Madhya Pradesh Foreign Liquor Rules, 1996 – r.19 – Penalties – Permissible limits of loss of liquor in transit due to leakage, evaporation, wastage etc. – During the relevant license period of 2009-2010 when the violation occurred, r.19 provided that if permissible limits of loss of liquor exceeded, imposition of penalty was to be about four times the maximum duty payable on foreign liquor – However, no action was initiated against the appellant during the relevant license period– r.19 was substituted by an amendment in 2011 reducing penalty to an amount not exceeding the duty payable on foreign liquor – Demand notice issued in 2011 – Payment of penalty, if to be as per the repealed r.19 or the substituted r.19:

* Author

[2024] 4 S.C.R. 664 : 2024 INSC 327

Pernod Ricard India (P) Ltd.

v.

The State of Madhya Pradesh & Ors.

(Civil Appeal Nos. 5062-5099 of 2024)

19 April 2024

[Pamidighantam Sri Narasimha* and Aravind Kumar, JJ.]

Issue for Consideration

Issue as regards the applicability of the relevant rule for imposition

of penalty. Whether it was the rule that existed when the violation

occurred during the license period of 2009-10 (rule 19 of Madhya

Pradesh Foreign Liquor Rules, 1996, before the amendment) or

the rule 19 that was substituted by an amendment in 2011 when

proceedings for penalty were initiated.

Headnotes

Madhya Pradesh Foreign Liquor Rules, 1996 – r.19 – Penalties

– Permissible limits of loss of liquor in transit due to leakage,

evaporation, wastage etc. – During the relevant license period

of 2009-2010 when the violation occurred, r.19 provided that

if permissible limits of loss of liquor exceeded, imposition of

penalty was to be about four times the maximum duty payable

on foreign liquor – However, no action was initiated against

the appellant during the relevant license period– r.19 was

substituted by an amendment in 2011 reducing penalty to an

amount not exceeding the duty payable on foreign liquor –

Demand notice issued in 2011 – Payment of penalty, if to be

as per the repealed r.19 or the substituted r.19:

Held: Penalty to be imposed on the appellants will be on the basis of

r.19 as substituted on 29.03.2011 – A repealed provision will cease

to operate from the date of repeal and the substituted provision

will commence to operate from the date of its substitution, subject

to specific statutory prescription – The operation of a subordinate

legislation is determined by the empowerment of the parent act –

The legislative authorization enabling the executive to make rules

prospectively or retrospectively is crucial – Without a statutory

empowerment, subordinate legislation will always commence to

operate only from the date of its issuance and at the same time,

cease to exist from the date of its deletion or withdrawal – Even 

[2024] 4 S.C.R. 665

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

s.63 of the M.P. Excise Act, 1915 does not provide continuation

of a repealed provision to rights and liabilities accrued during its

subsistence – Further, r.19 which was substituted on 29.03.2011 was

not notified to operate from any other date by the Government – If

the amendment by way of a substitution in 2011 was intended to

reduce the quantum of penalty for better administration and regulation

of foreign liquor, there is no justification to ignore the subject and

context of the amendment and permit the State to recover the

penalty as per the unamended Rule – Purpose of the amendment

was to achieve a proper balance between crime and punishment or

the offence and penalty – Classifying offenders into before or after

the amendment for imposing higher and lower penalties does not

serve any public interest – The substituted Rule alone will apply to

pending proceedings – Impugned order of the Division Bench of the

High Court set aside. [Paras 2.1, 13, 14, 17, 32, 35]

Administrative Law – Subordinate legislation – Operation of –

Prospective/retrospective – Principles governing - Discussed.

Madhya Pradesh General Clauses Act, 1957 – s.10 – Effect

of Repeal – M.P. Excise Act, 1915 – Madhya Pradesh Foreign

Liquor Rules, 1996 – r.19 – General Clauses Act, 1897 – s.6 –

Violation occurred during the license period of 2009-10 – r.19

substituted in 2011 imposed lesser penalty than the repealed

r.19 if permissible limits of loss of liquor exceeded – Demand

notice issued in 2011 – Payment of penalty, if to be as per the

repealed r.19 or the substituted r.19 – Plea of the respondent

that as s.10 states that where any Madhya Pradesh Act repeals

any enactment then, unless a different intention appears,

the repeal shall not affect any right, privilege, obligation or

liability, acquired, accrued or incurred under any enactment

so repealed; State of M.P. can continue to apply the repealed

Rule for the transaction of 2009-2010 by virtue of specific

provisions under the 1957 Act:

Held: s.10 of the MP General Clauses Act by itself would not make any

difference as the Section is applicable only to enactments, i.e. when

any M.P. Act repeals any enactment and not a subordinate legislation

– Interpreting s.6, an identical provision of the General Clauses Act,

1897, this Court has consistently held that s.6 of the 1897 Act, has

no application to subordinate legislation – Further, the subject of

administration of liquor requires close monitoring and the amendment

must be seen in this context of bringing about good governance and

effective management – Seen in this context, the principle of s.10 of 

666 [2024] 4 S.C.R.

Digital Supreme Court Reports

1957 Act, relating continuation of a repealed provision to rights and

liabilities that accrued during the subsistence of the Rule does not

subserve the purpose and object of the amendment. [Paras 31, 32]

Administrative law – Subordinate legislation – Rule making

and its enforcement – Madhya Pradesh Foreign Liquor Rules,

1996 – r.19:

Held: The process of identifying a crime and prescribing an

appropriate punishment is a complex and delicate subject that

the State has to handle while making rules and enforcing them

– The gravity of the offence, its impact on society and human

vulnerability are taken into account to provide the required

measure of deterrence and reform – Day to day working of the

Rules, reposing their effectiveness, ineffectiveness, deficiency of

deterrence, disproportionate penalty having a chilling effect on

genuine businesses, are some routine factors which require the

executive to make necessary amendments to the rules – In this

context, depending on the nature of offence, the proportionate

penalty is required to be modulated from time to time – In the present

case, the regulatory process required the Government to deal with

the problem of diversion and unlawful sale of foreign liquor and also

provide an appropriate penalty and punishment – In light of this, the

felt need of the State to amend and substitute r.19 which provided

a higher penalty at four times the duty, with a simple penalty not

exceeding the duty payable can be appreciated. [Para 31]

Madhya Pradesh General Clauses Act, 1957 – s.31 – Application

of Act to Ordinances and Regulations - “unless there is anything

repugnant in the subject and context” – Madhya Pradesh Foreign

Liquor Rules, 1996 – r.19 – By virtue of s.31, the provisions

of the 1957 Act were made applicable to the construction

of rules – By such application, the principle of a repeal of a

provision not affecting any liability incurred thereunder was

also extended to the operation of the subordinate legislations

under the Act – Therefore, the respondent-State submitted that

having incurred the liability of exceeding the prescribed limits

of losses of liquor for the license period 2009-10, the liability

is not affected by the subsequent substitution of r.19:

Held: Conscious of the big leap to extend the 1957 Act, for

construction of subordinate legislations, s.31 took care to provide

that it may be done only when it is not repugnant to the subject and

context – If the amendment of r.19 by way of a substitution in 2011 

[2024] 4 S.C.R. 667

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

intended to reduce the quantum of penalty for better administration

and regulation of foreign liquor, there is no justification to ignore

the subject and context of the amendment and permit the State

to recover the penalty as per the unamended Rule. [Paras 23, 32]

Interpretation of Statutes – Interpretation statutes like the

General Clauses Act, 1897 - Purpose:

Held: Are enactments intended to set standards in construction of

statutes – The expression construction is of seminal importance

as it is oriented towards enabling a seeker of the text of a

statute to understand the true meaning of the words and their

intendment – Apart from setting coherent and consistent methods of

understanding enactments, the interpretation statutes also subserve

the purpose of reducing prolixity of legislations – Therefore, the

standard principles formulated in the interpretation statutes must

be read into any and every enactment falling for consideration –

Interpretation statutes or definitions in interpretation clauses are only

internal aids of construction of a statute – Subordinate legislation,

by its very nature, rests upon the executive’s understanding of

the primary legislation – When a Court is of the opinion that such

an understanding is not in consonance with the statute, it sets it

aside for being ultra-vires to the primary statute. [Paras 24, 27, 28]

Madhya Pradesh Foreign Liquor Rules, 1996 – r.19 – Retroactive

operation – Substituted Rule imposed lesser penalty than the

repealed rule if permissible limits of loss of liquor exceeded –

Plea of the respondent-State that the substituted Rule cannot

be given retrospective effect:

Held: Submission rejected – It is wrong to assume that the substituted

Rule is given retrospective effect if its benefits are made available

to pending proceedings or to those that have commenced after the

substitution – r.19 which was substituted on 29.03.2011 was made

applicable to proceedings that commenced with the issuance of the

demand notice in November, 2011 – The Rule operates retroactively

and thus saves it from arbitrarily classifying the offenders into two

categories with no purpose to subserve. [Para 33]

Madhya Pradesh Foreign Liquor Rules, 1996 – r.19 –

Constitution of India – Article 20(1) – Substituted Rule imposed

lesser penalty than the repealed rule if permissible limits of loss

of liquor exceeded – Bar of Article 20(1) imposing a penalty

greater than the one in force at the time of the commission

of the offence, if applicable:

668 [2024] 4 S.C.R.

Digital Supreme Court Reports

Held: No – The substituted penalty only mollifies the rigour of the

law by reducing the penalty from four times the duty to value of

the duty – Therefore, the bar of Article 20(1) of imposing a penalty

greater than the one in force at the time of the commission of the

offence has no application – Single Judge was of the view that

the amendment by way of substitution had the effect of repealing

the law which existed as on the date of repeal – Division Bench

on the other hand, held that levy of penalty was substantive law,

and as such, it cannot operate retrospectively – Reasoning of

both, rejected. [Para 35]

Case Law Cited

Pushpa Devi v. Milkhi Ram [1990] 1 SCR 278 : (1990)

2 SCC 134; Vanguard Fire and General Insurance Co.

Ltd. v. Fraser and Ross [1960] 3 SCR 857 – relied on.

State of Rajasthan v. Mangilal Pindwal [1996] Supp.

3 SCR 98 : (1996) 5 SCC 60; West U.P. Sugar Mills

Association v. State of U.P. [2002] 1 SCR 897 : (2002)

2 SCC 645; Zile Singh, Government of India v. Indian

Tobacco Association [2005] Supp. 2 SCR 859 : (2005) 7

SCC 396; Koteswar Vittal Kamath v. K. Rangappa Baliga

& Co. [1969] 3 SCR 40 : (1969) 1 SCC 255; Zile Singh v.

State of Haryana [2004] Supp. 5 SCR 272 : (2004) 8 SCC

1; Gottumukkala Venkata Krishamraju v. Union of India

[2018] 11 SCR 39 : (2019) 17 SCC 590; Rayala Corp.

v. Director of Enforcement [1970] 1 SCR 639 : (1969) 2

SCC 412; Kolhapur Canesugar Works Ltd. v. Union of

India [2000] 1 SCR 518 : (2000) 2 SCC 536; Keshavji

Ravji & Co. v. Commissioner of Income Tax [1990] 1

SCR 243 : (1990) 2 SCC 231; Dr. Major Meeta Sahai v.

State of Bihar [2019] 15 SCR 273 : (2019) 20 SCC 17;

Rattan Lal v. State of Punjab [1964] 7 SCR 676 : 1964

SCC OnLine SC 40; Basheer v. State of Kerala [2004]

2 SCR 224 : (2004) 3 SCC 609; Nemi Chand v. State of

Rajasthan (2018) 17 SCC 448; Trilok Chand v. State of

Himachal Pradesh (2020) 10 SCC 763; M/s. A.K. Sarkar

& Co. & Anr. v. The State of West Bengal & Ors. [2024]

3 SCR 356 : (2024) SCC OnLine SC 248 – referred to.

Books and Periodicals Cited

Halsbury’s Laws, (5th edn, 2018), vol 96, para 694

[2024] 4 S.C.R. 669

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

List of Acts

Madhya Pradesh Foreign Liquor Rules, 1996; M.P. Excise Act,

1915; Madhya Pradesh General Clauses Act, 1957; General

Clauses Act, 1897; Constitution of India.

List of Keywords

Loss of liquor; Foreign liquor; Penalty; Imposition of penalty;

Quantum of penalty reduced; Lesser penalty; Substitution by

an amendment; Repealed rule; Substituted rule; Subordinate

legislation; Prospective/retrospective/retroactive; Appropriate

punishment; Balance between crime and punishment/offence and

penalty; Interpretation statutes; Construction of statutes; Definitions

in interpretation clauses; Internal aids of construction.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5062-5099 of

2024

From the Judgment and Order dated 29.06.2017 of the High Court of

M.P. at Gwalior in WA Nos.42, 41, 40, 39, 38, 37, 36, 35, 34, 33, 32,

31, 30, 29, 28, 27, 26, 25, 24, 23, 22, 21, 20, 19, 17, 16, 15, 14, 13,

12, 11, 10, 9, 8, 7, 6 and 100 of 2017 and 425 of 2016

Appearances for Parties

Pratap Venugopal, Sr. Adv., Ms. Surekha Raman, Amarjit Singh

Bedi, Abhishek Anand, Ms. Unnimaya S, Shreyash Kumar, Advs.

for the Appellant.

Saurabh Mishra, A.A.G., Sunny Choudhary, Ajay Singh, Advs. for

the Respondents.

Judgment / Order of the Supreme Court

Judgment

Pamidighantam Sri Narasimha, J.

1. Leave Granted.

2. The short question for our consideration is the applicability of the

relevant rule for imposition of penalty; whether it is the rule that

existed when the violation occurred during the license period of 2009-

10 or the rule that was substituted in 2011 when proceedings for 

670 [2024] 4 S.C.R.

Digital Supreme Court Reports

penalty were initiated. As the substituted rule reduced the quantum

of penalty, the appellant insists on its application but the statutory

authorities as well as the Division Bench of the High Court rejected

his case and imposed higher penalty under the old rule.

2.1 For the reasons to follow, we have accepted the contention

of the appellant and, in allowing the appeal, determined that

the purpose of the amendment is to achieve a proper balance

between crime and punishment or the offence and penalty.

In light of this, and recognizing that classifying offenders

into before or after the amendment for imposing higher and

lower penalties does not serve any public interest, we have

directed that the substituted Rule alone will apply to pending

proceedings.

3. Facts:- The appellant is a sub-licensee under the M.P. Excise Act,

19151

 for manufacture, import and sale of Foreign Liquor, regulated

under the Madhya Pradesh Foreign Liquor Rules, 19962

.

3.1 Sub-licensees importing Foreign Liquor are granted transit

permits in which the origin, quality, quantity and point of delivery

of the imported liquor are recorded. At the point of destination, the

consignment is verified for quality and quantity, and a certificate

under Rule 13 is granted. Rule 16 prescribes the permissible

limits of loss of liquor in transit due to leakage, evaporation,

wastage etc. The purpose and object of this Rule is to prevent

illegal diversion of liquor for unlawful sale and also to prevent

evasion of excise duty. Relevant portion of Rule 16 is as follows:-

“Rule 16. Permissible limits of losses.-

(1) An allowance shall be made for the actual loss of spirit

by leakage, evaporation etc., and of bottled foreign

liquor by breakage caused by loading, unloading,

handling etc. in transit, at the rate mentioned

hereinafter. The total quantity of bottled foreign

liquor transported or exported shall be the basis for

computation of permissible losses.

1 Hereinafter referred to as “the Act”.

2 Hereinafter referred to as “the 1996 Rules”.

[2024] 4 S.C.R. 671

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

(2) Wastage allowances on the spirit transported to

the premises of FL 9 or FL 9-A licensee shall be

the same as given in sub-rule (4) of Rule 6 of the

Distillery Rules, 1995.

(3) Maximum wastage allowance for all exports of bottled

foreign liquor shall be 0.25% irrespective of distance.

(4) Maximum wastage allowance for all transports of

bottled foreign liquor shall be 0.1% if the selling

licensee and the purchasing licensee belong to the

same district. It shall be 0.25% if they belong to

different districts.

(5) If wastages/losses during the export or transport of

bottled foreign liquor exceed the permissible limit

prescribed in sub-rule (3) or (4), the prescribed duty

on such excess wastage of bottled foreign liquor shall

be recovered from the licensee.”

3.2 If the permissible limits of loss of liquor are exceeded, the

1996 Rules prescribe imposition of penalty. Rule 19 providing

for penalty that could be imposed during the relevant license

period of 2009-2010 was about four times the maximum duty

payable on foreign liquor. The relevant portion of Rule 19 is

as follows: -

“Rule 19. Penalties3

. –

(1) Without prejudice to the provisions of the Act, or

condition No. 4 of license in Form F.L. 1, condition

No. 7 of license in Form F.L 2, condition No. 4 of

license in Form F.L 3, the Excise Commissioner or

the Collector may impose a penalty not exceeding

Rs. 50,000 for contravention of any of these rules

or the provisions of the Act or any other rules made

under the Act or the order issued by the Excise

Commissioner.

(2) On all deficiencies in excess of the limits allowed

under Rule 16 and Rule 17, the F.L. 9 or FL 9-A,

3 Hereinafter “the old Rule”.

672 [2024] 4 S.C.R.

Digital Supreme Court Reports

F.L. 10-A or F.L. 10-B licensee shall be liable to

pay penalty at a rate exceeding three times but not

exceeding four times the maximum duty payable on

foreign liquor at that time, as may be imposed by the

Excise Commissioner or any officer authorized by him:

Provided that if it be proved to the satisfaction of the

Excise Commissioner or the authorized officer that

such excess deficiency or loss was due to some

unavoidable cause, like fire or accident and its first

information report was lodged in Police Station, he

may waive the penalty imposable under this sub-rule.

(3) The Excise Commissioner or the Collector may

suspend or cancel the license under Section 31 of

the Act upon a contravention of any of these rules

or provisions of the Act, or any other rules made

under the Act, or the orders issued by the Excise

Commissioner.”

4. Facts reveal that no action was initiated during the license year of

2009-2010.

5. On 29.03.2011, Rule 19 was substituted by an amendment. The

relevant portion of substituted provision is as follows:

“Rule 19. Penalties4

(1) …

(2) On all deficiencies in excess of the limits allowed

under rule 16 and rule 17, the F.L.-9, F.L-9-A, F.L.-

10-B Licensee shall be liable to pay penalty at a

rate not exceeding the duty payable on foreign

liquor at that time, as may be imposed by the Excise

Commissioner or any officer authorized by him:

Provided that if it be proved to the satisfaction of the

Excise Commissioner or the authorized officer that

such excess deficiency or loss was due to some

unavoidable causes like fire or accident and its First

Information Report was lodged in concerned Police

4 Hereinafter, “the substituted Rule”.

[2024] 4 S.C.R. 673

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

Station, he may waive the penalty imposable under

this sub-rule.”

(emphasis supplied)

6. As is evident, the above referred substituted Rule 19 reduces

penalty from four times the maximum duty payable to an amount

not exceeding the duty payable on foreign liquor.

7. Eight months after the amendment, a demand notice dated 22.11.2011

was issued directing payment of penalty for exceeding the permissible

limits during the license year 2009-2010. The notice demanded

penalty of four times the duty as per the old Rule 19. The appellant

replied, inter alia contending that penalty, if any, can only be under

the substituted Rule 19 as the old rule stood repealed, and in fact,

the demand is raised after the substituted Rule came into force.

8. The Deputy Commissioner5

 rejected the objections raised by the

appellant and confirmed the demand for payment of penalty at four

times the duty payable. The Deputy Commissioner’s order was

upheld by the Excise Commissioner6

, and thereafter by the Revenue

Board Gwalior7

.

9. Questioning the decisions of the statutory authorities, the appellant

filed a writ petition before the High Court which was heard and

disposed of with 40 other petitions raising a similar issue. The

Single Judge of the High Court was of the view that the new Rule

was introduced by way of a substitution and following the principles

in State of Rajasthan v. Mangilal Pindwal8

, West U.P. Sugar Mills

Association v. State of U.P.9

, Zile Singh, Government of India v. Indian

Tobacco Association10, he held that the old Rule stood repealed

from the statute book and only the substituted Rule applies to all

pending and future proceedings. He, therefore, set aside the orders

of the statutory authorities and remanded the matter back to them

for determining the penalty as per the substituted Rule.

5 By order dated 18.04.2012

6 By order dated 02.05.2013

7 By order dated 10.12.2013

8 [1996] Supp. 3 SCR 98 : (1996) 5 SCC 60

9 [2002] 1 SCR 897 : (2002) 2 SCC 645

10 [2005] Supp. 2 SCR 859 : (2005) 7 SCC 396

674 [2024] 4 S.C.R.

Digital Supreme Court Reports

10. The Division Bench of the High Court, by the order impugned herein,

reversed the decision of the Single Judge on the simple ground that as

the license was granted for one year, the Rule that existed during that

license year must apply. The reason for not applying the substituted

Rule according to the Division Bench is also that determination of

penalty being substantive law, cannot operate retrospectively.

11. Questioning the legality and validity of the decision of the Division

Bench of the High Court, the present appeals are filed. Mr. Pratap

Venugopal, Ld. Senior Advocate, appearing on behalf of the appellant

argued that the effect of substitution is to repeal the existing provision

from the statute book in its entirety and to enforce the newly substituted

provision. He would further submit that even for incidents which

took place when the old Rule was in force, it is the substituted Rule

that would be applicable, and therefore, the demand notice dated

22.11.2011 seeking payment of penalties under old Rule is illegal.

12. There is no difficulty in accepting the argument of Mr. Pratap

Venugopal on principle. In Koteswar Vittal Kamath v. K. Rangappa

Baliga & Co.11, this Court brought out the distinction between

supersession of a rule and substitution of a rule, and held that the

process of substitution consists of two steps – first, the old rule is

repealed, and next, a new rule is brought into existence in its place:

“8. On that analogy, it was argued that, if we hold that

the Prohibition Order of 1950, was invalid, the previous

Prohibition Order of 1119, cannot be held to be revived. This

argument ignores the distinction between supersession of

a rule, and substitution of a rule. In the case of Firm A.T.B.

Mehtab Majid & Co., the new Rule 16 was substituted for

the old Rule 16. The process of substitution consists of

two steps. First, the old rule it made to cease to exist and,

next, the new rule is brought into existence in its place.

Even if the new rule be invalid, the first step of the old

rule ceasing to exist comes into effect, and it was for this

reason that the court held that, on declaration of the new

rule as invalid, the old rule could not be held to be revived.”

11 [1969] 3 SCR 40 : (1969) 1 SCC 255

[2024] 4 S.C.R. 675

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

12.1 In Zile Singh v. State of Haryana12, this Court referred to the

legislative practice of an amendment by substitution and held

that substitution would have the effect of amending the operation

of law during the period in which it was in force.

“24. The substitution of one text for the other pre-existing

text is one of the known and well-recognised practices

employed in legislative drafting. “Substitution” has to be

distinguished from “supersession” or a mere repeal of an

existing provision.

25. Substitution of a provision results in repeal of the earlier

provision and its replacement by the new provision (see

Principles of Statutory Interpretation, ibid., p. 565). If any

authority is needed in support of the proposition, it is to

be found in West U.P. Sugar Mills Assn. v. State of U.P13.,

State of Rajasthan v. Mangilal Pindwal14 , Koteswar Vittal

Kamath v. K. Rangappa Baliga and Co.15 and A.L.V.R.S.T.

Veerappa Chettiar v. I.S. Michael16 . In West U.P. Sugar Mills

Assn.

17 case a three-Judge Bench of this Court held that

the State Government by substituting the new rule in place

of the old one never intended to keep alive the old rule.

Having regard to the totality of the circumstances centring

around the issue the Court held that the substitution had the

effect of just deleting the old rule and making the new rule

operative. In Mangilal Pindwal18 case this Court upheld the

legislative practice of an amendment by substitution being

incorporated in the text of a statute which had ceased to

exist and held that the substitution would have the effect

of amending the operation of law during the period in

which it was in force. In Koteswar case19 a three-Judge

Bench of this Court emphasised the distinction between

12 [2004] Supp. 5 SCR 272 : (2004) 8 SCC 1

13 [2002] 1 SCR 897 : (2002) 2 SCC 645

14 [1996] Supp. 3 SCR 98 : (1996) 5 SCC 60

15 [1969] 3 SCR 40 : (1969) 1 SCC 255

16 1963 Supp (2) SCR 244

17 [2002] 1 SCR 897 : (2002) 2 SCC 645

18 (1996) 5 SCC 60

19 (1969) 1 SCC 255

676 [2024] 4 S.C.R.

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“supersession” of a rule and “substitution” of a rule and

held that the process of substitution consists of two steps:

first, the old rule is made to cease to exist and, next, the

new rule is brought into existence in its place.”

12.2 A slight variation is noticed in a recent decision in Gottumukkala

Venkata Krishamraju v. Union of India,

20 where this Court held

that:

“18. Ordinarily wherever the word “substitute” or

“substitution” is used by the legislature, it has the effect

of deleting the old provision and make the new provision

operative. The process of substitution consists of two

steps : first, the old rule is made to cease to exist and,

next, the new rule is brought into existence in its place.

The rule is that when a subsequent Act amends an earlier

one in such a way as to incorporate itself, or a part of itself,

into the earlier, then the earlier Act must thereafter be read

and construed as if the altered words had been written

into the earlier Act with pen and ink and the old words

scored out so that thereafter there is no need to refer to

the amending Act at all. No doubt, in certain situations,

the Court having regard to the purport and object sought

to be achieved by the legislature may construe the word

“substitution” as an “amendment” having a prospective

effect. Therefore, we do not think that it is a universal

rule that the word “substitution” necessarily or always

connotes two severable steps, that is to say, one of

repeal and another of a fresh enactment even if it implies

two steps. However, the aforesaid general meaning is to

be given effect to, unless it is found that the legislature

intended otherwise. Insofar as present case is concerned,

as discussed hereinafter, the legislative intent was also to

give effect to the amended provision even in respect of

those incumbents who were in service as on 1-9-2016.”

13. The operation of repeal or substitution of a statutory provision is

thus clear, a repealed provision will cease to operate from the date

20 [2018] 11 SCR 39 : (2019) 17 SCC 590

[2024] 4 S.C.R. 677

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

of repeal and the substituted provision will commence to operate

from the date of its substitution. This principle is subject to specific

statutory prescription. Statute can enable the repealed provision to

continue to apply to transactions that have commenced before the

repeal. Similarly, a substituted provision which operates prospectively,

if it affects vested rights, subject to statutory prescriptions, can also

operate retrospectively.

14. The principle governing subordinate legislation is slightly different in

as much as the operation of a subordinate legislation is determined

by the empowerment of the parent act. The legislative authorization

enabling the executive to make rules prospectively or retrospectively

is crucial. Without a statutory empowerment, subordinate legislation

will always commence to operate only from the date of its issuance

and at the same time, cease to exist from the date of its deletion or

withdrawal. The reason for this distinction is in the supremacy of the

Parliament and its control of executive action, being an important

subject of administrative law.

15. We will now refer to the rule making power under the M.P. Excise

Act, 1915. Section 62 of the Act empowers the State to make rules.

Relevant portion of Section 62 is as follows: –

“62. Power to make rules.— (1) The State Government

may make rules for the purpose of carrying out the

provisions of this Act.

(2) In particular, and without prejudice to the generality

of the foregoing provision, the State Government may

make rules—

(a) prescribing the powers and duties of Excise Officers;

(b) to (n) …

(3) The power conferred by this section of making rules

is subject to the condition that the rules made under subsection (2) (a), (b), (c), (e), (f), (i), (l) and (m) shall be

made after previous publication :

Provided that any such rules may be made without previous

publication if the State Government considers that they

should be brought into force at once.”

678 [2024] 4 S.C.R.

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16. Section 62 does not enable the executive to continue the application of

a repealed rule to events that have commenced during the subsistence

of the Rule. However, Section 63 is of some importance. It enables

the executive to operate the Rule from a date as may be specified

in that behalf. Section 63 is reproduced as below:-

“63. Publication of rules and notifications.— All rules

made and notifications issued under this Act shall be

published in the Official Gazette, and shall have effect

from the date of such publication or from such other date

as may be specified in that behalf.”

17. It is clear that even Section 63 of the Act does not provide continuation

of a repealed provision to rights and liabilities accrued during its

subsistence. At the most, Section 63 of the M.P. Excise Act, 1915,

only enables the government to issue subordinate legislation with

effect from such a date as may be specified. We may mention

at this very stage that Rule 19 which has been substituted on

29.03.2011 has not been notified to operate from any other date

by the Government.

18. Faced with this situation, Mr. Saurabh Mishra, learned A.A.G. for the

State, came up with an attractive argument that the State of M.P. can

continue to apply the repealed Rule for the transaction of 2009-2010

by virtue of specific provisions under the Madhya Pradesh General

Clauses Act, 1957. He brought to our notice Section 10 of the Act

which is as follows:-

“10. Effect of Repeal. Where any Madhya Pradesh Act

repeals any enactment then, unless a different intention

appears, the repeal shall not-

(a) revive anything not in force or existing at the time at

which the repeal takes effect; or

(b) affect the previous operation of any enactment so

repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability, acquired,

accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in

respect of any offence committed against any enactment

so repealed; or

[2024] 4 S.C.R. 679

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

(e) affect any investigation, legal proceeding or remedy

in respect of any such right, privilege, obligation, liability,

penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy

may be instituted, continued or enforced, and any such

penalty, forfeiture or punishment may be imposed, as

if the repealing Madhya Pradesh Act had not been

passed.”

19. The above-referred Section of the MP General Clauses Act by

itself would not make any difference as the Section is applicable

only to enactments, i.e. when any M.P. Act repeals any enactment

and not a subordinate legislation. Interpreting an identical provision

of the General Clauses Act, 1897, i.e. Section 6, this Court has

consistently held that Section 6 of the General Clauses Act, 1897,

has no application to subordinate legislation.21

20. Mr. Saurabh Mishra then referred to Section 31 of Madhya Pradesh

General Clauses Act, 1957, which is as under:

“31. Application of Act to Ordinances and Regulations.-

The provisions of this Act shall apply, unless there is

anything repugnant in the subject or context-

(a) to any Ordinance or Regulation as they apply in relation

to Madhya Pradesh Acts:

Provided that sub-section (1) of section 3 of this Act shall

apply to any Ordinance or Regulation as if for the reference

in the said sub-section (1) to the day of the first publication

of the assent to an Act in the Official Gazette there were

substituted a reference to the day of the first publication

of the Ordinance or the Regulation, as the case may be,

in that Gazette;

(b) to the construction of rules, regulations, bye-laws,

orders, notifications, schemes or forms made or issued

under a Madhya Pradesh Act.”

21 Rayala Corp. v. Director of Enforcement [1970] 1 SCR 639 : (1969) 2 SCC 412; Kolhapur Canesugar

Works Ltd. v. Union of India [2000] 1 SCR 518 : (2000) 2 SCC 536

680 [2024] 4 S.C.R.

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21. By virtue of Section 31, the provisions of the Madhya Pradesh

General Clauses Act, 1957 are made applicable to the construction

of rules. By such application, the principle of a repeal of a provision

not affecting any liability incurred thereunder is also extended to

the operation of the subordinate legislations under the Act. It is,

therefore, submitted that having incurred the liability of exceeding

the prescribed limits of losses of liquor for the license period 2009-

10, the liability is not affected by the subsequent substitution of

Rule 19.

22. This submission was not raised before the Single Judge or the

Division Bench. However, as law operates irrespective of the choices

of parties or their counsels in raising and referring to it in a court of

law, we have permitted him to argue this question of law. We will

now examine the application of Section 31 and its operation.

23. Section 31 of the M.P. General Clauses Act, 1957, relating to

extension of its provisions to subordinate legislation is thus, distinct

and more ambitious than that of its big sister, the General Clauses

Act, 1897, the Central Legislation which extends its provisions to

Ordinances and Regulations which are in the nature of legislation.22

Conscious of the big leap to extend the M.P. General Clauses Act,

1957, for construction of subordinate legislations, Section 31 takes

care to provide that it may be done only when it is not repugnant to

the subject and context. In its own words – unless there is anything

g repugnant in the subject and context.

24. Interpretation statutes such as the General Clauses Act, 1897, are

enactments intended to set standards in construction of statutes. The

expression construction is of seminal importance as it is oriented

towards enabling a seeker of the text of a statute to understand the

true meaning of the words and their intendment. Apart from setting

coherent and consistent methods of understanding enactments,

the interpretation statutes also subserve the purpose of reducing

prolixity of legislations. The standard principles formulated in the

interpretation statutes must, therefore, be read into any and every

enactment falling for consideration.

22 Thus, this Court has held in a number of cases that the General Clauses Act, 1897 is only applicable to

statutes.

[2024] 4 S.C.R. 681

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

25. In Pushpa Devi v. Milkhi Ram23 while explaining the purpose and object

of prefacing a definition or an interpretation with the phrase- “unless

there is anything repugnant in the subject or context”- this court held :-

“19. The opening sentence in the definition of the section

states “unless there is anything repugnant in the subject

or context”. In view of this qualification, the court has not

only to look at the words but also to examine the context

and collocation in the light of the object of the Act and the

purpose for which a particular provision was made by the

legislature. Reference may be made to the observations of

Wanchoo, J. in Vanguard Fire and General Insurance Co.

Ltd. v. M/s Fraser and Ross [(1960) 3 SCR 857, 863: AIR

1960 SC 971: (1960) 30 Com Cas 13] where the learned

Judge said that even where the definition is exhaustive

inasmuch as the word defined is said to mean a certain

thing, it is possible for the word to have a somewhat different

meaning in different sections of the Act depending upon

the subject or context…

20. Great artistry on the bench as elsewhere is, therefore,

needed before we accept, reject or modify any theory

or principle. Law as creative response should be so

interpreted to meet the different fact situations coming

before the court. For, Acts of Parliament were not drafted

with divine prescience and perfect clarity. It is not possible

for the legislators to foresee the manifold sets of facts

and controversies which may arise while giving effect to

a particular provision. Indeed, the legislators do not deal

with the specific controversies. When conflicting interests

arise or defect appears from the language of the statute,

the court by consideration of the legislative intent must

supplement the written word with ‘force and life’. See, the

observation of Lord Denning in Seaford Court Estate Ltd.

v. Asher [(1949) 2 KB 481, 498].”

26. In Vanguard Fire and General Insurance Co. Ltd. v. Fraser and

Ross24 this Court held that:

23 [1990] 1 SCR 278 : (1990) 2 SCC 134

24 [1960] 3 SCR 857 : (1960) 3 SCR 857

682 [2024] 4 S.C.R.

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“6. …That is why all definitions in statutes generally begin

with the qualifying words similar to the words used in the

present case, namely, unless there is anything repugnant

in the subject or context. Therefore in finding out the

meaning of the word ‘insurer’ in various sections of the

Act, the meaning to be ordinarily given to it is that given

in the definition clause. But this is not inflexible and there

may be sections in the Act where the meaning may have

to be departed from on account of the subject or context

in which the word has been used and that will be giving

effect to the opening sentence in the definition section,

namely, unless there is anything repugnant in the subject

or context. In view of this qualification, the court has not

only to look at the words but also to look at the context, the

collocation and the object of such words relating to such

matter and interpret the meaning intended to be conveyed

by the use of the words under the circumstances…”

27. In the ultimate analysis, interpretation statutes or definitions in

interpretation clauses are only internal aids of construction of a

statute. Who do they aid? Interpretation is the exclusive domain of

the Court.25 A Constitutional Court is tasked with the sacred duty of

interpreting the Constitution, Acts of Parliament or States, subordinate

legislations, regulations, instructions and even to practices having

force of law. Whichever or wherever the instrument, interpretation

is the exclusive province of the Court.26 The principle is aptly

enunciated as:

“The Court has the function of authoritatively construing

legislation, that is, determining its legal meaning so far as

is necessary to decide a case before it. This function is

exclusive to the Court, and a meaning found by any other

person, for example an authorising agency, an investigating

agency, an executing agency, a prosecuting agency, or

even the legislature itself, except when intending to declare

or amend the law, is always subject to the determination

of the court.

25 Keshavji Ravji & Co. v. Commissioner of Income Tax, [1990] 1 SCR 243 : (1990) 2 SCC 231

26 Dr. Major Meeta Sahai v. State of Bihar [2019] 15 SCR 273 : (2019) 20 SCC 17

[2024] 4 S.C.R. 683

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

It is usually said that the making of law, as opposed to

its interpretation, is a matter for the legislature, and not

for the courts, but, in so far as that legislature does not

convey its intention clearly, expressly and completely,

it is taken to require the court to spell out that intention

where necessary. This may be done either by finding and

declaring implications in the words used by the legislator, or

by regarding the breadth or other obscurity of the express

language as conferring a delegated legislative power to

elaborate its meaning in accordance with public policy

(including legal policy) and the purpose of the legislation.

Whichever course is adopted, in accordance with the

doctrine of precedent the court’s operation influences the

future legal meaning of the enactment by producing what

may be called sub-rules, which are implied or expressed

in the court’s judgment.”27

28. Subordinate legislation, by its very nature, rests upon the executive’s

understanding of the primary legislation. When a Court is of the

opinion that such an understanding is not in consonance with the

statute, it sets it aside for being ultra-vires to the primary statute.

29. We will now examine if there is anything repugnant to the subject

or context to disapply the mandate of Section 31 of M.P. General

Clauses Act, 1957, to the construction of the 1996 Rules. If the

subject and context guide us in coming to that conclusion, we will

not extend the effect of repeal in Section 10 of the MP General

Clauses Act, 1957 to the repealed Rule 19. On the other hand, if

the subject and context have no bearing on the construction of the

Rule, then we will give effect to Section 10 and apply the repealed

Rule to the liability incurred by the appellant during the license year

2009-10 and allow the imposition of four times the duty as penalty.

30. The 1996 Rules regulate the grant of license for manufacture and

bottling of foreign liquor, procurement of spirit, storage, quality and

control, sale, export, verification etc. Rule 19 provides for penalties

for contravention of any of the Rules or provision of the Act. There

are different penalties for violation of different rules.

27 Halsbury’s Laws, (5th edn, 2018), vol 96, para 694

684 [2024] 4 S.C.R.

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31. The regulatory process requires the Government to deal with the

problem of diversion and unlawful sale of foreign liquor and also

provide an appropriate penalty and punishment. The process of

identifying a crime and prescribing an appropriate punishment is

a complex and delicate subject that the State has to handle while

making rules and enforcing them. The gravity of the offence, its

impact on society and human vulnerability are taken into account to

provide the required measure of deterrence and reform. Day to day

working of the Rules, reposing their effectiveness, ineffectiveness,

deficiency of deterrence, disproportionate penalty having a chilling

effect on genuine businesses, are some routine factors which require

the executive to make necessary amendments to the rules. In this

context, depending on the nature of offence, the proportionate penalty

is required to be modulated from time to time. In light of this, we can

appreciate that the felt need of the State to amend and substitute

Rule 19 which provided a higher penalty at four times the duty, with

a simple penalty not exceeding the duty payable.

32. If the amendment by way of a substitution in 2011 is intended to reduce

the quantum of penalty for better administration and regulation of

foreign liquor, there is no justification to ignore the subject and context

of the amendment and permit the State to recover the penalty as per

the unamended Rule. The subject of administration of liquor requires

close monitoring and the amendment must be seen in this context of

bringing about good governance and effective management. Seen

in this context, the principle of Section 10 of MP General Clauses

Act, 1957, relating continuation of a repealed provision to rights and

liabilities that accrued during the subsistence of the Rule does not

subserve the purpose and object of the amendment.

33. It is also submitted on behalf of the State that the substituted Rule

cannot be given retrospective effect. We are not in agreement with

this submission either. It is wrong to assume that the substituted

Rule is given retrospective effect if its benefits are made available

to pending proceedings or to those that have commenced after the

substitution. Rule 19 which was substituted on 29.03.2011 is made

applicable to proceedings that have commenced with the issuance of

the demand notice in November, 2011. The Rule operates retroactively

and thus saves it from arbitrarily classifying the offenders into two

categories with no purpose to subserve.

[2024] 4 S.C.R. 685

Pernod Ricard India (P) Ltd. v.

The State of Madhya Pradesh & Ors.

34. The single Judge as well as the Division Bench have adopted two

different approaches and we have not agreed with either of them.

The single Judge was of the view that the amendment by way of

substitution has the effect of repealing the law which existed as

on the date of repeal. We have already explained the limitation

in this approach. The Division Bench on the other hand, held that

levy of penalty is substantive law, and as such, it cannot operate

retrospectively. This again is a wrong approach. The substituted

penalty only mollifies the rigour of the law by reducing the penalty

from four times the duty to value of the duty. Therefore, the bar of

Article 20(1)28 of imposing a penalty greater than the one in force at

the time of the commission of the offence has no application. While

rejecting the reasoning of the single Judge as well as the Division

Bench, we seek to underscore the importance of a simple and plain

understanding of laws and its processes, keeping in mind the purpose

and object for which they seek to govern and regulate us.

35. For the reasons stated above, we allow the appeals and set aside

the judgment of the Division Bench of the High Court in Writ Appeals

Nos. 425/2016, 6/2017, 7/2017, 8/2017, 9/2017, 10/2017, 11/2017,

12/2017, 13/2017, 14/2017, 15/2017, 16/2017, 17/2017, 19/2017,

20/2017, 21/2017, 22/2017, 23/2017, 24/2017, 25/2017, 26/2017,

27/2017, 28/2017, 29/2017, 30/2017, 31/2017, 32/2017, 33/2017,

34/2017, 35/2017, 36/2017, 37/2017, 38/2017, 39/2017, 40/2017,

41/2017, 42/2017 and 100/2017 dated 29.06.2017. We further hold

that the penalty to be imposed on the appellants will be on the basis

of Rule 19 as substituted on 29.03.2011. There shall be no order

as to costs.

Headnotes prepared by: Divya Pandey Result of the case:

Appeals allowed.

28 Rattan Lal v. State of Punjab [1964] 7 SCR 676 : 1964 SCC OnLine SC 40; Basheer v. State of Kerala,

[2004] 2 SCR 224 : (2004) 3 SCC 609; Nemi Chand v. State of Rajasthan, (2018) 17 SCC 448; Trilok

Chand v. State of Himachal Pradesh, (2020) 10 SCC 763; M/s. A.K. Sarkar & Co. & Anr. v. The State of

West Bengal & Ors. [2024] 3 SCR 356 : 2024 SCC OnLine SC 248

Code of Criminal Procedure, 1973 – s.190(1)(b), s.200 – FIR lodged – Police report filed u/s. 173(2) Cr.P.C. – I.O. found that no evidence could be collected which could substantiate the allegations made in the FIR – Protest Petition filed along with affidavit – The CJM rejected the police report u/s. 173(2) Cr.P.C., however, proceeded to take cognizance for offences u/ ss. 147, 342, 323, 307, 506 of the IPC and u/s. 190 (1)(b) of the Cr.P.C. – Appellant contended that once the CJM was relying upon additional material in the form of evidence produced by the complainant along with the Protest Petition then the only option for the CJM was to treat it as a complaint u/s. 200 Cr.P.C. and proceed accordingly following the due procedure in Chapter XV of the Cr.P.C. – Correctness:

* Author

[2024] 4 S.C.R. 655 : 2024 INSC 316

Mukhtar Zaidi

v.

The State of Uttar Pradesh & Anr.

(Criminal Appeal No. 2134 of 2024)

18 April 2024

[Vikram Nath* and Satish Chandra Sharma, JJ.]

Issue for Consideration

Whether CJM as also the High Court fell in error in taking cognizance

u/s. 190(1)(b) Cr.P.C. inasmuch as the CJM had relied upon not

only the Protest Petition which was supported by affidavit of the

complainant but also on the affidavits of witnesses which were

filed along with the Protest Petition to support the contents of the

complaint.

Headnotes

Code of Criminal Procedure, 1973 – s.190(1)(b), s.200 – FIR

lodged – Police report filed u/s. 173(2) Cr.P.C. – I.O. found

that no evidence could be collected which could substantiate

the allegations made in the FIR – Protest Petition filed along

with affidavit – The CJM rejected the police report u/s. 173(2)

Cr.P.C., however, proceeded to take cognizance for offences u/

ss. 147, 342, 323, 307, 506 of the IPC and u/s. 190 (1)(b) of the

Cr.P.C. – Appellant contended that once the CJM was relying

upon additional material in the form of evidence produced

by the complainant along with the Protest Petition then the

only option for the CJM was to treat it as a complaint u/s. 200

Cr.P.C. and proceed accordingly following the due procedure

in Chapter XV of the Cr.P.C. – Correctness:

Held: The CJM had actually taken into consideration not only the

Protest Petition but also the affidavit filed in support of the Protest

Petition as well as the four affidavits of witnesses filed along with the

Protest Petition – It was based on consideration of such affidavits

that the CJM was of the view that the investigation was not a fair

investigation and these affidavits made out a prima facie case for

taking cognizance and summoning the accused – In the instant

case as the Magistrate had already recorded his satisfaction that 

656 [2024] 4 S.C.R.

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it was a case worth taking cognizance and fit for summoning the

accused, this Court is of the view that the Magistrate ought to

have followed the provisions and the procedure prescribed under

Chapter XV of the Cr.P.C. – Accordingly, impugned orders passed

by the High Court and also the CJM are set aside. [Paras 7 and 11]

Case Law Cited

Vishnu Kumar Tiwari v. State of Uttar Pradesh, through

Secretary Home, Civil Secretariat, Lucknow & Anr.

[2019] 8 SCR 1114 : (2019) 8 SCC 27 – relied on.

List of Acts

Code of Criminal Procedure, 1973.

List of Keywords

FIR; Report of police officer on completion of investigation; Protest

Petition; Witness; Additional materials; Cognizance; Summoning

of accused; Complaints to magistrate.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2134

of 2024

From the Judgment and Order dated 24.08.2021 of the High Court

of Judicature at Allahabad in A482 No.15273 of 2021

Appearances for Parties

Vinod Prasad, Sr. Adv., Ajay Kumar Srivastava, Ms. Jyoti Tiwary,

Rajesh Pandey, Advs. for the Appellant.

Shashank Shekhar Singh, Shantanu Singh, Shekhar Prit Jha, S.S.

Haider, Ms. Preeti Kumari, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

Vikram Nath, J.

Leave granted.

2. This appeal assails the correctness of the order dated 24.08.2021

passed by the Allahabad High Court dismissing the application under 

[2024] 4 S.C.R. 657

Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.

Section 482 of the Code of Criminal Procedure, 19731

 filed by the

appellant wherein a prayer was made to quash the Summoning Order

dated 08.03.2021 by the Chief Judicial Magistrate2

, Aligarh in Case

No.129/2020 under Sections 147, 342, 323, 307, 506 of the Indian

Penal Code, 18603

 Police Station, Civil Lines, District Aligarh. There

is an order dated 01.11.2021 passed by the High Court wherein the

Case Number mentioned in the order dated 24.08.2021 was corrected

as Case No.5727/2021.

3. Respondent no.2 lodged a First Information Report4

 bearing the

aforesaid details whereupon the same was investigated and after

investigation the police report under Section 173(2) Cr.P.C. was

submitted according to which the Investigating Officer found that no

evidence could be collected which could substantiate the allegations

made in the FIR. The said report was submitted to the Court concerned

whereupon notices were issued to the informant. The informant filed

a Protest Petition along with affidavits to show that the investigation

carried out by the Investigating Officer was not a fair investigation.

He had completed the case diary sitting at the Police Station without

actually recording the statements of the witnesses.

4. The CJM, by order dated 08.03.2021 rejected the police report under

Section 173(2) Cr.P.C. and further proceeded to take cognizance

for offences under Sections 147, 342, 323, 307, 506 of the IPC and

under Section 190 (1) (b) of the Cr.P.C. and also directed that the

matter would continue as a State case. Accordingly, it summoned

the accused, fixed 30th April, 2021. This order of cognizance and

summoning the present appellant was assailed before the High

Court by way of a petition under Section 482 Cr.P.C. registered as

Application u/s.482 No.15273 of 2021. The said application has sine

been dismissed by the High Court giving rise to the present appeal.

5. Shri Vinod Prasad, learned senior counsel appearing for the appellant

submitted that the CJM as also the High Court fell in error in taking

cognizance under Section 190(1)(b) Cr.P.C. inasmuch as the CJM

had relied upon not only the Protest Petition which was supported

1 Cr.P.C.

2 CJM

3 IPC

4 FIR

658 [2024] 4 S.C.R.

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by affidavit of the complainant but also on the affidavits of witnesses

which were filed along with the Protest Petition to support the contents

of the complaint. The submission was that once the CJM was relying

upon additional material in the form of evidence produced by the

complainant along with the Protest Petition then the only option for

the CJM was to treat it as a complaint under Section 200 Cr.P.C. and

proceed accordingly. The said case could not have been continued

as a State case and should have been treated as a private complaint.

It was also submitted that it was open for the CJM to have rejected

the police report submitted under Section 173(2) Cr.P.C. for closure

and relying upon the material in the case diary, (in effect, the material

collected during investigation) could have taken cognizance but

once additional evidence was being relied upon which had been

filed along with the Protest Petition then the only option open was to

treat it as a private complaint and after following the due procedure

in Chapter XV of the Cr.P.C. proceeded to take cognizance under

Section 190(1)(a) Cr.P.C.

6. On the other hand, the submission advanced by the learned counsel

for the State as also the Complainant – respondent no.2 was that

the CJM did not take into consideration any additional evidence

filed in the form of affidavits along with the Protest Petition and had

only relied upon the material collected during the investigation as

contained in the case diary and based upon the same the satisfaction

recorded by the CJM to reject the police report and take cognizance

was well within his domain and such cognizance would fall within

Section 190(1)(b) Cr.P.C. It was thus submitted that the impugned

order does not suffer from any infirmity.

7. We have carefully examined the order dated 24.08.2021 passed

by the CJM taking cognizance and summoning the police and we

find that the CJM had actually taken into consideration not only the

Protest Petition but also the affidavit filed in support of the Protest

Petition as well as the four affidavits of witnesses filed along with

the Protest Petition. It was based on consideration of such affidavits

that the CJM was of the view that the investigation was not a fair

investigation and these affidavits made out a prima facie case for

taking cognizance and summoning the accused.

8. Once we have held as above without going into many judgments of

this Court on the point as to how the Magistrate would proceed under 

[2024] 4 S.C.R. 659

Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.

Section 190 Cr.P.C. once the Investigating Officer had submitted a

closure report under Section 173(2) Cr.P.C., we may briefly deal

with the legal issue and refer to relevant paragraphs of a recent

decision. In this connection, Section 190(1) (a) and (b) of Cr.P.C. is

extracted hereunder:

190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate

of the first class, and any Magistrate of the second class

specially empowered in this behalf under sub-section

(2), may take cognizance of any offence –

(a) upon receiving a complaint of facts which constitute

such offence;

(b) upon a police report of such facts;….”

9. In the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh,

through Secretary Home, Civil Secretariat, Lucknow & Anr.,

5

Justice K.M.Joseph, speaking for the Bench laid down the legal

position relying upon previous judgments of this Court. In the said

case the facts were quite similar to that of the present case where

affidavits were filed along with the Protest Petition. The net result

is that the Magistrate in the present case ought to have treated the

Protest Petition as a complaint and proceeded according to Chapter

XV of the Cr.P.C.. The relevant paragraphs dealing with the above

aspect in the case of Vishnu Kumar Tiwari (supra), being paragraphs

42 to 46 are reproduced hereunder:

“42. In the facts of this case, having regard to the nature

of the allegations contained in the Protest Petition and the

annexures which essentially consisted of affidavits, if the

Magistrate was convinced on the basis of the consideration

of the final report, the statements under Section 161 of

the Code that no prima facie case is made out, certainly

the Magistrate could not be compelled to take cognizance

by treating the Protest Petition as a complaint. The fact

that he may have jurisdiction in a case to treat the Protest

Petition as a complaint, is a different matter. Undoubtedly,

5 (2019) 8 SCC 27

660 [2024] 4 S.C.R.

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if he treats the Protest Petition as a complaint, he would

have to follow the procedure prescribed under Sections 200

and 202 of the Code if the latter section also commends

itself to the Magistrate. In other words, necessarily,

the complainant and his witnesses would have to be

examined. No doubt, depending upon the material which

is made available to a Magistrate by the complainant in

the Protest Petition, it may be capable of being relied on

in a particular case having regard to its inherent nature

and impact on the conclusions in the final report. That

is, if the material is such that it persuades the court to

disagree with the conclusions arrived at by the investigating

officer, cognizance could be taken under Section 190(1)

(b) of the Code for which there is no necessity to examine

the witnesses under Section 200 of the Code. But as the

Magistrate could not be compelled to treat the Protest

Petition as a complaint, the remedy of the complainant

would be to file a fresh complaint and invite the Magistrate

to follow the procedure under Section 200 of the Code or

Section 200 read with Section 202 of the Code. Therefore,

we are of the view that in the facts of this case, we cannot

support the decision of the High Court.

43. It is true that law mandates notice to the informant/

complainant where the Magistrate contemplates accepting

the final report. On receipt of notice, the informant may

address the court ventilating his objections to the final

report. This he usually does in the form of the Protest

Petition. In Mahabir Prasad Agarwala v. State [Mahabir

Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 : AIR

1958 Ori 11] , a learned Judge of the High Court of Orissa,

took the view that a Protest Petition is in the nature of a

complaint and should be examined in accordance with the

provisions of Chapter XVI of the Criminal Procedure Code.

We, however, also noticed that in Qasim v. State [Qasim

v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] ,

a learned Single Judge of the High Court of Judicature at

Allahabad, inter alia, held as follows: (Qasim case [Qasim

v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] ,

SCC OnLine All para 6)

[2024] 4 S.C.R. 661

Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.

“6. … In Abhinandan Jha [Abhinandan Jha v. Dinesh

Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3

SCR 668] also what was observed was “it is not very

clear as to whether the Magistrate has chosen to treat

the Protest Petition as complaint”. This observation would

not mean that every Protest Petition must necessarily be

treated as a complaint whether it satisfies the conditions

of the complaint or not. A private complaint is to contain

a complete list of witnesses to be examined. A further

examination of complainant is made under Section 200

CrPC. If the Magistrate did not treat the Protest Petition

as a complaint, the Protest Petition not satisfying all the

conditions of the complaint to his mind, it would not mean

that the case has become a complaint case. In fact, in

majority of cases when a final report is submitted, the

Magistrate has to simply consider whether on the materials

in the case diary no case is made out as to accept the

final report or whether case diary discloses a prima facie

case as to take cognizance. The Protest Petition in such

situation simply serves the purpose of drawing Magistrate’s

attention to the materials in the case diary and invite a

careful scrutiny and exercise of the mind by the Magistrate

so it cannot be held that simply because there is a Protest

Petition the case is to become a complaint case.”

(emphasis supplied)

44. We may also notice that in Veerappa v. Bhimareddappa

[Veerappa v. Bhimareddappa, 2001 SCC OnLine Kar 447 :

2002 Cri LJ 2150] , the High Court of Karnataka observed

as follows: (SCC OnLine Kar para 9)

“9. From the above, the position that emerges is this:

Where initially the complainant has not filed any complaint

before the Magistrate under Section 200 CrPC, but, has

approached the police only and where the police after

investigation have filed the ‘B’ report, if the complainant

wants to protest, he is thereby inviting the Magistrate to take

cognizance under Section 190(1)(a) CrPC on a complaint.

If it were to be so, the Protest Petition that he files shall

have to satisfy the requirements of a complaint as defined 

662 [2024] 4 S.C.R.

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in Section 2(d) CrPC, and that should contain facts that

constitute offence, for which, the learned Magistrate is

taking cognizance under Section 190(1)(a) CrPC. Instead,

if it is to be simply styled as a Protest Petition without

containing all those necessary particulars that a normal

complaint has to contain, then, it cannot be construed as

a complaint for the purpose of proceeding under Section

200 CrPC.”

45. “Complaint” is defined in Section 2(d) of the Code as

follows:

“2. (d) “complaint” means any allegation made orally or

in writing to a Magistrate, with a view to his taking action

under this Code, that some person, whether known or

unknown, has committed an offence, but does not include

a police report.

Explanation.—A report made by a police officer in a case

which discloses, after investigation, the commission of a

non-cognizable offence shall be deemed to be a complaint;

and the police officer by whom such report is made shall

be deemed to be the complainant;”

46. If a Protest Petition fulfils the requirements of a

complaint, the Magistrate may treat the Protest Petition

as a complaint and deal with the same as required under

Section 200 read with Section 202 of the Code. In this

case, in fact, there is no list of witnesses as such in the

Protest Petition. The prayer in the Protest Petition is to

set aside the final report and to allow the application

against the final report. While we are not suggesting that

the form must entirely be decisive of the question whether

it amounts to a complaint or is liable to be treated as a

complaint, we would think that essentially, the Protest

Petition in this case, is summing up of the objections of

the second respondent against the final report.”

10. From a perusal of the above opinion of this Court, it is also reflected

that the Magistrate also had the liberty to reject the Protest Petition

along with all other material which may have been filed in support

of the same. In that event the Complainant would be at liberty to

file a fresh complaint. The right of the Complainant to file a petition 

[2024] 4 S.C.R. 663

Mukhtar Zaidi v. The State of Uttar Pradesh & Anr.

under Section 200 Cr.P.C. is not taken away even if the Magistrate

concerned does not direct that such a Protest Petition be treated

as a complaint.

11. In the present case as the Magistrate had already recorded his

satisfaction that it was a case worth taking cognizance and fit for

summoning the accused, we are of the view that the Magistrate

ought to have followed the provisions and the procedure prescribed

under Chapter XV of the Cr.P.C. Accordingly, we allow this appeal,

set aside the impugned orders passed by the High Court as also

the CJM, Aligarh.

12. However, we leave it open for the Magistrate to treat the Protest

Petition as a complaint and proceed in accordance to law as laid

down under Chapter XV of the Cr.P.C. We make it clear that we

have not made any comments on the merits of the matter and

any observations made would not influence the CJM in taking an

appropriate decision as required above.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.

Investigation Agency Act, 2008 – FIR registered u/ss. 121A, 122, 123, 124A, 120B of IPC – I.O. filed an application for addition of charges u/ss. 16, 18, 18B, 20, 38 and 39 of UAPA – CMM forwarded the matter to Chief Judge, City Sessions Court – The Chief Judge by order dated 07.04.2022 permitted addition of offences under the provisions of UAPA – Legality:

* Author

[2024] 4 S.C.R. 640 : 2024 INSC 313

The State of West Bengal

v.

Jayeeta Das

(Criminal Appeal No. 2128 of 2024)

18 April 2024

[B.R. Gavai and Sandeep Mehta,* JJ.]

Issue for Consideration

Whether the order dated 07.04.2022, whereby the Chief Judge

cum City Sessions Court permitted the addition of the offences

under Unlawful Activities (Prevention) Act, 1967 to the case suffer

from any illegality or infirmity; whether the extension of remand by

the Chief Metropolitan Magistrate beyond the period of 90 days

was illegal.

Headnotes

Unlawful Activities (Prevention) Act, 1967 – National

Investigation Agency Act, 2008 – FIR registered u/ss. 121A,

122, 123, 124A, 120B of IPC – I.O. filed an application for

addition of charges u/ss. 16, 18, 18B, 20, 38 and 39 of UAPA

– CMM forwarded the matter to Chief Judge, City Sessions

Court – The Chief Judge by order dated 07.04.2022 permitted

addition of offences under the provisions of UAPA – Legality:

Held: A bare perusal of sub-section (3) of Section 22 of NIA Act

would make it clear that until a Special Court is constituted by

the State Government under sub-Section (1) of Section 22, in

case of registration of any offence punishable under UAPA, the

Court of Sessions of the division, in which the offence has been

committed, would have the jurisdiction as conferred by the Act

on a Special Court and a fortiori, it would have all the powers

to follow the procedure provided under Chapter IV of the NIA

Act – Admittedly, the present case involves investigation by the

State police, and therefore, the provisions of Section 22 would be

applicable insofar as the issue of jurisdiction of the Court to try the

offences is concerned – Further, it is not in dispute that the State

of West Bengal had not exercised the power conferred upon it by

Section 22 of the NIA Act for constituting a Special Court for trial

of offences set out in the Schedule to the NIA Act and hence, the

Sessions Court within whose jurisdiction, the offence took place 

[2024] 4 S.C.R. 641

The State of West Bengal v. Jayeeta Das

which would be the Chief Judge cum City Sessions Court in the

case at hand, had the power and jurisdiction to deal with the case

by virtue of the sub-section (3) of Section 22 of the NIA Act –

Hence, the order dated 07.04.2022, whereby the Chief Judge cum

City Sessions Court permitted the addition of the offences under

UAPA to the case does not suffer from any illegality or infirmity.

[Paras 24, 25, 29, 30]

Unlawful Activities (Prevention) Act, 1967 – Extension of

remand by Chief Metropolitan Magistrate beyond the period

of 90 days – Legality:

Held: Under the proviso to Section 43D(2), the Court has been

given the power to extend and authorise detention of the accused

beyond a period of 90 days as provided u/s. 167(2) CrPC – A plain

reading of Section 2(1)(d) of UAPA would clearly indicate that the

same admits to the jurisdiction of a normal criminal Court and also

includes a Special Court constituted under Section 11 or Section

22 of the NIA Act –In view of the definition of the ‘Court’ provided

under Section 2(1)(d) of UAPA, the jurisdictional Magistrate would

also be clothed with the jurisdiction to deal with the remand of the

accused albeit for a period of 90 days only because an express

order of the Sessions Court or the Special Court, as the case may

be, authorising remand beyond such period would be required

by virtue of Section 43D(2) of UAPA – Hence, to the extent the

Chief Metropolitan Magistrate extended the remand of the accused

beyond the period of 90 days, the proceedings were grossly illegal.

[Paras 33-36]

List of Acts

Unlawful Activities (Prevention) Act, 1967; National Investigation

Agency Act, 2008; Code of Criminal Procedure, 1973.

List of Keywords

Offences; Addition of offences; Jurisdiction; Remand; Extension

of remand.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2128

of 2024

From the Judgment and Order dated 11.05.2023 of the High Court at

Calcutta in CRR No. 3180 of 2022

642 [2024] 4 S.C.R.

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Appearances for Parties

Siddhartha Dave, Sr. Adv., Kunal Chatterji, Ms. Maitrayee Banerjee,

Rohit Bansal, Ms. Kshitij Singh, Sohhom Sau, Advs. for the Appellant.

R. Mahadevan, V. Balaji, C. Kannan, Nishant Sharma, Ms. Adviteeya,

Rakesh K. Sharma, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Mehta, J.

1. Leave granted.

2. Heard learned counsel for the parties and perused the material

available on record.

3. The State of West Bengal has approached this Court by way of this

appeal for assailing the legality and validity of the judgment dated

11th May, 2023 passed by the High Court of Calcutta in C.R.R. No.

3180 of 2022.

Brief Facts:-

4. Based on written complaint dated 1st January, 2022 filed by the SI

Raju Debnath, STF Police Station, Kolkata on 28th December, 2021

informing about recovery of an unclaimed black coloured bagpack

lying abandoned at Sahid Minar containing some written posters of

CPI(Maoist) and some incriminating articles about the activities of

CPI(Maoist), FIR No. 01 of 2022 came to be registered at STF Police

Station, Kolkata for the offences punishable under Sections 121A,

122, 123, 124A, 120B of the Indian Penal Code, 1860(hereinafter

being referred to as ‘IPC’).

5. The respondent herein was apprehended on 29th March, 2022 and

was produced before the learned Chief Metropolitan Magistrate,

Calcutta on 30th March, 2022. The Investigating Officer conducted

preliminary investigation and thereafter filed an application in the

Court of learned Chief Metropolitan Magistrate praying for addition

of offences punishable under Sections 16, 18, 18B, 20, 38 and 39

of the Unlawful Activities (Prevention) Act, 1967 (hereinafter being

referred to as ‘UAPA’).

[2024] 4 S.C.R. 643

The State of West Bengal v. Jayeeta Das

6. Learned Chief Metropolitan Magistrate, in turn, forwarded the matter to

learned Chief Judge, City Sessions Court, Calcutta(hereinafter being

referred to as the ‘Chief Judge’) for considering the said application,

vide order dated 5th April, 2022.

7. Learned Chief Judge, vide order dated 7th April, 2022 permitted

addition of offences under Sections 16, 18, 18B, 20, 38, 39 of

UAPA in the case and allowed the same to be investigated along

with the existing offences for which the FIR had been registered.

The Investigating Officer was directed to take the necessary steps

before the learned Chief Metropolitan Magistrate.

8. The respondent filed a petition under Section 482 of the Code of

Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’)

before the High Court of Calcutta on 25th August, 2022 with a prayer

to quash the order dated 7th April, 2022 passed by learned Chief

Judge, Calcutta and all subsequent orders passed by the learned

Chief Metropolitan Magistrate, Calcutta. While the aforesaid petition

was pending, the learned Chief Judge, Calcutta passed an order dated

22nd September, 2022 extending the period of detention of accused

upto 180 days under Section 43D(2)(b) of UAPA and permitted the

investigating agency to file charge sheet beyond the period of 90

days but within 180 days.

9. The High Court proceeded to accept the petition vide order dated

11th May, 2023 and quashed the proceedings of the case registered

against the respondent to the extent of the offences punishable

under the provisions of UAPA, holding that only a Special Court

constituted by the Central Government or the State Government

as per the National Investigation Agency Act, 2008(hereinafter

being referred to as ‘NIA Act’) had the exclusive jurisdiction to try

the offences under UAPA. It was further held that as per Section

16 of the NIA Act, the Sessions Court was precluded from taking

cognizance of the offences under UAPA and thus the order dated

7th April, 2022 and all subsequent proceedings taken thereunder

were without jurisdiction.

10. The aforesaid order dated 11th May, 2023 allowing the petition filed

by the respondent is under challenge at the instance of the State

of West Bengal in this appeal by special leave.

644 [2024] 4 S.C.R.

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Submissions on behalf of appellant:-

11. Shri Siddhartha Dave, learned senior counsel appearing for the

appellant contended that the instant case involves investigation and

prosecution by the state police and not by the Central Agency, i.e.,

National Investigation Agency. He urged that the proceedings would

be governed by Section 22 of NIA Act and hence the High Court fell

in grave error of law in quashing the proceedings by relying upon

the provisions contained under Section 16 of NIA Act.

12. Learned senior counsel further urged that as the case was investigated

by the State police and since no Special Court had been constituted

by the State Government under Section 22(1) of NIA Act, the Sessions

Court having jurisdiction over the division in which the offence was

committed, was seized of the exclusive jurisdiction to try the offences

as per Section 22(3) of NIA Act.

13. He further urged that since no Special Court was constituted, the

jurisdictional Magistrate, who would be the Chief Metropolitan

Magistrate in this case, has the jurisdiction to deal with the remand

of the accused. Nonetheless, Shri Dave candidly conceded that the

power to extend the period of detention beyond 90 days is exclusively

vested with the ‘Court’ as defined under Section 2(1)(d) of UAPA

which would be the jurisdictional Sessions Court in the present set

of facts and circumstances.

14. Without prejudice to the above, the contention of the learned senior

counsel was that since the accused never filed an application seeking

default bail, after the expiry of 90 days and before filing of the charge

sheet, the irregularity, if any, in the matter of granting remand stood

cured and hence, the accused has lost the right to claim release on

default bail. He thus implored the Court to accept the appeal and

set aside the impugned judgment and permit the Sessions Court

to proceed with the trial of the accused for the offences charged

including those under UAPA.

Submission on behalf of Respondent:-

15. Per contra, learned counsel appearing for the respondent, vehemently

and fervently urged that the view taken by the High Court while

interfering with the order dated 7th April, 2022 is the only permissible

and legal view in the extant facts and circumstances. He referred to

the Gazette Notification dated 29th April, 2011 and urged that a Special 

[2024] 4 S.C.R. 645

The State of West Bengal v. Jayeeta Das

Court has already been notified by the Central Government for the

State of West Bengal and as such, all orders passed and actions taken

by the Chief Judge and the Chief Metropolitan Magistrate pertaining

to the offences under the UAPA are illegal and without jurisdiction.

16. As a consequence, the High Court was justified in exercising jurisdiction

under Section 482 CrPC in quashing the patently illegal order dated

7th April, 2022 and all subsequent proceedings sought to be taken

in furtherance thereof. He urged that the impugned order dated 11th

May, 2023 is just and legal and does not warrant any interference.

However, on the aspect of the grant of default bail to the accused,

learned counsel candidly conceded that no prayer was ever made on

behalf of the accused either in the Sessions Court or the High Court

seeking default bail. The plank contention advanced on behalf of the

respondent was that the proceedings before the Chief Judge and the

Chief Metropolitan Magistrate are vitiated because both the Courts

did not have the jurisdiction to proceed under the provisions of NIA

Act and UAPA in light of the fact that Special Court had already been

constituted for the State of West Bengal by the Central Government

vide Gazette Notification dated 29th April, 2011 which was functioning.

17. Learned counsel implored the Court to reject the instant appeal.

Discussion and Conclusion:

18. For the sake of convenience, we would like to advert to the issues

for determination formulated by the learned Single Judge of the High

Court in the quashing petition:-

"i. Whether the court of sessions was entitled to entertain

an application for extension of the period of remand in

terms of the proviso to Section 43D (5) of the UAPA

when no special court had been notified by the State

of West Bengal under Section 22(1) of the National

Investigating Agency Act, 2008.

ii. Whether the petitioner could have been remanded

by the learned Magistrate after offences under UAPA

had been added.”

19. Since the validity of the order dated 7th April, 2022 is the main issue

requiring adjudication in the case, we would like to reproduce the

said order for ready reference:-

646 [2024] 4 S.C.R.

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“IN THE COURT OF CHIEF JUDGE, CITY SESSIONS

COURT, CALCUTTA

STF PS Case No. 01 dt. 01.01.2022

GR(S ) 08 of 2022

Present: Siddhartha Kanjilal

Chief Judge, City Sessions Court, Calcutta. JO Code

WB01057

Order No. 02 dated 07.04.2022

Today is fixed for production of the accused person

and passing order with regard to adding sections

16/18/18B/20/38/39 of the UA(P) Act to the initial

charges u/s 120B/121/121A/122/123/ 124A of IPC.

Ld. PP in charge is present

Ld. Advocate for the accused files a fresh vakalatnama.

Seen the same. Let it be kept with the record.

IO is present along with CD.

Accused person namely, Joyeeta Das is produced

from police custody.

Today one remand application was filed by the

Assistant Commissioner of Police. STF, Kolkata

and prayed for further police custody for further

development of the investigation.

This Court finds that for effective investigation,

the accused be remanded to police custody till

11.04.2022.

The investigation Agency is directed to maintain

all the formalities as per guidelines of Supreme

Court while keeping the accused in the custody

in remand.

The accused is at liberty to report before the Ld.

Court of CMM, Calcutta on the next date whether

she has been physically or mentally tortured by the

Investigation Agency while she was in custody.

[2024] 4 S.C.R. 647

The State of West Bengal v. Jayeeta Das

Now the application for adding the sections

16/18/18B/20/38/39 of the UA(P) Act is taken up for

hearing.

Perused the record and application as well as case

diary.

It is revealed from the CD that several incriminating

documents, literatures, posters etc. related to the

organizational agenda of the banned organization,

CPI (Maoist) propagating for armed revolution in India

to overawe the established democratically elected

Government in the Country were recovered from the

accused person relating to Terrorists Act against the

Government.

As per the judgment passed by Hon’ble Justice Dr.

Dhananjaya Y Chandrachud (Supreme Court) in

connection with Criminal Appeal No. 1165 of 2021

the CJM Court of Sessions Court is the trial Court

for the offences punishable under section UA(P) Act

when no special Court has been notified by the State

Government as per Section 27 of the NIA Act.

If that be the so then, any offence where UA(P) Act

is involved, the CMM, Calcutta, herein is the remand

Court and the Chief Judge, City Sessions Court,

Calcutta is the Trial Court as no special court has been

notified by the State Government for the jurisdiction

of Calcutta as per Section 27 of the NIA Act.

Any accused being arrested by the State Police,

having UA(P) Act be produced before the Court of

Ld. CMM, Calcutta unless and until charge sheet is

submitted and once the charge sheet is submitted,

the Ld. CMM. Calcutta is duty bound to place the

case record along with the accused person before

this Court.

If an accused is arrested in other sections and during

investigation if the Investigation Agency wants to

add the sections of UA(P) Act, only permission is

required from the Sessions Court and after obtaining 

648 [2024] 4 S.C.R.

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permission, the CMM, Calcutta or the CJM of any

district has the power to allow the Investigation Agency

for adding sections of UA(P) Act.

If the Investigation Agency prays for extension of

time for filing charge sheet beyond statutory period

of 90 days, where UA(P) Act has either been added

or initiated, permission is required from the Sessions

Court.

In case of taking the accused in remand, the remand

Court i.e. the Ld. Court of CMM, Calcutta or CJM of

any district has enough jurisdiction to pass such order.

In the present case. Investigation Agency prays for

adding sections 16/18/18B/20/38/39 of the UA(P) Act.

This Court finds that (here is sufficient ground for

allowing the Investigation Agency to add the sections

of the UA(P) Act in this particular Case.

Thus, the petition filed by the Investigation Agency dt.

05.04.2022 seeking permission for adding sections

16/18/18B/20/38/39 of the UA(P) Act is allowed.

Investigation agency is directed to take necessary

steps before the Ld. Court of CMM, Calcutta for the

same.

To 11.04.2022 for production of the accused before

the Ld. CMM, Calcutta.

CD be returned.

Let a copy of this order be given to the IO of this Case.

Office is directed to send the case record to the Ld.

CMM, Calcutta along with copy of order sheet after

keeping the skeleton record.”

20. After considering the entirety of the material available on record, the

learned Single Judge proceeded to hold as below:-

(i) That the special Court constituted by the Central

Government or the State Government, as the

case may be, under the NIA Act has the exclusive

jurisdiction to try offences under UAPA.

[2024] 4 S.C.R. 649

The State of West Bengal v. Jayeeta Das

(ii) In view of Section 16 of the said Act, the special Court

cannot take cognizance of the offence under the

UAPA directly without the case being committed to it.

(iii) In terms of the proviso to sub-Section(2) of Section

43(D) of the UAPA, the Court is empowered to extend

the period of detention pending investigation. On a

report of the Public Prosecutor indicating progress of

investigation and specific reason for detention of the

accused beyond 90 days but not more than 180 days.

(iv) Sub-Section (3) of Section 22 of the NIA Act states

that until a special Court is designated by the State

Government under sub-Section (1), the jurisdiction

conferred by the Act on a special Court notwithstanding

anything contained in the Code, shall be exercised by

the Court of Sessions in which the scheduled offence

is committed and it shall have powers to follow the

procedure provided under Chapter IV of the Act.

(v) Reliance was also placed on the judgment of this

Court in the case of Bikramjit Singh v. State of

Punjab (2020) 10 SCC 616 wherein it has been

held that for all offences under the UAPA, the special

Court alone has the exclusive jurisdiction to try such

offences.

21. After making the aforesaid discussion, the learned Single Judge

proceeded to refer to the Division Bench judgment of the Calcutta

High Court in CRM(DB) No. 3590 of 2022 dated 1st December, 2022

wherein it was held that once the offences under UAPA are added to

a case, the Magistrate is denuded of the power to remand in terms

of Section 167 CrPC (as amended in UAPA) beyond a period of 30

days. Observing so, the learned Single Judge proceeded to hold that

the order dated 7th April, 2022 passed by the learned Chief Judge,

City Sessions Court, Calcutta and all subsequent orders passed by

the learned Chief Metropolitan Magistrate were illegal and inoperative

and hence the same were quashed.

22. The frontal issue which falls for our consideration is as to whether

the Chief Judge, City Sessions Court, Calcutta had the jurisdiction

to pass the order dated 7th April, 2022.

650 [2024] 4 S.C.R.

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23. We would like to refer to sub-section (1) and sub-section (3) of

Section 22 of the NIA Act which is germane to the controversy and

is being reproduced hereinbelow:-

“22. Power of State Government to designate Court

of Session as Special Courts-

(1) The State Government may [designate one or more

Courts of Session as] Special Courts for the trial of

offences under any or all the enactments specified

in the Schedule.

(2) ….

(3) The jurisdiction conferred by this Act on a Special

Court shall, until a Special Court is [designated]

by the State Government under sub-section (1) in

the case of any offence punishable under this Act,

notwithstanding anything contained in the Code, be

exercised by the Court of Session of the division in

which such offence has been committed and it shall

have all the powers and follow the procedure provided

under this Chapter.

(4) ….”

24. A bare perusal of sub-section (3) of Section 22 of NIA Act would

make it clear that until a Special Court is constituted by the State

Government under sub-Section (1) of Section 22, in case of

registration of any offence punishable under UAPA, the Court of

Sessions of the division, in which the offence has been committed,

would have the jurisdiction as conferred by the Act on a Special Court

and a fortiori, it would have all the powers to follow the procedure

provided under Chapter IV of the NIA Act.

25. Admittedly, the present case involves investigation by the State police,

and therefore, the provisions of Section 22 would be applicable

insofar as the issue of jurisdiction of the Court to try the offences

is concerned.

26. Learned counsel for the respondent relied upon Gazette Notification

dated 29th April, 2011 in order to canvass that the Special Court had

already been constituted for trial of UAPA offences within the State

of West Bengal.

[2024] 4 S.C.R. 651

The State of West Bengal v. Jayeeta Das

27. A bare perusal of the said notification would make it clear that the

Special Court was constituted by the “Central Government” in exercise

of the power conferred by sub-section (1) of Section 11 of the NIA Act.

28. The State Government has been given exclusive power delegated

by virtue of Section 22(1) of the Act (reproduced supra) to constitute

one or more Special Courts for trial of offences under any or all the

enactments specified in the Schedule.

29. It is not in dispute that the State of West Bengal has so far not

exercised the power conferred upon it by Section 22 of the NIA Act

for constituting a Special Court for trial of offences set out in the

Schedule to the NIA Act and hence, the Sessions Court within whose

jurisdiction, the offence took place which would be the Chief Judge

cum City Sessions Court in the case at hand, had the power and

jurisdiction to deal with the case by virtue of the sub-section (3) of

Section 22 of the NIA Act.

30. Hence, the order dated 7th April, 2022, whereby the learned Chief

Judge cum City Sessions Court permitted the addition of the offences

under UAPA to the case does not suffer from any illegality or infirmity.

31. Now, coming to the second argument advanced by learned counsel

representing the parties.

32. Section 43D of UAPA provides a modified scheme for the application

of Section 167 CrPC which reads as below:-

“

43-D. Modified application of certain provisions of

the Code.—(1) Notwithstanding anything contained in the

Code or any other law, every offence punishable under

this Act shall be deemed to be a cognizable offence

within the meaning of clause (c) of Section 2 of the Code,

and “cognizable case” as defined in that clause shall be

construed accordingly.

(2) Section 167 of the Code shall apply in relation to a

case involving an offence punishable under this Act subject

to the modification that in sub-section (2),—

(a) the references to “fifteen days”, “ninety

days” and “sixty days”, wherever they

occur, shall be construed as references

to “thirty days”, “ninety days” and “ninety

days” respectively; and

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(b) after the proviso, the following provisos

shall be inserted, namely:—

Provided further that if it is not possible to complete the

investigation within the said period of ninety days, the

Court may if it is satisfied with the report of the Public

Prosecutor indicating the progress of the investigation

and the specific reasons for the detention of the accused

beyond the said period of ninety days, extend the said

period up to one hundred and eighty days:

Provided also that if the police officer making the

investigation under this Act, requests, for the purposes

of investigation, for police custody from judicial custody

of any person in judicial custody, he shall file an affidavit

stating the reasons for doing so and shall also explain the

delay, if any, for requesting such police custody.”.

(3) Section 268 of the Code shall apply in relation to a

case involving an offence punishable under this Act subject

to the modification that—

(a) the reference in sub-section (1) thereof—

(i) to “the State Government” shall

be construed as a reference to

“the Central Government or the

State Government”;

(ii) to “order of the State Government”

shall be construed as a reference to

“order of the Central Government

or the State Government, as the

case may be”; and

(b) the reference in sub-section (2) thereof, to

“the State Government” shall be construed

as a reference to “the Central Government

or the State Government, as the case

may be”.

(4) Nothing in Section 438 of the Code shall apply in relation

to any case involving the arrest of any person accused of

having committed an offence punishable under this Act.

[2024] 4 S.C.R. 653

The State of West Bengal v. Jayeeta Das

(5) Notwithstanding anything contained in the Code, no

person accused of an offence punishable under Chapters

IV and VI of this Act shall, if in custody, be released on

bail or on his own bond unless the Public Prosecutor has

been given an opportunity of being heard on the application

for such release:

Provided that such accused person shall not be released

on bail or on his own bond if the Court, on a perusal of the

case diary or the report made under Section 173 of the

Code is of the opinion that there are reasonable grounds

for believing that the accusation against such person is

prima facie true.

(6) The restrictions on granting of bail specified in subsection (5) is in addition to the restrictions under the Code

or any other law for the time being in force on granting

of bail.

(7) Notwithstanding anything contained in sub-sections

(5) and (6), no bail shall be granted to a person accused

of an offence punishable under this Act, if he is not an

Indian citizen and has entered the country unauthorisedly

or illegally except in very exceptional circumstances and

for reasons to be recorded in writing.”

33. Under the proviso to Section 43D(2), the Court has been given the

power to extend and authorise detention of the accused beyond a

period of 90 days as provided under Section 167(2) CrPC.

34. Section 2(1)(d) of UAPA provides the definition of ‘Court’ under the

Act and it reads as below:-

“2. Definitions.—(1) In this Act, unless the context

otherwise requires,—

(d) “court” means a criminal court having

jurisdiction, under the Code, to try offences under

this Act [and includes a Special Court constituted

under Section 11 or under [Section 22] of the

National Investigation Agency Act, 2008.”

35. A plain reading of the provision would clearly indicate that the same

admits to the jurisdiction of a normal criminal Court and also includes a

Special Court constituted under Section 11 or Section 22 of the NIA Act.

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36. Hence, the Chief Judge cum City Sessions Court had the jurisdiction

to pass the order dated 7th April, 2022. In view of the definition of

the ‘Court’ provided under Section 2(1)(d) of UAPA, the jurisdictional

Magistrate would also be clothed with the jurisdiction to deal with the

remand of the accused albeit for a period of 90 days only because

an express order of the Sessions Court or the Special Court, as

the case may be, authorising remand beyond such period would be

required by virtue of Section 43D(2) of UAPA(reproduced supra).

37. Hence, to the extent the learned Chief Metropolitan Magistrate

extended the remand of the accused beyond the period of 90 days,

the proceedings were grossly illegal. Nonetheless, the fact remains

that the charge sheet came to be filed beyond the period of 90

days and as a matter of fact, even beyond a period of 180 days,

but the accused never claimed default bail on the ground that the

charge sheet had not been filed within the extended period as per

Section 43D of the UAPA. Hence, the only academic question left

for the Court to examine in such circumstances would be the effect

of evidence collected, if any, during this period of so called illegal

remand, after 90 days had lapsed from the date of initial remand of

the accused and the right of the accused to seek any other legal

remedy against such illegal remand. Such issues would have to be

raised in appropriate proceedings, i.e. before the trial court at the

proper stage.

38. As a consequence of the above discussion, the impugned judgment

dated 11th May, 2023 passed by learned Single Judge of the Calcutta

High Court cannot be sustained and is hereby reversed and set aside.

39. The appeal is allowed accordingly.

40. Pending application(s), if any, shall stand disposed of.

Headnotes prepared by: Ankit Gyan Result of the case:

Appeal allowed.