Classification of offence u/s. 324 IPC?
Jainodin shaikh
(Querist) 29 July 2011
This query is : Resolved
Hello experts!
I am a lawyer from Jalgaon (Maharasshtra).
I came to know that some Magistrates are treating the offence U/s. 324 of I.P.C. as "non-bailable" as per the ammendments in 2005.
According to my little knowledge; the ammendment in respect of making the offence u/s. 324 as non-bailable is yet to be notified. The notifications issued in the year 2006 & 2009 have not given effect to the ammendments in respect of the offence u/s. 324 of I.P.C.
Magistrates in my city started to consider the offence u/s. 324 as NON-BAILABLE; but being a lawyer I could not dare to ask the Magistrate to show the NOTIFICATION declairing the date of enforcement of the ammendments in respect of the offence u/s. 324 of I.P.C..
Please answer my fallowing questions:
1] What is the current possition of the classification of offence u/s. 324 of I.P.C.? (Bailable or Non-bailable?)
2] If bailable, is it possible to take action against Magistrate & police who tried detained the accused by treting the offence u/s. 324 as non-bailable?
3] If Non-bailable, What is the date of its enforcement & vide which notification? (details of that notification.
N. AKSHAY BERI
(Expert) 29 July 2011
REPLY TO ALL YOUR QUERIES IS IN THE ATTACHMENT ATTACHED HERE WITH.
Jainodin shaikh
(Querist) 29 July 2011
Thank you Mr. Beri
But my questions are in respect of "THE DATE OF ENFORCEMENT!"
R.Ramachandran
(Expert) 29 July 2011
Dear Mr. Akshay,
You say that "reply to all your queries is in the attachment".
But your attachment does not at all answer the specific queries of Mr. Jainodin.
The answer to the question would like as to the date of effect of the amendment.
Section 2 of the Code of Criminal Procedure (Amendment) Act, 2005 clearly states that "Save as otherwise provided in this Act, it shall come into force on such
date as the Central Government may, by notification in the Official Gazette,
appoint."
Except in the case of amendment to Section 24, where it has been said that that the explanation inserted after the proviso shall be deemed to have been inserted with effect from the 18th day of December,
1978, in respect of other amendments, it has not been indicated as to from which date they become effective.
The question is whether any Notification has been subsequently issued by the Government notifying the date of effect of amending the Offence u/s. 324 as "Non-bailable".
If notification issued, then what is the Notification particulars and what is the date from which the amendment of Sec. 324 had come into effect.
Unless such a specific notification has been issued, then the offence u/s. 324 would continue to be "bailable".
This is the crux of the matter.
Unfortunately, the attachment made available by you does not contain that answer.
Jainodin shaikh
(Querist) 29 July 2011
Thank you Mr. Ramachandran for simlyfying my question!!!
M/s. Y-not legal services
(Expert) 29 July 2011
As per amendment in the year of 2005, section 324 of ipc is non bailable offence only. But still as of written version only. I mean some magistrates treating as bailable offence, some magistrates treating as non bailable.
THANKACHAN V P
(Expert) 29 July 2011
The same question has come before the honorable high court of Kerala few years .The HC has held that"However, because of the non implementation of S.42(f)(iii) of the Code of Criminal Procedure (Amendment) Act, 2005, the offence under S.324 IPC still continues to remain as bailable"
2006 (4) KLT 550
Hon'ble Mr. Justice J.M. James
Chandran v. State of Kerala
B.A. No.6129 of 2006
Decided on 13th October, 2006
Penal Code 1860, S. 324 -- Until new amendment is brought into force, offence under S. 324 IPC, is bailable -- Criminal P.C. 1973, Sch.I & Criminal P.C. (Amendment) Act 2005.
Under S.42 (f) (iii) against S.324 IPC, in fifth column of First Schedule of Cr.P.C., the word 'bailable' is deleted and 'non bailable' is included. However, because of the non implementation of S.42(f)(iii) of the Code of Criminal Procedure (Amendment) Act, 2005, the offence under S.324 IPC still continues to remain as bailable. (para .3)
K.S. Madhusoodanan & T.V. Jayakumar Namboodiri For Petitioners
Jai George (Public Prosecutor) For Respondents
ORDER
J.M. James, J.
The petitioners are accused 1 to 3, in crime No.74/2006 of Kolavalloor Police Station, for the offence punishable under Ss.341, 323 and 324 IPC read with S.34 IPC.
2. The learned counsel submits that the Sessions Court, Thalassery, had dismissed the prayer for an order, under S.438 Cr.P.C., on the ground that the investigation is not over. The offence under Sections 341, 323 and 324 IPC are bailable. Though the Code of Criminal Procedure (Amendment) Act 2005, Act 25 of 2005, had been implemented from the appointed date, 23.6.2006, all the provisions contained thereunder, had not been brought into force. The Gazette of India Extraordinary dated 21.6.2006 contains S.O.No.923(E), notifying that though 23.6.2006 is appointed as the date on which the provisions of Act 25 of 2005 would come into effect the provisions of
@page-KLT551#
Sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f)(iii) and (iv) and 44(a) have been excluded.
3. Under S.42(f)(iii) against S.324 IPC, in fifth column of First Schedule of Cr.P.C., the word 'bailable' is deleted and 'non bailable' is included However, because of the non implementation of S.42(f)(iii) of the Code of Criminal Procedure (Amendment) Act, 2005, the offence under S.324 IPC still continues to remain as bailable.
4. The learned counsel Mr.K.S.Madhusoodanan submits that there is a doubt in this regard at least in some Courts. Therefore, S.324 is considered as non bailable and bail is being refused The counsel cites the dismissal of the application, under S.438 Cr.P.C., Crl.M.C.No.1425/2006 dated 27.9.2006, by the Sessions Court, Thalassery, as an example.
5. In the above facts situation, I direct the petitioners to appear before the Lower Court and the learned Magistrate shall allow them to be on bail, on the application(s) that may be filed by them.
6. In order to avoid further difficulties that may arise in the dispensation of justice, in similar matters, communicate this order to all the Magistrate Courts, so that the doubts, if any, could be cleared.
The application is disposed of as above.
Jainodin shaikh
(Querist) 29 July 2011
@ Mr. Tom
you have repeated my question in your language!
I am expecting the answer!!!
Jainodin shaikh
(Querist) 29 July 2011
Thank you Mr. Thankachan,
But you are explaining the possition as on 13 October, 2006!
I want to know the current (2011) possition!!!
Arvind Singh Chauhan
(Expert) 30 July 2011
Find the attachment please-But confused also with the judgment pasted above. Really if it is true it is mockery of whole judicial system, which says "there should be proper circulation and publication of law", "Ignorance of law is no excuse" etc-
Common people are ignorant about so many laws made by parliament and unknowingly become the victim of it, due lack of publication and circulation.
R.Ramachandran
(Expert) 30 July 2011
Dear Mr. Arvind,
You have not made us wiser by attaching the Gazette Notification.
This all of us already know.
In fact this was the same thing that Mr. Akshay Beri also had attached.
I think, you have not gone through the entire discussion in the thread and probably that is what made you to simply attach the Gazette Notification without understanding the real question involved.
Any way, thanks for the efforts.
Arvind Singh Chauhan
(Expert) 30 July 2011
General Clause Act provides-
5. Coming into operation of enactments -
(1) Where any Central Act is not expressed to come into operation on particular day, then it shall
come into operation on the day on which it receives the assent.
In the case of a Central Act made before the commencement of the Constitution, of the governor general,
and in the case of an Act of Parliament, of the President.
Unless the contrary is expressed, (Central Act) or Regulation shall be construed as coming into
operation immediately on the expiration of the proceeding its commencement
Sir Please do correct me if my explanation is wrong.
R.Ramachandran
(Expert) 30 July 2011
Dear Mr. Arvind,
Your explanation is completely off the mark, and not in sync with the present fact and situation.
The General Clauses Act will have application only when the Act is silent. But in the instant case, it has been very clearly indicated in Section 2 of the Amendment Act, 2005 that the provisions will take effect from the date to be notified by the Government. The question is whether there was any such notification issued by the Government. In the absence of such a specific Notification the provisions cannot take effect.
For example, the Delhi Rent Act was passed by the parliament and was assented to by the President as far back as in the year 1993 and the date of its comining into effect it is yet to be notified. For want of such a notification the Act is not in force in Delhi. The sufferers are the landlords.
venkatesh Rao
(Expert) 30 July 2011
Mr. Thankachan has done a good job. He has given a citation wherein the controversy has been set at rest. This judgment carries persuasive value unless it is shown that there is a contrary judgment. The position as on 2006 still holds water since there is nothing contrary available. As the thngs stand, there appears no notification is made for enforcing the amendment.
Jainodin shaikh
(Querist) 30 July 2011
I have written an email to some ADDITIONAL SOLICITOR GENERAL asking theme to clarify the actual possition of sec. 324.
now waitting for their response-cum-guidance!
Arvind Singh Chauhan
(Expert) 31 July 2011
Sir please Kindly go through the observation made by Honourable SC, about the date of notification/enforcement of that amendment Act in attachment.
Correct me again please. Thanks for your academic logics.
R.Ramachandran
(Expert) 31 July 2011
Dear Mr. Arvind,
The SC citation given by you still begs the question. When was the amending Act 2005 was notified and what is the date on which various provisions contained in the Amendment Act came into force?
Jainodin shaikh
(Querist) 31 July 2011
As per the notification issued in year 2009, the offence u/s. 324 has been made NON-COMPOUNDABLE.
The Criminal Procedure (Ammendment) Act, 2008 substituated THE TABLES IN SEC. 320 OF Cr.P.C. w.e.f. 31/12/2009
[Govt. Gazette pt. 2 s.3(ii) dt. 31/12/2009]
And as per the judgment provided by Mr. Arvind, the offence u/s. 324 committed prior to 31/12/2009 is COMPOUNDABLE.
R.Ramachandran
(Expert) 01 August 2011
I would have appreciated Mr. Jainodin maintaining the same thread in which he had raised this issue earlier.
Mr. Palnitkar, had given reply as early as on 14.2.2009 about the following Govt. of India Notification notifiying the date of effect of various provisions of the CrPC Amendment Act, 2005.
"GOVERNMENT OF INDIA
Subject: Date of commencement of Code of Criminal Procedure (Amendment) Act, 2005
Notification No.S.O. 923 (E)File No.2/5/90-Judl Cell (Vol. VIII)Date.21 Jun 2006
Notification
In exercise of the powers conferred by sub-section (2) of Section 1 of the Code of Criminal Procedure (Amendment) Act, 2005 (Act No. 25 of 2005), the Central Government hereby appoints the 23rd June,
2006, as the date on which the provisions of the said Act, except the provisions of Sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f)(iii) and (iv) and 44(a), shall come into force."
Since Section 42(f)(iii) - which deals with Section 324 IPC has been excluded from the above notification, the question is whether there was any subsequent notification giving effect to the date of implementation for treating Sec. 324 offence as non-bailable?
That debate continues.
But one sincere request, if one thread has been opened on a subject, let us stick to it for the sake of continuity.
Jainodin shaikh
(Querist) 05 August 2011
Here are some LATTEST notifications regarding the dates of enforcement of amendments in Cr.P.C.
No other notification is found till today, but I came to know that offence u/s. 324 IPC are made Non-bailable in Mumbai & Chennai, notification is also published (?)
[notification is scanned with a mobile handset, hence clarity is compromized, still it is readable]
Jainodin shaikh
(Querist) 16 August 2011
final coclussion CAN BE DRAWN that OFFENCE U/S 324 OF I.P.C. IS BAILABLE!!!
