supersedes the right of the accused. But, the Court has to exercise the discretion in a judicious way. Hope that the earlier said dictum reported in 1990 (]) KLT 120 would be reviewed in future.

Quasi Repeal by Disuse

(By Jasmine Alex, Advocate, High Court of Kerala)

The term 'repeal' is quite familiar to the realm of law. The repealing of a statute is the revoking or disannulling it. A repeal signifies the abrogation of one statute by another1. In other words the word 'repeal' connotes obliteration of one statute by another from the statute book completely as if it had never been passed.2

Interestingly, the question whether an Act can be repealed just through obsolescence for years de hors a repealing Act, has often been posed to the jurisprudence. The Scottish law has recognised that an Act of Parliament can come to an end by non-user and has acquired momentum as a legal principle named 'doctrine of desuetude3 In result, the statutes, which have been persistently disregarded, will have no effect. The rule concerning desuetude is that if a Scots Act goes into disuse by a posterior contrary custom it effects in repealing the Act. The power of posterior contrary custom to derogate from prior statutes and to acquire privileges and rights contrary to the statutes is not confined to the statutes concerning private rights, but is applicable to those affecting public policy also.

The law in England, but, has not accepted any doctrine like desuetude4. It is true that there was a theory, which resembles the doctrine of desuetude, that if a statute had been in existence for any considerable period without ever having been put into operation it might be treated as null. Though it was accepted in a number of cases up to the end of eighteenth century, it has now been wholly discarded. The opinion of English Judges with regard to the doctrine of desuetude is evident in the following verdict per Scrutton L.J.,

"The doctrine that, because a certain number of people do not like an Act and because a good many people disobey it, the Act is therefore "obsolescent" and no one need pay any attention to it, is a very dangerous proposition to hold in any constitutional country. So long as an Act i-s on the statute book, the way to get rid of it is to repeal or alter it in Parliament, not for subordinate bodies, who are bound to obey the law, to take upon themselves to disobey an Act of Parliament”5

Indian Law

The doctrine of desuetude was rejected by the Supreme Court of India in State of U.P. v. Hindustan Aluminium Corporation6. Shinghal, J. held:

"It has to be appreciated that the power to legislate is both positive in the sense of making law and negative in the sense of repealing a law or making it inoperative. In either case, it is power of the Legislature, and should lie where it belongs. Any other view will be hazardous and may well be said to be an encroachment on the legislative field. In an extreme and clear case, no doubt, an antiquated law may be said to have become obsolete - the more so if it is a penal law and has become incapable of user by a drastic change in the circumstances. But the Judge of the change should be the Legislature, and the Courts are not expected to undertake that duty unless that becomes unavoidable and the circumstances are so apparent as to lead to one and only one conclusion”7

The same view was reiterated by a three Judge Bench of the Supreme Court in State of Maharashtra v. Narayan8

But recently, the Apex Judiciary has tried to implant the Scottish doctrine into the Indian soil through its decision in Municipal Corporation for City of Pune v. Bharat Forge Col. Ltd9 In this case a notification issued in 1881 under the Cantonments Act, 1880 imposing octroi in Pune Cantonment was superseded by two notifications in 1918. The 1918 notifications had impliedly repealed the 1881 notification. The 1918 notification was not actually implemented at any time; at the same time octroi continued to be recovered under the notification of 1881 in accordance with the octroi rules enforced from time to time. It was held that the 1918 notification stood quasi repealed and continued recovery of octroi under the 1881 notification was illegal.

In Bharat Forge Col. Ltd., the application of the principle of quasi repeal by desuetude was discussed in detail. Referring Francis Bennion's Statutory Interpretation and Craies' Statute Law, it was pointed out that desuetude is a process by which an Act of Parliament may lose its force without express repeal. It does not, however, consist merely of disuse; there must also be a contrary practice, which must be of some duration and general application. Adopting the views of Lord Mackay in Brown v. Magistrate of Edinburgh10, Hansaria, J. observed:

"Though in India the doctrine of desuetude does not appear to have been used so far to hold that any statute has stood repealed because of this process, we find no objection in principle to apply this doctrine to our statutes as well. This is for the reason that a citizen should know whether, despite a statute having been in disuse for long duration and instead a contrary practice being in use, he is still required to act as per the dead letter. We would think it would advance the cause of Justice to accept the application of doctrine of desuetude in our country also. Our soil is ready to accept this principle: indeed there is a need for its implantation, because persons residing in free India, who have assured fundamental rights including what has been stated in Art. 21, must be protected from their being, say, prosecuted and punished for violation of a law which has become dead letter. A new path is, therefore, required to be laid and trodden”11

The doctrine was again referred in Cantonment Board, Mhow v. M.P. Road Transport Corporation”12. Though the principle was not applied here, the necessary conditions for the application of the doctrine had been laid down. Accordingly, the requisite were "to establish that the statute in question has been in disuse for long and the contrary practice of some duration has evolved"13

The doctrine was again brought to the attention of the Supreme Court in Abdul Hai Khan v. Subul Chandra Chose14. Though the scope of the doctrine was contended in the original as well as appellate jurisdictions, in this civil appeal, the learned Judge of the Apex Court ignored the issue conveniently. This is a civil appeal in connection with a nationalization scheme published in 1963 and last modified in 1980 in West Bengal under Ss. 68-C and 68-D of the Motor Vehicles Act, 1939. The scheme permitted existing private operators to continue to operate on the routes for which they had permits. The appellants thus benefited, felt aggrieved when RTA, Calcutta later issued permits to certain other private operators on routes overlapping those same nationalised routes effectively ignoring the provisions of the 1963 scheme. Challenging the decision of RTA, the appellants had approached the High Court. A Single Bench of the Calcutta High Court dismissed their Writ Petitions; the Division Bench also did not entertain the challenge, on the ground that the scheme was contrary to the provisions of S.68-C of Motor Vehicles Act as amended in 1988, which in fact had not been in operation for years and directed to follow the law strictly.

The contentions put forth by the learned counsels regarding the applicability of the doctrine of desuetude deserve special attention on the following premises.

(i) The 1963 scheme as last modified in 1980, was in practice even after the amendment of Motor Vehicles Act in 1988.

(ii) The validity of the observance of a rule contrary to the statutory provision might have footing upon the doctrine of disuse, especially in view of the dictum in Bharat Forge Col. Ltd. which was laid down by a three Judge Bench.

Concluding Notes.

The confusion about the applicability of the principle lies with the consequences of repeal of a statute. The Supreme Court of India has noted in a number of cases that except as to the transactions past and closed, a statute after its repeal is completely obliterated as if it had never been enacted; all inchoate rights are being destroyed and no cause of action may have arisen under the repealed statute15. Again according to the common law the repeal of a statute would revive the earlier law ab initio16

(In U.K. the Common Law is now altered by S. 11(1) of the Interpretation Act, 1889 that where an Act passed after 1850 repeals a repealing enactment, it shall not be construed as reviving any enactment previously repealed, unless words are added reviving that enactment17. In India also the Common Law Rule has been abrogated by the introduction of similar provisions in Ss. 6(a) and 7 of the General Clauses Act, 1897)

When a statute is repealed not by a repealing Act, but just due to non-user, can the above law regarding ordinary repeal be applied and the legal system uphold the view that the law as intended by the Legislature cannot stand valid? If 'desuetude' is applied, how is the rights and obligations created under an Act concerned determined? As an illustration, can it be held that the so-called 'Dowry Prohibition Act' is quasi repealed for the reason that dowry has never been prohibited in actual practice and the contrary practice is still continuing?!! As mentioned earlier, whether the application of the doctrine will bring into effect all the consequences of an ordinary repeal by a repealing statute? The adoption of a Scottish doctrine has thus generated a conundrum for which the apex judiciary, let us hope, will come out with a solution in an appropriate case in the near future. Still, the guiding rule shall be the supremacy of the Constitution by which the law making power is primarily entrusted with the Legislature.

________________________________________________________________________

Foot Note:

1. P. RamanathaAiyar,TheLaw Lexicon, ReprintEdition, 1993,Wadhwa&Co.,Nagpur,p. 1110.

2. VenkataRamaiya's Law Lexicon, 2nd Edition, 1991 Reprint, Law Publishers India Pvt. Ltd.,p.2074.

3. Supran.l. p. 327; JusticeG.P. Singh, Principles of Statutory Interpretation, 7thEdition, Reprint 1999, Wadhwa & Co., Nagpur, p. 503.

4. P. St.J.Langan, Maxwell on The Interpretation of Statutes, 12thEdition, 1976,N.M.Tripathi Pvt. Ltd., p. 16; C.K. Allen, Law In The Making, 7th Edition, 1st Indian Reprint, 1997, Universal Law Publishing Co. Pvt. Ltd.

5. R. v. London County Council, (1931)2K.B.215.

6. AIR 1979SC1459.

7. Id. p. 1473.

8. AIR1983 SC 46.

9. AIR 1996 SC 2856.

10.1931 Scots Law Times 456

11. Supra n. 9., p. 2862.

12. AIR 1997 SC 2013.

13. Id., p. 2020.

14. (2002) 4 SCC519

15. See, for example, Keshuvan v. Bombay. AIR 1951 SC 128; State ofRajastan v. Mangilal Pindwal, AIR 1996 SC 2181.

16. P.St. Langan, Maxwell on the Interpretation of Statutes, 12th Edition, 1976, N.M.Tripathy Pvt. Ltd., pp. 19,20.

17. Now Sections 15 and 16 (l)(a) of the Interpretation Act, 1978.