STATE OF KERALA Vs. RAMAKRISHNAN
LAWS(KER)-1963-3-4
HIGH COURT OF KERALA
Decided on March 22,1963

STATE OF KERALA Appellant
VERSUS
RAMAKRISHNAN Respondents


Referred Judgements :-

STATE OF PUNJAB VS. MANOHAR SINGH PRATAP SINGH [REFERRED TO]



Cited Judgements :-

STATE OF KERALA VS. KANDA [LAWS(KER)-1964-7-28] [REFERRED TO]


JUDGEMENT

- (1.)THIS is an appeal filed by the State against the order passed by the Additional First Class Magistrate of Peermade dismissing a complaint under S. 203 Cr. P. C. The respondents were prosecuted by the Forest range Officer of Erumely for offences under S. 27 (d), (e) and (f) of the travancore-Cochin Forest Act, 1951 Act 3 of 1952. The case was that on 10 61958 they trespassed into the reserve forest and cut down a sandalwood tree. The learned Magistrate took up the case on file as C. C. 124 of 1962 and issued summons for the appearance of the accused on 15 61962. On that day accused were not served. The Magistrate passed the following order: "i find that the Act under which the case has been preferred is repealed and that the Act in force at present is the Act IV of 1962. Hence there is no ground for proceeding with the case. Accordingly the complaint is dismissed under S. 203 Cr. P. C. "
(2.)THE order of the Magistrate dismissing the complaint under S. 203 Cr. P. C. , is patently wrong and unsustainable in law. That section gives power to the Magistrate to dismiss a complaint without issuing process, if in his opinion no sufficient ground is made out for proceeding with the enquiry. But there can be no dismissal of complaint under S. 203 after the case is taken on file and process is issued. This is a summons case and the summons case procedure has to be followed and order has to be passed either convicting or acquitting the accused.
Now coming to the ground mentioned by the learned magistrate it is equally wrong and contrary to law. It is not disputed that if the prosecution is able to prove the allegations in the complaint, the act complained of would amount to an offence under S. 27 of the Forest Act 1952. But the 1952 Act has been repealed and was substituted by the Kerala Forest Act Act 4 of 1962 which came into force on 18 11962. Even though the offence was committed in 1958 the complaint was laid only in June 1962. The learned magistrate in deciding the case proceeded on the ground that Act 3 of 1952 was not in existence on the date when the accused was charged and therefore the accused could not be convicted of an offence under the law which was not in force at the time of the trial.

The argument of the learned counsel for the respondents is that Act 4 of 1962 in repealing Act 3 of 1952 did not save penalties in respect of offences committed under that Act and therefore no prosecution is maintainable in respect of an offence committed under the repealed Act. This view is not correct. S. 4 of the Travancore-Cochin Interpretation and General clauses Act, 1125 reads as follows: "where any act repeals any enactment hitherto made or hereafter to be made, 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 (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 Act had not been passed. "

(3.)SO there is a specific saving of penalty, forfeiture or punishment incurred in respect of offences committed against any enactment so repealed. It is contended that this provision could be attracted only when an Act or regulation is repealed 'simpliciter', but not when as in the present case, the repeal is followed by re-enactment. The repealing Act, it is pointed out, nowhere provides that offences committed, when Act 3 of 1952 was in force could be punished after its repeal and that S. 85 of the new Act which contains its saving provisions does not indicate that a criminal liability incurred when the repealed Act was in force would continue after it came to an end.
A similar question arose in the case in State of punjab v. Mohar Singh Pratab Singh (AIR. 1955 S. C. 84) where the position as regards S. 6 of the General Clauses Act in the case of repeal and re-enactment was considered. It is stated at page 88: "whenever there is a repeal of an enactment, the consequences laid down in S. 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the pappose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot, therefore, subscribe to the broad proposition that S. 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. S. 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. "

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