Karnataka High Court
Roshanlal Agarwal vs Dy. Chief Controller Of Imports And ... on 7 August, 1995
Equivalent citations: 1995(51)ECC34, 1996(85)ELT219(KAR), ILR1995KAR2463, 1995(3)KARLJ520
ORDER
1. Criminal Petition Nos. 115, 114 and 113/1990 are filed under Section 482 Cr. P.C. to set aside the order dated 20-7-1989 passed by the VII Additional Sessions Judge, Bangalore, in Cr. R.P. Nos. 45, 46 and 43/1986 respectively confirming the order dated 24-2-1986 passed by the Special Court for Economic Offences, Bangalore in C.C. Nos. 502, 503 and 500/1984 respectively. Criminal Petition No. 112/1990 is filed under Section 482 Cr. P.C. to set aside the order dated 20-7-1989 passed by the VII Additional Sessions Judge, Bangalore, in Cr. R.P. No. 15/1985 confirming the order dated 14-11-1984 passed by the Special Court for Economic Offences, Bangalore, in C.C. No. 498/1984. Criminal Petition Nos. 214, 215 and 216/1990 are filed under Section 482, Cr. P.C. praying to quash the order dated 20-7-1989 passed by the VI Additional Sessions Judge, Bangalore City, in Cr. R.P. Nos. 44, 47 and 48/86 respectively including the order dated 25-2-1986 passed by the Special Court for Economic Offences, Bangalore, in C.C. Nos. 501, 692 and 743/1984 respectively. Criminal Petition No. 1367/1989 is filed under Section 482, Cr. P.C. to quash the entire proceedings in Cr. R.P. No. 42/1986 on the file of the VI Additional Sessions Judge, Bangalore City, confirming the order dated 24-2-1986 passed in C.C. No. 499/1984 on the file of the Special Court for Economic Offences, Bangalore. All these Criminal Petitions are filed against the similar orders passed by the Sessions Judge confirming the orders challenged in those petitions passed by the Special Court for Economic Offences, Bangalore, rejecting the applications of the petitioners under Section 245 Cr. P.C.
2. Since these petitions are directed against the similar orders of the Sessions Court and all these petitions involve common questions of law, I have heard them together and passing a common order in these petitions.
3. The facts leading to these petitions are as follows :
The Deputy Chief Controller of Imports and Exports, Bangalore, filed complaints in C.C. Nos. 502, 503, 500, 498, 501, 692, 743 and 499/1984 against the respective accused in those cases alleging that they have committed offences punishable under Sections 420, 467, 468 and 471 read with 120B of the I.P.C. and Section 5 of the Imports and Exports Act. After the accused appeared in those cases, they filed applications under Section 245, Cr. P.C. in all the said cases praying to discharge them. The Presiding Officer of the Special Court for Economic Offences, Bangalore, dismissed those petitions. Thereafter, the accused filed Criminal Revision Petitions in the Court of the Sessions Judge, Bangalore City, and the learned Judge, after hearing both sides, confirmed the order of the Presiding Officer of the Special Court for Economic Offences, Bangalore, rejecting the applications of the accused filed under Section 245, Cr. P.C. for their discharge. The accused are the petitioners in these petitions which they have filed under Section 482, Cr. P.C. challenging the said orders.
4. Sri P. S. Devadas, learned Counsel for the petitioners, argued as follows :
That the Special Court for trying economic offences mentioned in the schedule to the notification has been established for trial of the said economic offences. It does not empower such a special court to try such offences under the Indian Penal Code. Hence, it has no jurisdiction to try those offences under the Indian Penal Code. He referred to the provisions of the Prevention of Corruption Act, wherein a Special Judge is designated to try the offences under Section 3 of that Act and it is only after an amendment by Section 7 of the Criminal Law (Amendment) Act, 1952, a Special Judge was empowered to try any other offence other than the offence specified in Section 3 of the Act. Similarly, he referred to the provisions of the Essential Commodities Act wherein the Special Court could not try offences other than the offences under the Act. It is only by virtue of an amendment by incorporating Section 12AA, the Special Court could try the offences other than the offences under the Act. The submission of the learned Counsel is that the trial Court had no jurisdiction to try the offences under the Indian Penal Code against the accused persons. He also submitted that taking of cognizance by the Special Court was without application of its mind, and his last submission is that the Deputy Chief Controller of Imports and Exports is not a public servant since he had no power to file complaint under the Indian Penal Code and when he filed the complaint for the offence under the Indian Penal Code also, he was not acting in the discharge of his duties and he was just an ordinary complainant and the Court could not have taken cognizance of such an offence unless he was examined on oath. On the basis of his arguments, he contended that the impugned orders passed by the Court below are liable to be set aside and the complaints filed against the petitioners-accused are to be dismissed.
5. The learned Central Government Standing Counsel submitted that Section 11 of the Code of Criminal Procedure empowers a Magistrate to try any offence under the Indian Penal Code. The notification issued gives powers to the Magistrate to try the offences under the Acts mentioned in the schedule to the notification establishing the Special Court. Therefore, the Special Court had the powers to try the offences under the Indian Penal Code along with the offences under the Acts mentioned in the schedule to the notification.
6. He also submitted that the complaints are filed by the Deputy Chief Controller of Imports and Exports and he is a public servant and the Special Public Prosecutor filed the complaints on behalf of the complainant - The Deputy Chief Controller, on authorization.
7. The complaints are filed against the petitioners by the Deputy Chief Controller of Imports and Exports, Bangalore, alleging that the petitioners have committed the offences under Sections 420 467, 468 and 471 read with Section 120B of the I.P.C. and Section 5 of the Imports and Exports Act in the Special Court for Economic Offences. The contention of the learned Counsel for the petitioners is that the notification establishing that Court does not authorise that Special Court to try any other offence except the offences mentioned in that notification. A copy of the notification is produced at Annexure-B. It reads as follows :
"LAW AND PARLIAMENTARY AFFAIRS SECRETARIAT Notification No. LAW 106 LCE 79 Bangalore, dated 10th September, 1982 In partial modification of the Notification No. LAW 106 LCE 79, dated 1st September, 1982 and in exercise of the powers conferred by the proviso to sub-section (1) of Section 11 read with clause (j) of Section 2 and Section 18 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) the Government of Karnataka, in consultation with the High Court of Karnataka, established for a period of one year with effect from the 13th day of September, 1982 a Special Court of Judicial Magistrate First Class called the Special Court (Economic Offences), Bangalore Metropolitan Area and the District of Bangalore for the trial of offences under the Acts specified in the schedule having jurisdiction within the local area of the revenue district of Bangalore including the Bangalore Metropolitan area.
SCHEDULE
1. The Central Excises and Salt Act, 1944.
2. The Imports and Exports (Control) Act, 1947.
3. The Wealth Tax Act, 1957.
4. The Income Tax Act, 1961.
5. The Customs Act, 1962.
6. The Gold (Control) Act, 1968.
7. The Foreign Exchange Regulation Act, 1973.
8. Companies Profits (Sur tax) Act, 1964.
9. The Gift Tax Act, 1958.
10. The Export (Quality, Control and Inspection) Act, 1963.
11. The Companies Act, 1956.
12. The Monopolies and Restrictive Trade Practices Act, 1969.
By Order and in the name of the Governor of Karnataka, S. K. RAMADEVAMMA, Under Secretary to Government, Dept. of Law and Parly. Affairs, (Administration-I)." The notification clearly lays down that a Special Court of Judicial Magistrate First Class came to be established under this notification for the trial of offences under the Acts mentioned in the schedule to the said notification. There is no mention in the notification that the said Court is also empowered to try the offences under the Indian Penal Code.
8. The contention of the learned Central Government Standing Counsel is that the Court which is established to deal with the economic offences under the Act is the Court of a Judicial Magistrate under Section 11 of Cr. P.C. and it has got jurisdiction to try the offences under the Indian Penal Code. In Section 11 of the Cr. P.C. it is mentioned that the State Government with the consultation of the High Court may establish a Special Court of Judicial Magistrate of the First Class or of the Second Class to try any particular class of cases and when such Court is established, only such Court can try the cases or class of cases for which it is established. There cannot be any doubt that the cases to be tried by a Special Court for Economic Offences established under the notification cannot be tried by any other Court. But, the question is whether the Special Court can try the offence under the Act which has not been mentioned in the schedule to the said notification. The designation of the Court is "The Special Court (Economic Offences), Bangalore Metropolitan Area and the District of Bangalore" for the trial of offences under the Acts specified in the schedule to the notification, and the notification makes it clear that the said Court is for the trial of the offences under the Acts specified in the schedule. Indian Penal Code is not mentioned as one of the Acts in the schedule.
9. The argument of the learned Counsel for the respondent that the Magistrate is the Presiding Officer of that Court who is already empowered under Section 11 of the Cr. P.C. to try the offences and he is given additional jurisdiction to try the offences under the special enactments mentioned in the schedule cannot be accepted, because, though the Court of the Judicial Magistrate First Class is established as the Special Court for Economic Offences, Bangalore, the notification is very specific that such Court is for the trial of the offences under the Acts specified in the schedule and the Indian Penal Code is not the Act mentioned in the schedule. Under Section 3 of the Prevention of Corruption Act, 1988, a Special Judge who has been a Sessions Judge or Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure is created under a notification issued by the Central Government for the trial of the offences enumerated under Section 4 of the Prevention of Corruption Act. A Judge so created is designated as a Special Judge who has the power to try the offences under Section 3 of the Prevention of Corruption Act. A reading of Section 4(10) of that Act makes it clear that the Special Judge has no power to try any other offence other than those mentioned in Section 4(1) of that Act. By Section 7 of the Criminal Law (Amendment) Act, 1952, the provisions of the Prevention of Corruption Act came to be amended empowering the Special Judge to try any offence other than the offences specified in Section 3 with which the accused may be charged under the Code of Criminal Procedure in the same trial. A Special Judge so created is a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge. He has the powers to try the offences under the Code of Criminal Procedure. If the argument of the learned Counsel for the respondent were to be correct, there was no necessity for empowering the Special Judge who is a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge to try the offences other than the offences mentioned in Section 3 of that Act, because though he may be a Sessions Judge having powers under the Code of Criminal Procedure to try the offences under the said Act, he could not try the offences under the Indian Penal Code when he was created as a Special Judge, unless he was empowered to do so and that empowerment came only by Section 7 of the Criminal Law Amendment Act, 1952. Similarly, under the provisions of the Essential Commodities Act, the Special Courts are created for trial of the offences under the Essential Commodities Act. Before the amendment Act of 1981, the Special Court under the Essential Commodities Act had the power to try only the offences under that Act and it had no power to try the offences under the Indian Penal Code or any other law. But, by Amendment Act, 1981, Section 12AA(2) came to be added to the Act to empower the Special Court to try the offences other than the offences under the Act with which the accused may be charged under the Code for trial. Under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the Central Government is authorised to constitute one or more designated Courts for such area or areas for such class or classes of cases. By virtue of Section 12, such a designated Court is empowered when trying and offence in the case specified in the notification to try other offences also with which the accused may under the Code be charged at the same trial if the offence is connected with other offence. In view of these reasons, it is difficult to accept the contention of the learned Counsel for the respondent that merely because the Presiding Officer of the Special Court for Economic Offences is a Judicial Magistrate First Class, he is empowered to try the offences under the Indian Penal Code along with the Offences under the Acts mentioned in the schedule in the notification establishing the said Court. Both the Courts below have lost sight of this aspect of the case. Hence, it will have to be held that the Special Court for Economic Offences established under the notification by the State Government has 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 unless and until the notifications are modified empowering that Court to try the offences under the Indian Penal Code or any other law other than the Acts mentioned in the schedule.
10. The next contention of the learned counsel for the petitioner is that the Court has not applied its judicial mind to the case before taking cognizance of the offence in these cases. The order of the Magistrate written in hand is as follows :
"Cognizance taken. Register the case. Issue summons to the accused.
Taking cognizance is a judicial act. It is also a well settled law that before taking cognizance, the Court is required to apply its judicial mind. In the case of Devarapalli Lakshminarayana Reddy & Others v. Narayana Reddy & Others , the Supreme Court has held as follows :
"The expression 'taking cognizance of an offence' by the Magistrate has not been defined in the Code. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If instead of proceeding under Chapter IX, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence."
There must be some indications in the order of the Magistrate taking cognizance of the offence that he had applied his judicial mind before taking cognizance. The order in this case passed by the Presiding Officer of the Special Court does not disclose that he even perused the complaint before taking cognizance of the offence. How can we say that the Magistrate had applied his mind to the complaint before taking cognizance of the offence when it is not even referred to by him in the order that he perused the complaint? There are so many offences alleged against the accused. The order of the Presiding Officer of the Special Court does not disclose as of which offence he had taken cognizance. It is very difficult to come to the conclusion after perusing the order of the Presiding Officer of the Special Court quoted above that he had applied his judicial mind to the complaint before taking cognizance of the offence in this case.
11. The next contention of the learned Counsel for the petitioners is that the Deputy Chief Controller of Imports and Exports was to be examined as he was an ordinary complainant and was not acting in the discharge of his duties when he filed the complaints under the Indian Penal Code also. The Deputy Chief Controller of Imports and Exports has filed the complaints against the petitioners for the offence under Section 5 of the Imports and Exports Act. The Central Government in exercise of the powers conferred on it by Section 6 of the Act has authorised specific officers to make complaints in writing in Courts in respect of any offence punishable under Section 5 of the Act. That notification is produced by the petitioners as Annexure-F. The Deputy Chief Controller of Imports and Exports is one of such officers motioned in Article 314. But, it is to be noted that he is authorised to file complaints only under Section 5 of the Imports and Exports Act. There is no power given to the Deputy Chief Controller of Imports and Exports to file complaints for the offences under the Indian Penal Code. When his complaints are in respect of offences under the Indian Penal Code also, he cannot be said to be a complainant who was acing in discharge of his duties as a public servant and, therefore, it was necessary that he ought to have been examined by the Court under Section 200 of the Cr. P.C.; of course, this procedure ought to have been followed by the Court only if it had the powers to try the offences under the Indian Penal Code which the Court is not empowered to do so for the reasons discussed by me above. Hence, I am of the opinion that the contentions of the learned Counsel for the petitioners are sustainable in law and the petitions are required to be allowed.
12. Hence, I proceed to pass the following order :
The petitions are allowed. The orders of both the Courts below challenged in these petitions are set aside and the application filed by the petitioners under Section 245 Cr. P.C. are allowed and they are discharged.