S.B.Sinha, J. - (1.) LEAVE granted.
(2.) INTERPRETATION and application of the provisions of the Criminal Procedure Code, 1973 as amended by the State of Assam by the Code of Criminal Procedure (Assam Amendment) Act, 1983 and the Criminal Procedure Code (Assam Repealing) Act, 1986 falls for consideration in this appeal which arises out of a judgment and order dated 8.3.2006 passed by the Gauhati High Court in Criminal Revision Petition No.748 of 2005. Appellant was working as a Superintendent of Police in Assam in the year 1983. The State of Assam, allegedly, witnessed ethnic violence in the said year. The entire State of Assam was engulfed in ethnic clashes as the elections were being opposed by a section of agitators. The incidence of violence including one at Nelli and other adjoining districts, viz., Nargaon and Gopur Sunitpur had left more than 3000 persons from all communities dead. A purported report was received that a large number of extremist elements were hiding in the jungle for the purpose of attacking the police post and the minority refugee camp. Appellant herein backed with other CRPF personnel, allegedly went to the place of hiding and were waylaid by 500-600 extremists. Police party was sought to have been attacked by the extremists with guns, bows, etc. The CRPF personnel returned the fire in which 7 miscreants died and 12 others were arrested. A First Information Report bearing No.235/83 was registered against 12 accused persons under Section 147/148/149/302/436/ 324/326 of the Indian Penal Code in relation to the said incident. A charge-sheet was filed in the Court of learned Magistrate upon completion of investigation. Charges were framed by the learned Sessions Judge. In regard to the death of the aforementioned 7 persons, however, first respondent, daughter of Dimbeswari Saikia, lodged a complaint before the Judicial Magistrate, 1st Class, Golaghat against appellant, who was at the relevant point of time Superintendent of Police and other police officials. In the said complaint petition, apart from Appellant one T.K. Nag, Inspector Police Camp, Rajabari Tea Garden was also made an accused. It was contended by the first respondent that her deceased husband was taken out from the house at 8.30 in the night. He was caught and assaulted and ultimately, Mony Saikia, Jiten Saikia, Tileswar Saikia, Reba Kr. Saikia, Tikhar Ch. Baruah, Hiren Saikia and Bhadreswar Saikia were killed. Only Kamal Hazarika, witness No.1, managed to escape although he sustained bodily injuries. The Government of Assam promulgated an Ordinance on 7.7.1983 being Assam Ordinance No.III of 1983 (the Ordinance), in terms whereof the provisions of Sections 167, 197 and 439 of the Criminal Procedure Code were amended. The said Ordinance was repealed and replaced by the Code of Criminal Procedure (Assam Amendment) Act, 1983 (the Act), which was published in the Assam Gazette on 8.2.1984. The assent of the President of India was received in respect of the said Act. Before embarking upon the issues involved in this appeal, we may, at this juncture, notice that by reason of 'the Ordinance' and 'the Act', in addition to the Judicial Magistrate, Executive Magistrates were also empowered to try cases involving offences specified therein. Amendments in the Code of Criminal Procedure to the said effect were carried out, as would be noticed immediately hereinafter.
(3.) IN Sub-Section (1) of Section 167 of the Criminal Procedure Code, the reference to "Judicial Magistrate" was construed as reference also to "Executive Magistrate". IN Section 190 of the Criminal Procedure Code, in Sub-Section (1) the words "any Executive Magistrate" were inserted after "any Magistrate of the first class". IN Section 191 of the Criminal Procedure Code, the reference to "Chief Judicial Magistrate" in relation to an offence taken cognizance of by an Executive Magistrate, were construed as a reference to the District Magistrate. IN Sub-Section (1) of Section 192 after the words "any" the words "District Magistrate" were inserted. Sub-Section (2) of Section 192 of the Code was substituted as follows: "(2) Any Sub-divisional Magistrate or Magistrate of the first class empowered in this behalf by District Magistrate or Chief Judicial Magistrate, as the case may be, may, after taking cognizance of an offence, make over the case for enquiry or trial to such other competent Magistrate as the District Magistrate or Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the enquiry or trial." Sub-Section (5) of Section 197 of the said Amending Act contained a non-obstante clause, which reads as under: "(5) Notwithstanding anything contained in this Code,- (a) Where a complaint is made to a Court against a public servant belonging to any class or category specified under sub-section (3) alleging that he has committed an offence, the Court shall postpone the issue of process against the accused and make a reference to the State Government; or (b) where an accused, either by himself or through a pleader, claims before a Court that he belongs to any class or category specified under sub-section (3) and that the offence alleged to have been committed by him arose out of any action taken by him while acting or purporting to act in or in connection with the discharge of his official duty, the Court shall forthwith stay further proceedings and make a reference to the State Government." ;