Madras High Court
Antony vs The State Represented By on 9 March, 2011
Author: S.Nagamuthu
Bench: S.Nagamuthu
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09.03.2011 Coram The Honourable Mr.Justice S.NAGAMUTHU Criminal Appeal No. 850 of 2004 1. Antony 2. Maria Arputham 3. M.Maria Selvi 4. G.Edwin Raja ... Appellants -vs- The State represented by Inspector of Police Economic Offence Wing II Nagercoil Kanyakumari District. ... Respondent Criminal Appeal against the judgment of the Special Court under Tamil Nadu Protection of Interest of Depositors (In Financial Establishment) Act, 1997, Chennai in C.C.No. 15 of 2003 dated 29.6.2004. For Appellant : Mr.N.Rajan For Respondents: Mr.R.Muniyapparaj Government Advocate (Crl. Side) JUDGMENT
Challenging the conviction and sentence imposed on the appellants by the Special Court constituted under "The Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997", in C.C.No. 15 of 2003, the appellants are before this Court with this appeal.
2. The appellants have been convicted under Section 5 of Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997 [hereinafter referred to as "the TANPID Act"] and sentenced to under go rigorous imprisonment for three years under each count and to pay a fine of Rs.5000/- for each count and in default to undergo rigorous imprisonment for two months. [Each accused has to pay a total fine of Rs.1,35,000/-].
3. When the appeal was taken up today for final hearing, a doubt arose in the mind of this Court as to whether, as against the judgement impugned in this appeal, an appeal would lie directly to this Court in view of the provision contained in Section 374 (2) of the Code of Criminal Procedure [in short, "the Code"]. Though initially, the learned counsel for the appellant submitted that such an appeal to this Court directly lies, later on, the learned counsel, after having gone through the provisions of the Act, has also conceded that an appeal against such conviction and sentence which is not more than 7 years lies only to the Court of Sessions under Section 374 (2) of the Code. Since it involves an important question, I am inclined to deal with the same elaborately.
4. The term 'Special Court' has not been defined in the TANPID Act. However, Section 6 of the said Act deals with 'Special Court', which reads as follows:-
"(1) For the purpose of this Act, the Government may, with the concurrence of the Chief Justice of the High Court, by notification, constitute [one or more Special Courts for such area or areas or such case or cases as may be specified in the notification] in the cadre of a District and Sessions Judge.
(2) No Court including the Court constituted under the Presidency Towns Insolvency Act, 1909 (Central Act III of 1909) and the Provincial Insolvency Act, 1920 (Central Act V of 1920), other than the Special Court shall have jurisdiction in respect of any matter to which the provisions of this Act apply.
(3) Any pending case in any other Court to which the provisions of this Act apply shall stand transferred to the Special Court.
(4) [When trying any case, the Special Court may also try any offence, other than an offence specified in Section 5, with which the accused may, under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), be charged, at the same trial].
5. Section 7 of the Act deals with the power of the Special Court regarding attachment, sale, realisation and distribution. Section 8 of the Act deals with attachment of property of mala fide transferees. Section 9 of the Act deals with security in lieu of attachment. Section 10 deals with administration of property attached. Section 11 of the Act deals with appeal against any order made by the Special Court. At this juncture , it may be misconstrued as though the appeals provided in Section 11 of the Act will include an appeal against conviction for an offence under Section 5 of the TANPID Act also. But, the scheme of the TANPID Act , more particularly, the arrangement of the provisions of the TANPID Act will make it clear beyond the pale of any doubt that the provision for appeal provided in Section 11 relates only to the orders passed by the Special Court under Sections 7 to 10 of the TANPID Act. After Section 11 of the TANPID Act, as per the arrangement, Section 12 of the TANPID Act deals with Special Public Prosecutor and then comes the provision relating to the procedure and powers of the Special Court in Section 13 regarding offences which reads as follows:-
13. Procedure and powers of Special Court regarding offences. - (1) The Special Court may take cognizance of the offence without the accused being committed to it for trial and in trying the accused person, shall follow the procedure prescribed in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) for the trial of Warrant cases by Magistrates.
(2) The provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) shall, so for as may be, apply to the proceedings before a Special Court and for the purpose of the said provisions, a Special Court shall be deemed to be a Magistrate."
[Emphasis supplied]
6. Section 14 of the Act states that this Act shall override other laws, if there is any inconsistency between the provisions of this Act and any other law. In respect of the provision for appeal provided under Section 374 of Code of Criminal Procedure, there is no inconsistent provision in this Act and therefore, Section 14 of the Act has no role to play in this regard.
7. Now coming back to Section 13 of the said Act, it is stated that the provisions of the Code of Criminal Procedure, 1973 shall be applicable to the proceedings before a Special Court and for the purpose of the said provisions, a Special Court shall be deemed to be a Magistrate. Thus the said provision makes it very obvious that though the Special Court is presided over by an Officer in the cadre of a District and Sessions Judge, the powers which are exercised by him are only with that of a Magistrate. Therefore, in my considered opinion, as provided under Section 374(2) Code of Criminal Procedure, an appeal lies against the conviction and sentence recorded by the Special Court only to the Court of Sessions, if it is not more than seven years of imprisonment.
8. The learned counsel for the appellant submitted that it is doubtful as to whether such an appeal could be entertained by the Sessions Judge, when the Special Court itself is presided over by a District and Sessions Judge. In order to obviate this doubt, I may refer to the provisions of few special enactments whereunder also Special Courts are constituted.
9. Section 30 of the Protection of Human Rights Act, 1993 Act deals with Human Rights Courts, which reads as follows:-
"For the purpose of providing speedy trial of offences arising out of violation of human rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district a Court of Session to be a Human Rights Court to try the said offences:-
Provided that nothing in this section shall apply if :- (a) a Court of Session is already specified as a Special Court; or
(b) a Special Court is already constituted, for such offences under any other law for the time being in force."
10. Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 deals with Special Court, which reads as follows:-
"For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act."
[Emphasis supplied]
11. Section 36-C of the Narcotic Drugs and Psychotropic Substances Act, 1985 deals with Special Court to be constituted under the said Act, which reads as follows:-
"Application of Code to proceedings before a Special Court Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. "
[Emphasis supplied]
12. Under the Prevention of Corruption Act, 1988 [in short, "the PC Act"], a Special Judge is appointed under Section 3 of the Act. Section 4 of the PC Act states that notwithstanding anything contained in the Code of Criminal Procedure 1973 or in any other Law for the time being in force, the offences specified in sub-section (1) of Section 3 shall be tried by the Special Judges only. Section 5 of the PC Act deals with the procedure and the powers of the Special Judge. Sub-sections 3 to 5 of Section 5 of the PC Act read as follows:-
"5. Procedure and powers of Special Judge:-
(1) ........
(2) .......
(3) Save as provided in sub section (1) or sub-section (2), the provisions of the Code of Criminal Procedure 1973(2 of 1974), shall, so far as they are not inconsistent with this Act apply to the proceedings before a Special Judge and for the purposes of the said provisions, the court of the Special Judge shall be deemed to be a Court of Sessions and the persons conducting a prosecution before Special Judge shall be deemed to be a public prosecutor.
[Emphasis supplied] (4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974, shall, so far as may be, apply to the proceeding before a special judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.
(5) A Special Judge may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted."
Similarly, in The Special Court (Trial of Offences relating to the Transaction in Securities) Act, 1992, a Special Court is constituted under Section 5 of the Act which reads as follows:-
"5. Establishment of Special Court. - (1) The Central Government shall, by notification in the Official Gazette, establish a court to be called special Court.
(2) The Special Court shall consist of a sitting Judge of the High Court nominated by the Chief Justice of the High Court within the local limits of whose jurisdiction the Special Court is situated, with the concurrence of the Chief Justice of India.
(3) ... ... ... ..."
13. Section 9 of the said Act deals with the procedures and powers of the Special Court which reads as follows:-
"9. Procedure and powers of Special Court.- (1) The Special Court shall, in the trial of such cases, follow the procedure prescribed by the Court for the trial of warrant cases before a magistrate.
(2) Save as expressly provided in this Act, the provisions of the Code shall, insofar as they are not inconsistent with the provisions of this Act, apply to the proceedings before the Special Court and for the purposes of the said provisions of the Code, the Special Court shall be deemed to be a Court of Session and shall have all the powers of a Court of Session, and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.
(3) The Special Court may pass upon any person convicted by it any sentence authorised by law for the punishment of the offence of which such person is convicted.
(4) While dealing with any other matter brought before it, the Special Court may adopt such procedure as it may deem fit consistent with the principles of natural justice."
14. A careful reading of the provisions of the various enactments extracted above would make it explicit that in these enactments , a Sessions Court in existence is specified by means of a notification as a Special Court. Because such a Sessions Court is specified as a Special Court, yet the said Special Court shall not lose its character as Sessions Court. Undoubtedly, it still continues to be a Court of Sessions.
15. But, in Section 6 of the TANPID Act, it is not as though a Sessions Court is specified as a Special Court, instead, it only states that the Special Court to be constituted shall be presided over by an officer in the cadre of a District and Sessions Judge. Thus, what is prescribed in Section 6 of the Act is only the qualification of the Judge who will preside over the Special Court. The said court never partakes the character of a Court of Sessions as in the case of the Special Courts constituted under the other enactments referred to above.
16. Now, the procedures and powers of the Special Courts constituted under various enactments may be analyzed. As we have noticed in the provisions of various enactments referred to above, the Special Courts constituted under the said enactments shall be deemed to be Sessions Courts. Therefore, they exercise the powers of the Court of Sessions. In addition to that by means of specific provisions in the respective enactments certain powers exercisable by Magistrates have also been conferred upon the Special Courts. Thus, they enjoy the powers of a Court of Sessions as well as certain powers of a Magistrate.
17. At this juncture, I may refer to the Constitution Bench judgement of the Hon'ble Supreme Court in A.R.Antulay v. Ramdas Sriniwas Nayak , AIR 1984 SC 718 : 1984 Cri.L.J. 647, wherein the Hon'ble Supreme Court had an occasion to decide with precision and accuracy the position of the Judge of the Special Court constituted as per the provisions of the Criminal Law Amendment Act [Act 46 of 1952]. After having analyzed various provisions of the PC Act and the Criminal Law Amendment Act , in paragraph 27 of the judgement, the Hon'ble Supreme Court formulated the following question:-
27. .................. 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 said question was then answered by the Hon'ble Supreme Court in paragraph 27 as follows:-
"27. .......... 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 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."
18. Similar question arose before the Hon'ble Supreme Court in Gangula Ashok and antoher v. State of A.P., (2000) 2 SCC 504, wherein the Hon'ble Supreme Court had an occasion to deal with a Special Court constituted under Schedule Castes and the Scheduled Tribes [Prevention of Atrocities] Act, 1989. In paragraph 9 of the judgement, the Hon'ble Supreme Court has held as follows:-
"9. Thus the Court of Session is specified to conduct a trial and no other Court can conduct the trial of offences under the Act. Why did the Parliament provide that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be a Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session, The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for 'trial before a Court of Session"
19. In the said judgement, after referring to A.R.Antulay's case referred to above, in paragraph 16 of the judgement, the Hon'ble Supreme Court has held as follows:-
"16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge-sheet cannot straight away be laid before the Special Court under the Act."
20. And, in paragraphs 23 and 24 of the said judgement, after referring to the observation made in A.R.Antulay's case, the Hon'ble Supreme Court, has held as follows:-
"23. It must be noted that the observations of this Court in A. R. Antulay [ (1984) 2 SCC 500] were made in connection with the establishment of a Special Court under Criminal Amendment Act of 1952. What is to be pointed out is that a Special Judge appointed under the said Act was given the specific power to take cognizance of the offence without the case being committed to him. Hence the observations in A. R. Antulay case cannot be profitably utilized to support the interpretation of another Act wherein there is no such specific provision.
24. It is contextually relevant to notice that Special Courts created under certain other enactments have been specially empowered to take cognizance of the offence without the accused being committed to it for trial, [e.g. Section 36-A(1)(d) of the Narcotics Drugs Psychotropic Substances Act]. It is significant that there is no similar provision in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act."
21. In Harshad S. Mehta v. State of Maharashtra, 2001 (8) SCC 257 after referring to A.R.Antulay's case and various other cases, while dealing with an identical situation with reference to Act 46 of 1952, the Hon'ble Supreme Court has held as follows:-
"48. ......... Section 9(2) makes the Special Court, a Court of Session by a fiction by providing that the Special Court shall be deemed to be a Court of Session and shall have all the powers of a Court of Session. In case, the Special Court is held not to have the dual capacity and powers both of the Magistrate and the Court of Session, depending upon the stage of the case, there will be a complete hiatus. It is also to be kept in view that the Special Court under the Act comprises of a High Court Judge and it is a court of exclusive jurisdiction in respect of any offence as provided in Section 3(2) which will include offences under Indian Penal Code, the Prevention of Corruption Act and other penal laws. It is only in the event of inconsistency that the provisions of the Act would prevail as provided in Section 13 thereof. Any other interpretation will make the provision of the Act unworkable which could not be the intention of the Legislature. Section 9(2) does not exclude Sections 306 to 308 of the Code from the purview of the Act. This section rather provides that the provisions of the Code shall apply to the proceedings before the Special Court. The inconsistency seems to be only imaginary. There is nothing in the Act to show that Sections 306 to 308 were intended to be excluded from the purview of the Act"
22. From the judgement of the Constitution Bench of the Hon'ble Supreme Court and the other judgements referred to above, doubt, if any, on this aspect stands obviated since the Hon'ble Supreme Court categorically and consistently has held that a Special Court which is deemed to be a Sessions Court shall be a criminal court of original jurisdiction enjoying dual powers of a Court of Sessions as well as a Magistrate provided such powers of a Magistrate have also been conferred upon the Special Court.
23. But, in the TANPID Act, the law makers have consciously intended to have the Special Court constituted under the Act only as a Court of Magistrate which is evident from Section 13 (2) of the Act which states that the Special Court for the purpose of the said provisions shall be deemed to be a Magistrate. Therefore, the Special Court constituted under the TANPID Act does not enjoy the powers of a Court of Session though it is presided over by a Judge who is in the cadre of the District and Sessions Judge. By means of the deemed clause referred to above, he exercises the original jurisdiction of only a Magistrate.
24. Now, let us move on to Section 14 of the TANPID Act which states that save otherwise provided in this Act, the provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force , etc. The TANPID Act is traceable to Entry 32 in the State List ; whereas the Code of Criminal Procedure is traceable to Entry 2 in the concurrent List of Seventh Schedule of the Constitution. The TANPID Act is a substantive law; whereas the Code of Criminal Procedure is a pure and simple a law relating to procedure. Though the constitution makers have in pragmatic and scientific manner identified the respective fields for the Parliament and the State legislature to enact laws in their respective fields, the experience shows that it has also happened during the past that there are, at times, incidental overlappings or inconsistencies between the law made by the Parliament and the law made by the State legislature. It is needless to point out that if both the laws are traceable to entries in the concurrent list, surely, Article 254 of the Constitution, which is a mechanism to resolve the inconsistency, will come to the rescue. But, if the overlapping is between a law made by the Parliament traceable to an entry in the concurrent list and a law made by the State legislature traceable to an Entry in the State List, then, the doctrine of pith and substance is to be applied and both are to be reconciled. It is only in case where both cannot survive simultaneously, then the State law will give way for the law made by the Parliament to have overriding effect. In the case on hand, if we analyse the provisions of the TANPID Act, we find no provision in the Act, which is inconsistent with Section 374 (2) of the Code of Criminal Procedure. Therefore, the TANPID Act and Section 374 (2) of the Code can go hand-in-hand and they can survive simultaneously. Therefore, in this context Section 14 of the TANPID Act has no role to play as there is no inconsistency and as such it is ipso facto clear that as against conviction under Section 5 of the TANPID Act imposing a sentence of imprisonment for not more than 7 years by a Special Court, as per Section 374 (2) of the Code, appeal would lie only to the Court of Sessions.
25. Nextly, referring to Section 13(1) of the TANPID Act which states that the Special Court may take cognizance of an offence without the accused being committed to it for trial, it may be argued that the intention of the legislature is, therefore, only to have the Special Court as a Court of Session. This contention cannot be countenanced at all, because the said provision is not inconsistent with Section 190 of the Code. As a matter of fact, it is only complementary or in the nature of clarificatory to Section 190 of the Code.
26. The apprehension raised by the learned counsel for the appellant that such an appeal cannot be heard by the learned Sessions Judge because, the Officer presiding over the Special Court himself is a Sessions Judge cannot have any legal basis and therefore, the same cannot be accepted.
27. In view of the above, I hold that the instant appeal before this Court is not maintainable and the appeal against the judgment impugned in this case lies only to the Principal Sessions Court, Chennai.
28. Accordingly, the Registry is directed to transmit this appeal to the Court of Principal Sessions Judge, Chennai and the learned Principal Sessions Judge, Chennai shall, after affording opportunity to the appellants herein as well as to the respondent, dispose of the said appeal in accordance with law.
29. It is further directed that suspension of sentence granted by this Court already shall be deemed to be an order of suspension granted under Section 389 of Code of Criminal Procedure Code by the Principal Sessions Court and the same shall be in force until the disposal of this appeal.
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1.The Special Court under Tamil Nadu Protection of Interest of Depositors (In Financial Establishment) Act, Chennai