R.Thamaraiselvan vs Government Of Tamil Nadu on 28 July, 2011

[Cites 81, Cited by 2]

Madras High Court

R.Thamaraiselvan vs Government Of Tamil Nadu on 28 July, 2011

The subject matter of challenge in these writ petitions is the order issued by the Home (Police-XI) Department in G.O.(Ms).No.423 dated 28.07.2011 in ordering the formation of 36 Anti Land Grabbing Special Cells in Tamil Nadu to deal with land grabbing cases.

2. In W.P.No.31673/2014 filed by Mr.G.Ramamoorthy, apart from challenge made to G.O.(Ms).No.423 dated 28.07.2011 referred to supra, G.O.(Ms).No.451 dated 11.08.2011 passed by the very same department constituting Special Courts in certain districts to exclusively conduct trial of land grabbing cases under the Code of Criminal Procedure is also put to challenge.

3. Heard the submissions of Mr.R.Viduthalai, assisted by Mrs.Geetha Thamarai Selvan and the learned counsel appearing for the petitioner in W.P.No.18872/2011, Mr.P.Wilson, learned Senior Counsel assisted by Mr.V.Arun, Mr.S.Ullasavelan, Mr.A.Karthik Jaganath, Mr.K.Kannan, learned counsel appearing for the petitioner in W.P.Nos.21126/2011, 27215/2011, 27216/2011, 26956/2012, 26957/2012 and 27503/2011 respectively, Mr.R.Shanmugasundaram, learned Senior Counsel assisted by Mr.A.S.Kaizar and Mr.J.Kannan, learned counsel appearing for the petitioner in W.P.Nos.26773/2011 and 27502/2011 respectively, Mr.S.M.Subramanian, learned counsel appearing for the petitioner in W.P.Nos.25876/2011 and 25877/2011 and 26883/2011, Mr.P.Srinivas, learned counsel appearing for the petitioner in W.P.Nos.26684/2011 and 26685/2011, Mr.K.R.Vijayakumar, learned counsel appearing for the petitioner in W.P.No.27436/2011, Mr.E.C.Ramesh, learned counsel appearing for the petitioner in W.P.Nos.27504 and 27505/2011, Mr.A.Kalaiselvan, learned counsel appearing for the petitioner in W.P.Nos.8227/2012, 8261/2012 and 10185/2012 and Mr.S.Santhosh Kumar, learned counsel appearing for the petitioner in W.P.No.10198/2012, Mr.K.Selvaraj, learned counsel appearing for the petitioner in W.P.Nos.10775/2012 and 20481/2014, Mr.P.Subbha Reddy, learned counsel appearing for the petitioner in W.P.No.25874/2012, Mr.G.Krishnakumar, learned counsel appearing for the petitioner in W.P.No.28060/2012 and M/s.Ajmal Associates for the petitioner in M.P.No.1/2012 in W.P.No.28060/2012, Mr.G.Ethirajulu, learned counsel appearing for the petitioner in W.P.Nos.4476/2014 and 24925/2013, Mrs.R.Aparna, learned counsel appearing for the petitioner in W.P.No.28413/2014 and W.P(MD).No.17926/2014, Mrs.R.Anitha, learned counsel appearing for the petitioner in W.P.No.31673/2014, Mr.K.T.S.Tulsi, learned Senior Counsel assisted by Mr.S.Shanmugavelayutham, learned Public Prosecutor and S.T.S.Moorthy, learned Government Pleader and Mr.V.Jayaprakash Narayanan, learned Special Govt. Pleader appearing for the State Government in all the writ petitions, Mr.R.Suresh Kumar, learned counsel appearing for the first respondent in W.P.Nos.27502 and 27503/2011 and also for the Registrar General, High Court, Madras, Mr.M.Purushothaman, learned counsel appearing for the fourth respondent in W.P.No.18872/2011, Mr.V.Raghupathi, learned counsel appearing for the respondents 5 and 6 in W.P.No.18872/2011 and Mr.Elephant Rajendran, petitioner/party-in-person in W.P.No.18872/2011.

4. A perusal of the affidavit filed in support of these writ petitions reveal the factual aspects as well as the legal submissions and since challenge is made to the above said two Government Orders broadly on the grounds of violation of Articles 14 , 21 and 300A of the Constitution of India and that the impugned Government Orders have been issued with malafide intention and political vendetta and further that without defining the term Land Grabbing a separate Cell cannot be formed to investigate land grabbing cases and the consequential Special Courts, it is not necessary to deal with the facts pleaded in these writ petitions and it would be suffice to deal with the legal plea raised on behalf of the respective writ petitioners.

5.W.P.Nos.18872/2011 and 21126/2011 are filed as Public Interest Litigations and W.P.No.20805/2011 was filed by a political party, namely Dravida Munnetra Kazhagam (DMK). A Division Bench of this Court (Hon'ble Mr.Justice K.N.Basha and Hon'ble Mr.Justice N.Paul Vasanthakumar) has considered the objections raised by the official respondents with regard to the maintainability of the above said writ petitions as Public Interest Litigations. The Division Bench, after elaborately considering the rival submissions, has passed a detailed interim order dated 30.09.2011 holding that W.P.No.20805/2011 filed by the political party is not maintainable. Insofar as W.P.No.18872/2011 is concerned, the Division Bench held that the writ petition is filed by a Member of the Parliament belonging to DMK party and he is basically an Advocate and raised legal contentions which require detail counter affidavit on merits and similarly W.P.No.21126/2011 is filed by an Advocate having no political affiliation and also contain legal issues for adjudication, it was held that their locus standi cannot be doubted and further observed that the legal contentions raised in the writ petitions can be decided on merits only after counter affidavits filed by the respondents and after hearing the respective counsel.

6. In the light of the above said order dated 30.09.2011 passed in W.P.Nos.18872/2011 and 21126/2011, this Court is of the view that the issue with regard to the maintainability of the writ petitions as Public Interest Litigations cannot be re-agitated. The official respondents had also filed their counter and therefore, this Court is proceeding to dispose of the above said writ petitions along with other connected writ petitions on merits by taking into consideration the legal contentions put forward by the respective learned Senior Counsel and the learned counsel appearing for the parties.

7. It is averred among other things in the affidavit filed in support of W.P.No.18872/2011 that the present Chief Minister of Tamil Nadu, who is also the General Secretary of ruling party, namely All India Anna Dravida Munnetra Kazhagam [AIADMK] has taken steps to punish all the former Ministers of DMK party and their representatives under the guise of land and properties/immovable properties purchased by them or negotiated, through police force by constituting Special Cells in all districts under her direct supervision and even in the election manifesto of AIADMK party an announcement has been made to that effect that action will be taken in that regard as soon as she comes to power. It is further averred by the petitioner that even in the Budget Speech delivered on 04.08.2011, it has been mentioned that police are taking prompt action in respect of forcible land grabbing which occur during the previous DMK regime and Special Cells have been formed at district levels. It is the stand of the petitioner in W.P.No.18872/2011 that based on false complaints which are obtained by the police from the so-called affected parties, namely vendors and even without any preliminary enquiry to find out the genuineness or authenticity of the complaints, arrests have been made indiscriminately and that too in the midnights, as if the purchases are terrorists and in some cases, the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers, Act, 1982 (Act No.14 of 1982), otherwise called Goondas Act has been invoked. The petitioner further submitted that the impugned Government Order in G.O(Ms).No.423, Home (Police-XI) Department dated 28.07.2011 offends certain provisions of the Specific Relief Act, 1963, Transfer of Property Act, 1882, Articles 14 , 21 and 300A of the Constitution of India, Limitation Act, 1963 and Indian Evidence Act, 1842 and other procedural laws and the said order is nothing but illegal, arbitrary, unjust, unconstitutional besides in excess of legislative competence and have to be declared as null and void and former Ministers and political functionaries belonging to DMK party are targeted and some of the ex-Ministers have also been detained under Goondas Act.

8. The petitioner would further submit that admittedly the phrase/word "Land Grabbing" has not been defined at all and the power of the Civil Judge who is competent and having jurisdiction to deal with civil related issues, have been taken away and the police officials have been conferred with the said power through the impugned Government Order and the police officers in-charge of the Special Cells, namely Land Grabbing Cells may not be familiar relating to special enactments such as Specific Relief Act, Transfer of Property Act etc., and the result being the powers conferred on them, by means of the impugned Government Order, in all probability, is likely to be misused purely for political and other considerations and that apart, the constitution of Special Land Grabbing Cells resulted in financial commitment of Rs.27,71,11,658/- and it is nothing but a financial loss/unnecessary expenditure.

9. The Division Bench of this Court [Hon'ble Mr.Justice K.N.Basha and the Hon'ble Mr.Justice N.Paul Vasanthakumar] has passed an interim order dated 30.07.2012 in W.P.Nos.27216/2011 and 27502/2011 and M.P.Nos.1 and 1 of 2011, after recording the submission of the learned Advocate General and the learned Public Prosecutor, to maintain Status Quo as on date, in respect of filing of Charge Sheet before the two specially constituted Courts at Tiruppur and Coimbatore for land grabbing cases, pending disposal of the said writ petitions and directed the listing of the matter on 06.08.2012. Thereafter the Division Bench, in series of orders passed in W.P.Nos.18872, 21126, 24538, 25876, 25877, 26684, 26773, 26883, 27215, 27216, 27436, 27502 to 27505/2011 and W.P.Nos.8227, 8261, 10185, 10775, 24354, 25834, 26956, 28060 of 2012 had directed to maintain Status Quo as on date and further directed that the trial of the cases shall not be continued pending disposal of the above said writ petitions, the effect being even in respect of cases in which charge sheet have been filed, Status Quo is directed to be maintained pending disposal of the above said writ petitions.

10. The second respondent has filed counter affidavit in W.P.Nos.18872, 25876, 25877, 26773, 26883, 26684, 26685, 27215, 27503, 27504, 27505 of 2011 and W.P.Nos.10775, 10776, 10198 and 25834 of 2012, contending as follows:

10.1. Totally 1887 complaints of land grabbing have been received including the complaints against several members of various political parties for the last 5 years, for which no action was taken on them and took a stand that the present Government has not enacted any new Law or Act for the purpose of disposing these complaints. The Special Cell for land grabbing has been in operation since 2006 and the Central Crime Branch (CCB), Chennai and the said Cell has registered 438 complaints. On account of rise in property prices, crimes with reference to properties, their titles etc., have been on the rise and specified knowledge is required for investigating these cases. Properties have been usurped using forged, fabricated documents and by illegal means like extortion which fall within the gamut of criminal law and therefore, the Government, under the said circumstances, chosen to form Special Cells in handling complaints using the existing law, more so the Indian Penal Code and thus the Government has decided to provide an appropriate and efficacious redressal mechanism to the general public for redressing their grievances and has decided to constitute Anti Land Grabbing Special Cells.

10.2. The second respondent has specifically denied the averments and would contend that there is no specific motive or any oblique intention behind passing the impugned Government Order and denied the averment that the impugned Government Order was issued to initiate criminal proceeding against important DMK political functionaries in all districts including former Ministers. The role of the police is limited to registration of First Information Report (F.I.R.) when a cognizable offence is made out and investigating into the crime alleged and filing of final report and they do not have power to recover properties.

10.3. As on 04.11.2011, 19604 complaints have been received all over Tamil Nadu and of these, only 805 complaints have been culminated into FIRs and 12658 complaints have been closed citing various reasons and the above said particulars clearly demonstrated that there is no arbitrary registration of complaints. Insofar as the plea taken by the petitioner in W.P.No.18872/2011 regarding the availability of civil remedy under Specific Relief Act, Transfer of Property Act, Limitation Act and procedural laws like Civil Procedure Code, Indian Evidence Act, the second respondent contended that dehors the availability of civil remedy, it is open to the aggrieved persons to invoke the provisions of penal laws and lodge complaints and therefore, registration of cases under penal law cannot be faulted with.

10.4. The impugned Government Order was issued only for creating infrastructure facility to the police personnel and to prepare them with specific skills to handle such property related criminal cases and take appropriate legal action against the land grabbers/offenders/accused by bringing them under the strict rule of law. Arrest of an accused is a part of investigation and it is the prerogative of the Investigating Officer while investigating a case and that police have been following due process of law and cited some of the observations made in the order passed in Crl.O.P.No.17258/2011 filed by Mr.Veerapandi S.Arumugam and in Crl.O.P.No.22433/2011 filed by Mr.Ponmudi- former Minister of DMK party. The second respondent also took a stand that Public Interest Litigations filed by the petitioner in W.P.Nos.18872/2011, 21126/2011 and 20805/2011 are not maintainable, as those petitions are politically motivated petitions filed by persons having oblique motive to cause detriment and prevent the revelations of true acts which may come out after proper investigation. So far as the allegation that persons belonging to former Ministers of DMK party, it is stated that only 94 cases are political personalities related cases and the rests are individual complaints and as against the receipt of 12658 complaints, only 805 cases were registered and 822 persons concerned in the above cases were arrested.

10.5. The second respondent, with regard to the grounds of challenge made to the impugned Government Orders on a legal plea, contended that the impugned Government Orders never mentioned about the procedure to be followed and the power of the police is strictly within the ambit of procedural laws, namely Criminal Procedure Code and other relevant special laws and statutory laws for taking cognizance of the offences defined under different provisions of Indian Penal Code and other panel laws are governed by Criminal Procedure Code including the period of limitation for taking cognizance of the offence as per Section 468 CrPC. It is further contended by the second respondent that mere registration of the sale deed by the Registrar is not a conclusive proof of absence of criminality and dehors the availability of civil remedy, it is open to the concerned individual to take recourse to launching of criminal prosecution also.

10.6. The second respondent also quoted the case of one Mr.Tamilarasan, Ex.M.L.A Pallali Makkal Katchi wherein the case was investigated and closed by the District Crime Branch, Salem and similarly, the case registered against one Mr.K.N.Nehru, District Secretary, DMK was closed by the District Crime Branch, Trichy citing the reason as mistake of fact and other instances are also quoted. It is the specific stand of the second respondent that the impugned Government Order never supersedes or overrides the various provisions of Statutory Enactments/Acts and the financial assistance and constitution of Special Cells are provided purely with public interest for getting speedy justice to the affected persons and also quoted the instances of constitution of Special Cells for dealing with special offences like Narcotic Drugs offences, Domestic Violence offences, Cyber Crime offences, Idol Wing, Video Piracy etc., for speedy investigation and relief to the aggrieved persons and prayed for dismissal of these writ petitions.

11. The respective learned Senior Counsel appearing for some of the writ petitioners and the other respective learned counsel appearing for the writ petitioners made the following submissions:

11.1. The impugned Government Order sought to prescribe new offence namely, "Land Grabbing" and to deal with those cases, constitution of Special Cells for investigation of "Land Grabbing Cases" and in the absence of any definition to the phrase/word, namely "Land Grabbing", the impugned Government Order amounts to executive usurpation of legislative power. The offence of land grabbing should be notified and not a particular aspect of the offence dealing with illegal transfer or possession of land.

11.2. The impugned Government Order gives unbridled power to Investigating Officers to treat/deem an act as "land grabbing" and initiate action on that basis and in the absence of any guideline whatsoever provided in the impugned Government Order and therefore, it is to be held as arbitrary and violative of Article 14 of the Constitution of India.

11.3. The impugned Government Order is patent usurpation of Judicial Power by the Executive in as much as an act or action relating to possession and transfer of title in respect of land, adjudication of the same is within the exclusive domain of Civil Court and under the guise of investigating the land grabbing cases, it is not open to the police official/investigating officer to adjudicate and decide the title of an immovable property.

11.4. The impugned Government Order is in gross violation of Articles 14 , 21 and 300A of the Constitution of India.

11.5. The impugned order is ultra vires and repugnant to the provisions of legislative enactments of Parliament, namely, Section 6 of the Specific Relief Act, 1963, Sections 17 and 18 of the Transfer of Property Act, 1882, Section 110 of the Evidence Act, 1842 and Section 59 of the Limitation Act, 1963.

The respective learned Senior Counsel appearing for some of the writ petitioners also drawn the attention of this Court to Sections 2(o), 2(s), 2(j), 4 and 36 of CrPC and also relied on the following judgments:

(i) State of West Bengal v. Anwar Ali Sarkar and another [AIR (39) 1952 SC 75 (CB)]

(ii) Dr.P.Rajaji v. The State of Tamil Nadu & Others [2008-4-L.W.564]

(iii) Noida Entrepreneurs Association v. Noida and Others [(2011) 6 SCC 508]

(iv) State of Punjab and Another v. Gurdial Singh and Others [(1980) 2 SCC 471]

12. Mr.K.T.S. Thulsi, learned Senior Counsel assisted by Mr.S.Shanmugavelayutham, learned Public Prosecutor appearing for the State made the following submissions:

12.1. The impugned Government Order has been issued under Section 9 of the Tamil Nadu District Police Act, 1859 by the State Government on a proposal submitted by the Director General of Police, Tamil Nadu and the said Government Order is sustainable as necessary permission has been accorded for distribution of force and creation of police stations in terms of Sections 2 and 4 of the CrPC.

12.2. The purpose and object of the Government Order in G.O(Ms).No.431 dated 01.08.2011 and G.O(Ms).No.451 dated 11.08.2011 respectively for speedy investigation of the land grabbing cases. The Government Orders referred to above do not create land grabbing into a separate or distinct offence and the jurisdiction of the Special Cell and Special Court is derived from various cognizable offences created under IPC but relate to allegations of land grabbing.

12.3. Investigation by the Special Cell, namely Anti Land Grabbing Cell is done through regular police force and the investigation is being monitored by the jurisdictional Court which alone has got authorization to detain the concerned persons in custody and also determine the guilty or cognizance of the concerned person and the conduct of trial in accordance with procedural law, namely CrPC.

12.4. The jurisdiction of the Special Cell or Special Court is also derived from various cognizable offences and they are defined and enumerated in the substantive law, namely Indian Penal Code that relate and deal with the allegations of land grabbing.

12.5. Section 11(1) of CrPC expressly permits the creation of Special Courts for a particular case or class of cases and in this context only, the expression "Land Grabbing" is employed by the impugned Government Order and it does not denote a new or separately defined offence, namely "Land Grabbing".

12.6. The power of the Special Courts to try the land grabbing cases is in terms of Section 3(4)(a) of CrPC and the said power is exercised by the Judicial Magistrate.

12.7. The State Government, taking into account the huge number of cases alleging land grabbing by fabricating forged documents and usurpation of immovable properties, felt that a special treatment to this class of cases is required and accordingly, created Land Grabbing Cells and created Special Courts under the above said Government Orders ensuring speedy investigation and expeditious conclusion of trial and such a noble object cannot be faulted with.

12.8. Investigation by the Special Cells is fair and proper for the reason that as against complaints numbering 91537 only 2735 cases were registered after preliminary enquiry and therefore, it cannot be said that the registration of the case and arrest of the concerned individual/accused has been done with an oblique motive, political or other considerations or malafide exercise of power.

12.9. Offences for which cases are registered by the Land Grabbing Cells mainly pertain to Sections 447 (Criminal Trespass), 420 (Cheating) and 506 (Criminal Intimidation) and other offences, if the allegations in the complaint make out a case under the relevant provisions and therefore, it is futile in the absence of definition phrase/offence Land Grabbing and such type of cases cannot be investigated by constituting a Special Cell and tried by Special Courts.

The learned Senior Counsel appearing for the official respondents, in support of his submissions placed reliance upon the following judgments:

(i) J.Jayalalitha v. Union of India [(1999) 5 SCC 138]

(ii) V.C.Shukla v. State [(1980) Supp SCC 249]

(iii) Geetha & Others v. Arunakumar [2007 (4) CTC 514]

(iv) Deputy Chief Controller of Imports & Exports v. Roshanlal Agarwal, [(2003) 4 SCC 139]

13. In response to the submissions made by the learned Senior Counsel appearing for the official respondents, the learned Senior Counsel appearing for some of the petitioners while assailing G.O.(Ms).No.451 dated 11.08.2011 in W.P.No.31673/2011 filed by Mr.G.Ramamoorthy, W.P.No.27216/2011 filed by Mr.P.Ganesan, W.P.No.27502/2011 filed by Mr.P.A.Murugesan and W.P.No.26957/2011 filed by Mr.G.Thalapathy, would contend that the State Government, after consultation with the High Court, had constituted Special Courts of Metropolitan Magistrate at Chennai to try the land grabbing cases and also constituted Special Courts in 23 other districts and vehemently contended that no proper consultation has been made with the High Court and the High Court was also misled in agreeing to the proposal sent by the State Government and even as per the own admission of the learned Senior Counsel appearing for the State that the offences under Indian Penal Code alone are being dealt with by the Special Courts, there is no need to constitute such Courts at all. It is further submitted that the accused who are facing investigation/trial relating to the very same offences are tried in other Courts and there is no necessity to show or give preference to the persons who said to have committed the offence of land grabbing to be tried in Special Courts and the same is in violation of Articles 14 and 21 of the Constitution of India.

14. The learned Senior Counsel appearing for the State in response to the said submission submitted that for the first time during the course of arguments such a plea was raised and strict principles of pleadings would also apply to writ proceedings.

15. This Court paid its anxious consideration and best attention to the submissions made by the learned Senior Counsel and the respective learned counsel appearing for the writ petitioners and the learned Senior Counsel appearing for the State and also perused the materials available on record in the form of typed set of documents and the decisions relied on by the respective learned Senior Counsel appearing for the parties.

16. The following questions arise for question in these writ petitions:

(1) Whether G.O.(Ms).No.423 dated 28.07.2011 passed by the Home (Police-XI) Department (first respondent) is violative of Articles 14 & 21 of the Constitution of India?

(2). Whether G.O(Ms).No.423 dated 28.07.2011 passed by the Home (Police-XI) Department (first respondent), is ultra vires and repugnant to certain provisions of Specific Relief Act, 1963, Transfer of Property Act, 1882, Indian Evidence Act, 1842 and Limitation Act, 1963?

(3) In the absence of definition pertaining to offence of Land Grabbing, whether the Special Cells constituted for investigating the cases pertaining to land grabbing, are competent to investigate those kind of cases and whether the Special Courts can try those cases?

Question No.1

17. G.O(Ms).No.431 dated 01.08.2011 and G.O.(Ms).No.451 dated 11.08.2011 came to be passed under Article 162 of the Constitution of India. The said Article provides for extension of the executive power of the State to the matters with respect to which the legislature of the State has power to make laws and it is well settled position of law that the executive order made under Article 162 of the Constitution cannot prevail over a statute or statutory rules framed under proviso to Article 309 of the Constitution of India. The power of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing rules [Union of India v. Central Electrical & Mechanical Engineering Service (CE & MES) Group 'A' (Direct Recruits) Assn, CPWD, (2008) 1 SCC 354]. It is also a well settled position of law that State Executive may make rules regulating any matter within the legislative competence of State Legislature, without prior legislative authority. [Rajendra Narain Singh v. State of Bihar, (1980) 3 SCC 217]. However, such a rules cannot affect the fundamental rights guaranteed under Articles, 14 , 19 and 31 of the Constitution of India and shall not violate any provisions of the Constitutions which mandates legislation.

18. The Hon'ble Supreme Court of India in a catena of decisions has considered the scope and purport of Article 14 of the Constitution of India and held that in order to pass the test of permissible classification two conditions have to be fulfilled (a) classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act and if both the satisfied, the Statute should be held to be valid.

19. It is to be kept in mind at this juncture that admittedly no legislation similar to that of A.P. Land Grabbing (Prohibition) Act, 1982 has been passed and the said Act passed by the State of Andhra Pradesh defines Land Grabber and Land Grabbingand also provides a detailed procedure such as constitution of Special Courts and Special Tribunals.

20. Incidental question also arise for consideration before this Court as to whether constitution of Special Cells to investigate the land grabbing cases and constitution of Special Courts to deal with such cases wherein positive final report have been filed is sustainable? To deal with the said questions, it is useful to extract the following provisions:

Tamil Nadu District Police Act, 1859:

Sec.9-Director-General to control forces and make rules:- The Director General may, from time to time, subject to the approval of the State Government, frame such orders and regulations as he shall deem expedient, relating to the general government and distribution of the force, the places of residence, the classification, rank and particular service of the members thereof; there inspection; the description of arms, accoutrements and other necessaries to be furnished to them; to collect and communicate the intelligence and information; and all such other orders and regulations relating to the said police-force as the said Director General shall, from time to time, deem expedient for preventing abuse or neglect, and for rendering such force efficient in the discharge of all its duties. Criminal Procedure Code, 1873:

S.2(j) "local jurisdiction", in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code and such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify;

S.2(o) "officer in charge of a police station" includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when, the State Government so directs, any other police officer.

S.2(s) "police station" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf.

S.4. Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

S.11. Courts of Judicial Magistrates (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:

Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrate of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established (2) The presiding officers of such Courts shall be appointed by the High Courts (3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.

21.Mr.R.Shanmuga Sundaram, learned Senior Counsel appearing for the petitioner in W.P.No.26773/2011 and 27502/2011 has placed heavy reliance on the judgment of the Constitution Bench of the Hon'ble Supreme Court of India in State of West Bengal v. Anwar Ali Sarkar and another [AIR (39) 1952 SC 75] in support of his submission. The facts of the said case would disclose that the State of West Bengal launched criminal prosecution against Mr.Anwar Ali Sarkar by trying him before the Special Court established under Section 3 of the West Bengal Special Courts Ordinance, 1949, which was replaced subsequently by the West Bengal Special Courts Act, 1950. The respondent and 49 other persons were charged with various offences alleged to have been committed by them in the course of their raid as an armed gang at a certain factory known as the Jessop Factory at Dum Dum and they were tried and convicted by the Special Court, which was constituted by the Governor of West Bengal under Section 5(1) of the said Act. The conviction and sentence was put to challenge by the accused before the Calcutta High Court under Article 226 of the Constitution of India by filing a Writ of Certiorari. The Full Bench of Calcutta High Court has quashed the conviction and sentence on the ground that the Special Court has no jurisdiction to try the case in as much as Section 5(1), under which case was sent to the Special Court for trial, was unconstitutional and void under Article 13(2) as it denied equal protection of the laws enjoyed by Article 14. The Hon'ble Supreme Court of India by a majority view has upheld the decision rendered by the Full Bench of the Calcutta High Court.

22. A perusal of the above said judgment would disclose that Sections 6 to 15 of West Bengal Special Courts Act, 1950 prescribes special procedure which a Court has to follow in trial of the cases referred to it and such a procedure mark a departure from the established procedure for criminal trials under Code of Criminal Procedure such as elimination of the committal proceedings and procedure laid down for trial of warrant cases, trial without jury or assessors, restriction of the Courts power in granting adjournments, special powers to deal with refractory accused and dispensation of de novo trial on transfer of a case from one Special Court to another.

23. The Hon'ble Supreme Court of India by majority view found that if the Special Court itself lays down the procedure which is less advantage to the accused than the ordinary procedure and found that the special procedure contemplated under the said Act, is not necessitated by administrative exigency or public interest, the special procedure likely to produce some inequality. It is relevant to extract para 38 of the view expressed by the Hon'ble Mr.Justice Fazl Ali:

38. That the Special Act lays down substantially different rules for trial of offences and cases than laid down in the general law of the land, i.e., the Code of Criminal Procedure, cannot be seriously denied. It short circuits that procedure in material particulars. It imposes heavier liabilities on the alleged culprits than are ordained by the Code. It derives them of certain privileges which the Code affords them for their protection. Those singled out for treatment under the procedure of the Special Act are to a considerable extent prejudiced by the deprivation of the trial by the procedure prescribed under the Criminal Procedure Code. Not only does the special law deprive them of the safeguard of the committal procedure and of the trial with the help of jury or assessors, but it also deprives them of the right of a de novo trial in case of transfer and makes them liable for conviction and punishment for major offences other than those for which they may have been charged or tried. The right of the accused to call witnesses in defence has been curtailed and made dependant on the discretion of the special Judge. To a certain extent the remedies to which an accused person is entitled for redress in the higher Courts have been cut down. Even if it be said that the statute on the face of it is not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive government unregulated and official discretion and, therefore, has to be adjudged unconstitutional. Hon'ble Mr.Justice Mukherjea, who has sailed with the majority view, in para 45 of the said judgment observed that it cannot be disputed that a competent legislature is entitled to alter the procedure in criminal trials in such way as it considers proper. A rule of procedure laid down by law comes as much within the purview of Article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination.

24. Hon'ble Mr.Justice Mr.S.R.Das held that Section 5(1) of the Act insofar as it empowers the State Government to direct cases to be tried by the Special Court, offends Article 14 and concurred with the view of the Full Bench of the Calcutta High Court and it is very relevant to extract the following paragraphs:

62. Learned counsel for the respondents then contended that as the object of the Act as recited in the Preamble cannot be the basis of classification, then this part of sub-section 5(1) gives an uncontrolled and unguided power of classification which may well be exercised by the State government capriciously or with an evil eye and an unequal hand so as to deliberately bring about invidious discrimination between man and man, although both of them are situated in exactly the same or similar circumstances. By way of illustration it is pointed out that in the Indian Penal Code there are different chapters dealing with offences relating to different matters, e.g., Chapter XVII which deals with offences against property, that under this generic head are set forth different species of offences against property, e.g. theft (S.378), theft in a dwelling house (s.380), theft by a servant (s.381) to take only a few examples, and that according to the language of s.5(1) of the impugned Act it will be open to the State Government to direct all offences of theft in a dwelling house under s.380 to be tried by the Special Court according to the special procedure laid down in the Act leaving all offences of theft by a servant under s.381 to dealt with in the ordinary Court in the usual way. In other words, if a stranger is charged with theft in a dwelling house, he may be sent up for trial before the Special Court under s.380 whereas if a servant is accused of theft in a dwelling house he may be left to be tried under the Code for an offence under s.381. The argument is that although there is no apparent reason why an offence of theft in a dwelling house by a servant should do, the State Government may nevertheless select the former offence for special and discriminatory treatment in the matter of its trial by bringing it under the Act. A little reflection will show that this argument is not sound. The part of s.5(1) which I am now examining confers a power on the State Government to make a classification of offences, classes of offences, or classes of cases, which, as said by Chakravarti J., means a proper classification. In order to be a proper classification so as not to offend against the Constitution it must be based on some intelligible differentia which should have a reasonable relation to the object of the Act as recited in the Preamble. In the illustration taken above the two offences are only two species of the same genus, the only difference being that in the first the alleged offender is a stranger and in the latter he is a servant of the owner whose property has been stolen. Even if this difference in the circumstances of the two alleged offenders can be made the basis of a classification, there is no nexus between this difference and the object of the Act, for, in the absence of any special circumstances, there is no apparent reason why the offence of theft in a dwelling house by a stranger should require a speedier trial any more than the offence of theft by a servant should do. Such classification will be wholly arbitrary and which the Supreme Court of the United States in Jack Skinner v. Oklahoma, (1942) 316 U.S. 535: 86 L.Ed 1655 struck down the Aklahoma Habitual Criminal Sterilisation Act which imposed sterilisation on a person convicted more than twice of larceny but not on one who was convicted of embezzlement of numerous occasions. That sort of classification will, therefore, not clearly be a proper classification such as the Act must be deemed to contemplate.

63. On the other hand, it is easy to visualise a situation where certain offences, e.g., theft in a dwelling house, by reason of the frequency of their perpetration or other attending circumstances, may legitimately call for a speedier trial and swift retribution by way of punishment to check the commission of such offences. Are we not familiar with gruesome crimes of murder, arson, loot and rape committed on a large scale during communal riots in particular localities and are they are not really different from a case of a stray murder, arson, loot or ape in a another district which may not be affected by any communal upheaval? Do not the existence of the communal riot and the concomitant crimes committed on a large scale call for prompt and speedier trial in the very interest and safety of the community? May not political murders or crimes against the State or a class of the community, e.g. women assume such proportions as would be sufficient to constitute them into a special class of offences requiring special treatment? Do not these special circumstances add a peculiar quality to these offences or classes of offences or classes of cases which distinguish them from stray cases of similar crimes and is it not reasonable and even necessary to arm the State with power to classify them into a separate group and deal with them promptly? I have no doubt in my mind that the surrounding circumstances and the special features I hav mentioned above will furnish a very cogent and reasonable basis of classification, for it is obvious that they do clearly distinguish these offences from similar or even same species of offences committed elsewhere and under ordinary circumstances. This differentia quite clearly has a reasonable relation to the object sought to be achieved by the Act, namely, the speedier trial of certain offences. Such a classification will not be repugnant to the equal protection clause of our Constitution, for there will be no discrimination, for whoever may commit the specified offence in the specified area in the specified circumstances will be treated alike and sent before a Special Court for trial under the special procedure. Persons thus sent up for trial by a Special Court cannot point their fingers to the other persons who may be charged before an Ordinary Court with similar or even same species of offences in a different place and in different circumstances and complain of unequal treatment For those other persons are of a different category and are not their equals. Section 5(1), in so far as it empowers the State Government to direct offences or classes of offences or classes of cases to be tried by a Special Court, also, by necessary implication and intendment empowers the State Government to classify the offences or classes of offences or classes of cases, that is to say, to make a proper classification, in the sense I have explained. In my judgment, this part of the section, properly construed and understood, does not confer an uncontrolled and unguided power on the State Government. On the contrary, this power is controlled by the necessity for making a proper classification which is guided by the preamble in the sense that the classification must have a rational relation to the object of the Act as recited in the Preamble. It is, therefore, not an arbitrary power. I therefore, agree with Harries, C.J. that this part of s.5(1) is valid. If the State Government classifies offences arbitrarily and not on any reasonable basis having a relation to the object of the Act, its action will be either an abuse of its power even if it is done in good faith and in either case the resulting discrimination will encounter the challenge of the Constitution and the Court will strike down, not the law which is good but, the abuse or misuse or the unconstitutional administration of the law creating or resulting in unconstitutional discrimination.

64. In the present case, however, the State Government has not purported to proceed under that part of s.5(1) which I have been discussing so far. It has, on the other hand, acted under that part of the section which authorises it to direct cases to be tried by the Special Court, for by the notifications it has directed certain specific cases identified by their individual numbers in the records of the particular thanas to be tried by the Special Court. There is ostensibly no attempt at, or pretence of, any classification on any basis whatever. The notifications simply direct certain cases to be tried by the Special Court and are obviously issued under that part of s.5(1) which authorises the State Government to direct cases, to be tried by the Special Court. The word case to be tried by the Special Court. The word caseshas been used to signify a category distinct from classes of cases. The idea of classification is, therefore, excluded. This means that this part of the sub-section empowers the State Government to pick out or select particular cases against particular persons for being sent up to the Special Court for trial. It is urged by the learned Attorney-General that this selection of cases must also be made in the light of the object of the Act as expressed in its Preamble, that is to say, the State Government can only select those cases which, in their view require speedier trial. Turning to the Preamble, I find that the object of the Act is, to provide for the speedier trial of certain offences and not of a particular case or cases. In other words, this part of s.5(1) lies beyond the ambit of the object laid down have no manner of application in the selection of cases as distinct from offences, classes of offences or classes of cases. I agree with Harries C.J. that the Preamble cannot control this part of the sub-section where the language is plain and unambiguous.

Further, as I have already explained, the object of the Act cannot, by itself, be the basis of the selection which, I repeat, must be based on some differentia distinguishing the case from other cases and having a relation to the object of the Act. It is difficult, if not impossible, to conceive of an individual caseas distinct from a class of case as a class by itself within the rule of permissible and legitimate classification. An individual case of a crime committed with gruesome atrocity or committed upon an eminent person may shock our moral sense to a greater extent but, on ultimate analysis and in the absence of special circumstances such as I have mentioned, it is not basically different from another individual case of a similar crime although committed with less vehemence or on a less eminent person. In any case, there is no particular bond connecting the circumstances of the first mentioned case with the necessity for a speedier trial. In the absence of special circumstances of the kind I have described above, one individual case say of murder, cannot require speedier trial any more than another individual case of murder may do.

It is, therefore, clear, for the foregoing reasons, that the power to direct cases as distinct from classes of cases to be tried by a Special Court contemplates and involves a purely arbitrary selection based on nothing more substantial than the whim and pleasure of the State Government and without any appreciable relation to the necessity for a speedier trial. Here the law lays an unequal hand on those who have a committed intrinsically the same quality of offence. This power must inevitably result in discrimination and this, discrimination is, in terms, incorporated in this part of the selection itself and, therefore, this part of the section itself must incur our condemnation. It is not a question of an unconstitutional administration of a statute otherwise valid on its face but here the unconstitutionality is writ large on the face of the statute itself.

I, therefore agree with the High Court that s.5(1) of the Act, in so far as it empowers the State Government to direct cases to be tried by a Special Court offends against the provisions of Art. 14 and, therefore, the Special Court had no jurisdiction to try these casesof the respondents. In my judgment, the High Court was right in quashing the conviction of the respondents in the one case and in prohibiting further proceedings in the other case and these appeals should be dismisssed. Hon'ble Mr.Justice Chandrasekhara Aiyar has concurred with the majority view and in paras 75(c) and 76 observed as follows:

75(c). Discrimination may not appear in the statute itself but may be evident at the administration of the law. If an uncontrolled and unguided power is conferred without any reasonable and proper standards or limits being laid down in the enactment, the statute itself may be challenged and not merely the particularly administrative act. Citing the cases of Sunday Lake Iron co. v. Wakefield (1918) 247 U. S.350) Royal v. Alabamaand Concordia Fire Ins. Co v. Illsnois, Prof. Weaver says at p.404 of his compedious book on Constitutional Law under the heading of DISCRIMINATION IN THE ADMINISTRATION OF THE LAW:

Discrimination may exist in the administration of the laws and it is the purpose of the equal protection clause to secure all the inhabitants of the state from intensional and arbitrary discrimination arising in their improper and prejudiced execution, as well as by the express terms of the law itself. The validity or invalidity of a statute often depends on how it is construed and applied. It may be valid when given a particular and invalid when given another.

76. There is only one other point that I would like to deal with. Trevor Harries C.J. has taken the view that s.5 of the Act would have been unexceptional had it only provided for the trial by a Special Court of certain offences or classes of offences or certain classes of cases and that in his opinion the discrimination arose by the provision for the trial of cases, as distinguished from classes of cases. It is rather difficult, however, to appreciate this distinction. If the statute makes no classification at all, or if the classification purported to be made is not reasonable or rational but is arbitrary and illusory, as in this case, Section 5 would be void as contravening Art. 14. It is no doubt true that totally different considerations might arise if specified offences of groups of offences in a particular area or arising out of a particular event or incident were to be tried by a Special Court but this is not the case here. I am unable to see how if the Act merely provided that certain classes of cases as distinguished from casesshould be tried by a Special Court, the attack against discrimination could be avoided as even then the test of rationality or reasonableness would still remain to be satisfied. If the Act does not enunciate any principle any principle on the basis of which the State Government could select offences or classes of offences or cases and classes of cases and the State Government is left free to make any arbitrary selection according to their will and pleasure then the Act is void. On this point, I would invite special attention to the view taken by Das Gupta J. in the following passage of his judgment:

The Act lays down no principle on which selection of classes of offences or classes of cases should be made by the State Government. The State Government may even arbitrarily determine the classes of case to be tried by the Special Court and it if does so its action will be well within its powers conferred by the Act. The Act indicates no basis whatsoever on which such classification should be made. I am of opinion that the whole Act is ultra vires the Constitution and deletion of the word cases from S.5would not have the rest of the Act from being invalid. (emphasis supplied) Hon'ble Mr.Justice Bose has also concurred with the majority view and in para 93 observed as follows:

93. Tested in the light of these considerations, I am of the opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of Article-14 and is therefore bad. When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the important at all. We find men accused of heinous crimes called upon to answer for their lives and liberties. We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defense which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done for the convenience of government, whether the process can be scientifically classified and labelled or whether it is an experiment in speedier trials made for the good of society at large. It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded reasonable, unbiased and resolute men, who are not swayed by emotions or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad.

25. Anwar Ali Sarkar case (cited supra) was considered in a subsequent judgment of the Hon'ble Supreme Court of India in V.C.Shukla v. State (Delhi Administration) [1980 Supp SCC 249]. In the said case, the appellant therein who have been convicted and sentenced under the various provisions of the penal code by the Special Court/Sessions Court at Delhi, filed Criminal appeals before the Hon'ble Supreme Court of India. The main ground of attack pertains to constitution of Special Courts Act (No.22 of 1979) passed by the Parliament and received the assent of the President on 16.05.1979. The matter was heard by a Bench of 7 Judges and it upheld the validity of the Act proceeded by a Bill by a majority of 6:1 and certain clause of Bill held to be violative of Article 21 of the Constitution of India. Thereafter, substantive changes have been incorporated in the Act. The main ground of attack put forward was with regard to the constitutional validity of the Special Courts Act (Act No.22 of 1979) based on Articles 14 and 21 of the Constitution of India. An argument was put forward before the Hon'ble Supreme Court of India that separate group of high offices for the purpose of expeditious criminal action to be taken by Superior Courts is unreasonable and cannot be termed as valid classification and no rational basis for separately classifying emergency offenders existed. The Hon'ble Supreme Court of India repelled the said submission and held that persons holding high public or political offices is self-explanatory and admits of no difficulty and that mere absence of definition of the expression would not vitiate the classification made by the Act. Such persons are in a position to take major decisions regarding social, economic, financial aspects of life of the community and other far-reaching decisions on the home front as also regarding external affairs and if their actions are tainted by breach of trust, corruption or other extraneous considerations, they would damage the interests of the country. Another argument was put forward that the nature and character of the offences have not been defined in the Act, which introduces an element of vagueness in the classification. The Hon'ble Supreme Court of India while answering the said issue in paras 30 and 31 of the judgment found that clause (4) of the Preamble clearly indicates the nature of the offences which could be tried under the Act. Clause (4) is wide enough to include any offence committed by holders of public or political offices which amounts to breach of trust or for which they are accountable in law and does not leave any room for doubt. Section 5 of the Act confers powers on the Central Government to make a declaration clearly refers to the guide-lines laid down in the preamble and no Central Government would ever think of prosecuting holders of high public or political offences for petty offences and the doubt expressed by the counsel for the appellant is, therefore, totally unfounded. The Hon'ble Supreme Court of India also dealt with other contentions i.e., excessive delegation of powers is in violation of Article 14 inasmuch as the discretion conferred on the Central Government is absolute, naked and arbitrary and is clearly discriminatory as it is open to the Central Government to pick and choose persons and make declarations in respect of them while excluding others. The Hon'ble Supreme Court of India, on going through the said provision, firstly found that basic condition imposed on the Central Government is that there must be a proper application of mind regarding the existence of prima facie evidence of the commission of an offence. Secondly, the discretion has to be exercised in accordance with the guidelines contained in the preamble. Thirdly, clause (4) of the preamble clearly lays down that the power under Section 5 is exercisable only after the commission of all offence by the holder of a high public or political office has been disclosed as a result of an inquiry conduced under the Commissions of Inquiry Act or of an investigation conducted by the Government through its agencies. The Hon'ble Supreme Court of India placed reliance upon its earlier judgments in Dr.N.B.Khare v. State of Delhi [AIR 1950 SC 511] and Kathi Raning Rawat v. State of Saurashtra [AIR 1952 SC 123] and yet another decision in V.C.Shukla v. State through C.B.I. [1980 Supp SCC 92], wherein it has been held that where the power is vested in a very high authority, the abuse of the power is reduced to the minimum and therefore, repelled the said contention also. A submission was also made on behalf of the appellant that the procedure prescribed under Special Act is harsher than the procedure contemplated under CrPC. The said argument was also repelled. In paras 74 to 80, the decision rendered by the Constitution Bench of the Hon'ble Supreme Court in Anwar Ali Sarkar case (cited supra) was relied upon in support of the proposition that the procedure prescribed by the Act was harsh and disadvantageous to the accused. The Hon'ble Supreme Court of India, on a detailed analysis of the above cited case, has found that in the light of the peculiar provisions of the West Bengal Special Courts Act which contained no guidelines, no conditions, no safeguards but conferred uncontrolled and arbitrary powers on the Government to make the classification as it liked. As regards the Special Courts Act (No.22 of 1979) is concerned, it is not the case as sufficient safeguards have been provided.

26. In Deputy Chief Controller of Imports & Exports v. Roshanlal Agarwal and Others [(2003) 4 SCC 139], the facts of the case would reveal that the Deputy Chief Controller of Imports and Exports filed eight complaints against several persons including the respondents herein for their prosecution under Sections 420, 467, 468, 471, 120-B and Section 5 of the Imports and Exports (Control) Act, 1947. Three of the accused filed applications for discharge under section 245 CrPC and those applications were rejected and revisions challenging the said order was also dismissed by the jurisdictional Sessions Court and the respondents filed Criminal Original Petitions under Section 482 CrPC before the High Court of Karnataka, which were allowed and the accused were discharged and hence, the Deputy Chief Controller of Imports and Exports filed appeals before the Hon'ble Supreme Court of India. The High Court allowed the petitions on the ground that the Special Court (Economic Offences) Bangalore, had no jurisdiction to try the offences under the Indian Penal Code or any other law except the offences under the Acts mentioned in the schedule to the notification by which the said Special Court was created. The Hon'ble Supreme Court of India held that the Imports and Exports (Control) Act, 1947 does not make any provision for regulating the manner of trying of offences under the said Act and therefore, they have to be inquired into, tried and otherwise dealt with according to the provisions of CrPC and the offences under Section 420 etc., show that those offences are triable by a Magistrate of the First Class and by virtue of the proviso to Sub-section(1) of Section 11 of CrPC, the State Government is empowered to create, after consultation with the High Court, Special Courts of Judicial Magistrate to try any case or class of cases in a local area and by virtue of the notification the Judicial Magistrate was not divested of the jurisdiction which he otherwise possessed. Therefore, the Special Court (Economic Offences) which is presided by a Judicial Magistrate, First Class, continued to have the jurisdiction to try the offences under the Indian Penal Code, which he was otherwise empowered in view of the First Schedule to the Code of Criminal Procedure. The language of the notification also does not show the powers or jurisdiction of a Judicial Magistrate, who is to perform the functions of a Special Court (Economic Offences) to try the offences under the Acts mentioned in the schedule are being affected or curtailed in any manner. The Hon'ble Supreme Court of India further found that the State Government has merely exercised power under proviso to sub-section (1) of Section 11 of CrPC for creation of a Special Court and the Acts mentioned in the schedule to the notification issued by the State Government do not themselves provide for creation of any Special Court nor do they lay down the procedure for trial of the offences therein and the only effect of the notification was that instead of the trials being held in the Courts of various Judicial Magistrates posted at Bangalore Metropolitan area and in the district of Bangalore, they were all to be tried by one Court. The Hon'ble Supreme Court of India, citing the said reasons, has set aside the order passed by the High Court of Karnataka and allowed the appeal filed by the Deputy Chief Controller of Imports and Exports.

27. In J.Jayalalitha v. Union of India and Another [(1999) 5 SCC 138], this Court has upheld the appointment of Special Judges under Setion 3(1) of the Prevention of Corruption Act, 1988 [in short 'PC Act'] for trying a case or group of cases within a particular area. The following contentions were put forward before the Hon'ble Supreme Court of India:

8...

1. Section 3(1) of the PC Act on a correct interpretation, permits appointment of a Special Judge for a case or group of cases only when no Special Judge has been appointed for the area or areas within which the offence under the Act has been committed.

2. If Section 3(1) is interpreted and construed otherwise, that is to mean that it also empowers the Governments to appoint a Special Judge for a case of group of cases even when there is a competent Special Judge for the area to deal with such a case or cases, then it will have to be regarded as violative of Article 14 of the Constitution, as neither Section 3 nor the Act as a whole discloses any policy or principle for deciding when a Special Judge can be appointed for a case or group of cases and, thus, it enables the Government to exercise the power in an arbitrary and discriminatory manner by picking and choosing a particular case for trial by a particular Sessions Judge.

3. Even if Section 3(1) is held to be valid, exercise of power by the State Government thereunder and issuance of notification dated 30.04.1997 was mala fide both in law and fact and, therefore, the said notification must be held to be illegal and invalid.

4. There was no valid consultation with the High Court as regards creation of three more Courts of Additional Sessions Judges at Chennai, appointment of those three Additional Sessions Judges as Special Judges and allocation of specified cases amongst them, particularly when the decision in that behalf was not taken by the Full Court.

5. The notification issued by the Central Government in exercise of its power under Section 4(2) of the PC Act being legal and proper, the impugned notification dated 30.04.1997 issued by the State Government stands replaced, and the allocation of work as specified in the notification dated 05.02.1999 issued by the Central Government must be held as valid. The Hon'ble Supreme Court of India, in the light of Section 3(1) of the PC Act found that the Government has the power to appoint Special Judge to try a particular case or group of cases. As regards the contentions put forward that Section 3(1) of the PC Act is violative of Articles 14 and 21 of the Constitution of India, as it confers unfettered, unguided and absolute discretion on the Government and is thus capable of leading to abuse of power by the Government, the decision rendered in Anwar Ali Sarkar case (cited supra) is relied upon. The Hon'ble Supreme Court of India has taken into consideration that one of the objectives of the PC Act is speedy trial of offences punishable under the Act. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but is also harmful to the national economy and national interest, as the persons occupying high posts in the Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the country and though no fixed rule or guideline have been laid down, thought fit to leave it to the discretion of the Government as it would be in a better position to know the requirement and further found that the discretion conferred on the Government is not absolute. In para 16 of the judgment, it has been held that appointment of a Special Judge to try a particular case or group of cases is not the same thing as establishing a special Court for trying a case or cases (emphasis supplied) and further held that the procedure to be followed by a Special Judge whether he is an Area Special Judge or Judge appointed specially for a case is the same and the accused is not exposed to a different treatment as regards the Courts by which he is to be tried or the procedure to be followed in his case. The Hon'ble Supreme Court of India further held that even an Administrative Act of the Acting Chief Justice is considered as an irregularity, if it is not of such a magnitude as would require us to invalidate that part of the notification whereby cases have been allocated to those three Special Judge. Ultimately, the Hon'ble Supreme Court of India dismissed the appeals, upholding the view taken by this Court.

28. In Geetha and Others v. Arunakumari [2007 (4) CTC 514], the order passed by the Principal Sessions Judge, Chennai in transferring the Calendar Case from the file of the Additional Chief Metropolitan Magistrate, Egmore, Chennai to the file of Mahila Court, Chennai was put to challenge. The contention put forward was that a Sessions Judge was posted at Mahila Court after such Mahila Court was established by the Government, however, the power of a Metropolitan Magistrate could not have been conferred on such Mahila Court or the Sessions Judge without a specific Notification by the State Government establishing such Court of Metropolitan Magistrate and therefore, the proceedings pending before Additional Chief Metropolitan Magistrate should not have been transferred to such Mahila Court at Chennai. The learned Single Judge who heard the matter though fit to place the matter before the Division Bench and accordingly, the matter was placed before the Division Bench of this Court. In the said decision, the scope of Sections 11 and 16 of CrPC was elaborately considered and found that the State Government is empowered to exercise such power after consultation with the High Court and in the absence of any notification issued by the State Government establishing Special Courts, the notification issued by the High Court in that regard appears to be illegal and therefore, quashed the order of transfer with a direction that the matter shall not be dealt with by the regular Metropolitan Magistrate and in order to overcome the technical defects also recommended that appropriate communication may be sent to the Government to formally establish a Court of Judicial Magistrate of First Class and Metropolitan Magistrate in the places where Sessions Judges were being designated as Mahila Courts.

29. The above cited decisions lay down the proposition that reasonable classification has to be made for trial of a particular set of person or class of persons by the Special Court and in the absence of any guidelines or conditions or safeguards, the conferment of unfettered and arbitrary powers on the Government to make classification is bad in law.

30. A careful scrutiny of G.O.(Ms).No.423, Home (Pol-XI) Department dated 28.07.2011 would disclose the following facts:

30.1. The Hon'ble Chief Minister of Tamil Nadu in the press release dated 10.07.2011 has made an announcement that Anti Land Grabbing Cells will be formed in Tamil Nadu to deal with land grabbing cases in the State.

30.2. The Director General of Police (DGP), based on the above said announcement, sent proposals to the Government dated 13.07.2011 for the formation of 39 Anti Land Grabbing Special Cells with 410 police personnel to deal with the land grabbing cases in the State with the financial commitment for Rs.27,71,11,658/-.

30.3. The Government, acting on the proposal sent by the DGP, has decided to accept the proposal of the DGP with certain modifications and accord administrative sanction for the formation of 36 Anti Land Grabbing Special Cells in Tamil Nadu with one cell each at the State Police Headquarters, 7 Commissionerates and 28 Districts except Karur, Tiruvannamalai and Nagapattinam District for a period of one year on temporary basis and in respect of those three districts, the District Crime Branch will handle the investigation of land grabbing complaints.

30.4. Annexure-I of the said Government Order indicates the staff pattern of 36 Anti Land Grabbing Special Cells and a sum of Rs.20,02,08,842/- was also accorded.

31. Thereafter, G.O(Ms).No.45, Home (Court-II) Department dated 11.08.2011 was passed by the first respondent in exercise of powers conferred under Section 16(1) of the Code of Criminal Procedure, 1973 read with the proviso to sub-section (1) of Section 11 of the said Code, to constitute two Courts of Metropolitan Magistrate at Chennai, to try the land grabbing cases exclusively, after consultation with this Court. As per another notification dated on the even date, Special Courts of Judicial Magistrate in 23 districts were also constituted to try land grabbing cases exclusively.

32. The definition of Land Grabbing or Land Grabber is not found place in G.O(Ms).No.423 dated 28.07.2011. Attention of this Court was drawn to A.P. Land Grabbing (Prohibition) Act, 1982 and the said Act came into being with a view to arrest and curb the unlawful activity of grabbing Government land, a local authority, a religious or Charitable Institution or Endowment including Wakf or any other private property either individually or in groups either by force or decrepit or otherwise. Section 2(d) of the said Act defines Land Grabber and Section 2(e) defines Land Grabbing. Section 3 of the Act says Land Grabbing to be lawful and Section 4(3) prescribes that whoever contravenes the provisions of sub-section (1) or sub-section (2) shall on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to five years, and with fine which may extend to five thousand rupees. Section 5 provides penalty for other offences in connection with land grabbing. Section 7 provides for constitution of Special Courts for the purpose of providing speedy enquiry into any alleged act of land grabbing and trial of cases in respect of the ownership and title to, or lawful possession of the land grabbed and the constitution of the Tribunal is also provided and Section 7A speaks about powers conferred on the Special Tribunals and its powers etc., and Section 8 speaks about procedure and powers of the Special Courts and Section 9 says that Special Court to have the powers of the Civil Court and the Court of Sessions and Section 15 says Act to override the other laws.

33. Admittedly, the legislation in the model of A.P. Land Grabbing (Prohibition) Act, 1982 has not been passed, though in the impugned Government Order in G.O.Ms.No.431, Home (Court-II) Department dated 01.08.2011, it is stated in para 1 that His Excellency the Governor of Tamil Nadu, in his address on the floor of the Tamil Nadu Legislative Assembly, has mentioned that during the previous regime, many persons were wrongfully dispossessed of their immovable properties through force and intimidation and this Government have decided to take appropriate action and restore such properties to the rightful persons by enacting a new Act and it has been further stated in the said Government Order that similarly the Hon'ble Chief Minister while replying to the debate on the motion of thanks to the Governor's Address, has indicated that land grabbing and extortion were common problems during the previous regime and many were wrongfully dispossessed of their immovable properties through force and intimidation and the Government have decided to take appropriate action and restore such properties to their rightful owners by enacting a New Law soon, the fact remains that inspite of the indication made in the floor of the Legislative Assembly, an Act in the lines of A.P. Land Grabbing (Prohibition) Act, 1982 have not been passed and instead G.O.(Ms).No.423 dated 28.07.2011 came into being forming 36 Anti Land Grabbing Special Cells in Tamil Nadu to deal with land grabbing cases and G.O.Ms.No.451, Home (Court-II) Department dated 11.08.2011 came to be passed constituting Special Courts to deal with such cases.

34. In Anwar Ali Sarkar case (cited supra), the Hon'ble Supreme Court of India by majority view held that West Bengal Special Courts Act (No.10 of 1950) has laid down no yardstick or measure for grouping either of persons or of cases or of offences by which the cases could be decided which are outside the purview of the Special Act and the Act has left the matter entirely to the unregulated discretion of the provincial Government. It has been further held that Section 5(1) of the West Bench vest an unrestricted power with the State in cases or in accordance with the procedure laid down by the Act and the classification should not be arbitrary, artificial or it must rise by way of real and substantive discretion in respect of which classification is made.

35. The majority view of the said judgment has found approval in the subsequent judgment in J.Jayalalitha v. Union of India and Another [(1999) 5 SCC 138] cited supra. The majority view of the Anwar Ali Sarkar case (cited supra) has laid down the proposition that West Bengal Special Courts Act does not enunciate any principle on the basis of which the State Government could select offences or class of offences, cases or class of cases and the State Government is left free to make any arbitrary selection according to their will and pleasure, then the Act is void.

36. In the case on hand, inspite of the announcement made in the floor of the Assembly with regard to the enacting of new Act, may be on the lines of A.P. Land Grabbing (Prohibition) Act, 1982, no such Act came to be passed or legislated and instead G.O.(Ms).No.423, Home (Pol-XI) Department dated 28.07.2011 came to be passed in exercise of powers conferred under Article 162 of the Constitution of India. This Court in the earlier paragraphs has extracted the salient features of the above said Government Order and admittedly, the said Government Order does not disclose any principle or guideline, based on which the Special Cells constituted to deal with land grabbing cases which in turn, would select class of offence, cases or class of cases. The discretion is entirely left with the Anti Land Grabbing Cells to pick and choose cases according to their choice.

37. It is the submission of the learned Senior Counsel appearing for the official respondents that certain offences under the Indian Penal Code i.e., Section 447 (Criminal Trespass), Section 420 (Cheating), Section 506 (Criminal Intimidation) etc., would clearly be attracted in case of land grabbing. Chapter XXVII of IPC deals with offences against property and Chapter XXVIII deals with offences relating to documents and property marks.

38. The Hon'ble Supreme Court of India in the decision reported in V.C.Shukla v. State (Delhi Administration) [1980 Supp SCC 249] has elaborately considered the decision rendered in Anwar Ali Sarkar case (cited supra) and also taken into consideration the Special Courts Act, 1979 which came to be passed to deal with persons holding any high public or political office and held that the rational basis for the classification has been adopted in Special Courts Act, 1979 to deal with persons holding high public or political office for the purpose of expeditiously dealing with the offences committed by them and therefore, it cannot be termed as violative of Article 14 of the Constitution of India, whereas the West Bengal Special Courts Act, 1950 which came up for consideration in Anwar Ali Sarkar case has not laid down any yardstick or measure for grouping of cases or of offences by which the groups could be distinguished from those outside the purview of the Special Act. In the absence of any Special Act or legislation such as A.P. Land Grabbing (Prohibition) Act, 1982 and in the absence of definition of the word/phrase Land Grabbing, unrestricted power/discretion is vested with the Anti Land Grabbing Cells to pick and choose person/s who is/are said to have indulged in those kind of offences. No guideline whatsoever has been given or laid down in the above said Government Order and in the absence of such guideline, possibility of misuse cannot be ruled out.

39. Police Standing Order 562 speaks about refusal of investigation and it lays down the following principles to guide the exercise of discretion by Station House Officers in the matter of refusing investigation under section 157 (1)(b) of the Criminal Procedure Code and the same is extracted below:

562. Refusal of investigation.-

(1) The following principles are laid down to guide the exercise of their discretion by Station House Officers in the matter of refusing investigation under section 157(1)(b) of the Criminal Procedure Code.

(G.Os.No.332, Judl. 28th Feb.1906 and 485 Judl. 14th March 191.1) (2) Grounds for refusal.-

Investigation may be properly refused in the following cases.-

(a) Triviality.-

Trivial offences, such as are contemplated in section 95 of the Indian Penal Code.

(b) Civil nature.-

Cases clearly of a civil nature, or in which the complainant is obviously endeavouring to set the criminal law in motion to support a civil right.

Cases of petty theft of property less than Rs.10 in value cognizable by a Village Headman under Regulation IV of 1821, provided that the accused person is not an old offender, nor a professional criminal, and that the property does not consist of sheep or goats.

(d) Injured person does not wish inquiry.-

Unimportant cases in which the person injured does not wish inquiry, unless (1) the crime is suspected to be the work of a professional or habitual offender or (ii) investigation appears described in the interests of the public.

(e) Undetectable simple cases.-

Simple cases of house breaking or house trespass, and petty thefts of unidentifiable property, in none of which cases is there any clue to work upon or any practical chance of detection, provided that there is nothing to indicate that the offence has been committed by a professional criminal.

(f) Exaggerated assaults.-

Assault in cases which have been obviously exaggerated by the addition of other charges such as theft. Police Standing Order 566 says that investigation should be impartial. No doubt, Police Standing Orders (PSO) have no statutory force. However obligation is cast upon the police personnel to register and investigate the cases in a fair and proper manner and in the event of their failure to adhere to PSO, it is always open to the concerned Authority to initiate disciplinary action in accordance with law.

40. In the absence of any specific guideline/norms/yardstick, the possibility of misuse cannot be ruled out and number of materials have been placed in the typed set of documents to show that in respect of transactions relating to immovable property which took place long back, complaints have been lodged belatedly alleging land grabbing and complaints have been entertained and concerned persons were also arrested and incarcerated and later on came out on bail.

41. In respect of the Statute, its validity cannot be tested on the ground that it is capable of misused. In Matajog Dobey v. H.C.Bhari [AIR 1956 SC 44], the Hon'ble Supreme Court of India observed that it is to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not to be easily assumed where the discretion is vested in the government and not in a minor official. In V.C. Shukla v. State (Delhi Administration) [(1980) Supp SCC 249], it has been held that where the power is vested in a very high authority, the abuse of power is reduced to minimum.

42. In the case on hand, the investigation is done by police personnel in the rank of Inspectors of Police and therefore, such a presumption cannot be drawn. As laid down in Anwar Ali Sarkar case (cited supra), in the absence of any policy or guideline which permit to pick and choose, the Act/order has been regarded as unconstitutional. Admittedly, the impugned Government Order does not lay down any yardstick or guideline to pick and choose and select particular cases against particular persons said to have indulged in land grabbing. The absence of the definition of word/phrase Land Grabbing is also adding to the difficulty. Thus, complete discretion is vested with the police personnel attached to Anti-Land Grabbing Special Cells to pick and choose persons against whom they want to register F.I.Rs and proceed with the investigation. It is also to be pointed out at this juncture that Investigating Agency other than Anti Land Grabbing Cells can register case and investigate it in respect of commission of offences under Sections 447, 420, 506(i) and (ii) IPC and other offences also and those offences can be tried by Courts which are already in existence and vested with jurisdiction to try those cases. As observed in para 62 of Anwar Ali Sarkar case (cited supra) such a classification will be wholly arbitrary and not a proper classification. Though it is the stand of the State Government in the counter affidavit that inspite of receipt of very many complaints, after preliminary enquiry, very few cases have been registered, in the light of the ratio laid down in Anwar Ali Sarkar case (cited supra) and which has been subsequently followed in the very many judgments of the Hon'ble Supreme Court of India, the said stand is untenable.

43. Registration of the case and possible arrest of the concerned person visits him/her with very many grave consequences. In the absence of any guideline/yardstick/policy and the definition of the word/phrase/offence Land Grabbing coupled with the fact that discretion vest with the officers in the rank of Inspector of Police is so wide, the possibility of abuse and misuse of power cannot be ruled out. Therefore, this Court, in the light of the reasons assigned, is of the view that the impugned Government Order in G.O.(Ms).No.423, Home (Pol-XI) Department dated 28.07.2011 offends Articles 14 and 21 of the Constitution of India.

Question No.2

44. This Court, while answering Question No.1 has held that G.O.(Ms)No.423, Home (Pol-XI) Department dated 28.07.2011, passed by the first respondent is in violation of Articles 14 and 21 of the Constitution of India. It is the submission of the learned Senior Counsel appearing for the petitioner in W.P.No.18872/2011 that the impugned Government Order dated 28.07.2011 is ultra vires and repugnant to certain provisions of Specific Relief Act, 1963, Transfer of Property Act, 1882, Evidence Act, 1842 and Limitation Act, 1963. It is urged that the said acts also provides for redressal mechanism to the aggrieved persons to work out their remedy and the affected party is always at liberty to invoke the common law remedy by filing civil suit, to declare that the particular transaction is vitiated by fraud or misrepresentation with consequential declaration as null and void. In the considered opinion of the Court, the said submission lacks merits and substance for the reason that dehors the availability of civil remedy, it is always open to the person aggrieved, either to file a private complaint or file a complaint before the jurisdictional police alleging commission of crime on the part of the concerned individual. The said remedy available to the person aggrieved is independent of his right to file civil suit or initiate appropriate civil proceeding to redress his grievance. Since this Court has already held that G.O.(Ms)No.423 dated 28.07.2011 passed by the respondent offends Articles 14 and 21 of the Constitution of India, deciding this question does not arise at all, merely reiterating the said legal position.

Question No.3

45. This Court while answering Question No.1 has held that G.O(Ms).No.423 dated 28.07.2011 passed by the first respondent does not lay down any yardstick or guideline to pick and choose and select particular cases against particular persons said to have been indulged in land grabbing and in the absence of definition of the word/phrase "Land Grabbing", completed discretion is vest with the police personnel attached to the Anti Land Grabbing Cell to pick and choose against whom they want to register First Information Report and proceed with the investigation and on account of the same, the possibility of abuse and misuse of power cannot be ruled out and therefore, struck down the said Government Order.

46. As regards the validity of G.O(Ms).No.451, Home (Court-II) dated 11.08.2011, the Hon'ble Supreme Court of India in the decision in Deputy Chief Controller of Imports and Exports v. Roshanlal Agarwal and Others [(2003)4 SCC 139] (cited supra), by taking into consideration Section 11(1) of Code of Criminal Procedure, 1973 held that the State Government can create one Court in local area which may comprise of whole or any part of the State and the source of power for the State Government to issue a notification for creation of Special Court is proviso to sub-section (1) of Section 11 CrPC.

47. In Bharat Traders and Others v. The Special Chief Judicial Magistrate, Allahabad and Others [1988 Cri.L.J.1117], a Division Bench of Allahabad High Court held that the State Government is empowered to declare the whole of the State or any part as local jurisdiction. It was urged before the Allahabad High Court that Section 11(1) of CrPC excludes no notification under the said Section excluding jurisdiction of the Metropolitan Magistrate can be issued by the State Government. The Division Bench of Allahabad High Court held that though Kanpur was a metropolitan area, but it is also a district for the purpose of CrPC and therefore, the Special Court of Judicial Magistrate First Class, Allahabad has jurisdiction to try economic offences arising in that places. The Division Bench also considered the scope of Article 14 of the Constitution of India and held that Article 14 does not forbid classification which rests upon reasonable ground of distinction and it prohibits legislation which is limited either in the objects or to which it is directed or by the territory within which it is to operate. The principle of equity does not mean that every law has to be applied universally to all person who by nature require different treatment.

48. As already held above, the definition for the word/phrase "Land Grabber" has not been defined and so also "Land Grabbing" and only in the event of the definition of the said words/phrases, the concerned persons can be picked and choosed for different treatment to deal with those kind of cases, but unfortunately no such definition is in place.

49. In J.Jayalalitha v. Union of India [(1999) 5 SCC 138], the constitution of Special Courts under the Prevention of Corruption Act was challenged and so also the appointment of Special Judges under Section 3(1) of P.C. Act for trying a case or group of cases within the particular area was challenged and the Hon'ble Supreme Court of India in the light of the specific provision under section 3(1) of the P.C. Act held that the Government has power to appoint Special Judge to try a particular case or group of cases, but in the case on hand, this Court has pointed out that for registering, investigating and trying the cases under Sections 447, 420 and 506(ii) IPC and other offences, the regular courts are conferred with jurisdiction to try those cases and also placed reliance upon the observations made in para 62 of Anwar Ali Sarkar case and held that registering cases and investigating it in respect of offenders, namely Land Grabbers is wholly arbitrary and not proper classification. Though it is to be stated that constitution of Special Courts to try particular type of cases cannot stated to be bad in law, in the light of this Court holding that G.O.(Ms).No.423 dated 28.07.2011 is to be quashed, as a natural corollary, G.O.Ms.No.451 dated 11.08.2011 in constituting Special Courts is also liable to be quashed, as no purpose would be served by keeping such Special Courts in existence.

50. In the result, all the writ petitions viz., W.P.Nos.18872, 21126, 25876, 25877, 26684, 26685, 26773, 26883, 27215, 27216, 27436, 27502, 27503, 27504, 27505 of 2011 and W.P.Nos.8227, 8261, 10185, 10198, 10775, 25834, 26956, 26957, 28060 of 2012, 4476/2014, 24925/2013, 28413/2014, 20481/2014 and W.P(MD).No.19726 of 2014 are allowed and G.O.(Ms).No.423, Home (Police XI) Department dated 28.07.2011 is quashed. W.P.Nos.31673 of 2014 is allowed and G.O.(Ms)No.423, Home (Police XI) Department dated 28.07.2011 and G.O.Ms.No.451, Home (Court III) Department dated 11.08.2011 are quashed. The State Government is at liberty to bring any appropriate legislation on the lines of A.P. Land Grabbing (Prohibition) Act, 1982 or better legislations dehors the result of these writ petitions. No costs. Consequently, connected miscellaneous petitions are closed.

[S.K.K., C.J.] [M.S.N., J.] 10.02.2015 Index : Yes/No Internet : Yes/No jvm To

1.The Chief Secretary to Government, Government of Tamil Nadu, Secretariat, Fort St.George, Chennai-600 009.

2.The Principal Secretary to Government, Home Department, Secretariat, Fort St.George, Chennai-600 009.

3.The Director General of Police, Tamil Nadu, Chennai-600 004.

4. Other respective respondents in other writ petitions.

THE HON'BLE CHIEF JUSTICE, J., AND M.SATHYANARAYANAN, J.

jvm Common Order in W.P.No.18872 of 2011 etc., batch 10.02.2015

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