Amendment in Section 353, and 332 of IPC is Dangerous Tool to Implicate Innocent People,
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The President of India
Rashtrapati Bhavan, New Delhi-110004.
2. Chief Justice of India
3. The Governor of Maharashtra
4. Chief Justice of Bombay High Court
5. Chief Secretary of Maharashtra
6. Law Commission of India, 4th Floor, B Wing,
7. . Law and Judiciary Department
Wednesday, 10 April 2019
Sub : (A) Section 353 and section 332 of IPC made Non Bailable and punishment enhanced to 5 years from 2 Years, Now matters under these sections will be triable by Sessions Court. Thousands of Pending Cases before Magistrate courts, under these sections will be tried from the beginning in Sessions Court.
(B) Amendment brought by Maharashtra State Legislature Vide Maharashtra Act, XL of 2018 to amend the section 353 and 332 of the Indian Penal Code 1860, and the section 309 of CRPC 1973, is not consistent with the Law made by Parliament and is against the article 14 of the Constitution of India. ,
(C.) State Legislature without proper discussion and without referendum and even without considering the after effects of the above amendment, has made the amendment in a hurry to suppress and intimidate the common citizen on one hand and fully protect the government officers which has created fear in the minds of common citizens who fear to complain even against erring government officers as they fear false implication by the government officers under these sections.
(D )Due to this amendment , the pending matters whose trial is half way and almost towards the end , would be compulsorily transferred to the Sessions court.
(E) Time and mental energy of Judges, Lawyers and precious time and money of litigants would be wasted because of this Amendment. In the WP No. 1148/2018 bombay High court in the matter of Mr. Shyamrao Vithoba Pillare ..VS.. State of Maharashtra, directed that all such matters would be tried by Sessions court.
(F.) Police and Other Govt Officers are misusing this Amendment and sections and many people are falsely Implicated and are languishing in Jails of Maharashtra.
(G) If Govt has made section 353 and 332 Non bailable which is obstructing govt servant from doing duty, then Govt should also change punishment for Govt officers not doing their duty properly and make it a Non bailable offence, and punishment must be for 5 Years.
Hon’ble Respected Sir/Madam.
I Vinod D. Gangwal, a Practicing Lawyer at Bombay Highcourt and other Various courts in the vicinity of Maharashtra approaching you authority to seek Justice for the various people who are suffering due to arbitrary amendment brought by the State of Maharashtra, vide Maharashtra Act, XL of 2018 to amend the section 353 and 332 of the Indian Penal Code 1860. As per this New Amendment Section 353 and 332 are made Non Bailable and all the matters under these sections would be tried before the Sessions court. Govt officers have displayed signage in all most all the offices Stating that if any body creates disturbance in Govt work action would be initiated against accused U/s. 353 and 332, thus the public of Maharashtra and people who visit Maharashtra from other states are terrified, and in many cases falsely Implicated by the Govt Officers. Also this amendment is repugnant to the Central act 1860 and Violative of Constitutional article 14, 21, and 254(1) The agony of the public at large in Maharashtra can be comprehended by the following points which I have researched :
What is the Amendment :
The Amendment stated in the subject above was made by the Maharashtra state legislature vide Maharashtra Act, XL of 2018 to amend the section 353 and 332 of the Indian Penal Code 1860, and the section 309 of CRPC 1973.
The section 353 of IPC which is about the offence of obstruction in the performance of duty by government officer , has been made non-bailable which was earlier bailable and the punishment has been increased from 2 years to 5 years .
The section 332 of IPC which was bailable has been made non - bailable and punishment has been increased from 2 years to 5 years .In both cases the matter is triable by the sessions court.
Also in the section 309 of CRPC 1973 ,addition of a condition has been made . The inquiry or trial of cases under the above sections will have to be finished within a period of 6 months from the date of filing charge sheet.
Public unaware : The public has not been informed of the amendment as it has not been published in the media. The government should have made the public aware of such an important amendment which will affect the common man.
Motive behind the amendment: It is surprising that even though the chief Minister of Maharashtra is a lawyer , he failed to see the repugnance of the amendment with the original Act which is central Act made by the Parliament . The act for the amendment by the Maharashtra state legislature was passed when enough opposition members were not present. One of the BJP MLA Mr Ashish shelar, a member of the Maharashtra state assembly , and President of the Mumbai unit of the BJP ,also a lawyer had objected to the amendment as he had understood the aftermath of this amendment . This amendment was made with the intention to suppress the common man and give full protection to the government officers.The common man cannot complain against even the erring government officers due to the fear of implication in a false case under these sections. A warning is always clearly displayed outside the office of a government officer saying that anyone who commits the offence of obstruction in the discharge of duty of a government officer , will be punished as per law . But no information is displayed about the remedy available to a person if a government officer fails to discharge his/her duty .
Both Sections are now Non Bailable/ Triable by Sessions Court, thus the person accused of offence under these sections has to Compulsorily go to Jail : Now the important aspect of this section is that both the sections which are governed by the Central act i.e. THE INDIAN PENAL CODE, 1860 ACT NO. 45 OF 1860, are amended by the Indian Penal code Maharashtra amendment act 2017, Assent was also given by the President of India on 7th June-2018.
Now Effect of the above mentioned amendment would be as Follow
Section 353 Cognizable Non bailable Triable by Sessions
Section 332 Cognizable Non Bailable Triable by Sessions
Citizens of India, are suffering: Thus now if any body is indicted for the above mentioned sections then first he will be arrested and as a general procedure he would be produced before the magistrate, and Magistrate would grant arrested person Judicial Custody, then lawyer will file bail before the sessions court, and getting bail from sessions court generally takes more than 7 days. Thus in this process if accused is innocent and falsely implicated then also person has to go to Jail for no fault. In Maharashtra officers are freely using this section for false implication. I say this as there were reports in the Media regarding this .You authority can call and check the papers.
Sessions court not equipped : Another draw back of this amendment will be that thousands of cases ( More than 1 Lacs as per my rough estimate ) under these sections pending in the trial courts will now be transferred to the sessions court and will be tried from the beginning which will be a wastage of time of the courts and energy and money of the litigants . Hon’ble Bombay High court in the matter of Mr. Shyamrao Vithoba Pillare VS.. State of Maharashtra, (Nagpur Bench) CORAM : Z.A.HAQ, J. DATED : 13/12/2018 has given Judgement that now all such matters would be tried by the Sessions court. It seems that state Legislature has not done proper home work before making this law. I have read various News Papers where it is stated that there is a shortage of courts in Maharashtra . Even till today as per many acts Special courts have not been started like in Atrocities cases etc. Now all the matters would be shifted to Sessions Court which is not equipped to handle more cases with already a large number of pending cases . No body has thought about the pending matters which are on the verge of finishing the trial or in mid trial, they would also be committed to Sessions court, and this would be sheer wastage of Intellectual energy of Judges, and litigant and Victim would lose faith in Judiciary. They may not even get justice in their lifetime . Innocents will suffer .This is mockery of Law, and such mockery has been done by none other than the legislature of the State, which ,without any research and analysis , has simply framed the law.
Amendment is against Article 14 of the constitution : Article 14 of the Constitution of India provides for equality before the law or equal protection within the territory of India.The State shall not deny to any person equality before the law or equal protection of law within the territory of India.This amendment to sec 353 and sec 332 was done by the state of Maharashtra , due to which a person who does offence under these sections in Maharashtra will be punishable for 5 years and the offence is non - bailable whereas a person who does the same offence in any other state of India will be punishable for 2 years and the offence is bailable .Thus law is not giving equal protection to all the people of India.
Impractical Amendment of sec 309 of CRPC has added that cases under the sections 353 and 332 should be disposed off within a period of 6 months from the date of filing of charge sheet .This amendment was made in June 2018 . Therefore the thousands of pending cases in Maharashtra should have been disposed off by now according to the amendment of sec 309 of CRPC . But the fact is that not a single case has been disposed off up till now.
Amendment is Repugnant - The article 254 of the constitution of India : . It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of Repugnancy in India. According to Black’s Law Dictionary, Repugnancy could be defined as “an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or a contract)”.
Article 254 in The Constitution Of India 1949
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States
If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
10. Supreme Court’s Interpretation of Doctrine of Repugnancy : How this Amendment is Repugnant to the Central Act : Article 254 has been beautifully summarised by the Supreme Court in M. Karunanidhi v. Union of India. The Hon’ble court observed as follow :
“1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254
11.Direct inconsistency between the Central Act and the State Act. arise are as follows:
1. That there is a clear and direct inconsistency between the Central Act and the State Act. Central Act says section 353, 332 is Bailable at the same time State act says its Non Bailable., Centra act says matter is Triable by Magistrate court and at the same time State Act says Matter is Triable by JMFC, Central act says Punishment is up to 2 Year and State act says Punishment is up to 5 Years.
2. That such an inconsistency is absolutely irreconcilable., and against constitution article 14.
3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.”
12. Where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate : All the above conditions are fulfilled in this case as offences under sections 353 and 332 of IPC are now non-bailable and punishment is 5 years in the state of Maharashtra after the amendment, whereas they are bailable and punishment is 2 years according to the central Act. Further in the case of Govt. of A.P. v. J.B. Educational Society, Hon'ble Supreme court of India, reported in AIR2005SC2014, in Para No 16 observed as Follows :
"The language of the aforesaid article is crystal clear and it inter, alia provides [subject to the provisions of Clause (2)] that -
9. (a)if any provisions of law made by the legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, then the law made by Parliament whether passed before or after the law made by the legislature of the State shall, to the extent of repugnancy, be void; or
(b) if any provision of a law made by the legislature of a state is repugnant to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then the existing law shall prevail and the law made by the legislature of the State shall, to the extent of repugnancy, be void."
10. There cannot be any doubt that the article gives supremacy to the law made by the Parliament, which Parliament is competent to enact, but for application of this article, firstly, there must be repugnancy between the State law and the law made by Parliament. Secondly, if there is repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both Acts would prevail."
Therefore I request all the addressees to take action and do the needful according to their authority , to save the citizens from suppression , suffering and retain/strengthen their fading faith in the judiciary and Justice dispensing System.
I Vinod Gangwal, resident of Maharashtra, for the common Citizen of India and for the Residents of Maharashtra most humbly pray :
The Hon’ble His Excellency President of India, may recall the assent given by him to this amendment .
Parliament may pass a legislation to override the state legislation that brought the amendment to sec 353 and sec 332 of IPC which is a central Act made by the Parliament.
The Maharashtra state legislature to repeal the amendment made vide the Maharashtra Act, XL of 2018 to amend the section 353 and 332 of the Indian Penal Code 1860, and the section 309 of CRPC 1973.
Till Pendency of My Representation, direction be given to lower Judiciary Not to commit Pending matters to Sessions Court. and treat both the above mentioned Sections Bailable.
Hope Justice Prevails.
Vinod D. Gangwal
Advocate. Cell No. 9892695873
C.C. to All the Member of Parliament of India.
C.C. to All the M.L.A. of Maharashtra.,
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