Andhra Pradesh High Court - Amravati
Between vs Union Of India And Another on 26 September, 2019
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL PETITION No.5741 OF 2019
Between:
Chintamaneni Prabhakara Rao @ Prabhakar,
S/o. Kesava Rao, aged about 55 years,
Ex-MLA of Denduluru Mandal,
R/o. Duggirala Village, Pedavegi Mandal,
West Godavari District.
--- Petitioner/Accused No.1.
And
1) S.I of Police, Pedapadu Police Station,
West Godavari District. --- Respondent/Defacto complainant.
2) Kosanamu Venkata Ratnam,
S/o. Abhishekam, Hindu, Male,
Aged about 72 years, Tallamudi Village,
Pedapadu Mandal, W.G. District. ---- Respondent/Complainant
DATE OF ORDER PRONOUNCED : 26.09.2019
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
1. Whether Reporters of Local Newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? Yes/No
_________________________
U. DURGA PRASAD RAO, J
2
UDPR, J
Crl.P.No.5741 of 2019
Dt:26.09.2019
* THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
+ CRIMINAL PETITION No.5741 OF 2019
% 26.09.2019
Crl.P.No.5741 of 2019
Between:
Chintamaneni Prabhakara Rao @ Prabhakar,
S/o. Kesava Rao, aged about 55 years,
Ex-MLA of Denduluru Mandal,
R/o. Duggirala Village, Pedavegi Mandal,
West Godavari District.
--- Petitioner/Accused No.1.
And
1) S.I of Police, Pedapadu Police Station,
West Godavari District. --- Respondent/Defacto complainant.
2) Kosanamu Venkata Ratnam,
S/o. Abhishekam, Hindu, Male,
Aged about 72 years, Tallamudi Village,
Pedapadu Mandal, W.G. District. ---- Respondent/Complainant
! Counsel for Petitioner : Sri Posani Venkateswarlu
^ Counsel for the Respondent : Additional Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
This court made the following :
3
UDPR, J
Crl.P.No.5741 of 2019
Dt:26.09.2019
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CRIMINAL PETITION No.5741 OF 2019
ORDER:
The petitioner/A1 challenges the docket order, dated 17.09.2019 in Crime No.189 of 2019 passed by the learned Special Judge under SCs & STs (POA) Act-cum-VIII Additional District Judge, West Godavari District, Eluru (for short, Sp.Judge u/SCs & STs (POA) Act) returning the bail application filed by the petitioner/A1 holding that he is not having jurisdiction to entertain the bail application.
2. The Crime No.189 of 2019 was registered by the Police of Pedapadu Police Station, West Godavari District against the petitioner/A1 and some others for the offences under Sections 342, 364 r/w.Sec.324 r/w.Sec.34 of IPC and Secs.3(1)(r), 3(1)(S), 3(2), (va) of SCs & STs (POA) Act on the complaint given by the defacto complainant. The complaint allegations briefly are that the complainant has boundary disputes with A2 since long back. A1 was the then M.L.A and he has nothing to do with the aforesaid dispute. However, about two years prior to the complaint, A1 to A4 forcibly kidnapped the complainant in the car of A1 and kept in a house for 1 ½ days and beat him indiscriminately with sticks, hands and legs and abused him in the name of his caste and thereafter left him. Hence, the complaint. Investigation is reported to be pending.
3. While so, during the course of investigation, A1was arrested on 11.09.2019 and remanded to judicial custody. The petitioner/A1 filed 4 UDPR, J Crl.P.No.5741 of 2019 Dt:26.09.2019 unnumbered Crl.M.P in Crime No.189 of 2019 before the Sp.Judge u/SCs & STs (POA) Act, seeking regular bail. The said application was returned on 12.09.2019 with the observation that the application should be filed before designated Court to deal with the trial of the cases involving elected M.Ps and M.L.As. Hence, the application was represented on 16.09.2019 before the Special Court for the trial of offences relating to elected Members of Parliament and Members of Legislative Assembly, Vijayawada (for short "designated Court"). However, the said Court returned the application with the observation that the said Court is having jurisdiction only to try the offences relating to elected M.Ps and M.L.As and pre-trial procedure has to be conducted before the Court which has jurisdiction. Again, the matter was represented before the Special Judge under SCs & STs (POA) Act on 17.09.2019, but the application was returned on the same day on the ground that said Court has no jurisdiction in view of establishment of designated Court.
4. Heard learned counsel for petitioner Sri Posani Venkateswarlu and learned Public Prosecutor.
5. As per the F.I.R, the petitioner/A1 who was the sitting M.L.A allegedly committed offences under Sections 342, 364 r/w.Sec.324 r/w.Sec.34 of IPC and Secs.3(1)(r), 3(1)(S), 3(2), (va) of SCs & STs (POA) Act. Since, one of the offences allegedly committed is under SCs & STs (POA) Act, as per Sec.14 of the said Act, the trial shall be conducted before the Special Judge u/SCs & STs (POA) Act. The Special Court under the said Act has the power to directly take 5 UDPR, J Crl.P.No.5741 of 2019 Dt:26.09.2019 cognizance of the offences without the necessity of following committal proceedings.
6. Be that it may, pursuant to the directions of Hon'ble apex Court in Ashwini Kumar Upadhay vs. Union of India and another (W.P (Civil) No.699 of 2016) (directions dated 14.12.2017, 21.08.2018 & 04.12.2018) the designated Courts have been established through out the country for the trial of criminal cases involving MPs and MLAs. Towing the line, Government of Andhra Pradesh in G.O.Rt.No.250 dated 03.04.2018 LAW (L, LA & J-Home- Courts -A) Department issued notification, which reads thus;
Special Court for trial of criminal cases relating to elected MPs/MLAs, Vijayawada - Specifying the whole of the State of Andhra Pradesh as the local area - Notification - Orders - Issued.
1) G.O.Ms.No.26, Law (LA, LA & J) Home Courts.A) Department, dt:26.02.2018.
2) From the Registrar (Admin.), High Court of Judicature at Hyderabad, R.O.C.No.105/E1/2018, Dated 17.03.2018.
ORDER:
In the reference 1st read above, orders were issued establishing one (1) Special Court in the cadre of District and Sessions Judge at Vijayawada in Krishna District for trial of criminal cases relating to elected MPs and MLAs of the State.
(2). In the reference 2nd read above the Registrar (Administration), High Court of Judicature at Hyderabad, requested the Government to issue a notification specifying the jurisdiction of the said Court.
(3).The following notification will be published in the Andhra Pradesh Gazette Extraordinary.
NOTIFICATION In exercise of the powers conferred by the proviso to sub-section (1) of Section 11 read with clause (j) of Section 2 and read with Sections 7 and 9(1) of the Code 6 UDPR, J Crl.P.No.5741 of 2019 Dt:26.09.2019 of Criminal Procedure, 1973 (Central Act 2 of 1974) and after consultation with the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh, Government of Andhra Pradesh, hereby (1) Specify the whole of the State of Andhra Pradesh as the local area for the purpose of establishing a Special Court for the trial of offences relating to elected Members of Parliament and Members of the Legislative Assembly as sanctioned, vide G.O.Ms.No.26, Law (L, LA & J-Home-Courts.A) Department, dated 26.02.2018; and (2) Establish a Special court of Judicial Magistrate of First Class to try offences relating to elected Members of Parliament and Members of the Legislative Assembly and the said Court shall be known as the Court of Special Judge in the cadre of Sessions Judge for trial of criminal cases relating to elected Members of Parliament and Members of the Legislative Assembly, arising out of the entire area of State of Andhra Pradesh.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH).
SECRETARY TO GOVERNMENT LEGAL, LEGISLATIVE AFFAIRS & JUSTICE.
Thus, by virtue of the above notification, the designated Court at Vijayawada has got jurisdiction to try the criminal cases relating to the elected MPs & MLAs of the Andhra Pradesh state. Since the petitioner/A1 was the elected Member of Legislative Assembly by the date of alleged offence, the designated Court constituted at Vijayawada will get jurisdiction to try the offence in case the 7 UDPR, J Crl.P.No.5741 of 2019 Dt:26.09.2019 investigation culminated into filing of Charge Sheet and taking cognizance.
7. Thus, as can be seen, in conferring jurisdiction, SCs & STs (POA) Act is an offence centric enactment whereas G.O.Rt.No.250 dated 03.04.2018 is an offender centric executive order. In a given case, if offence-wise and offender-wise, both the enactment as well as executive order are applicable, the issue in such case will be whether the Sp.Judge u/SCs & STs (POA) Act or the Designated Court has got the jurisdiction to try the case. In the instant case, though the matter is at the stage of investigation, both the Courts refused to entertain bail application on the ground that they are lacking jurisdiction. Hence, this issue is to be resolved.
8. Sec.20 of the SCs & STs (POA) Act has a non-obstante clause which is germane for our consideration. Sec.20 reads thus;
Act to override the laws:- Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law.
Thus, Sec.20 edictally proclaims that the provisions of said Act shall have the effect not withstanding anything inconsistent therewith contained in any other law, custom or usage or any instrument. As per Sec.2(bd), "exclusive special Court" means the exclusive special Court established under Sec.14(1) exclusively to try the offences under SCs & STs (POA) Act. By virtue of the overriding 8 UDPR, J Crl.P.No.5741 of 2019 Dt:26.09.2019 effect of Sec.20, the exclusive special Courts shall have the jurisdiction to try the offences under SCs & STs (POA) Act. Whereas, G.O.Rt.No.250 dated 03.04.2018 has no such non-obstante clause giving overriding powers to the designated courts to try the offences relating to MPs & MLAs which sometimes may include the offences under SCs & STs (POA) Act or any other special enactment. The effect of employing a non-obstante clause in a provision of law is discussed in M/s.SVPCL Limited vs. The State Bank of India and another1, it was observed;
A non-obstante clause is generally appended to a Section with a view to give the enacting part of the Section, in case of conflict, an overriding effect over any other law in force as is mentioned in the non-obstante clause. It is equivalent to saying that, inspite of the laws mentioned in the non-obstante clause, the provision following it will have full operation, or the laws embraced in the non- obstance clause will not be an impediment for the operation of the enactment or the provision in which the non-obstante clause occurs. (State of Bihar vs. Bihar Rajya M.S.E.S.K.K. Mahasangh; South India Corpn. (P) Ltd. vs. Secretary, Board of Revenue, Trivandrum). Normally the use of a phrase by the legislature in a statutory provision like not withstanding anything to the contrary contained in any other law for the time being in force is equivalent to saying that no other law in force shall be an impediment to the measure. Use of such an expression is another way of saying that the provision in which the non-obstante clause occurs would wholly prevail over any other law for the time being in force. Non-obstante clauses are to be regarded as clauses which remove all obstructions which might arise out of the provisions of any other law in the way of the operation of 1 2015 SCC Online Hyd 111 9 UDPR, J Crl.P.No.5741 of 2019 Dt:26.09.2019 the principal enacting provision to which the non-obstante clause is attached. (Bihar Rajya M.S.E.K.K., Mahasangam; Iridium India Telecom Ltd. v. Motorola Inc).
Applying the above jurisprudence, it can be said that in a given case, if one or all of the offences committed by a MP/MLA are under SCs & STs (POA) Act, then by virtue of Sec.20 of the said Act, the special Court u/SCs & STs (POA) Act shall have the jurisdiction to try the case but not the designated court.
9. For another reason also the designated Court has to give way to the Special Court u/SCs & STs (POA) Act. The designated Court is constituted only under G.O.Rt.No.250 which is an executive order of the State but not an enactment. Regarding the scope and ambit of executive powers of a State, Article 162 of Constitution of India reads thus;
Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
Thus, though the executive power of a State shall extend to the matters on which the legislature of a State has power to make Laws, still by virtue of the proviso, such executive power is subject to and limited by the executive power expressly conferred by the 10 UDPR, J Crl.P.No.5741 of 2019 Dt:26.09.2019 Constitution or by any law made by the Parliament. In that view, since the SCs & STs (POA) Act, 1989 is a Central Legislation, the provisions therein will have overriding power over the executive order.
10. Nextly, a perusal of G.O.Rt.No.250 would show that only power of trial of criminal cases relating to elected MPs & MLAs is conferred on the designated Courts, but it would not appear pre-trial procedure such as committal proceedings etc., is dispensed with. Therefore, the designated court comes into picture only from the stage of trial but not before and pre-trial procedure should be followed in the concerned courts as per the provisions of Cr.P.C and other relevant laws.
11. To sum up;
(i) If, the offences committed by elected MPs & MLAs disclose only general offences like I.P.C but not related to any special enactment, then up to the stage of trial, the procedure prescribed under Cr.P.C is to be followed before concerned Court and then committed to designated Court for conducting trial.
(ii) If, some or all of the offences committed by MPs & MLAs are related to any special enactment and if such enactment prescribes special procedure for taking cognizance and conducting trial, then such procedure shall be followed.
12. In view of the above discussion, in the instant case, since one of the offences is relating to SCs & STs (POA) Act, if the investigation culminates in filing Charge Sheet, the case has to be tried by the 11 UDPR, J Crl.P.No.5741 of 2019 Dt:26.09.2019 Special Court constituted under SCs & STs (POA) Act. Consequently, all the related proceedings including entertaining the bail application shall be taken up before the said Court but not the designated Court.
13. Accordingly, the petition is disposed of.
As a sequel, Interlocutory Applications pending, if any, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J 26.09.2019 DSH/MS