Madhya Pradesh High Court
State Of M.P. vs Radhakrishna Son Of Ranglal Dubey, ... on 17 April, 2008
Author: A.K. Saxena
Bench: A.K. Saxena
ORDER A.K. Saxena, J.
1. A reference has been made by the Special Judge of Special Court, Bhind constituted under the M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 (for short 'the Adhiniyam'), under Sub-section (2) of Section 395 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') on the question that where a Special Court has been constituted under the Adhiniyam and another Special Court has been constituted under the Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act') and only one charge-sheet is filed for the trial of the offences under the Adhiniyam and the Act, then which Court has jurisdiction to try the case ?.
2. According to reference, the Crime No. 312/02 has been registered by Police Station City Kotwali, Bhind against three accused under Sections 364-A, 302, 120-B of I.P.C., 3(2)(v) of the Act and 11/13 of the Adhiniyam. The charge-sheet has already been filed in the Special Court, who is authorised to try the offences punishable under the Adhiniyam. At the time of filing of the charge-sheet, the Special Court was vacant but the case No. 100/04 was registered in that Special Court in absence of the Presiding Judge of the Court. It has been submitted in the reference that two separate Special Courts have been constituted separately to try the offences under the Act and the offences punishable under the Adhiniyam arise out of the area of Bhind District whereas one charge-sheet has been filed to try the offences which are triable by two different Special Courts.
3. The notices were sent to all the three accused of the case, but they did not prefer to come before this Court and instead, they requested that their case may be transferred to any of the Courts.
4. The learned Additional Advocate General Shri T.S. Ruprah argued the matter at length. Shri S.C. Datt, Senior Counsel also extended his valuable assistance at the request of the Court and they are of the view that a Special Court cannot take the cognizance of the offences which are triable by another Special Court. They also referred various provisions of the Code as well as the provisions of the Adhiniyam and the Act.
5. Before considering the point under reference, it would be profitable to refer different provisions of the Code as well as the Adhiniyam and the Act because the charge-sheet has been filed in the Court of Special Judge, Bhind to try the offences punishable under the Adhiniyam and the Act also. Section 4 of the Code deals with the matter of investigation, inquiry and trial of the offences under the Indian Penal Code and any other law and those provisions are as follows:
Section 4. (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 to 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.
6. The proviso of Section 11 of the Code provides that Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.
7. The powers of the Court have been provided under Section 26 of the Code, which are as follows:
Section 26. Subject to the other provisions of this Code
(a) any offence under the Indian Penal Code (45 of 1860) may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.
8. A combined reading of all these provisions indicates that the offences under the Indian Penal Code may be tried by the Court of Session or any other Court by which such offence is shown in the First Schedule to be triable or when any Court is mentioned in this behalf in such other law, then the offence shall be triable by such Court. It means where any other law provides that the offence under that law shall be triable by a Special Court, then such offence cannot be tried by any other Court.
9. Section 6 of the Adhiniyam stipulates that the State Government may in consultation with the High Court, constitute as many Special Courts as may be necessary in or in relation to such dacoity and kidnapping affected area or areas as may be specified in the notification. Section 7 of the Adhiniyam provides that notwithstanding anything contained in the Code, or any other law for the time being in force, a specified offence shall be triable only by a Special Court and in trying any specified offence, a Special Court may also try any offence other than the specified offence with which the dacoit may, under the Code, be charged at the same trial, if the offence is connected with the specified offence.
10. Section 14 of the Act also provides the powers of State Government to constitute Special Courts with the concurrence of the Chief Justice of the High Court. But the Adhiniyam and the Act both, do not empower the Special Courts to try the offences of other Acts for which the Special Courts under other Acts have been constituted by the State Government with the consultation of the High Court or the Chief Justice of the High Court. There is no provision in the Code which provides that the offences under different Acts triable by different Special Courts, can be tried by any of the Special Courts. The above mentioned provisions of the Code, the Adhiniyam and the Act indicate that the Special Court constituted under the Adhiniyam, cannot try the offences punishable under the Act and the Special Court constituted under the Act, cannot try the offences punishable under the Adhiniyam, as both the aforesaid Special Courts have been constituted under two different laws and only for the purposes of trial of offences under respective laws.
11. Now, at this stage, the nature of the notifications, issued by the State Government, may be considered. The State Government, in consultation with the High Court of Madhya Pradesh, constituted the Special Courts in relation to dacoity affected areas and following notification was published on 19th May, 1981 in M.P. Rajpatra (Asadharan) at page 1000.
F. No. 1-7-81-B-XXI, dated the 19th May, 1981.-In exercise of the powers conferred by Sub-section (1) of Section 6 of the Madhya Pradesh Dakaiti Prabhavit Kshtra Adhyadesh, 1981 (No. 5 of 1981), the State Government, in consultation with the High Court of Madhya Pradesh hereby constitutes the Special Courts specified in column (2) of the Schedule below in relation to this dacoit affected areas as specified in the corresponding entries in column (3) of the said Schedule.
SCHEDULE
S. No. Special Courts Areas
(1) (2) (3)
1. Special Court, Morena Revenue District,
Morena.
2. Special Court, Bhind Revenue District,
Bhind.
3. Special Court, Gwalior Revenue District,
Bhind. Gwalior and Datia.
4. Special Court, Datia Revenue District, Datia.
5. Special Court, Shivpuri Revenue District,
Shivpuri.
6. Special Court, Guna Revenue District, Guna.
7. Special Court, Sagar Revenue District, Sagar.
8. Special Court, Damoh Revenue District, Damoh.
9. Special Court, Tikamgarh Revenue District,
Tikamgarh.
10. Special Court, Chhatarpur Revenue District,
Chhatarpur.
11. Special Court, Panna Revenue District, Panna.
12. The other notification for the constitution of Special Courts to try the cases under the Act, was also published by the State Government with the concurrence of the Chief Justice of High Court of Madhya Pradesh which runs as follows:
F. No. 1/2/90/XXI-B(1),--In exercise of the powers conferred by Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (No. 33 of 1989) the State Government with the concurrence of the Honourable Chief Justice of the High Court of Madhya Pradesh, hereby specifies for each of the districts mentioned in column (1) of the table below, a Court of Sessions specified in the corresponding entry in column (2) of the said table to be a Special Court to try the offences under the said Act.
TABLE
Name of the District Name of the Special Court
of Session
(1) (2)
Balaghat Sessions Court, Balaghat
Bastar at Jagdalpur Sessions Court, Bastar
Betul Sessions Court, Betul
Bhind Sessions Court, Bhind
Bhopal Sessions Court, Bhopal
Bilaspur Sessions Court, Bilaspur
Chhindwara Sessions Court, Chhindwara
Chhatarpur Sessions Court, Chhatarpur
Damoh Sessions Court, Damoh
Datia Sessions Court, Datia
Dewas Sessions Court, Dewas
Dhar Sessions Court, Dhar
Durg Sessions Court, Durg
East Nimar Khandwa Sessions Court, East Nimar
(Khandwa)
Guna Sessions Court, Guna
Gwalior Sessions Court, Gwalior
Hoshangabad Sessions Court, Hoshangabad
13. These notifications clearly indicate that the Special Courts constituted by the State Government under these notifications, were not empowered to try the cases of other Special Courts constituted under other Acts or in other words, these two Special Courts have no power to take cognizance of the cases of each other. The forum of the trial of the offences under a particular Act is regulated by that Act, if provided. According to the notifications issued by the State Government, since Special Courts have been established and the provisions of the forum of the trial have been made, certainly the trial cannot go in accordance with the general provisions of the Code.
14. The maxim generalia specialibus non derogant has been considered in the case of Sanwarmal Kejriwal v. Vishwa Cooperative Housing Society Ltd. and Ors. in respect of jurisdiction of the Courts. Though, this maxim was considered in a civil matter, but it will also be applicable in the matter of jurisdiction of the Courts who are dealing with the criminal cases. The Apex Court put the question in this case as to what happens when competing provisions vesting jurisdiction under different laws open with non-obstante clause and invest jurisdiction in different Courts ? Thereafter answered the question that a general provision would have to give way to the special provision on the maxim generalia specialibus non derogant. No doubt, the provisions in respect of the trial under the Code would not apply where a Special Court under any other law has been established but what about jurisdiction, where two Special Courts have been constituted under two different Acts and a charge-sheet involving various offences under those Acts has been filed in one Special Court, is a matter of consideration.
15. While dealing with the matter of creation of Special Court of a Judicial Magistrate and pending cases in another Court, the Allahabad High Court laid down the following principle in the case of Raghunath Rai v. State of U.P. and Ors. 1993 (1) Crimes 1001 as follows:
Thus as soon as the Special Court of Judicial Magistrate of the First Class was created to try the offences punishable under the Act, the jurisdiction of all other Magistrates to try the offences under the Act ceased. It cannot, in the circumstances, be said that the Magistrate before whom the matter was pending before the establishment of the Special Court of Judicial Magistrate First Class continued to have jurisdiction to try the case. In view of the above fact, this Court was right in directing that all the cases pending before other Magistrates should be transferred to the court of special Court of Judicial Magistrate of the First Class, Lucknow for trial.
16. In the case of Dy. Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors. , the Apex Court found that the Judicial Magistrate, First Class, who by virtue of the notification became a Special Court, was not divested of the jurisdiction which he otherwise possessed under Section 26 of the Code.-----The language of the notification also does not show that powers or jurisdiction of a Judicial Magistrate, who is to perform the functions of a Special Court to try the offences under the Acts are being affected or curtailed in any manner.
17. Though, the above case is not directly connected with the point involved in this case, but it is very much clear from the principles laid down in the above case that if there is no curtailment of jurisdiction to try the offences under a particular Act, certainly the Court is empowered to try the cases of other Acts. It means, if there is curtailment of powers or jurisdiction after issuance of notifications, certainly the charge-sheet can only be filed in accordance with the notifications issued by the Government. In other words, if the Special Court is constituted to try an offence of a particular Act and another Special Court is constituted to try an offence of other Act, certainly both the Courts cannot exceed their jurisdiction to try the cases of each other.
18. Section 7 of the Adhiniyam provides the jurisdiction of Special Court and according to it, only the Special Court can try the specified offences but the Special Court may also try any offence other than the specified offence with which the dacoity may, under the Code, be charged at the same trial, if the offence is connected with the specified offence. Since the Special Courts have been constituted by the State Government to try the offences punishable under the Act, therefore, the provisions of Section 7 of the Adhiniyam become redundant for the purposes of the trial of offences punishable under the Act. The Adhiniyam and the Act do not provide that the trial of the offences punishable under the other Acts, under which the Special Courts have been constituted to regulate the trial, may be tried by the Special Court constituted under the Adhiniyam or the Act. It means the Special Courts, constituted under the Adhiniyam or the Act, have no jurisdiction to try the offences of other Acts for which the Special Courts have been constituted. In other words, in absence of any provision or notification, the Special Court constituted under one Act, cannot try the offences triable by the Special Court constituted under another Act even if only one charge-sheet is filed in a Special Court for the trial of different offences punishable under different Acts under which different Special Courts have been constituted.
19. The main purpose of the constitution of Special Courts is to provide speedy trial, but it appears that the State Government did not consider this aspect as to when a person commits different offences punishable under different Acts and for the trial of those offences, two or more Special Courts have been constituted, then which of the Courts will try the case where only one charge-sheet is filed for the trial of the offences. In view of the provisions of Sub-section 2 of Section 4 of the Code, all the offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to 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 offence. The provisions of Section 11 of the Code are also relevant though, these provisions relate to jurisdiction of Special Court of Judicial Magistrate. A combined reading of above provisions of the Code, various provisions of the Adhiniyam and the Act and also the notifications issued under the Adhiniyam and the Act, this Court is of the considered opinion that where one charge- sheet is filed for the trial of offences punishable under different Acts in a Special Court and the State Government notified different Special Courts under the different Acts to try the cases independently, certainly in absence any of law or notification, one Special Court will not be empowered to try the offences of other Acts for which different Special Courts have been constituted for want of jurisdiction. At the most, if a charge-sheet is filed in which the offences triable by two Special Courts are involved, the Special Court in which the charge-sheet is filed, is empowered to take cognizance of those offences only for which that Special Court is constituted and that Special Court cannot take the cognizance of the offences which are triable by another Special Court. In such type of situation, it is duty of the prosecution to take appropriate steps so that the disposal of the case may not be delayed. At the same time, it is duty of the State Government to consider desirability to amend the law or to constitute Special Courts so that one Special Court may be able to try different offences of different Acts triable by different Special Courts so that the goal of speedy trial may be achieved.
20. In view of the above discussion, the conclusion of this Court on the matter is that where two Special Courts have been constituted by the Government for the trial of offences punishable under different Acts and these Special Courts have no power to try the offences of other Act in view of the provisions of those Acts or the notifications issued, the Special Court constituted under one Act for the purposes of trial of offences of that Act, cannot try the cases of other Acts for which, other Special Court has been constituted. At the most, the Special Court where the charge-sheet is filed, can try the offences punishable under the Adhiniyam for which the Special Court is constituted vide notification issued by the State Government but the same Special Court cannot try the cases punishable under the Act. With this conclusion, the reference is answered accordingly. This Court is thankful to Shri S.C. Datt, learned Senior Counsel for his valuable assistance rendered to the Court in this case.