STATE OF SIKKIM Vs. GYALPO TSHERING

JUDGEMENT

(1.) The main question involved in these two cases is whether, under the provisions of Art.254 of the Constitution, the Sikkim Criminal Procedure Act of 1976 is void to the extent of its repugnancy to the provisions of the Cr.P.C. 1973, the Sikkim Act admittedly not having received the assent of the President. There should be no doubt that if the Cr.P.C. of 1973, a law made by Parliament, was in operation in the State of Sikkim when the Sikkim Criminal Procedure Act of 1976 was enacted by the Sikkim State Legislature, then, both the enactments being with respect to matters enumerated in the Concurrent List, the Sikkim Act would be void to the extent of its inconsistency with the Parliamentary Code under the provisions of Cl.(1) of Art.254 of the Constitution, as admittedly the Sikkim Act has not received the assent of the President in accordance with the provisions of Art.254(2).

(2.) Sikkim has been incorporated in the Union of India in May, 1975 and, therefore, the Cr.P.C. of 1973, having been enacted at a time when Sikkim was not a part of the Union of India, could not, on its own, extend to the territories then comprised in Sikkim. It is not disputed that the Code of 1973 has not thereafter been formally extended to the State of Sikkim by any Parliamentary Legislation by amending the territorial extent clause of the Code or otherwise, or by any Presidential Notification under Cl.(n) of Art.371F, whereunder the President is empowered to extend any enactment to the State of Sikkim which is in operation in any other State in India.

(3.) Mr. Moulik, the learned counsel for the petitioner in the second case, has, however, urged that as the Code of 1973, under S.1(2) thereof, extends to the whole of India (except the State of Jammu and Kashmir), it would not only apply to the territories comprised in India at the date of the enactment of the Code, but would also automatically apply to all such territories as may subsequently be comprised in the Union of India. I am afraid that this contention of Mr. Moulik cannot but be rejected as being against all recognised canons of interpretation of statutes and the accepted principles of International Law. The expression "India" in S.1(2) of the Code or, for the matter of that, in any legislation, must be taken to have meant "India" as it stood at the date of enactment of the legislation in question, and, therefore, the expression "India" in S.1(2) of the Code, enacted in 1973, could not and would not include Sikkim and the Code could not extend to Sikkim even on its subsequent incorporation in the Union of India, without a formal extension to that effect.