PARVATI Vs. STATE

JUDGEMENT

(1.) MEANS of this petition purporting to be under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code), the petitioner Km. Parvati Prays for a declaration that Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U.P. Act No. 16 of 1976 which omitted Section 438 of the Code in as far as it applies to the State of Uttar Pradesh is ultra vires and further seeks a relief for the grant of anticipatory bail under Section 438 of the Code as unlamented by the U.P. Enactment referred to above. The petitioner alleges that on the basis of a first information report lodged on March 19, 1977 by one Ballo, father of deceased Smt. Gita, Crime No. 24 of 1977 was registered at Police Station Naujhil in the district of Mathura, in which the petitioner and some others figured as accused for offences punishable under Section 302 and certain other offences under the Indian Penal Code. The offences in respect of which Crime No. 24 of 1977 has been registered against the petitioner are cognizable and non-bailable. Some of those who figured as co-accused in the crime mentioned above were apprehended and have been released on bail. Apprehending that she also may be taken into custody, the petitioner filed the instant petition but while the petition was admitted to hearing, anticipatory bail was refused to her. Since the vires of a provision of a State enactment was under challenge, K.B. Asthana, C.J. on May 2, 1977 directed its being listed for hearing before a Bench consisting of five learned Judges of this Court in view of the fact that the Constitution (Forty-Second) Amendment Act was then in force. By the time this petition came up for hearing, Section 228-A of the Constitution stood repealed and hence the petition was directed to be listed before a Division Bench of this Court. In view of the importance of the question raised, notice was issued to the learned Advocate General of the State. Though this Court declined to admit the petitioner to anticipatory bail, a statement was made by the learned Advocate General at the Bar that in spite of the fact that the petitioner is wanted in a crime, inter alia, involving an offence under Section 302 of the Indian Penal Code, she-is still absconding and has neither surrendered nor been apprehended. The result is that though a crime was registered against the petitioner and her co-accused as far back as in 1977, investigation has not been completed against her. The petitioner naturally alleges that she has been falsely implicated in the crime. Her prayer for anticipatory bail is based on the stand taken that the omission of Section 438 of the Code by Section 9 of U.P. Act No. 16 is ultra vires the powers of the U.P. legislature. We shall now proceed to deal with the various contentions raised by the learned counsel for the petitioner in support of the petition. There existed no provision like Section 438 in the Criminal Procedure Code of 1898. The Parliament for the first time, introduced Section 438 in the Code, 1973, which provides for grant of anticipatory bail. The U.P. legislature in its wisdom, in exercise of powers under Article 254 (2) of the Constitution, passed U.P. Act No. 16 of 1976 amending certain provisions of the Code as enacted by the Union Parliament and by Section 9 thereof provided for the omission of Section 438. It is claimed that the deletion by S. 9 of the U. P. Act No. 16 of 1976 being unconstitutional hence ineffective, the petitioner continues to have a right to apply for and obtain an order under Section 438 of the Code. Learned counsel for the petitioner firstly contended that Section 9 of the U.P. Act No. 16 of 1976 which has resulted in the omission of Section 438 of the Code is ultra vires of the Constitution being inconsistent with Article 14 of the Constitution. The factual allegation on the basis of which this contention is based is contained in paragraph 46 of the petition and the supplementary affidavit filed by the petitioner. The main assertion made to justify the plea of violation of Article 14 is to the effect 'that Section 438 of the Code has been deleted by the State of Uttar Pradesh only and the same stands unrevealed in the adjoining States of which territories are quite adjacent to the State of Uttar Pradesh, i.e. Himanchal Pradesh, Delhi Administration, Rajasthan, Madhya Pradesh and Bihar though the conditions of Uttar Pradesh are in no way different from those existing the adjoining States and even in the far off States. It has been stated that the State of Uttar Pradesh does not form a reasonableness which can be differentiated from other States for deletion of S. 438 of the Code. The Code of 1975, as already stated, is an enactment by the Union legislature. On the other hand, U.P. Act No. 16 of 1976 is an enactment by the legislature of the State of Uttar Pradesh even though it merely introduces amendments in the Parliamentary Act, If the State legislation is within its legislative competence, the two enactments, though dealing with the same subject-matter, are by different legislatures. Article 14 of the Constitution cannot be pressed in aid to challenge the legislation of one legislature with reference to another enactment by a different legislature even though the subject-matter of the two legislations may be identical or similar. In the Stale oj Madhya Pradesh v. G. C. Mayflower (1), a Constitution Bench of the Supreme Court observed that: "The power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments." This Statement of the law as declared by the Supreme Court is, in our opinion, equally applicable where a Central legislation in the concurrent sphere is amended by a legislation of a State legislature, as is the situation in the instant case. The decision of the Supreme Court in State of Madhya Pradesh v. G. C. Mandawar (A.I.R. 1954 S.C. 493) found the approval of another Constitution Bench of the Supreme Court in Lachhman Dass v. State of Punjab (A.I.R. 1963 S.C. 222). Undisputably U.P. Act No. 16 of 1976 is general in its application to all citizens of the State of Uttar Pradesh in respect of whom the U.P. legislature is competent to legislate. It applies to all those who are accused of non-bailable and cognizable offences within the territory of this State and consequently it is not possible to contend that Sec. 9 of the U.P. Act legislation discriminates in any fashion between residents within the State of Uttar Pradesh. The challenge to Section 9 of U.P. Act No. 16 of 1976 on the basis of Article 14 of the Constitution is thus unacceptable. It was next urged that the deletion of Section 438 of the Code by the U.P. Amendment has resulted in violation of Article 21 of the Constitution in as far as it interferes with the liberty of the citizens residing within the State of Uttar Pradesh and has the effect of depriving them of such liberty as they could have obtained by anticipatory bail in the absence of Section 9 of U.P. Act No. 16 of 1976. We confess our inability to appreciate this contention. All that Article 21 of the Constitution guarantees is that 'no person shall be deprived of his life or personal liberty except according, to procedure established by law'. As far as this State is concerned, the Code as amended by U.P. Act No. 16 of 1976 prescribes the procedure established by law by which a person accused of a cognizable and non-bailable offence may be deprived of his personal liberty within the meaning of Article 21. Section 41 of the Code arms every police officer with powers to arrest any person who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. Section 56 of the Code requires a police officer making an arrest without warrant to produce the arrested person without any unnecessary delay and subject to the provisions for bail before a Magistrate or before an officer in charge of a police station. Since in this State Section 438 of the Code stands omitted there is no procedure established by law entitling a person arrested for a non-cognizable and non-bailable offence to be set at liberty before his production before a Magistrate or officer in charge oj: a police station. Section 57 limits the time within which the requirements of Section 56 have to be complied with. Section 59 prohibits the discharge, except on bail being granted or under the special order of a Magistrate, of a person arrested by a police officer for a cognizable and non-bailable offence. Sections 167 and 209 in situations contemplated by those provisions provide for detention in custody of persons arrested with out warrant on orders of remand issued by Courts. Under Sections 437 and 439 those accused of non-bailable offences like the petitioner can be set at liberty on bail granted by Courts. These provisions prescribe the procedure established by law as far as this State is concerned for deprivation of the personal liberty of a person accused of a cognizable and non-bailable offence and the manner in which his personal liberty can be restored while he continues to be an accused person. The omission of Section 438 by the State amendment thus does not have the effect of depriving a person of his personal liberty except according to procedure established by law. It was ultimately urged by the learned counsel for the petitioner that the legislation under challenge was covered by Item No. 1 of List III of Schedule VII to the Constitution which is in the following terms: - "Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the Civil Power." The deletion of Section 438 of the Code, it was submitted, deprived a citizen of this State of the right to obtain anticipatory bail even if he was accused of offence against laws with respect to matters specified in List I and hence was beyond the legislative competence of the State legislature. The Indian Penal Code is an enactment which creates offences and provide for punishments for their commission. Criminal laws, envisaged by Item No. 1 of List III is concerned with substantive laws which like the Indian Penal Code declare offences and provide for their punishments. A law like the Code of Criminal Procedure creates no offence and does not provide for punishments. It provides for the manner in which the crimes under the Indian Penal Code and other similar laws are to be registered, cognizance taken of and those accused of such offences are to be tried and sentenced to such punishments as are provided for by the Indian Penal Code or other laws. Such provisions as exist in the Criminal Procedure Code for ensuring the apprehending of those accused of offences to enable the law enforce* ment agency to conduct its investigation and to enforce the presence of the offenders before the court are matters of criminal procedure. The Code of Criminal Procedure has, in our judgment, been framed by the Central legislature not under Item No. 1 of List III of Sche-VII but under Item No. 2 which is in the following terms, "Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution." The Code of 1973 is a Parliamentary legislation prior in point of time to the enactment of U.P. Act No. 16 of 1976. Since the Code of Criminal Procedure falls under the Concurrent List and is covered by Item No. 2 of List III of Schedule VII, it was open to the State legislature to amend it by legislating on the subject even in a fashion repugnant to the provisions of the earlier law made by Parliament. From the counter-affidavit filed on behalf of the State of Uttar Pradesh, it is clear that the Bill for amending the Code after being passed by the U.P. legislature was placed before the Governor and the Governor sent the same for the assent of the President of India on April 8, 1976 who gave his assent thereto on April 30, 1976. All the requirements of Article 254(2) of the Constitution were meticulously complied with. Thus even though Section 9 of U.P. Act No. 16 of 1976 is repugnant to Section 438 of the Parliamentary enactment of 1973 dealing with the same subject-matter, it is fully covered by Article 254 (2) of the Constitution and is evidently within the legislative competence of the State legislature. The challenge to the U.P. enactment on the basis of legislative incompetence is also without any substance and fails. For the reasons given, we find no substance in this petition, which is hereby dismissed.