Gauhati High Court
Srikand Prasad vs Union Of India (Uoi) on 19 July, 2006
Equivalent citations: (2007)1GLR221
Author: Amitava Roy
Bench: Amitava Roy
JUDGMENT P.G. Agarwal, J.
1. The matter has been referred to this Bench, as per the order of hon'ble the Chief Justice, to consider the question as to whether in the matter of conviction under Section 10 of the Central Reserve Police Force Act, 1949 ('the Act'), an appeal lies against the order of conviction passed under the above section of law.
2. Facts (in Crl. Revn. No. 472/03) leading to the present reference, may be noted in brief.
The petitioner Shri A.K. Mishra was tried before Shri C.J.S. Behra, Commandant, 114 Bn. Central Reserve Police Force, Rani, Kamrup, who has also been empowered and conferred the powers of Judicial Magistrate 1st Class under the Act, for commission of the offence under Section 10(n)(p) of the Act in Case No. 04/01 and the petitioner was convicted under the above section of law sentencing him to imprisonment for six months, vide order dated 19.2.2001. The said order was challenged by the petitioner in Criminal Appeal No. 36/01 and, vide impugned order dated 5.5.2003 the ad hoc Additional Sessions Judge, Kamrup, Guwahati dismissed the said appeal holding, inter alia, that the appeal is not maintainable under Section 28 of the Central Reserve Police Force Rules, 1955 (hereinafter referred to as 'the Rules'). The appellate court also relied on the decision of this Court in Union of India v. Hari Ram reported in 2003 (2) GLT 365 to hold that no appeal lies to Sessions Court.
3. Section 10 of the Act provides that for commission of offence under Section 10 of the Act a member of the force may be punished with imprisonment for a term which may extend to one year or with fine which may extend to three months' pay or with both.
4. The Central Reserve Police Force Rules, 1955 was enacted by virtue of powers provided in Section 18 of the Act. There is no dispute at the Bar that the trial of an accused under Section 10 of the Act is a judicial trial and a Judicial Magistrate appointed under the Criminal Procedure Code has jurisdiction and power to try offences under Section 10 of the Act. Moreover, Section 16(2) of the Act reads as follows:
Section 16(2). Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (now II of 1974), the Central Government may invest the Commandant or an Assistant Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by a member of the Force and punishable under this Act, or any offence committed by a member of the force against the person or property of another member. Provided that-
(i) When the offender is on leave or absent from duty, or
(ii) When the offence is not connected with the offender's duties as a member of the Force, or
(iii) When it is a pretty offence, even if connected with the offender's duties as a member of the Force, the offence may, if the prescribed authority within the limit of whose jurisdiction the offences has been committed, so directs, be inquired into or tried by an ordinary criminal Court having jurisdiction in the matter.
5. We find that both Judicial Magistrate as well as in a given case, the Commandant, who has been specifically empowered as provided under Section 16(2) of the Act have jurisdiction to try cases under the above provisions of law.
6. Rule 36 of the Rules, reads as under-
36. Judicial Trials. - (a) All trials in relation 'to any one of the offences specified in Sections 9 and 10 shall be held in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (1973).
(b) All persons sentenced to imprisonment under the Act shall be confined in the nearest jail.
Provided that if the sentence of imprisonment is for one month or less, "or where the Commandant is satisfied that due to the difficulty of transport and escort of the person sentenced to imprisonment to the nearest jail, it is so desirable, such persons shall be confined in the Quarter Guard of the Force.
36(B) Definition. - For the purpose of this chapter, "Magistrate" means a Magistrate other than the Commandant or an Assistant Commandant on whom the powers of a Magistrate have been conferred under Sub-section (2) of Section 16.
7. Learned Additional Sessions Judge, Kamrup has referred to Rule 28 of the Rules, but in our considered opinion this reference was not relevant as Rule 28 apply in the matter of awarding punishment in disciplinary proceedings whereas the trial under Section 10 of the Act itself is a judicial proceedings and Rule 36 applies injudicial trial.
8. In case of Hari Ram (supra), this Court held-
11. On perusal of the provisions of law above noted, it is noticed that offences prescribed under Section 10(m) and 10(n) of the Act are triable by the Assistant Commandant/Judicial Magistrate 1st Class being invested with the power of Magistrate according to the provisions of Section 16(2) of the Act. The said section has clearly enshrined that the Central Govt. may invest the Commandant or Assistant Commandant with the power of Magistrate of any Class for the purpose of inquiring into or trying any offence committed by a Member of the Force and punishable under this Act. There is no dispute as regards such investing powers of Magistrate upon the Commandant as for such purpose the Central Govt. had already notified, vide GSR 161(E) dated 30.3.1974 which was published in Gazette of India dated 30.3.1974 (see foot note A of Section 16 of the Act). The Rule 36(B) which was mainly relied upon by the Appellate Court, has been incorporated under Chapter VIA under the heading of "Place of trial and adjustment of jurisdiction of ordinary courts". The expression 'Magistrate' occurring in Rule 36B under this Chapter VIA of the rules has been defined in the context of place of trial and adjustment of jurisdiction of only ordinary courts and not in the context of power conferred upon the Central Government under Section 16(2) of the Act to invest the Commandant or Assistant Commandant to exercise power of a Magistrate to try offence under the Act. That being so, the appellate court it appears, misconstrued and misinterpreted this provision of Rule 36B which has clearly referred to ordinary courts other than Special Courts constituted under the Act. In Section 16(2) of the Act some special power of duties have been conferred or imposed on members of the Force entrusting special judicial powers for inquiry or trial of any offences committed by a member of the Force and also for resultant punishment under the Act. Therefore, the magisterial power so invested by the Central Govt, on the Commandant or the Asstt. Commandant for trial of any offence under the Act cannot be taken away by Rule 36B wherein the meaning of Magistrate has been defined in relation to the ordinary courts only. It is clearly provided under Section 16(2) of the Act, that in case of offences like-
(i) When the offender is on leave or absent from duty ; or
(ii) When the offence is not connected with the offender's duty as a member of the force or ;
(iii) When it is a petty offence, even if connected with the offender's duties as a member of the Force.
The prescribed authorities like Commandant or Asstt. Commandant within the limit of whose jurisdiction such offence has been committed may direct that such offence may be inquired into or tried by an ordinary criminal court having jurisdiction in this matter. In case of trial of such offences by the ordinary courts only, the definition of Magistrate as per the Rule 36B is significant. In that view of the matter, I unhesitatingly hold that the Assistant Commandant exercising the power of Magistrate under Section 16(2) of the Act has the legal authority to try the offences which are exclusively covered under this Special Act enacted for the purpose of constitution of regulation of an Armed Central Reserve Police Force and the learned Addl. District Magistrate was absolutely wrong in holding that the Assistant Commandant, Judicial Magistrate has no power to convict the respondent.
9. A conjoint reading of the provisions of the Act and the Rules made thereunder clearly show that for alleged commission of offence under Section 10 of the Act, an accused person, i.e., a member of the force may be tried by a Judicial Magistrate 1st Class or in a given case, by the Commandant or Assistant Commandant on whom powers of Judicial Magistrate have been conferred under Section 16(2) of the Act. The question whether trial shall be conducted by a Judicial Magistrate or Commandant or Assistant Commandant specially conferred with the powers of Judicial Magistrate has been left in the discretion of the competent authority. When both the forums are available, as a matter of fact, it is only one forum, i.e., the Judicial Magistrate 1st Class, but instead of sending the case to the ordinary court of Judicial Magistrate 1st Class for the exigency of service the Central Government has been authorized to invest the Commandant or Assistant Commandant the powers of Judicial Magistrate 1st Class exclusively for the purpose of holding trial under Section 10 of the Act. A Commandant or Assistant Commandant who is so empowered can try offences allegedly committed by the members of the force only in relation to the 'Act' only.
10. The Act, as well as the Rules framed thereunder, has not laid down any special procedure as regards holding of an enquiry or trial for the offences under Section 9 or 10 of the Act by the Judicial Magistrate 1st Class or Assistant Commandant specially empowered in this behalf. Under Rule 36 of the Rules a trial is to be held in the accordance with the procedure laid down in the Criminal Procedure Code. Sections 4 and 5 of the Criminal Procedure Code reads as under:
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 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.
5. Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
11. There cannot be any distinction in the matter of trial or procedure of trial, where the accused, admittedly a member of the force, is tried by a Judicial Magistrate 1st Class or Commandant or Assistant Commandant conferred with the powers for the above purpose. As stated above, no separate procedure for trial is laid in the Act or the Rules framed thereunder. Rule 36 of the Rules provides that the trial shall be in accordance with the Criminal Procedure Code. Provisions of Criminal Procedure Code are applicable in respect of any other law, which, in our opinion, includes the Central Reserve Police Force Act. As regards maintenance of appeal before the appellate Court, i.e., the Additional Sessions Judes appointed under the provisions of the Criminal Procedure Code, learned Single Judge in Hari Ram (supra) observed as follows:
13. As regards the question of jurisdiction of the appellate Court, i.e., the learned Addl. District Magistrate, Aizawl who entertain the appeal in question, raised by the learned Counsel for the appellant, on plain reading of the provisions of the Act and Rules, it is seen that there is no provision for appeal prescribed under the Act and the Rules to be preferred before learned District Judge/District Magistrate under the ordinary court against the conviction and sentence under Section 10 of the Act. Rule 36 only prescribing judicial trials does not speak of any provision of such appeal. In that view of the matter I find enough force in the submissions of the learned CGSC and accordingly it is held that the learned District Magistrate/Addl. District Magistrate in the present case, lacks jurisdiction to entertain the appeal in question arising out of conviction and sentence passed under this Special Act.
13. In the case of R.S. Nayak V.A.R. Antuley reported in AIR 1984 SC 684, a similar question, though in a different context, was raised before the Constitution Bench. It was rotated to the constitution of the Court of Special Judge for trying offences under the Prevention of Corruption Act and the question raised was whether the Court of Special Judge is a Court of Magistrate or a Court of Sessions and what will be its power and procedure for trial, the Apex Court held-
27. ...Shorn of all embellishment, the court of 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 ahs to function as a court of original criminal jurisdiction not being hidebound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the once specifically denied.
29. Once the position and power of the court of special Judge in the hierarchy of Criminal Courts under the High Court is clearly and unambiguously established, it is unnecessary to roam into an enquiry examining a large number of decisions laying down in the context of each case that the court of a special Judge is a Court of Session and the contrary view taken in some other decisions. Reference to those judgments would be merely adding to the length of this judgment without achieving any useful purpose.
15. So far the Act and Rules under consideration are concerned, we find that the Act does not create any special Court, but merely provides that the offences under Section 10 of the Act are required to be a Judicial Magistrate 1st Class and the procedure will be that of the Cr.P.C. It also provides that even the Commandant or the Assistant Commandant may be conferred with the powers of Judicial Magistrate 1st Class to try offences under the Act. This is. mere a conferment of powers of Judicial Magistrate 1st Class on a Commandant or Assistant Commandant for limited exercise of jurisdiction and powers of Judicial Magistrate. However, whether trial is held by ordinary Court of Judicial Magistrate 1st Class or by specially empowered Commandant or Assistant Commandant, the procedure remain the same.
16. So far the question of investment of powers of Judicial Magistrate 1st Class on Commandant or Assistant Commandant is concerned, the matter was examined by the Supreme Court in State Union of India v. Ram Saran and the Apex Court observed that the offence under Sections 9 and 10 of the Act are new classes of offence created with punishment therefor which is unknown to the ordinary criminal law in force. The Apex Court further observed-
Section 16 provides for empowering competent authorities in the hierarchy of the force itself with powers of duties conferred or imposed on a police officer or any class or grade by any law for the time being in force and by further enacting a provision with a specific "non-obstante" clause stipulating that notwithstanding anything contained in the Code, the Central Government may invest the Commandant or Assistant Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by a member of the force and punishable "under this Act" or any offence committed by a member of the force against the person or property of another member. Consequently, what is purported to be done by these provisions is merely to refer to the nature and extent of powers possessed by such authorities under the other laws being made available to the authorities designated under this Act, without exhaustively enumerating the details of all such powers or without re-enacting all such provisions in detail as part and parcel of this, law, the Act, and not to constitute them to be or empower them as Magistrates as such for all or any of the purposes for which courts of ordinary criminal justice have been constituted under the Code. Section 5 of the Code sufficiently protects the authorities empowered to function and exercise powers under the Act from any such challenge as are directed against them in this case.
17. The Apex Court, therefore, held that the Assistant Commandant specially empowered on that behalf, who is specially conferred with the powers of Judicial Magistrate, by the Central Government had jurisdiction to deal with the members of the force in a trial under Section 10 of the Act.
18. Although the question whether any appeal/revision lies before the Sessions Judge or High Court against an order of the Assistant Commandant did not arise for consideration directly, but as a matter of fact the order of conviction by the Assistant Commandant was challenged before the Sessions Judge on the ground that the Assistant Commandant has no jurisdiction to try the C.R.P.F. Constable and when the appeal was allowed the matter was taken to the High Court in Division Bench and the High Court also agreed with the findings of the Sessions Judge, i.e., the appellate court that conferment of powers of Judicial Magistrate 1st Class by the Central Government on the Assistant Commandant is bad in law. The Apex Court did not find fault with Sessions Judge for entertaining the appeal observing that no appeal lies under the Act.
19. The right of the accused to prefer an appeal under Section 374 Cr.P.C. in the matter of conviction under Section 10 of the Act was denied by the learned Single Judge solely on the ground that the Act is a special Act and it does not provide for any forum of appeal. A submission was made before us that the appeal is a creation of statute and when the statute is silent and does not provide for an appeal, it cannot be entertained. In Durga Sahankar Mehta v. Raghuraj Singh , Apex Court observed-
It is well known that an appeal is a creature of statute and there can be no inhere right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself." In Mustaq Ahmed Mohammed Hussain and Anr. v. State of Gujarat AIR 1973 1222, the Apex Court observed - "The right of appeal conferred by Section 410 read with Section 418 Cr.P.C. entitled the appellants to question the conclusions of the trial court both on matters of fact and law. They had a right to ask for a review of the entire evidence and to challenge the appraisal of the evidence by the trial court and its conclusions based on such appraisal.
20. In view of the above discussions we have no hesitation to hold that the Act is a special Act providing for trial of particular classes of offence, the offences are "more heinous offence" and "less heinous offence" defined under the Act so far the trial of above offence is concerned, the' procedure will be as per the provisions of the Criminal Procedure Code. In view of provision of Section 4(2) and Section 5 of the Criminal Procedure Code the procedure is applicable in case of special laws also. In Maru Ram v. Union of India the Apex Court held:
33. The anatomy of this savings section is simple, yet subtle. Broadly speaking, there are three components to be separated. Firstly, the Procedure Code generally governs matters covered by it. Secondly, if a special or local law exists covering the same area, this latter law will be saved and will prevail. The short-sentencing measures and local laws and must override. Now comes the third component which may be clinching. If there is a specific provision to the contrary, then that will override the special or local law. Is Section 433Aa specific law contra? If so, that will be the last word and will hold even against the special or local law.
The above views were reiterated in the case of Director of Enforcement v. Deepak Mahajan , which reads-
122. Section 4(2) of the Code corresponds to Section 5(2) of the old Code. Section 26(b) of the Code corresponds to Section 29 of the old Code except for a slight change. Under the present Section 26(b) any offence under any other law shall, when any court is mentioned in this behalf, may be tried by the High Court or other court by which such offence is shown in the First Schedule to be triable. The combined operation of Sections 4(2) and 26(b) of the Code is that the offence complained of should be investigated or inquired into or tried according to the provisions of the Code where the enactment which creates the offence indicates no special procedure.
123. We shall now consider the applicability of provisions of Section 167(2) of the Code in relation to Section 4(2) to a person arrested under FERA or the Customs Act and produced before a Magistrate. As we have indicated above, a reading of Section 4(2) read with Section 26(b) which governs every criminal proceeding as regards the course by which an offence is to be tried and as to the procedure to be followed, renders the provisions of the Code applicable in the field not covered by the provisions of the FERA or Customs Act.
128. To sum up, Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provisions of this Code would be applicable to the extent in the absence of any contrary provision in the Special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact, the second limb of Section 4(2) itself limits the application of the provisions of the Code reading, "... 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.
21. The learned Single Judge in Hari Ram (supra) however held that the provisions of Section 16(2) of the Act shall apply or shall stand restricted in the matter, place and trial of the offence under the Act. But, there is no provision for appeal. Under the Act or Rules framed thereunder there is no specific provision or bar that no appeal will lie against the order of conviction. As stated above, the trial under Sections 9 and 10 of the Act is a judicial trial and is held as per the Criminal Procedure Code before a Judicial Magistrate 1st Class or a Commandant or Assistant Commandant who has been specially conferred with the powers of Judicial Magistrate 1st Class. A submission was made before us that in a given case where trial has been conducted by a Judicial Magistrate 1st Class, an appeal may lie under Section 374 Cr.P.C. but in case of trial by a Commandant or Assistant Commandant, who has been specially conferred with the powers of Judicial Magistrate 1st Class, in absence of any specific provision in the Act or the Rules framed thereunder no appeal will lie. The above proposition may led to serious question of discrimination between two members of the same force. If a member is tried by an ordinary criminal court he is entitle to the right to appeal, revision etc. whereas in case he is tried by a Commandant or Assistant Commandant, he will lose the right to appeal. Whether a member of force has been tried by a Judicial Magistrate 1st Class or Commandant or Assistant Commandant the procedure of trial will be same and their rights and privileges of appeal/revision, etc., cannot vary and must remain same.
22. Chapter XXIX Cr.P.C. provides for appeals. We may have a look at the provisions of Section 372 and Sub-clause (3) of Section 374 Cr.P.C which provides:
372. No appeal to lie unless otherwise provided, - No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.
374(3). Save as otherwise provided in Sub-section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or
(b) sentenced under Section 325, or
(c) in respect of whom ah order ahs been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Session.
23. The forum for appeal is provided by virtue of Section 372 Cr.P.C. Section 374 Cr.P.C. provides for appeal for conviction and in Sub-clause (3) provides specific provision as regards conviction by the Judicial Magistrate. The Act or the Rules does not contain any provision that in case of conviction entered in to by the Commandant in exercise of power of Judicial Magistrate 1st Class no appeal will lie. In view of Section 5 of the Code, if there is any specific provision in the Act the same would have prevail over the provisions of Sections 372 and 374 Cr.P.C. Section 375 Cr.P.C. further provides that in certain cases no appeal is maintainable.
24. In the case of Atiq-ur-Rehman v. Municipal Corporation of Delhi and Anr. 1996 SCC (Crl.) 457, the Apex Court held - "Prom a plain reading of Section 4 Cr.P.C. (supra) it emerges that the provisions of Criminal Procedure Code are applicable where an offence under the Indian Penal Code or under any other law is being investigated, inquired into, tried or otherwise dealt with." In the case of H.N. Bhavsar v. State of Gujarat 1976 Crl. 84 the Full Bench of Gujarat High Court, relying on held that right of appeal under Section 372 Cr.P.C. is a substantive right which crystallizes at the date of the institution of action and this right includes a right to go on appeal to the Supreme Court.
25. In view of the foresaid discussions we hold that the decision in Hari Ram (supra) at para 13 does not lay down the correct position of law. We accordingly hold as follows:
(1) A member of the Central Reserve Police Force may be tried either by a Judicial Magistrate 1st Class or Commandant or Assistant Commandant who has been specially conferred with the powers of Judicial Magistrate;
(2) Trial will be a judicial trial and the procedure to be followed shall be as per the Criminal Procedure Code ;
(3) Appeal/revision will lie against the order of the trial Court i.e. Judicial Magistrate 1st Class or Commandant or Assistant Commandant; and (4) Sessions' Judge shall have the power and jurisdiction to entertain appeal/revision against such orders.
The criminal revision may be listed before the appropriate Bench for hearing.