N K SINHA Vs. STATE OF TRIPURA

JUDGEMENT

(1.) This is a reference under Section 395(1) of the Code of Criminal Procedure made by the Sub-Divisional Judicial Magistrate, Dharmanagar, North Tripura. The need for such reference arose when the learned Sub-Divisional Judicial Magistrate (for short "the SDJM") was considering the prayers for bail in GR Case No. 373/2000 (Kanchanpur PS Case No. 93/2000 under Sections 148/149/302/326/436, IPC and Sections 3/5, E.S. Act, and GR Case No. 307/2000 (Pecharthal PS Case No. 33/2000) under Sections 148/149/307/353, IPC, 25(I-B)(a), Arms Act and Sections 148/149/ 307/353, IPC, Section 25(I-B)(a), Arms Act and Sections 10/13, UA(P) Act, It has been stated in the reference by the learned SDJM that in GR Case No. 373/2000, the two persons, namely, Pravanjan Biswas and Bikash alias Bireswar Biswas had been in custody since 22-11-2000 and as per Section 167(2), Proviso (a)(i), Cr.P.C., they were entitled to be released on bail on 19-2-2001 after expiry of 90 days' statutory period of detention. It has similarly been stated in the reference that in GR Case No. 307/2000, the accused Rajendra Reang had been in custody since 23-10-2000 and he was entitled to get bail on 20-2-2000 after expiry of the statutory period of 90 days as per Section 167(2), Proviso (a)(i), Cr.P.C. But in both the cases the accused persons named above were not granted bail by the Court because the said period of 90 days has been extended to 180 days by the Tripura Amendment Act, 1997, amending the Proviso (a) to Section 167(2) of the Cr.P.C. The Tripura Amendment Act, 1997, was to remain in force for three years, but under sub-section (4) of Section 1 thereof the Govt. of Tripura has the power to extend the period for one year by a notification and subsequently also can extend the period of validity of the Act for a further period of one year, but in the proviso to sub-section (4) of Section 1 of the Tripura Amendment Act, 1997, it has been stated that notification, if any, issued extending the period of validity of the Act is to be laid before the Tripura Legislative Assembly. According to the learned SDJM in order to give validity to the said Tripura Amendment Act, 1997, the notification dated 7-9-2000 extending the period of validity of the Act for a period of one year from 27-1-2001 should have been laid before the Tripura Legislative Assembly. Since the prosecution had failed to show that the notification dated 7-9-2000 has been laid before the Tripura Legislative Assembly, he was of the view that the Tripura Amendment Act, 1997, was invalid. But since there was no decision of this Court as well as the Supreme Court that the Tripura Amendment Act, 1997 was invalid or inoperative he decided to make a reference to this Court.

(2.) When this reference was heard Mr. Ashok Chakraborty, learned Special Counsel, assisted by Mr. Haradhan Sarkar, Additional Public Prosecutor, Tripura, appearing for the State, stated on instruction that the said notification dated 7-9-2000 of the Home Department, Government of Tripura, extending the period of validity of the Tripura Amendment Act, 1997, has not in fact been laid as yet before the Tripura Legislative Assembly. According to Mr. Chakraborty, the provision in the proviso to S. 1 of the Tripura Amendment Act, 1997, requiring such notification to be laid before the Tripura Legislative Assembly was not mandatory but directory and, therefore, the Tripura Amendment Act, 1997, would not become invalid and inoperative merely because the said notification has not been laid before the Tripura Legislative Assembly. I called upon Mr. B.R. Bhattacharjee, learned Advocate General, State of Tripura, also to make submission on behalf of the State, and he cited a decision of the Supreme Court in Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149 : (1979 Cri LJ 927), in support of the aforesaid contention on behalf of the State that the Tripura Amendment Act, 1997, would not become invalid and inoperative merely because the notification dated 7-9-2000 of the Home Department, Government of Tripura, extending the period of validity of the said Act for a period of one year with effect from 27-1-2001 has not been laid before the Tripura Legislative Assembly. I also called upon Mr. Bhabesh Das, learned Senior Counsel, to assist the Court as an amicus curiae who submitted that although the proviso to S. 1 of the Tripura Amendment Act, 1997, states that a copy of the notification extending the validity period of the said Act 'shall' be laid, as soon as, may be before the Legislative Assembly of Tripura, the use of the word 'shall' does not make the aforesaid requirement of laying before the Tripura Legislative Assembly mandatory. In support of this submission, he cited the decision of the Supreme Court in State of U.P. v. Manbodhan Lal, AIR 1957 SC 912, wherein it has been held that the use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. Mr. Das further pointed out that in Jan Mohd. v. State of Gujarat, AIR 1966 SC 385, a similar view as in Atlas Cycle Industries v. State of Haryana (supra), has been taken that failure to place the rules before the Houses of Legislature which were required to be so placed did not affect the validity of the rules.

(3.) Section 1 of the Tripura Amendment Act, 1997, together with the proviso on which the learned SDJM has placed great reliance is quoted hereinbelow :