MOHAN RAJ versus DIMBESWARI SAIKIA & ANR

Citation: [2006] SUPP. 8 S.C.R. 873 · Decided: 10-11-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

MOHAN RAJ 
A 
v. 
DIMBESWARI SA I KIA & ANR 
NOVEMBER I 0, 2006 
[S.B. SINHA AND DAL VEER BHANDARI, JJ.] 
B 
Criminal Procedure Code, 1973-As amended by State of Assam b;y 
Code of Criminal Procedure (Assam Amendment) Act, 1983-Sections 197(5) 
and 197(6)-Alleged extremists killed -by police personnel on being· 
attacked-Criminal complaint against police personnel-On reference by C 
Magistrate, State Government certifying in format prescribed under Sectiorz 
197(6)(i) of Code, as amended, that police personnel were acting in discharge 
of their official duty-Jn Criminal Revision filed by complainant for grant df 
aforesaid certificate, High Court on production of certificate, disposing it of 
as infructuous with directions that records of courts below be sent dow~ D 
along with copy of its order-However, in complaint case, State according 
sanction for prosecution of police personnel and in furtherance thereof 
proceedings reopened but adjourned sine die to await report in same mattef 
by Investigating Police Officer-In police case, State Government refused to 
accord sanction to prosecute police personnel, and thereupon complaint 
case re-opened on basis of the earlier sanction-High Court dismissing, E 
petition for quashing of proceedings-Correctness of-Held-Under the Act, 
of 1983, on State Goyernment certifying that accused was acting or purporting 
to act in or in connection with discharge of his official duty, it was imperative 
for Court to dismiss complaint or discharge accused-Accused derived vested, 
or accrued right as soon as said certificate was issued, but it came into effect 
when same was actually communicated-On facts, held that High Court in F 
Criminal Revision had communicated its order to Court where matter was 
pending and it was bound to act accordingly-Also, as complainant was 
aware that a certificate had been granted and did not prefer any appeal 
against it within the prescribed period, her right to appeal against correctness 
or otherwise of its grant was lost. 
G 
Code of Criminal Procedure (Assam Amendment) Act, 1983-Repeal by' 
Criminal Procedure Code (Assam Repealing) Act, 1986-Effect of-Held-
As Section 3 of the Repealing Act dealt only with transfer of cases from court 
of Executive Magistrate to a competent Court, it was a clear pointer that 
873 
H 
874 
SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R. 
A State in enacting Repealing Act, did not have any intention to deprive a 
person of his accrued or vested right-It was more so, when the Act was 
repealed, Section 6 of Assam General Clauses Act, 1915 came into force. 
Interpretation of statutes-Repealing Act-Held-It cannot be construed 
in such a way as to take away accrued right of a person-For interpretation 
B of a statute of this nature, doctrine of purposive construction may have to 
be taken recourse to. 
c 
Interpretation of statutes-Marginal note of a statutory provision-
Held-They may not ordinarily be taken recourse to for interpretation thereof, 
but in case of ambiguity, reference thereto would not be irrelevant. 
Doctrines-Doctrine of eclipse-Application of-Held-By its 
application a vested or accrued right cannot be taken away. 
Appellant was working as a Superintendent of Police in State of Assam 
in the year 1983. At that time, the State was witnessing ethnic violence. In 
D response to a purported report that a large number of extremist elements 
were hiding in the jungle for the purpose of attacking the police post and the 
minority refugee camp, appellant backed with other police personnel, allegedly, 
went to the place of hiding, were waylaid by extremists and attacked with guns, 
bows, etc. They returned the fire in which seven miscreants died and twelve 
E others were arrested. Regarding the deaths, respondent lodged a complaint 
against appellant and other police officials before Judicial Magistrate. In terms 
of the Code of Criminal Procedure (Assam Amendment) Act, 1983, a 
reference was made to the Government by Magistrate for issuance of a 
certificate as envisaged under Section 197(5) (a) of the Code. That certificate 
was granted by the State Government on 20-11-1985 in the prescribed form 
F under Section 197(6)(i) certifying that appellant and other police personnel 
were acting in the discharge of their official duty. In the meantime, respondent 
filed a Criminal Revision application before the High Court on the premise 
that the Government had not issued any certificate. However, on production of 
the a

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