Punjab-Haryana High Court
Suresh Sharma vs The State Of Haryana And Another on 30 July, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JULY 30, 2012
Suresh Sharma
.....Petitioner
VERSUS
The State of Haryana and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Surinder Sharma, Advocate,
for the petitioner.
*****
RANJIT SINGH, J.
The petitioner has invoked the revisional jurisdiction of this Court to challenge the order passed by Additional Sessions Judge, Hisar, who has set-aside the order passed by Judicial Magistrate Ist Class, Hisar, whereby the Magistrate had forwarded a complaint under Section 156(3) Cr.P.C. for registration of FIR and investigation. This complaint was filed by the petitioner before Judicial Magistrate Ist Class, Hisar, was under Sections 218, 219, 120-B IPC read with Sections 7, 13(i) of the Prevention of Corruption Act, 1988. Judicial Magistrate Ist Class, Hisar, vide order dated 20.10.2011 directed SHO, Police Station Civil Lines, Hisar to register FIR for the allegations levelled in the complaint and then to investigate the matter and report to the Court on or before 14.5.2011. CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 2 }:
Respondent, Kanwar Pal Singh impugned this order by filing a revision before Additional Sessions Judge. His main ground to challenge the order passed by Judicial Magistrate Ist Class, Hisar was that Magistrate has no power to take cognizance of a complaint instituted under the provisions of Prevention of Corruption Act and to direct registration of such complaint as FIR under Section 156(3) Cr.P.C. Plea was that it is only the Court of Special Judge, which had the original jurisdiction and which was competent to take cognizance under Section 190 Cr.P.C and, thus, the directions issued by the Magistrate under Section 156(3) Cr.P.C., are illegal and liable to be set-aside. In support, reliance is placed on various precedents noticed in the impugned judgment.
There is not much dispute that it is only the Court of Special Judge constituted under the Act which is competent to take cognizance of the offence under the Prevention of Corruption Act. This will also includes cases where any private complaint is so filed, making allegations under the Prevention of Corruption Act. In A.R.Antulay Vs. Ramdas Sriniwas Nayak and others, (1984) 2 SCC 500, the Hon'ble Supreme Court has clearly held that Special Judge is empowered to take cognizance of the offence under the Act and Magistrate would stand excluded for this purpose. Since Magistrate in this case was not empowered to take cognizance, he/she could not have exercised the power to direct police to investigate the matter and submit a report. The Hon'ble Supreme Court in A.R.Antuly's case (supra) has gone into the background of the provisions of Prevention of Corruption Act. As is noticed, Criminal CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 3 }:
Act 1952 was enacted as its long title would show to amend the Indian Penal Code and Code of Criminal Procedure, 1898 to provide for a more speedy trial of certain offences. Section 6 of this Act provides that the State Government, may by notification in the official Gazette, appoint as many as Special Judges as may be necessary for such area or areas as may be specified in the notification to try the offences punishable under Sections 161, 162, 163, 164, 165 and Section 165-A of the Indian Penal Code or Section 5 of the Prevention of Corruption Act, 1947. This Section also provides that a person shall not be qualified for appointment as Special Judge under this Act unless he is, or has been, a Sessions Judge or an Additional Sessiones Judge or an Assistant Sessions Judge under the Code of Criminal Procedure. Section 7 of the Amending Act confers exclusive jurisdiction on a Special Judge appointed under Section 6 to try cases set out in Section 6(1)(a) and Section 6(1)(b) respectively. Sub-section (2) of Section 7 provides that:-
"Every offence specified in sub section (1) of Section 6 shall be tried by Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the State Government". Sub-section (3) of this Section enlarges the jurisdiction of the Special Judge not only to try offences set out in Section 6 (1)(a) and (b) but also to try offences other than those mentioned therein with which the accused may, under the Code of Criminal Procedure, be charged at the same trial. In this background, the Hon'ble CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 4 }: Supreme Court has observed that three things would emerge from Section 7. The Special Judge has exclusive jurisdiction to try offences enumerated in Section 6(1)(a) and 6(1)(b). Where there are more than one Special Judge from the same area, the State Government is under an obligation to specify the local jurisdiction of each Special Judge, it may be case-wise, it may be area-wise. Sub- section (3) enlarges the jurisdiction to try other offences which have been committed in the course of same transaction. Thereafter, comes Section 8 which is as under:-
"8. (1) Special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates.
(2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of Sections 339 and 339-A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under Section 338 of that Code.
(3) Save as provided in sub-section (1) or sub-section CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 5 }:
(2), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not consistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special judges shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special judge shall be deemed to be a public prosecutor.
(3-A) In particular, and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of the Code of Criminal Procedure, 1898 shall, so far as may be, apply to the proceedings before a Special Judge, and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.
(4) A Special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
The reading of Section 8 would clearly show that Special Judge is empowered to take cognizance of an offence without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrants cases by Magistrates. This Section gives enough indication that offences under the Prevention of Corruption Act are within the exclusive domain of CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 6 }:
Special Judge. In A.R.Antulay's case (supra), the Hon'ble Supreme Court even has held that Special Judge is entitled to entertain a private complaint. The Court then very elaborately decided the issues in the following manner:-
"It is, however, necessary to decide with precision and accuracy the position of a special Judge and the Court over which he presides styled as the Court of a special Judge because unending confusions have arisen by either assimilating him with a Magistrate or with a Sessions Court. The Prevention of Corruption Act, 1947 was enacted for more effective prevention of bribery and corruption. Years rolled by and experience gathered showed that unless a special forum for the trial of such offences as enumerated in the 1947 Act is created, the object underlying the 1947 Act would remain a distant dream. This led to the enactment of the Criminal Law Amendment Act, 1952. The Statement of objects and Reasons accompanying the Bill refers to the recommendations of the Committee chaired by Dr. Bakshi Tek Chand appointed to review the working of the Special Police Establishment and to make recommendations for improvement of laws relating to bribery and corruption. To take the cases of corruption out of the maze of cases handled by Magistrates, it was decided to set up special courts. Sec. 6 conferred power on the State Government to appoint as many special CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 7 }:
Judges as may be necessary with power to try the offences set out in clauses (a) and (b). Now if at this stage a reference is made to Sec. 6 of the Code of Criminal Procedure which provides for constitution of criminal courts, it would become clear that a new court with a new designation was being set up and that it has to be under the administrative and judicial superintendence of the High Court. As already pointed out, there were four types of criminal courts functioning under the High Court. To this list was added the court of a special Judge. Now when a new court which is indisputably a criminal court because it was not even whispered that the Court of special Judge is not a criminal court, is set up, to make it effective and functionally oriented, it becomes necessary to prescribe its powers, procedure, status and all ancillary provisions. While setting up a court of a special Judge keeping in view the fact that the high dignitaries in public life are likely to be tried by such a court, the qualification prescribed was that the person to be appointed as special Judge has to be either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. These three dignitaries are above the level of a Magistrate. After prescribing the qualification, the Legislature proceeded to confer power upon a special Judge to take cognizance of offences for the trial of which a special court with exclusive CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 8 }:
jurisdiction was being set up. If a special Judge has to take cognizance of offences, ipso facto the procedure for trial of such offences has to be prescribed. Now the Code prescribes different procedures for trial of cases by different courts. Procedure for trial of a cases by different courts. Procedure for trial of a case before a Court of Sessions is set out in Chapter XVIII, trial of warrant cases by Magistrates is set out in Chapter XIX and the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new criminal court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of courts under Sec. 6 Cr. P.C. by bringing it on level more or less comparable to the Court of Sessions, but in order to avoid any confusion arising out of comparison by level, it was made explicit in Sec. 8 (1) itself that it is not a Court of Sessions because it can take cognizance of offences without commitment as contemplated by Sec. 193 Cr. P. C. Undoubtedly in Sec. 8 (3) it was clearly laid down that subject to the provisions of sub-Sec. (1) and (2) of Sec. 8, the Court of special Judge shall be deemed to be a Court of Sessions CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 9 }:
trying cases without a jury or without the aid of assessors. In contra-distinction to the Sessions Court this new court was to be a court of original jurisdiction. The Legislature then proceeded to specify which out of the various procedures set out in the Code, this new court shall follow for trial of offences before it. Sec 1 (1) specifically says that a special Judge in trial of offences before him shall follow the procedure prescribed in the Code of Criminal Procedure for trial of warrant cases by Magistrates. The provisions for trial of warrant cases by the Magistrate are to be found in Chapter XXI of 1898 Code. A glance through the provisions will show that the provisions therein included catered to both the situations namely, trial of a case initiated upon police report (Sec. 251A) and trial of cases instituted otherwise than on police report (Sec 252 to 257). If a special Judge is enjoined with a duty to try cases according to the procedure prescribed in foregoing provisions he will have to first decide whether the case was instituted upon a police report or otherwise than on police report and follow the procedure in the relevant group of sections. Each of the Secs. 251A to 257 of 1898 Code which are in pari materia with Secs 238 to 250 of 1973 Code refers to what the Magistrate should do. Does the special Judge in Secs 238 to 250 wherever the expression 'Magistrate' occurs. This is what is called legislation by the CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 10 }:
incorporation. Similarly, whether the question of taking cognizance arises, it is futile to go in search of question of taking cognizance arises, it is futile to go in search of the Magistrate to take cognizance of the offence, special Judge is a Magistrate? What is to be done is that one has to read the expression 'special Judge' in place of Magistrate, and the whole thing becomes crystal clear. The Legislature wherever it found the grey area clarified it by making specific provision such as the one in sub-s (2) of Sec. 8 and to leave no one in doubt further provided in sub-s. (3) that all the provisions of the Code of Criminal Procedure shall so far as they are not inconsistent with the Act apply to the proceedings before a special Judge. At the time when the 1952 Act was enacted what was in operation was the Code of Criminal Procedure, 1898. It did not envisage any Court of a special Judge and the Legislature never wanted to draw up an exhaustive Code of Procedure for this new criminal court which was being set up. Therefore, it conferred power (taking cognizance of offences), prescribed procedure (trial of warrant cases by a Magistrate), indicated authority to tender pardon (Sec
338) and then after declaring is status as comparable to a Court of Sessions proceeded to prescribe that all provisions of the Code of Criminal Procedure will apply in so far as they are not inconsistent with the provisions of CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 11 }:
the 1952 Act. The net outcome of this position is that a new court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific questions brought before it as court of original criminal jurisdiction, it had to refer to the Code of Criminal Procedure undaunted by any designation claptrap. When taking cognizance, a Court of special Judge enjoyed the powers under Sec. 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Sessions. The entire argument inviting us to specifically decide whether a court of a special Judge for a certain purpose is a Court of Magistrate or a Court of Sessions revolves round a mistaken belief that a special Judge has to be one or the other, and must fit in the slot of a Magistrate or a Court of Sessions. Such an approach would strangulate the functioning of the court and must be eschewed. Shorn of all embellishment, the court or a special Judge is a court of original criminal jurisdiction. As a court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the court. Except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdiction not being hide bound by the terminological status CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 12 }:
description of Magistrate or a Court of Sessions. Under the Code it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied."
As can be noticed, the Hon'ble Supreme Court has held that where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of Section 190 which conferred powers on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate. As observed what is to be done is that one has to read the expression "Special Judge" in place of Magistrate, and the whole thing becomes crystal clear. Thus, this would amply show that the power to take cognizance will lie with the Special Judge and there is no case made out for interference in the impugned order.
The reference made by counsel for the petitioner to the case of Suresh Chand Jain Vs. State of Madhya Pradesh and another, AIR 2001 Supreme Court 571 apparently is not relevant to the controversy. Hon'ble Supreme Court in this case was referring to a general power of Magistrate to take cognizance of the offence and has observed that he can order investigation under Section 156(3) of the Cr.P.C. In this case also, the Hon'ble Supreme Court recognized such powers only where the Magistrate was competent to take cognizance of the offence, as can be seen from the observations, where it is noticed that any Judicial Magistrate, before taking cognizance of offence, can order investigation under Section 156(3) of the Cr.P.C. Thus, it is only while taking cognizance of the offence CRIMINAL REVISION NO.269 OF 2012 (O&M) :{ 13 }: that such powers can be exercised. If the Magistrate is not empowered or competent to take cognizance of certain offences, then it would appear beyond his/her jurisdiction to direct investigation under Section 156(3) Cr.P.C. If in such cases, power of the Magistrate is conceded, then obviously, the Magistrate would become competent to take cognizance of the offence, which, would be in violation of the provisions of the procedural Code. The view taken by the revisional Court, thus, is sound and would not call for any interference.
The revision is accordingly dismissed.
July 30, 2012 (RANJIT SINGH ) khurmi JUDGE