Full Judgment Text
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 5136 of 2019
(Arising out of SLP (C) No.18113 of 2018)
UNION OF INDIA, REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFAIRS & ORS.
.... Appellant(s)
Versus
RANJIT KUMAR SAHA & ANR.
…. Respondent (s)
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. The first Respondent was working as Subedar
(Building and Road) and the second Respondent was a
Naib Subedar (building and Road) in Headquarter- 6
Sector, Assam Rifles, Kamrup, Assam. A sting operation
was carried out by a contractor, Mr. C.C. Mathew,
followed by a telecast in Matrabhumi News, a Malayalam
Signature Not Verified
th
Television channel and ‘Tehelka.com’ on 24/25
Digitally signed by
SARITA PUROHIT
Date: 2019.07.02
11:17:15 IST
Reason:
September, 2014 alleging corruption in the Assam Rifles.
1
On the basis of the said news, a Court of Inquiry was
convened by Headquarters, IGAR (East.), Assam Rifles by
an order dated 29.09.2014 which was later amended on
01.10.2014 in respect of the composition of the Court of
Inquiry. A Court of Inquiry was conducted at Srikona,
Silchar, Assam during which the Summary of Evidence
was recorded. A charge-sheet was issued by the
Convening Authority to the Respondents under Section
55 of the Assam Rifles Act, 2006 (hereinafter referred to
as the “2006 Act”) for an offence punishable under
Section 7 of the Prevention of Corruption Act, 1988
(hereinafter referred to as the “PC Act’) with an alternate
charge under Section 49 of the 2006 Act. The General
Assam Rifles Court (hereinafter referred to as ‘the
GARC’) was convened on 10.11.2016.
2. The Respondents raised certain preliminary
objections before the GARC which are:
1. During the Court of Enquiry and Summary of
Evidence, no opportunity to cross -examine the
2
complainant of the case was given to the
Respondents.
2. The composition of the GARC was in violation of
Section 90 of the 2006 Act inasmuch as the
members of the GARC did not have the required
rank to be members of the GARC.
3. The GARC cannot try a case punishable under the
PC Act.
3. The GARC rejected the preliminary objections raised
by the Respondents under Section 139 of the 2006 Act
by an order dated 09.01.2017. Aggrieved by the said
rejection order, the Respondents filed a Writ Petition in
the Guwahati High Court. A learned Single Judge of the
High Court allowed the Writ Petition and declared that
the GARC cannot try an offence punishable under the PC
Act involving a person governed by the 2006 Act. The
appeal filed against the judgment of the learned Single
Judge was dismissed by a Division Bench of the High
Court, aggrieved by which, the Appellants have filed this
appeal.
3
4. The Respondents contended before the High Court
that the GARC lacks jurisdiction to entertain the case
against them as the jurisdiction to try an offence
punishable under Section 7 of the PC Act was only with
the Special Court established/appointed under the PC
Act. After examining the definitions of ‘civil offence’,
‘criminal court’ and ‘member of the force’ in Sections 2
(e), (h) and (p) respectively of the 2006 Act, the learned
Single Judge of the High Court held that an offence
triable by a criminal court is within the jurisdiction of the
GARC. However, the High Court was of the opinion that
only a special Judge appointed by the Central
Government or the State Government under the PC Act
shall have the jurisdiction to try all offences punishable
under the PC Act. The High Court was of the considered
view that the jurisdiction exercisable by the Courts or
other ‘Authorities’ mentioned in Section 25 is not
affected by the PC Act. The High Court observed that the
2006 Act is not included in Section 25 (1) of the PC Act
and, therefore the ‘members of the force’ shall be
4
governed by the PC Act. Finally, the High Court declared
that the GARC cannot proceed to adjudicate the case
against the Respondents under the PC Act.
5. The Division Bench of the High Court upheld the
judgment of the learned Single Judge by reiterating that
an offence punishable under the PC Act is triable only by
a special Judge in view of Section 4 of the PC Act. For
the removal of doubts, it was laid down in Section 25(2)
of the PC Act that the Court of a special Judge shall be
deemed to be a Court of ordinary criminal justice for the
purpose of any law referred in Section 25(1) of the PC
Act. Only the Army Act, 1950; the Air Force Act, 1950;
the Navy Act, 1957; the Border Security Force Act, 1968;
the Coast Guard Act, 1978 and the National Security
Guard Act, 1986 are the statutes included in Section 25
of the PC Act. There was no declaration by the
Legislature that the GARC constituted under the 2006
Act which is a Court of ordinary criminal justice, was a
Court of special Judge under the PC Act. Therefore, the
Division Bench dismissed the appeal and declared that
5
the GARC has no jurisdiction to try an offence punishable
under Section 7 of the PC Act which can be tried only by
a Court of a Special Judge appointed under the PC Act.
6. Mr. Atmaram N.S. Nadkarni, learned Additional
Solicitor General submitted that the judgments of the
High Court suffered from the vice of erroneous
interpretation of the provisions of the PC Act and the
2006 Act. He relied upon Sections 55 and 56 of the 2006
Act to argue that every civil offence which is not
exempted under Section 56 of the 2006 Act shall be tried
by the GARC. He further relied upon Section 2 (e) of the
2006 Act which defines a “civil offence” to mean an
offence which is triable by a criminal court and the
definition of a criminal court in Section 2 (h) of the 2006
Act to mean a Court of ordinary criminal justice in any
part of India. He made an attempt to submit that the
2006 Act would fall within the sweep of Section 25 of the
PC Act, in view of S.R.O. 318 issued under the Army Act,
1950. S.R.O. 318 which was issued under Section 4 (1)
of the Army Act made the provisions of the Army Act,
6
except those specified in the Schedule annexed thereto,
applicable to every unit of the Armed Forces. He also
relied upon Section 11 of the Assam Rifles Act, 1941 by
which the members of the Assam Rifles were deemed to
be a part of the Indian Army for certain purposes. The
submission of the learned Additional Solicitor General is
that the GARC as well as the Court of a Special Judge
under the PC Act will have jurisdiction to try and punish
a person for an offence under the PC Act. There is no
ouster of jurisdiction of the GARC to try an offence under
the PC Act.
7. Mr. Dushyant Parashar, learned counsel for the
Respondent supported the judgment of the High Court
and submitted that Section 25 of the PC Act is not
applicable to the facts of this case. As the 2006 Act does
not find a mention in Section 25, no exemption from the
applicability of the PC Act to the 2006 Act can be
claimed by the Appellants. He supported the view of
the High Court that only a Special Judge under the PC
Act can try an offence under the said Act. As the GARC
7
was not declared to be a court of special Judge, he
submitted that no jurisdiction can be vested in the GARC
to try an offence under the PC Act.
8. Sections 55 and 56 of the 2006 Act read as follows:
“55. Civil offences.— Subject to the
provisions of section 56, any person subject to
this Act who at any place in, or beyond, India
commits any civil offence shall be deemed to
be guilty of an offence against this Act and, if
charged therewith under this section, shall be
liable to be tried by an Assam Rifles Court and,
on conviction, be punishable as follows, that is
to say,—
(a) if the offence is one which would be
punishable under any law in force in India
with death, he shall be liable to suffer any
punishment assigned for the offence, by
the aforesaid law and such less punishment
as is in this Act mentioned; and
8
(b) in any other case, he shall be liable to
suffer any punishment assigned for the
offence by the law in force in India, or
imprisonment for a term which may extend
to seven years, or such less punishment as
in this Act mentioned.
56. Civil offences not triable by an Assam
Rifles Court. —A person subject to this Act who
commits an offence of murder or of culpable
homicide not amounting to murder against, or
of rape in relation to, a person not subject to
this Act shall not be deemed to be guilty of an
offence against this Act and shall not be tried
by an Assam Rifles Court, unless he commits
any of the said offences,—
(a) while on active duty; or
(b) at any place outside India; or
(c) at any place specified by the Central
Government, by notification in this behalf.”
9
It is also relevant to refer to Section 2 (e), 2 (h) and
Section 2 (r) of the 2006 Act which are as under:
(e) “civil offence” means as offence which
is triable by a criminal court;
(h) “criminal court” means a court of
ordinary criminal justice in any part of
India;
(r) “offence” means any act or omission
punishable under this Act and includes a
civil offence;
It is clear from the above provisions that any
member of the Assam Rifles shall be liable to be tried by
the GARC for committing a civil offence which means an
offence which is triable by a criminal court. A ‘criminal
court’ means a Court of ordinary criminal justice in any
part of India. The only offences which are not triable by
the GARC are those specified in Section 56 of the 2006
Act.
10
9. Section 4 of the PC Act provides that an offence
punishable under the PC Act shall be tried only by a
special Judge. A special Judge under the Act is appointed
by a notification issued under Section 3 of the PC Act
either by the Central Government or the State
Government. According to the Section 5 of the PC Act,
the Court of the special Judge shall be deemed to be a
Court of Sessions. It is also necessary to refer to Section
28 of the PC Act which provides that the provisions of
the PC Act shall be in addition to, and not in derogation
of, any other law for the time being in force. As per
Section 25 of the PC Act, the jurisdiction exercisable by
and the procedure applicable to any Court or authority
under the Army Act, 1950; the Air Force Act; 1950, the
Navy Act, 1957; the Border Security Force Act, 1968; the
Coast Guard Act, 1978 and the National Security Guard
Act, 1986 shall not be affected by the PC Act. For the
removal of doubts, it was declared in Section 25 (2) of
the PC Act that for the purposes of any laws mentioned
in Section 25 (1), the Court of a special Judge shall be
deemed to be a Court of ordinary criminal justice.
11
10. The point answered against the Appellants by the
High Court is that the 2006 Act is not included in Section
25 (1) of the PC Act and that the criminal court under the
2006 Act has not been declared to be a Court of special
Judge. Therefore, the High Court decided that the cases
triable under the PC Act even against the members of
the Assam Rifles have to be necessarily tried by a
special Judge under the PC Act. There is no doubt that
the 2006 Act is not included in Section 25 (1) and
exemption from applicability of the provisions of the PC
Act cannot be claimed by the Appellants. We are not in
agreement with the submission made by the learned
Additional Solicitor General that the Appellants are
entitled to a relief on the basis of Section 25 of the PC
Act. We also reject the submission that the S.R.O. issued
under the Assam Rifles Act, 1941 shall continue to hold
the field even after the repeal of the 1941 Act and the
promulgation of the 2006 Act.
11. The charge-sheet issued against the Respondent is
for committing an offence under Section 7 of the PC Act.
12
Offences punishable under the PC Act shall be tried only
1
by special Judges, appointed by a notification of the
2
Central Government or the State Government . We are
not concerned with Section 25 of the PC Act as the 2006
Act is not included in Section 25 (1).
12. We proceed to examine the provisions of the 2006
Act. Section 55 of the 2006 Act provides that any civil
offence committed by a member of the Assam Rifles
shall be tried by the GARC. As referred to earlier, a civil
offence is defined by Section 2 (e) as an offence which is
triable by a criminal court. A criminal court is defined in
Section 2 (h) as a Court of ordinary criminal justice in
any part of India. A combined reading of the definitions
of ‘civil offence’ and ‘criminal court’ under Sections 2 (e)
and (h) respectively and Section 55 of the 2006 Act
would make it clear that an offence under the PC Act can
be tried by the GARC in respect of a member of the
Assam Rifles. There is an apparent conflict between
Section 4 of the PC Act and Section 55 of the 2006 Act.
1
Section 4 of the PC Act.
2
Section 3 of the PC Act.
13
If there is repugnancy between the provisions of the PC
Act and the 2006 Act, the conundrum is whether the
2006 Act, being a later Act, impliedly repeals the
provisions of the PC Act and whether both the statutes
can be harmoniously construed.
13. There is a presumption against repeal by
implication and the reason for this rule is based on the
theory that the Legislature while enacting a law has
complete knowledge of the existing laws on the same
subject-matter, and therefore, when it does not provide
a repealing provision, the intention is clear not to repeal
3
the existing legislation.
14. The presumption is, however, rebutted and repeal
is inferred by necessary implication when the provisions
of the later Act are so inconsistent with or repugnant to
the provisions of the earlier Act that the two cannot
stand together. But, if the two can be read together and
3
State of M.P. v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389, para 13;
See: Municipal Council, Palai v. T.J. Joseph, (1964) 2 SCR 87; Northern
India Caterers (P) Ltd. v. State of Punjab, (1967) 3 SCR 399; Municipal
Corporation of Delhi v. Shiv Shanker, (1971) 1 SCC 442; R.S.
Raghunath v. State of Karnataka, (1992) 1 SCC 335, and Ratan Lal
Adukia v. Union of India, (1989) 3 SCC 537.
14
some application can be made of the words in the earlier
4
Act, repeal will not be inferred.
15. The Courts, as a rule, lean against implying repeal
unless the two provisions are so plainly repugnant to
each other that they cannot stand together and it is not
possible on any reasonable hypothesis to give effect to
both at the same time. If the objects of the two
statutory provisions are different and the language of
each statute is restricted to its own objects or subject,
then they are generally intended to run in parallel lines
without meeting and there would be no real conflict
though apparently it may appear to be so on the surface.
Statutes in pari materia although in apparent conflict,
should also, so far as reasonably possible, be construed
to be in harmony with each other and it is only when
there is an irreconcilable conflict between the new
provision and the prior statute relating to the same
subject-matter, that the former, being the later
4
Id.
15
expression of the legislature, may be held to prevail, the
5
prior law yielding to the extent of the conflict .
16. Consolidation and amendment of laws relating to
the prevention of corruption is the object of the PC Act
whereas consolidation of laws relating to the governance
of Assam Rifles for ensuring the security of the borders
of India, to carry out the counter insurgency operations
in the specified areas etc., is the object of the 2006 Act.
Since the objects of the two Statutes are different and as
the applicability of the 2006 Act is restricted to the
members of the Assam Rifles, following the
aforementioned principles on the presumption against
implied repeal, Section 4 of the PC Act and Section 55 of
the 2006 Act which are in apparent conflict can be
harmoniously construed. This is on the basis that there
is no real conflict between the provisions of the two
Statutes and they can run in parallel lines.
5
Municipal Corporation of Delhi v. Shiv Shanker, (1971) 1 SCC 442, para
5.
16
17. It is also pertinent to refer to the following extract
6
from Sutherland’s Statutory Construction:
“A general statute applies to all persons and
localities within its jurisdictional scope, prescribing
the governing law upon the subject it
encompasses, unless a special statute exists to
treat a refinement of the subject with
particularity or to prescribe a different law for a
particular locality. Likewise, where a later statute
adapted for a particular locality conflicts with a
general law of State-wide application, the special or
local law will supersede the general enactment.
Where, however, the later special or local statute is
not irreconcilable with the general statute to the
degree that both statutes cannot have a
coterminous operation, the general statute will not
be repealed, but the special or local statute will
exist as an exception to its terms.”
[Emphasis supplied]
6 rd
Sutherland’s Statutory Construction, 3 ed. Vol. 1, p. 488 as quoted in
Ram Chandra Mawa Lal v. State of U.P., (1984) Supp SCC 28, para 48
17
We reiterate that Section 4 of the PC Act is not
irreconcilable with Section 55 of the 2006 Act, which is a
later local statute, to such an extent that the two cannot
stand together. Therefore, the jurisdiction exercisable by
the GARC under Section 55 of the 2006 Act can be
treated as an exception to the provisions of the PC Act.
18. In view of the aforesaid findings, we are of the
opinion that the GARC has the jurisdiction to try offences
under the PC Act against the members of the Assam
Rifles.
19. Therefore, the judgment of the High Court is set
aside and the appeal is allowed.
..…................................J.
[L. NAGESWARA RAO]
..…................................J.
[M.R. SHAH]
New Delhi,
July 01, 2019.
18