The recent session of the Goa Legislative Assembly passed a bill amending the Criminal Procedure Code, 1973. The bill was hurriedly bull-dozed through without even a discussion.
The Criminal Procedure Code (Cr PC) is a Central Legislation and a State Legislature has no competence to amend a Central Law. Under Article 254(2)of the Constitution, it is provided that “Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.” Besides, the CrPC would fall in the realm of occupied field and it is well settled that once the Parliament has made a law on the subject, the State Legislature cannot make any law adding to or varying such Legislation. Hence, on the grounds of Legislative competence and the doctrine of occupied field, the amendment passed by the Goa Legislative Assembly is void and has no effect. On merits, the Legislation suffers from a vital defect. It seeks to give a right of hearing to “Public Prosecutor/Government Counsel/ Pleader and the Superintendent of Police”. Under the scheme of the Code of Criminal Procedure, 1973 there is no role for Government Counsel or Pleader to appear for the State in a Criminal Court. It is only a Public Prosecutor alone or a Special Public Prosecutor who can appear and represent the State/Prosecution. Why then notice to the Superintendent of Police? Is this to stifle the voice of the Public Prosecutor? The SP is not the officer-in-charge of a Police Station who is required to register an offence and it is only an officer-in-charge of a Police Station who may be asked to explain as to his reasons for non-registration or refusal to register a complaint as an FIR. So also, no directions can go to an SP, to register an FIR as it is elementary that on a Petition/complaint filed before the Court directions can only be issued to an officer in charge of a Police Station. Furthermore, an application under Section 156(3) CrPC, 1973 is disposed by an Order in the nature of an administrative Order, which also is not susceptible of being challenged by way of a Revision Petition, but merely a Writ Petition. At the stage of passing an Order under Section 156(3) CrPC, 1973, the Magistrate is not required to go into the truth of the allegations. Instead, he merely has to see if the complaint makes out a cognizable offence or not and be required to pass a reasoned order in this regard ensuring that there is a cognizable case made out. The Public Prosecutor steps in only after the charge-sheet is filed and has no role before its filing. The Full Bench of the Bombay High Court in Panchabhai Popatbai Butani, has held that without even filing appeal before the SP, an applicant can approach the Magistrate under Section 156(3) Cr PC, though ordinarily, resort to this action ought to be before approaching the Magistrate. So where is the role for SP again? Why is the Goa government so afraid of the decisions that may be passed by the Magistrates? The government should respect the wisdom of the Judiciary and not oppose matters just for the sake of it by hook or crook. Are the dark days of democracy hovering around? Aires Rodrigues Advocate High Court C/G-2, Shopping Complex Ribandar Retreat, Ribandar – Goa – 403006 Mobile No: 9822684372 Office Tel No: (0832) 2444012 Email: airesrodrigu...@gmail.com Or airesrodrig...@yahoo.com You can also reach me on Facebook.com/ AiresRodrigues Twitter@rodrigues_aires