SAIRABIBI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Is the Full Bench judgment of this Court in Babubhai Parshottamdas v. State. impliedly overruled by the decision of the Supreme Court in State of U. P. v. Lakshmi Brahman AIR 1983 SC 439 ? This question was raised before our learned brother M. B. Shah J. in Kantibhai v. State.. He held that the said Full Bench decision stands impliedly overruled by the decision of the Supreme Court in Lakshmi Brahmans case (supra). N. H. Bhatt J. in Misc. Criminal Application No. 2199 of 1985 decided on 22-11-1985 did not agree with the view taken by M. B. Shah J. in Kantilals case (supra) and held otherwise. Therefore when Misc. Criminal Application No. 441 of 1986 came up for hearing before our learned brother D. C. Gheewala J. he thought it fit to refer the matter to a larger bench in view of the conflicting decisions given by M B. Shah J. and N. H. Bhatt J. For the same reason our learned brother J. P. Desai J. thought it fit to refer Misc. Criminal Application No. 1318 of 1986 to a larger Bench. That is how both these applications have been placed before us for final disposal. Another question which has been raised before us is is whether sec. 167 of the Code of Criminal Procedure as amended by Criminal Procedure (Gujarat Amendment) Act 1976 continues to apply in the State of Gujarat or new sec. 167 as amended by Code of Criminal Procedure (Amendment) Act 1978 being Indian Parliament Act No. 45 of 1978 applies in this State ?

(2.) In order to properly appreciate the questions arising in these two applications it will be necessary to notice how sec. 167 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) has undergone changes from time to time. When enacted in 1973 sec. 167 read as under: 167 Procedure when investigation cannot be completed in twenty-four hours:

(3.) This provision was found causing difficulties in complicated and serious cases where for reasons beyond the control of investigating officers the investigation took more time. In order to remove this difficulty by enlarging the time limit to 120 days in serious cases and also for another purpose with which we are not concerned in these applications the President in exercise of the powers conferred by sec. 3 of the Gujarat State Legislature (Delegation of Powers) Act 1976 enacted an Act called the Code of Criminal Procedure (Gujarat Amendment) Act 1976 Sec. 2 of that Act reads as under: