Criminal

IN RE. ARCHANA GUHA [CHC]

Process was not issued against the opposite parties under any of the penal provision of the Act nor was any prayer made for issue of summons under any section of the Act in the petition of complaint filed before the learned Magistrate. According to the preamble, the Act was enacted to provide for special provision for the maintenance of public order by the prevention of illegal acquisition, possession or use of arms and the suppression of subversive activities endangering public safety and tranquility and for matters connected therewith or incidental thereto. The words “matters connected therewith or incidental thereto” must necessarily refer to the earlier words of the preamble. They must have reference to the maintenance of Public Order connected with the illegal acquisition of arms etc. and the suppression of subversive activities involving public safety. The allegations attributed to the opposite parties by the petitioner in her petition of complaint filed before the learned Magistrate cannot in any way bring the opposite parties within the purview of the Act. Under the circumstances, we find no substance in this application which is accordingly rejected.

82 CalWN 586

CALCUTTA HIGH COURT

DIVISION BENCH

( Before : S.C. Majumdar, J; P.C. Borooah, J )

IN RE. ARCHANA GUHA

Decided on : 17-02-1978

Bengal General Clauses Act, 1899 – Section 10
Criminal Procedure Code, 1973 (CrPC) – Section 437(1), Section 484(1)
General Clauses Act, 1897 – Section 8
Penal Code, 1860 (IPC) – Section 166, Section 330, Section 331, Section 34, Section 348, Section 509
West Bengal Maintenance Of Public Order Act, 1972 – Section 14, Section 14(b)

Counsel for Appearing Parties

Arun Prokas Chatterjee and Samar Kumar Dutta, for the Appellant; Balai Chandra Roy and Durgesh Dutta, for the Respondent

JUDGMENT

P.C. Borooah, J.—In this application the complainant petitioner Sm. Archana Guha has prayed for a Rule on the opposite parties asking them to show cause as to why an order dated November 5, 1977 passed by Shri S. Chakravarty, Chief Metropolitan Magistrate, Calcutta ordering them to be released on bail should not be cancelled or set aside. This application has been heard after notice had been served on the opposite parties who have been represented before us by Mr. Balai Chandra Ray.

2. On the basis of a complaint filed by the petitioner before the Chief Metropolitan Magistrate, Calcutta against the two opposite parties and three others process was issued on October 17, 1977 by the learned Chief Metropolitan Magistrate against the opposite party No. 1 Ranjit Guha Neogi alias Runu Guha Neogi under sections 166, 330/34, 331/34, 348/34, and 509 of the Indian Penal Code and against the second opposite party Arun Banerjee under sections 330|34, 331/34 and 348|34 of the Indian Penal Code. The allegation made by the petitioner in her complaint to the learned Magistrate was, inter alia, to the effect that she was taken away by the opposite parties and others who are Police Officers from her residence on the night of July 17, 1974 and thereafter she was brought to a special cell in the Lal Bazar Police Headquarters and tortured there from July 18, 1974 till about July 20, 1974 ultimately leading to an almost complete paralysis of her lower limbs.

3. The learned Magistrate after issuing process granted bail to the accused petitioners by the impugned order dated November 5, 1977.

4. Mr. Arun Prokas Chatterjee, learned Advocate appearing on behalf of the petitioners, has submitted before us that in view of section 14 (b) of the West Bengal Maintenance of Public Order Act, 1972 (hereinafter the Act) it was mandatory on the part of the learned Magistrate to hear the prosecution and give it a reasonable opportunity of being heard before ordering the accused opposite parties to be released on bail. Mr. Chatterjee’s further submission was that by virtue of section 8 of the General Clauses Act and Section 10 of the Bengal General Clauses Act, reference in section 14 (b) of the Act to section 497 of the Code of Criminal Procedure 1898 (hereinafter, the old Code) shall be construed as a reference to section 437(1) of the Code of Criminal Procedure, 1973 (hereinafter, the new Code).

5. With reference to the preamble of the Act Mr. Chatterjee submitted that the words “matters connected therewith or incidental thereto” are wide enough to refer to the facts and circumstances of the particular case and as such, the accused opposite parties come within the purview of section 14 (b) of the Act.

6. The submissions made by Mr. Chatterjee have been controverted by Mr. Balai Chandra Ray who has argued before us that by section 484(1) of the new Code, the old Code stood repealed and along with it Section 14 of the Act which referred to the old Code also stood impliedly repealed, and in view of the fact that the Act has not been amended Section 14 (b) of the Act would not have any application.

7. The petitioner filed the complaint after the new Code came into force and as such, the procedure as laid down under the new Code would apply to the facts and circumstances of the particular case.

8. Section 484(1) of the new Code repealed the old Code subject to certain exceptions laid down in the said section. Therefore, by virtue of section 484(1) of the new Code section 14 of the Act, which referred to the old Code, must necessarily stand repealed. No amendment has been enacted by the State Government amending section 14 of the Act and as such, there was no provision corresponding to section 14 (b) of the Act, when the present petitioners were summoned and the impugned order was passed granting them bail. Section 437 (1) of the New Code cannot be deemed to have been substituted in place of section 497 of the old Code in section 14 (b) of the Act even with the aid of section 8 of the General Clauses Act or section 10 of the Bengal General Clause Act, which have no manner of application.

9. Apart from what has been stated above, the Act cannot apply to the instant case. Process was not issued against the opposite parties under any of the penal provision of the Act nor was any prayer made for issue of summons under any section of the Act in the petition of complaint filed before the learned Magistrate. According to the preamble, the Act was enacted to provide for special provision for the maintenance of public order by the prevention of illegal acquisition, possession or use of arms and the suppression of subversive activities endangering public safety and tranquility and for matters connected therewith or incidental thereto. The words “matters connected therewith or incidental thereto” must necessarily refer to the earlier words of the preamble. They must have reference to the maintenance of Public Order connected with the illegal acquisition of arms etc. and the suppression of subversive activities involving public safety. The allegations attributed to the opposite parties by the petitioner in her petition of complaint filed before the learned Magistrate cannot in any way bring the opposite parties within the purview of the Act. Under the circumstances, we find no substance in this application which is accordingly rejected.

S. C. Majumdar,, J.

I agree.

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