Holding

A certificate issued under Section 197(6) of the Assam Amendment Act creates a vested/accrued right that becomes effective upon communication, and such right is saved by the repeal under the Assam Repealing Act, mandating dismissal of the complaint.

Summary

Mohan Raj, then Superintendent of Police in Assam, was charged in a complaint for the killing of alleged extremists during ethnic violence in 1983. Under the Assam Amendment Act, 1983, the court was required to refer the matter to the State Government, which issued a certificate on 20‑Nov‑1985 stating that the police acted in discharge of official duty. The High Court held the certificate ineffective, deeming it non‑existent after the 1986 Repealing Act and allowing the complaint to proceed. The Supreme Court examined whether the certificate created a vested right, when that right becomes effective, and the impact of the Repealing Act and Section 6 of the Assam General Clauses Act, 1915. It held that the certificate conferred an accrued right that became operative upon communication to the magistrate and that the repeal did not extinguish that right. Consequently, the complaint proceedings must be dismissed and the High Court’s order set aside.

Issues considered

Whether a certificate issued under Section 197(6) of the Assam Amendment Act, 1983 creates a vested or accrued right that survives repeal of the Act.
Whether the certificate becomes effective only upon communication to the concerned magistrate.
Effect of the Criminal Procedure Code (Assam Repealing) Act, 1986 and Section 6 of the Assam General Clauses Act, 1915 on accrued rights.
Whether the complainant’s right to appeal the certificate was lost due to non‑filing within the prescribed period.
Whether the High Court erred in holding the certificate non‑existent (non est) after the repeal.

Subjects

Section 197 certificatevested rightaccrued rightrepeal legislationAssam Amendment Act 1983Assam Repealing Act 1986statutory interpretationdoctrine of eclipsepublic servant prosecutioncriminal procedure

Judgment

MOHAN RAJ
v.
A
DIMBESWARI SA I KIA & ANR

NOVEMBER I0, 2006

[S.B. SINHA AND DAL VEER BHANDARI, JJ.] B

Criminal Procedure Code, 1973-As amended by State of Assam b;y
Code of Criminal Procedure (Assam Amendment) Act, 1983-Sections 197(5)
and 197(6)-Alleged extremists killed -by police personnel on being·
attacked-Criminal complaint against police personnel-On reference by C
Magistrate, State Government certifying in format prescribed under Sectiorz
197(6)(i) of Code, as amended, that police personnel were acting in discharge
of their official duty-Jn Criminal Revision filed by complainant for grant df
aforesaid certificate, High Court on production of certificate, disposing it of
as infructuous with directions that records of courts below be sent dow~ D
along with copy of its order-However, in complaint case, State according
sanction for prosecution of police personnel and in furtherance thereof
proceedings reopened but adjourned sine die to await report in same mattef
by Investigating Police Officer-In police case, State Government refused to
accord sanction to prosecute police personnel, and thereupon complaint
case re-opened on basis of the earlier sanction-High Court dismissing, E
petition for quashing of proceedings-Correctness of-Held-Under the Act,
of 1983, on State Goyernment certifying that accused was acting or purporting
to act in or in connection with discharge of his official duty, it was imperative
for Court to dismiss complaint or discharge accused-Accused derived vested,
or accrued right as soon as said certificate was issued, but it came into effect
when same was actually communicated-On facts, held that High Court in F
Criminal Revision had communicated its order to Court where matter was
pending and it was bound to act accordingly-Also, as complainant was
aware that a certificate had been granted and did not prefer any appeal
against it within the prescribed period, her right to appeal against correctness
or otherwise of its grant was lost. G
Code of Criminal Procedure (Assam Amendment) Act, 1983-Repeal by'
Criminal Procedure Code (Assam Repealing) Act, 1986-Effect of-Held-
As Section 3 of the Repealing Act dealt only with transfer of cases from court
of Executive Magistrate to a competent Court, it was a clear pointer that
873 H
874 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A State in enacting Repealing Act, did not have any intention to deprive a
person of his accrued or vested right-It was more so, when the Act was
repealed, Section 6 of Assam General Clauses Act, 1915 came into force.

Interpretation ofstatutes-Repealing Act-Held-It cannot be construed
in such a way as to take away accrued right of a person-For interpretation
B of a statute of this nature, doctrine of purposive construction may have to
be taken recourse to.

Interpretation of statutes-Marginal note of a statutory provision-
Held-They may not ordinarily be taken recourse to for interpretation thereof,
but in case of ambiguity, reference thereto would not be irrelevant.
c
Doctrines-Doctrine of eclipse-Application of-Held-By its
application a vested or accrued right cannot be taken away.

Appellant was working as a Superintendent of Police in State of Assam
in the year 1983. At that time, the State was witnessing ethnic violence. In
D response to a purported report that a large number of extremist elements
were hiding in the jungle for the purpose of attacking the police post and the
minority refugee camp, appellant backed with other police personnel, allegedly,
went to the place of hiding, were waylaid by extremists and attacked with guns,
bows, etc. They returned the fire in which seven miscreants died and twelve
E others were arrested. Regarding the deaths, respondent lodged a complaint
against appellant and other police officials before Judicial Magistrate. In terms
of the Code of Criminal Procedure (Assam Amendment) Act, 1983, a
reference was made to the Government by Magistrate for issuance of a
certificate as envisaged under Section 197(5) (a) of the Code. That certificate
was granted by the State Government on 20-11-1985 in the prescribed form
F under Section 197(6)(i) certifying that appellant and other police personnel
were acting in the discharge of their official duty. In the meantime, respondent
filed a Criminal Revision application before the High Court on the premise
that the Government had not issued any certificate. However, on production of
the above certificate, High Court disposed of the petition as infructuous with
G directions that it was for the Sub-Divisional Magistrate to pass an appropriate
order in terms of Section 197(6)(ii) of the Criminal Procedure Code, and for
that purpose sent down the records of the courts below if received, along with
copy of order of High Court.

In the meanwhile, the State repealed the Act of 1983 by way of Criminal
H Procedure Code (Assam Repealing) Act, 1986. Section 3 thereof provided that
MOHAN RAJ v. DIMBESWARI SAIKIA 875

notwithstanding any order passed by any authority under the repealed Act, A
all cases will be deemed to have been pending before the Court competent to
try such cases under the Code of Criminal Procedure, 1973.

In the complaint case of respondent, State accorded sanction on
27.4.1987, and in furtherance thereof, proceedings before Sub-Divisional
Judicial Magistrate were reopened. However, keeping in view that the matter B
was also pending police investigation, the complaint was adjourned sine die
to await report to be made by the Investigating Police Officer. However, in
this police case, the State Government refused to accord sanction to prosecJte .
the accused including appellant. As soon as the police case came to an end,
the complaint case was re-opened on the ha.sis of the sanction granted by the C
State on 24.7.1987.

Appellant approached the High Court for quashing all the proceedin gs
1

against them. The High Court held that (i) once sanction had been granted by
the State of Assam, there was no bar in proceeding with the complaint case
(ii) the certificate granted by the State that appellant was on his duty and D
therefore, could not have been proceeded against was not communicated to
the Sub-Divisional Magistrate, the case remained pending and thus, it could
have been lawfully reopened (iii) the certificate dated 20.11.85 had beco111e
non-est in view of the Repealing. Act Hence the present appeal.

Appellant contended that (i) the State of Assam had accorded sanction E
on 27.4.1987 in the complaint case without taking into consideration the
earlier certificate issued on 20.11.1985. (ii) the entire prosecution stood
vitiated, as a right to be discharged in terms of the provisions of the Act Qf
1983, having accrued to him, which could not be taken away in view Section
6 of the Assam General Clauses Act, 1915. F
Allowing the appeal, the Court

HELD 1.1. The provisions of the Code of Criminal Procedure (Assa"1
Amendment) Act,1983 in terms whereof, Sub-Section (5) of Section 197 was
inserted, Court was under a statutory obligation to postpone issue of process G
against the accused and make a reference to the State Government, if he was
a public servant belonging to any class or category specified under Sub-
~ection (3). A further statutory obligation was also imposed upon the Cou~
to stay further proceedings as against the public servant upon making a
reference to the State Government. On receipt of a reference, the State
H
876 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A Government has no other option, but, to issue a certificate one way or the
other. Once the State Government certifies that the accused was acting or
purporting to act in or in connection with the discharge of his official duty, it
was imperative on part of the Court to dismiss the complaint or discharge the
accused, as the case may be. (884-G-H; 885-A-B)

B 1.2. The accused derives a vested or accrued right as soon as the said
certificate is issued. However, the said right would be brought into effect only
when the same is actually communicated. (885-F[

Punjab v. Amar Singh Harika, AIR (1966) SC 1313, distinguished

c State of Punjab v. Khemi Ram, (1969) 3 SCC 28, referred to

1.3. The Certificate in question was addressed to the Sub-Divisional
Magistrate. It appears that the same was sent under registered cover with
acknowledgment due. However, there is no evidence on record to show that it
D 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.386of1985 that a communication of the said order was directed
to be made. It may, therefore, be presumed that the State of Assam did send
the said communication. In any event the High Court communicated the said
order to the Court of Magistrate where the matter was pending. The Sub-
E Divisional Magistrate was bound to act accordingly. (885-B-D)

2. The complainant was aware. that a certificate had been granted. She
could have preferred an appeal thereagainst 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 die correctness or otherwise of the order granting
F certificate is, thus, also lost. [886-C[

3.1. It is now well settled that Repealing Act shall be constru~d to have
not taken away the accrued right of a person. [887-BJ

State of Punjab v. Mohar Singh, Son of Pratap Singh, (1955) 1 SCR
G 893, relied on
G.P. Singh 's Principles ofStatutory Interpretation (10th Edn.) 2006 page
631 referred to

3.2. When the Act is repealed, Section 6 of the Assam General Clauses
H
MOHAN RAJ v. DIMBESWARI SAIKIA 877
Act, 1915, subject to just exception shall come into force. [886-DJ A
3.3. The doctrine of eclipse has no application in this case. By application
of the said principle, a vested or accrued right cannot be taken away. [888-CJ

3.4. 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 ,B
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 is a clear pointer to show that the State in enacting the Repealing C
Act, 1986 did not have any intention to deprive a person of his accrued or
vested right. [888-D-E)

Pitta Naveen Kumar & Ors. v. Raja Narasaiah Zangiti & Ors., (2006) 9
SCALE 298; U.P. Raghavendra Acharya & Ors. v. State ofKarnataka & Ors.,
(2006) 6 SCALE 23; Dr. Saurabh Choudri & Ors. v. Union of India & Ors., D
[200415 SCC 618 and Prafutta Kumar Das & Ors. v. State ofOrissa & Ors.,
(2003111 sec 614, referred to

3.5. For interpretation of a statute of this nature, doctrine of purposive
construction may have to be taken recourse to. (888-FJ

Pannala/ Bansila/ Pitti & Ors. v. State of A.P. & Anr., [19961 2 SCC
E
498, Milkfood Ltd. v. GMC Ice Cream (P) Ltd.,, [2004) 7 SCC 288, Bombay
Dyeing & Mfg. Co. ltd v. Bombay Environmental Action Group & Ors., [2006)
3 SCC 434; Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271; La/it Mohan
Pandey v. Pooran Singh & Ors., (2004) 6 SCC 626; Indian Handicrafts
Emporium & Ors. v. Union of India & Ors., [2003) 7 sec 589; Bairam E
Kumawat v. Union of India & Ors., (2003) 7 SCC 628, referred to

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1137 of
2006.

From the Judgment and Order dated 8.3.2006 of the Gauhati High Court G
in Criminal Revision No. 748/2005.

K.T.S. Tulsi, Rishi Malhotra and Prem Malhotra for the Appellant.

Rana Mukherjee, Azim H. Laskar and Abhijit Sengupta, for the
Respondent No. I. H
.-

878 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

.A Nq. Junior Luwang (for Mis. Corporate Law Group) for the State of
Assam.

The Judgment of the Court was delivered by

S.B. SINHA, J. Leave granted.
B
Interpretation and application of the provisions of the Criminal Procedure
Code, 1973 as amended by the State of Assam by the Code of Criminal
Procedure (Assam Amendment) Act, 1983 and the Criminal Procedure Code
(Assam Repealing) Act, I 986 falls for consideration in this appeal wh~ch
arises out of a judgment and order dated 8.3.2006 passed by the Gauhati High
C Court in Criminal Revision Petition No.748 of2005. Appellant was working as
a Superintendent of Police in Assam in the year 1983. The State of Assam,
allegedly, witnessed ethnic violence in the said year. The entire State of
Assam was engulfed in ethnic clashes as the elections were being opposed
by a section of agitators. The incidence of violence including one at Nelli and
D other adjoining districts, viz., Nargaon and Gopur Sunitpur had left more than
3000 persons from all communities dead. A purported report was received that
a large number of extremist elements were hiding in the jungle for the purpose
of attacking the police post and the minority refugee camp. Appellant herein
backed with other CRPF personnel, allegedly went to the place of hiding and
were waylaid by 500-600 extremists. Police party was sought to have been
E attacked by the extremists with guns, bows, etc. The CRPF personnel returned
the fire in which 7 miscreants died and 12 others were arrested. A First
Information Report bearing No.235/83 was registered against 12 accused
persons under Section 147/148/149/302/436/ 324/326 of the Indian Penal Code
in relation to the said incident. A charge-$heet was filed in the Court of
F learned Magistrate upon completioh of investigation. Charges were framed by
the learned Sessions Judge. In regard to the death of the aforementioned 7
persons, however, first respondent, daughter of Dimbeswari Saikia, lodged a
complaint before the Judicial Magistrate, lst Class, Golaghat against appellant,
who was at the relevant point of time Superintendent of Police and other
police officials. In the said complaint petition, apart from Appellant one T.K.
G 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. I, managed to escape although he sustained bodily
H
MOHAN RAJ v. DIMBESWARI SAIKIA [S.B. SINHA, J.] 879
injuries. A
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 B
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' and 'the Act', in
addition to the Judicial Magistrate, Executive Magistrates were also empowered C
to try cases involving offences specified therein. Amendments in the Code
of Criminal Procedure to the said effect were carried out, as would be noticed
immediately hereinafter.

In Sub-Section (I) of Section 167 of the Criminal Procedure Code, the D
reference to "Judicial Magistrate" was construed as reference also to
"Executive Magistrate". In Section 190 of the Criminal Procedure Code, in
Sub-Section (I) the words "any Executive Magistrate" were inserted after
"any Magistrate of the first class". In Section 191 of the Criminal Procedure
Code, the reference to "Chief Judicial Magistrate" in relation to an offence
taken cognizance of by an Executive Magistrate, were construed as a reference E
to the District Magistrate. In Sub-Section (I) of Section 192 after the words
"any" the words "District Magistrate" were inserted. Sub-Section (2) of Section
192 of the Code was substituted as follows :

''(2) Any Sub-divisional Magistrate or Magistrate of the first class
empowered in this behalf by District Magistrate or Chief Judicial F
Magistrate, as the case may be, may, after taking cognizance of
an offence, make over the case for enquiry or trial to such other
competent Magistrate as the District Magistrate or Chief Judicial
Magistrate may, by general or special order, specify, and thereupon
~uch Magistrate may hold the enquiry or trial." G
Sub-Section (5) of Section 197 of the said Amending Act
contained a non-obstante clause, which reads as under :

"(5) Notwithstanding anything contained in this Code,-
880 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A (a) Where a complaint is made to a Court against a public
servant belonging to any class or category specified under sub-
section (3) alleging that he has committed an offence, the Court
shall postpone the issue of process against the accused and
make a reference to the State Government; or

B (b) where an accused, either by himself or through a pleader,
claims before a Court that he belongs to any class or category
specified under sub-section (3) and that the offence alleged to
have been committed by him arose out of any action taken by
him while acting or purporting to act in 01 in connection with the
discharge of his official duty, the Court shall forthwith stay
c further proceedings and make a reference to the State
Government."

Clause (i) of Sub-Section (6) of Section 197 provides for 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
D purporting <o 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.
E
After Section 439, Section 439 A was added by reason whereof
restrictions were imposed on the power of the Court to grant bail.

In terms of the aforementioned provisions contained in Sub-Section (6)
of the Code of Criminal Procedure (Assam Amendment) Act, 1983, on or
p about 2.8.1993 a reference was made to the Government by the learned
Magistrate purporting to be for issuance of a ce1tificate 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
l 97(6)(i), which reads as under :

G "GOVERNMENT OF ASSAM

HOME (A) DEPARTMENT

NO.: HMA.465/83/31, Dated Dispur, the 20th November, 1985.

From : Shri H.O. Barooah, A.C.B., Deputy Secretary to the Govt. of
H
MOHAN RAJ v. DIMBESWARI SAIKIA [S.B. SINHA, J.] 881
Assam A
To

The Sub-Divisional Judicial Magistrate,

GOLA GHAT B
Sub : Issue of certificate under Cr.P.C. 197, 6(a) in C.R. Case No.688/
83 (Golaghat Court).

Ref: Your letterno.6GJ.1965/83, dated 16.8.83.

Sir,
t
In inviting a reference to your letter cited above, I am directed to
state that whereas a reference has been received from the Court of the '
Sub-divisional Judicial Magistrte, Golaghat under Sub-section (5) of
Section 197 of Code of Criminal Procedure, 1973 as amended, the State
Govt. hereby issue the certificate under Sub-section 6(1) thereof that D
the accused Shri M. Mohan Raj, I.P.S., the then S.P., Sibasagar and
other State Police Officers/Personnel and CRPF Personnel were acting
in the discharge of their official duty.
Yours faithfully,
Deputy Secy. to the Govt. of Assam,Home (A) Department" E
In the meantime, however, First Respondent filed a revision application
before the High Court, inter alia, on the premise that the Government had not
issued any certificate. A prayer was made to direct the Government to issue
a certificate as envisaged under Sub-Section (6) of Section 197 of the Criminal
Procedure Code: A prayer for stay of further proceedings in Sessions Case
No.32(SG)/85 pending in the Court of Sessions Judge, Jorhat was also made. F
Before the High Court the certificate issued by the State was produced.
It, in the aforementioned fact situation, opined that it was for the Sub-
Divisional Magistrate to pass an appropriate order in terms of Sub-Section
6(ii) of Section 197 of the Criminal Procedure Code. It was also observed that
as the certificate has already been issued, the Criminal Revision became G
infructuous. It was directed:

"Therefore, this revision petition is disposed of being infructuous.
The stay order passed in connection with Sessions Case No.32(SG)/

H
882 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A 85 is vacated. Send down the records of the courts below if receive&
Intimate both the courts namely Sub-Divisional Judicial Magistrate,
Golaghat and Sessions Judge, Jorhat with copy of this order."

In the meanwhile, however, the State enacted the Criminal Procedure
Code (Assam Repealing) Act, 1986. Section 2 thereof provides that the Code
B of Criminal Procedure (Assam Amendment) Act, 1983 shall stand repealed.
Section 3 of the said Repealing Act provides for transfer of cases in the
following terms :

"3. Notwithstanding any order passed by any_authority under the Act
repealed, all cases will be deemed to have been pending before the
c 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
D
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
E 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.

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
F for by another accused,- By an order dated 9.9.1987, the complaint case was
adjourned sine die, stating :

"T~e complaint against herself and another witness-named Kamal
Hazarika. Thereafter, question of sanction for prosecution of some of
the accused persons, who were Government servants arose and
G accordingly a reference was made to the State of Assam for sanction
for prosecution of the said officers unc!er provision of Section 197(5)(a)
cf the Cr.P.C. read with Assai.1 Ordinance No.(iii) of 1983 and the
proceeding was thereupon remained postponed awaiting such sanction.
Then on 16.5 .87 the proceeding was re-opened on receipt of sanction
H for prosecution of said accused persons accorded by the Government
MOHAN RAJ v. DIMBESWARI SAIKIA (S.B. SINHA, J.] 883

of Assam (Home Department) vide its letter No.HMA.465/83/53, dated A
27.4.87. Thereafter, the complainant appeared, but on behalf of Tarun
Kanti Nag, a person named as accused in this case, let this court know
that another case being Golaghat P.S. Case No.87/87 was registered
in relation to the offence, which was the subject matter of the present
enquiry and that an investigation by the police thereof was in progress. , B
Certified copy of the F.l.R. of the said police case was also filed on
behalf of said T.K. Nag. In pursuance thereof, a report in the matter
was called for from the O/C of Golaghat Police Station, who also
submitted a report attached with a copy of the F.l.R. that Golaghat P.S.
Case No.87 /87 was registered in relation to the same offence and
investigation thereof was in progress. C
That being the position, provision of section 210 of the Cr.P.C.,
I am alive in, in my opinion comes into operation to get the present
proceeding of enquiry u/s 202 of the Cr.p.c. stayed so as to await a
report to be made by the Investigating Police Officer under provision
of section 173 of the said law. D
In consideration of all these above, the proceeding of enquiry is
hereby stayed till the receipt of report of Investigation Police Officer
of Golaghat Police Station Case No.87/87 to be made u/s 173 of the
Cr.P.C. The said Police Officer is hereby directed to submit his report
under the aforesaid section of law with intimation of this court with E
reference to the present case within a period of 3 (three) 1'1onths from
today."

On or about 7.7.2005 the State Government refused to accord sanction
to prosecute the accused including Appellant in connection with FIR No.87/
87, whereafter a final report was also submitted by the Investigating Officer F
on 9.8.2005 on the premise that the 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.

Appellant approached the Gauhati High Court for quashing all the
0
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 H
A
884 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

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 Addi. Chief
Judicial Magistrate, Golaghat did not accept the Final report as such
B 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 in view of the certificate dated
20.11.85 stating interalia, that the said proceeding is not tenable in
c law. On perusal of the materials available on record, we hold that the
certificate dated 20.11.85 in itself was not sufficient to bring a judicial
proceeding to an end. The court was required to pass appropriate
order pursuant to the said certificate. Moreover, the certificate has
become non est in view of the repealing Act and in view of the
D provisions of section III of the Repealing Act, the proceeding against
the petitioner and others was pending. The State of Assam has also
·accorded necessary sanction in favour of the .complainant to prosecute
the accused persons and the sanction was made way back in 1987
itself. Hence, at this sta~e of the enquiry proceeding relating to the
death of seven civilians 111 the year 1983; no interference is called for
E as the impugned order does not suffer from any infirmity or illegality."

Mr. K.T.S. Tulsi, learned Senior Counsel appearing on behalf of Appellant,
inter a/ia, would submit that keeping in view the provisions of the Act, the
entire prosecution stood vitiated, as the right to be discharged in terms of
Section 6 of the State Act having accrued, keeping in view the provisions of
F Section 6 of the General Clauses Act, which is in pari materia with Section
6 of the Assam General Clauses Act, I 915, his vested or accrued right could
not have been taken away.

Validity or otherwise of the Ordinance or the Act or Assam Repealing
G Act is not in question. The provisions of the Act, in terms wherecif, Sub-
section (5) of Section 197 was inserted, Court was under a statutory obligation
to postpone issue of process against the accused and make a reference to
the State Government, if he was a public servant belonging to any class or.
category specified under Sub-Section (3). A further statutory obligation was
also imposed upon the Court to stay further proceedings as against the public
H servant upon making a reference to the State Government. On receipt of a
MOHAN RAJ v. DIMBESWARI SAIKIA [S.8. SINHA, J.] 885
reference, the State Government has no other option, but, to issue a certificate A
one way or the other. Once the State Government certifies that the accused
was acting or purporting to act in or in connection with the discharge of his
official duty, it was imperative on the part of the Court to dismiss the complaint
or discharge the accused, as the case may be. There cannot, however, be any
doubt whatsoever that before such a final order is passed, the certificate is B
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 C
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.
D
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 (ii) of Sub-Section (6) of Section 197 of the E
Assam Amendment Act is "If the State Government certifies". Once such a
certificate is given, the Court has no other option but to dismiss the complaint.
In view of the phraseology used in Clause (ii) of Sub-Section (6) of Section
197, as inserted by the Assam Amendment Act, 1984, there cannot be any
doubt whatsoever that the accused derives a vested or accrued right as soon F
as the said certificate is issued. However, the said right would be brought into
effect only when the same is actually communicated.

In State vf Punjab v. Khemi Ram, AIR ( 1970) SC 214 : [ 1969] 3 SCC 28,
a Bench of this Court opined :
G
"The last decision cited before us was that of State of Punjab v.
Amar Singh Harika, AIR (1966) SC 1313 where one of the questions
canvassed was whether an order of dismissal can be said to be
effective only from the date when it is made known or communicated ·
to the concerned public servant. The facts of the case show that
though the order of dismissal was passed on June 3, 1949 and a copy H
886 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A thereof was sent to other 6 persons noted thereunder, no copy was
sent to the concerned public servant who came to know of it only on
May 28, 1951, and that too only through another officer. On these
facts, the Court held, rejecting the contention that the order became
effective as soon as it was issued, that the mere passing of the order
of dismissal would not make it effective unless it was published and
B communicated to the concerned officer."

We may notice that therein this Court distinguished earlier decision of
this Court in State of Punjab v. Amar Singh Harika, AIR (1966) SC 1313,
saying that in the fonner case the liability shall accrue only on communication.

C Such is not the case here. Furthennore, the complainant was aware that
a certificate had been granted. She could have preferred an appeal thereagainst
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
D 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. When Act is repealed, Section 6 of the Assam General Clauses Act,
1915, subject to just exception shall come into force, which reads as under:

"6. Effect of repeal.-Where any Act repeals any enactment hitherto
E 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
F 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
G
(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
H
MOHAN RAJ v. DIMBESWARI SAIKIA (S.B. SINHA, J.] 887
instituted, continued or enforced, and any such penalty, forfeiture or A
punishment may be imposed as if the Repealing Act had not b¢en
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 Principies
of Statutory Interpretation (10th Edn.) 2006 at Page 631, it is stated: B
"Under the common law rule the consequences of repal of a statu,te
are very drastic. Except as to transactions past and closed, a statu~e
after its repeal is as completely obliterated as if it had never been
enacted. The effect is to destroy all inchoate rights and all causes of
action that may have arisen under the repealed statute. Therefore, C
leaving aside the cases where proceedings were commenced,
prosecuted and brought to a finality before the repeal, no proceeding
under the repealed statute can be commenced or continued after the
repeal."

In State of Punjab v. Mohar Singh, Son of Pratap Singh, [1955] l SCR D
893, this Court held :

" ... Wher,ever there is a repeal of an enactment, the consequences laid
down in Section 6 of the General Clauses Act will follow unless, as
the section itself says, a different intention appears. In the case of a E
simple repeal there is scarcely any room for expiession of a contrary
opinion. But when the repeal is followed by fresh legislation on the
same subject we would undoubtedly have to look to the provisions
of the new Act, but only for the purpose of determining whether they ·
indicate a different intention. The line of enquiry would be, not whether
the new Act expressly keeps alive old rights and liabilities but whether ' F
it manifests an intention to destroy them ..."

In Pannalal Bansilal Pitti & Ors. v. State of A.P. & Anr., [1996) 2 SCC
498, this Court held :

" ... .It is settled legislative device to employ non obstante clause G
to suitably alter the pre-existing law consistent with the legislative
policy under the new Act to provide the remedy for the mischief the
legislature felt most acute."

"Words are the skin of the language. The language opens up the
bay of the maker's mind. The legislature gives its own meaning and H
888 SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A interpretation of the law. It does so employing appropriate phraseology
to attain the object of legislative policy which it seeks to achieve."

In Milkfood ltd. v. GMC Jee Cream (P) ltd. [2004] 7 SCC 288, it was
held:

B " ... The court is to interpret the repeal and savings clauses in such
a manner so as to give a pragmatic and purposive meaning thereto."

Submission of Mr. Rana Mukherjee that the doctrine of eclipse shall
apply cannot be accepted. The said principle has no application in this case.
C By application of the said principle, a vested or accrued right cannot be 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
D 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
E deprive a person of his accrued or vested right. What would be a vested or
accrued right has been dealt with in: (l) Pitta Naveen Kumar & Ors. v. Raja
Narasaiah Zangiti & Ors., (2006) 9 SCALE 298; (2) UP. Raghavendra Acharya
& Ors. v. State of Karna/aka & Ors., (2006) 6 SCALE 23; (3) Dr. Saurabh
Choudri & Ors. v. Union of India & Ors., [2004] 5 SCC 618; (4) Prafulla
Kumar Das & Ors. v. State of Orissa & Ors., [2003] 11 SCC 614. For
F interpretation of a statute of this nature, doctrine of purposive construction
may have to be taken recourse to. {See (l) Bombay Dyeing & Mfg. Co.
ltd.(3) v. Bombay Environmental Action Group & Ors., [2006] 3 SCC 434;
(2) Nathi Devi v. Radha Devi Gupta, [2005] 2 SCC 271; (3) la/it Mohan
Pandey v. Pooran Singh & Ors., (2004] 6 SCC 626; (4) Indian Handicrafts
G Emporium & Ors. v. Union ofIndia & Ors., (2003] 7 SCC 589; and (5) Bairam
Kumawat v. Union of India & Ors. (2003] 7 SCC 628].}

For the reasons aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The appeal is allowed. No costs.

H v.s. Appeal allowed.