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1985 DIGILAW 371 (KER)

State v. Gopalan

1985-11-20

S.PADMANABHAN

body1985
ORDER S. Padmanabhan, J. 1. Two points on which the Special Judge appointed under the provisions of the Essential Commodities (Special Provisions) Act 18 of 1981 entertained doubts necessitated these two references to the judicial side. They are (1) whether the Special Judge is competent to take cognizance of offences under the Essential Commodities Act as amended by the Special Provisions Act 18 of 1981 without the accused being committed before him by a competent Magistrate and (2) whether the Special Judge has jurisdiction to take cognizance of offences committed prior to 1st September 1982 on which date the Special Provisions Act Came into force. 2. On the first point itself the Special Judge raised more than one question. In the first place he raised a distinction between cases instituted on police report and cases instituted on the reports of public servants as defined in section 21 of the Indian Penal Code other than police officers. According to him even if it is taken that he is competent to take cognizance on a police report without the accused being committed by a competent Magistrate, the position must be different in taking cognizance on the report of other public servants. He holds the view that at any rate in the second category of cases (on the reports of public servants other than police officers) the report must be filed before the competent Magistrate and he can take cognizance only on committal. In the first category of cases (cases on police report) he takes the stand that 'police report' mentioned in section 12AA (1) (e) of the Special Provisions Act could only be a final report under Section 173 (2) of the Criminal Procedure Code and hence even if he is competent to take cognizance without committal it could be only on the final report. In other words his stand is that the F.I.R. and other papers before the filing of the final report under section 173(2) could only be presented before the competent Magistrate and he (Special Judge) is not bound to entertain them. His ultimate opinion is that he is competent to take cognizance of any offence as a court of original jurisdiction under section 193 of the Criminal Procedure Code only on committal. His ultimate opinion is that he is competent to take cognizance of any offence as a court of original jurisdiction under section 193 of the Criminal Procedure Code only on committal. The further point raised by him in this respect is that in cases which were already entertained by Magistrates by receiving papers or by taking cognizance on reports, transfer of the cases to him by the Magistrates on the administrative direction of the High Court is not competent and there must be orders of transfer by the High Court under section 407 of the Criminal Procedure Code. Repeated administrative directions from the High Court on all the above points based on the reports of a committee of three Judges constituted by the Chief Justice were being regularly flouted by him under some pretext or other. He refused to entertain cases forwarded to him by different Magistrates as per the directions of this Court and returned the papers. Police reports and reports from other public servants under section 11 of the Essential Commodities Act were also not entertained by him. That attitude has resulted in much inconvenience and harassment as well as delay in dispensation of justice. It is in this background that the reference came. 3. The question whether amendments by the Special Provisions Act is a bar to taking cognizance as provided in section 11 of the Essential Commodities Act, on the report in writing of a public servant as defined in section 21 of the Indian Penal Code other than police officers, was considered by me in Abdul Nazar v. Mohammedkutty 1985 K.L.T. 824 and it was held: "When the statute itself provides as to how cognizance will have to be taken by the courts, it may not be proper for the courts to read into the provisions that one of the modes of cognizance provided in the statute has been impliedly repealed by another provision especially when an interpretation of the latter provision cannot yield such a consequence. So far as the case in hand is concerned, the provisions of section 11 authorise cognizance being taken on the report of a public servant which includes a police report under section 173(2) and 173 (8) of the Code of Criminal Procedure. Section 12-AA (1) (e) only clarifies the position by saying that cognizance could be had on the basis of a police report also. Section 12-AA (1) (e) only clarifies the position by saying that cognizance could be had on the basis of a police report also. It appears that the main object of section 12-AA (1) (e) is to provide that in spite of the provision in section 193 of the Code of Criminal Procedure, as a court of original jurisdiction, the Special Judge will be competent to take cognizance without a committal proceeding. By no stretch of imagination, it could be read into the provisions of section 12-AA (1) (e), a Legislative intent to exclude the operation of section 11. A harmonious interpretation keeping alive sections 11 and 12-AA (1) (e), which appear in quick succession in the statute is possible and a contrary interpretation is impossible also. In such a contingency, it is not the province of the Court to read into the provisions of section 12-AA (1) (e) what is not evidently the legislative intent. None of the provisions of the Principal Act or the Amending Act are indicative of the fact that the right to take cognizance or the right of vindication of justice in relation to the offences under the Act are restricted or taken away except as provided in section 11 which has to be read subject to the provisions of section 12-AA (1) (e). There is no possibility of any conflict between the two provisions. They are not mutually exclusive also. Therefore, no question of implied repeal could be considered as the legislative intent." 4. In spite of drastic amendments to various provisions of the Essential Commodities Act introduced by sections 3 to 11 of the Special Provisions Act, though as a temporary measure, section 11 of the Parent Act was left untouched. That means the legislature wanted taking cognizance under section 11 to continue. Such cognizance includes cognizance on police report also. The amended provision in section 12-AA (1) (e) that the special court may take cognizance upon a perusal of police report need be taken only as a clarification to section 11 in order to make it clear that the report of a public servant mentioned in section 11 includes a police report also. It cannot be interpreted that section 12-AA (1) (e) restricted taking cognizance by special court only on police report. Bringing offenders to justice is not only the right of citizens but their duty also. It cannot be interpreted that section 12-AA (1) (e) restricted taking cognizance by special court only on police report. Bringing offenders to justice is not only the right of citizens but their duty also. The restriction to this right imposed by sections 11 is in public interest in order to avoid harassment at the hands of rival individual businessman. No further legislative intent to restrict this right could be read even if sections 11 and 12-AA (1) (e) are taken together. What section 12-AA (1) (e) says is only 'may' and not that cognizance should be taken solely on police report. So also there is nothing to indicate that cognizance without the accused being committed for trial provided under section 12-AA (1)(e) is restricted only to police reports and in the case of reports filed by other public servants cognizance should be taken by Magistrates who will have to commit the accused to the special court. Such different treatments cannot be read into the provisions in the absence of any provision indicating a legislative intent that committal proceedings is necessary in some cases. The object and purpose of the legislation as evident from the preamble definitely negatives such a legislative intent which will have the effect of delaying trials. The amendments are intended to deal more effectively with persons indulging in hoarding and blackmarketing of, and profiteering in, essential commodities and to provide speedy trials of offences under the Act. 5. Under section 11 read with the other provisions the Special Court is bound to take cognizance when a public servant as defined under section 21 of the Indian Penal Code makes a report in writing. He cannot say that the report will have to be filed before the Magistrate and he will take cognizance only on committal. Under section 12-AA (1) (e) all offences under the Act are triable only by the Special Court. Section 12-AA (1) (b) limits the powers of the Magistrates and specifies what they could do. Magistrates have only the limited power of authorising the detention of an accused or a person suspected of the commission of an offence under the Act for a period not exceeding 15 days in the whole or release him if he is satisfied that the case falls under the proviso to section 8 of the Act. In other words the Act specifies what the Magistrates could do. In other words the Act specifies what the Magistrates could do. No other powers are available to them. Before the amendment, under the provisions of the parent Act, Metropolitan Magistrates and First Class Magistrates specially empowered by the States had the power to pass sentence, but that section was omitted and the powers of the Magistrates were taken away. Under section 173 (2) of the Criminal Procedure Code the police report has to be forwarded to the Magistrate empowered to take cognizance of the offence. But for section 12-AA (1) (e) of the Special Provisions Act the position would have been as envisaged by section 173 (2) of the Code. Section 12-A (c) making the provision of the Criminal Procedure Code applicable to proceedings before the special court is only 'save as otherwise provided in this Act'. Section 12-AA (1)(e) makes section 173 (2) of the Code specifically inapplicable. When section 11 and section 12-AA (1) (e) are read together it would definitely indicate that the special judge is bound to take cognizance of offences under the Act in all cases on the reports of public servants including police officers without insisting on the accused being committed before him. 6. The Special Judge assumes that for the purposes of the Act he is a Sessions Judge and the special court is a Court of Session. He also assumes that the provisions of Chapter XVIII of the Code dealing with trial before a court of session is applicable to trials conducted by him. But he has not noticed the fact that under section 12-AA (1) (f) all offences under the Act are to be tried in a summary way and the provisions of sections 262 to 265 of the Code, both inclusive, shall apply to the said trial. For summary trials the procedure prescribed in Chapter XVIII for the trial of sessions cases is not applicable. Therefore, the offences under the Act are to be tried without reference to provisions of sessions trial. The various provisions of the Act indicate that the Special Judge is just like a Magistrate for the purposes of the Act, but on account of the object and purpose and the gravity of the offences the Government has chosen to entrust the duties to an officer senior in rank. 7. Two courts constituted under the Criminal Law Amendment Act, 1952, are functioning at Ernakulam. 7. Two courts constituted under the Criminal Law Amendment Act, 1952, are functioning at Ernakulam. Under section 8 (1) of that Act no committal proceedings is necessary. The provisions therein are similar to the Essential Commodities (Special Provisions) Act. A different interpretation is not called for in the case of the latter statute. What section 193 of the Criminal Procedure Code provides is only that: "Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." (emphasis supplied). Section 209 of the Code provides that in the case of offences triable exclusively by the Court of Sessions, the Magistrate shall commit the case to the Court of Session after complying with the requisite formalities. The Special Judge thinks that these provisions are applicable to the court. In the first place the provisions of section 193 regarding taking cognizance, applies, even conceding that it is applicable to the Special Court, only in the absence of contra indication in the Code or any other law. The Special Provisions Act is 'any other law for the time being in force' and it specifically provides that the Special Judge is bound to take cognizance without the accused being committed to it. Further section 209 of the Code applies only to offences triable exclusively by the Court of Sessions. The offences under the Act are not offences exclusively triable by the Court of Session. A reading of section 193 of the Code shows that even a Court of Session will be entitled to take cognizance of any offence as a court of original jurisdiction without committal if that is allowed by any other law. The special court constituted under the Act is not a Court of Session in the strict sense of that term under the Code. The qualification prescribed for the Special Judge under section 12-A (3) is no consideration to decide that it is a Sessions Court or the Judge a Sessions Judge. It is only a special court and the Judge is only a Special Judge appointed to that court and not a Sessions Judge appointed to any Sessions Court in a sessions division. The qualification prescribed for the Special Judge under section 12-A (3) is no consideration to decide that it is a Sessions Court or the Judge a Sessions Judge. It is only a special court and the Judge is only a Special Judge appointed to that court and not a Sessions Judge appointed to any Sessions Court in a sessions division. Most probably a Sessions Judge in service will be posted as Special Judge. But that does not mean that he is presiding over that court as a Sessions Judge or that his court is a Sessions Court. The Special Judge took the stand that committal proceedings are required mainly based on sections 12-AB and 12-AC of the Essential Commodities (Special Provisions) Act, 1981 which read: "12-AB Appeal and revision.The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Sessions trying cases within the local limits of the jurisdiction of the High Court. 12-AC Application of Code to proceedings before a Special Court. Save as otherwise provided in this Act, the provisions of the Code (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 Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor." Except under the above two deeming provisions it is not stated anywhere in the Act that the Special Court is a Court of Session. I have already stated that the Special Judge has to try the cases summarily and not in accordance with the procedure in Chapter XVIII of the Criminal Procedure Code for trial of sessions cases. Section 12-AB, for the purposes of appeals, references and revision under Chapters XXIX and XXX of the Code alone deems "as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session". If the special court is treated as a Sessions Court and the Special Judge a Sessions Judge this provision is meaningless. If the special court is treated as a Sessions Court and the Special Judge a Sessions Judge this provision is meaningless. Section 12-AC also only deems the special court as a Sessions Court for the purposes of applying certain provisions of the Code and see that trials are conducted by Public Prosecutor. Without these provisions the orders passed by the Special Judge could have been taken in appeal or revision to the local Sessions Court. The effect of the deeming provisions equating or treating the special court as a Court of Session for certain specified purposes is not to convert the special court into a Sessions Court. According to section 9 of the Criminal Procedure Code there will be only one Sessions Court for every sessions division which shall be presided over by a Sessions Judge; Additional Sessions Judges and Assistant Sessions Judges appointed by the High Court to exercise jurisdiction in the Court of Session. The Special Judge is not appointed under section 9 to any sessions division or any Sessions Court and he cannot exercise jurisdiction in a Court of Sessions also. In this case he is appointed to exercise State-wide jurisdiction in a special court. The Special Judge who is a Sessions Judge, in the State service appear to be unhappy for the further reason based on status and prestige of the office. While Sessions Judges need take cognizance in their original jurisdiction only on committal and when they are not burdened with the duty of receiving F.I.R. and other papers which will be received by the competent Magistrates, he seems to feel belittled by the responsibilities which the Sessions Judges are not to shoulder. Such feelings are absolutely out of place because they are only duties attached to the post and enjoined by the statute. 8. Even though the Special Provisions Act do not specifically prohibit any Magistrate from taking into file .any case covered by the Act, only very limited powers specified by section 12-AA (1) {b) are being invested on them. Even in such cases unless he is not satisfied that the case falls under the proviso to section 8 he cannot grant bail and he will have to forward the person to the Special Judge and transmit the papers. Thereafter the Special Judge has to deal with the case. Even in such cases unless he is not satisfied that the case falls under the proviso to section 8 he cannot grant bail and he will have to forward the person to the Special Judge and transmit the papers. Thereafter the Special Judge has to deal with the case. These relate to proceedings before the final report under section 173 (2) when the accused or persons suspected of commission of offence are forwarded to Magistrates under section 167 (2) or 2A of the Code during the stage of investigation. The stand taken by the Special Judge is that if he is to take action under sections 157 or 167 etc., of the Criminal Procedure Code, which actions under the Code are to be taken by Magistrates instead of Sessions Judges, their will be ever so many difficulties. But those difficulties are only fanciful than real. When the Special Judge is invested with powers under the Act to take cognizance and when it is made his duty to do so without committal, the follow up actions are also duties attached to that post and there is no point in saying that there will be difficulties. An officer may have to discharge difficult tasks also attached to a post. The Special Judge does not appear to have noted the fact that as opined by the committee of Judges, he is only a "glorified Magistrate" so far as the provisions of the Act are concerned. 9. Though on all the above points a committee consisting of Justice K. K. Narendran, Justice M. P. Menon and Justice M. Fathima Beevi gave their report with detailed reasons negativing the views of the Special Jugde, and even though the High Court gave him repeated directions on the administrative side accepting the said report, the Special Judge was not convinced and he was reiterating his original stand. Even though he was told that an order under section 407 of the Criminal Procedure Code is not necessary and directed the Sessions Judges and Chief Judicial Magistrates to transmit or forward the records of the cases covered by the direction, the Special Judge refused to accept these records. Even though he was told that an order under section 407 of the Criminal Procedure Code is not necessary and directed the Sessions Judges and Chief Judicial Magistrates to transmit or forward the records of the cases covered by the direction, the Special Judge refused to accept these records. He still insisted that cases pending before the Subordinate Courts in respect of offences under the Act committed on and after 1st September 1982 (the date on which the Special Provisions Act came into force) will have to be either committed to him or else they will have to be transferred to him by orders passed by the High Court under section 407 of the Code. So also he contended that when section 12-AA (1) (e) is taken along with 12 (c) he can take cognizance without committal only on perusal of a final report of the police filed under section 173 (2) of the Criminal Procedure Code. That means he is not bound to receive any paper before the accused is charge-sheeted before him by the police. Cognizance could be taken only under any of the modes prescribed under section 190 and in the case of a Sessions Judge exercising original jurisdiction as provided under section 193 of the Criminal Procedure Code. In a police charge case the question of taking cognizance arises only on receipt of the final report under section 173 (2) by which alone the investigating agency places the accused for trial before court after collecting evidence. Stages prior to that include only receipt of papers like F.I.R., ordering remand or granting bail etc., which are actions to be taken statutorily as follow up actions. For example under section 12-AA (1) (e) the Special Judge has to exercise his jurisdiction under section 167 of the Code in relation to persons forwarded to him. He cannot say that these are not his duties and such duties will cause difficulties to him. Such refusal will amount refusal to exercise jurisdiction vested in him. Likewise when a Drugs Inspector or some other competent public servant files a report under section 11 of the Act he cannot say that he will not receive the same and it has to be filed before the Magistrate and committed to him. Such refusal will amount refusal to exercise jurisdiction vested in him. Likewise when a Drugs Inspector or some other competent public servant files a report under section 11 of the Act he cannot say that he will not receive the same and it has to be filed before the Magistrate and committed to him. Regarding offences under the Essential Commodities Act as amended by the Special Provisions Act committed on or after 1st September 1982 (see proviso to section 2 of the Act) Magistrates have no jurisdiction because the jurisdiction has been taken away and given exclusively to the special courts under section 12-AA (1) (a). If the Special Judge, who is the only officer competent to entertain cases, refuse to exercise jurisdiction by receiving papers and shunt case records and accused from place to place, as was done by the Special Judge in these cases, in spite of repeated directions from the High Court, the situation is serious. It is for the High Court on the administrative side to consider whether under these circumstances the explanation of the Special Judge has to be called for to decide whether any disciplinary action against him is necessary for the repeated flouting of the administrative directions causing harassment to all concerned. Such conscious enjoyment of sadistic pleasure by judicial officers will not be condusive to dispensation of justice for which courts exist. For fear of burdening the order I am not enumerating the umpteen instances where this particular officer repeatedly flouted the directions of this court as noticed by me on perusing the file. 10. The reference on the first point is answered as under. The Special Judge is bound to take cognizance of all cases relating to offences under the Essential Commodities Act as amended by the Special Provisions Act committed on or after 1st September 1982 without the accused being committed to him for trial. Such cognizance he is bound to take without committal not only in the case of police reports under section 12-AA (1) (e) but also on the basis of reports by other public servants coming under section 21 of the Indian Penal Code as provided in section 11. Such cognizance he is bound to take without committal not only in the case of police reports under section 12-AA (1) (e) but also on the basis of reports by other public servants coming under section 21 of the Indian Penal Code as provided in section 11. Even before, taking cognizance on getting a police report under section 173 (2) of the Criminal Procedure Code the Special Judge is bound to receive F.I.R. and other papers and exercise the jurisdictions which could have been exercised by Magistrates but for the amendments. Without committal or without orders of the High Court under section 407 of the Criminal Procedure Code he is bound to receive cases, papers and accused forwarded to him by the Magistrates and Sessions Judges as per the administrative directions issued by this court. Cases of the above category already received by the Magistrates or cognizance taken by them also need not be committed and no order under section 407 of the Criminal Procedure Code is necessary. 11. Now I shall come to the second question. Before the Essential Commodities Act was amended temporarily for a period of five years with effect from 1st September 1982 by the Special Provisions Act, 1981, Metropolitan Magistrates and Judicial First Class Magistrates empowered by the State Governments had jurisdiction to entertain, take cognizance, try and dispose of cases under the Essential Commodities Act, section 12 dealing with such powers was omitted by amendment and section 12-AA (1) (a) of the Special Provisions Act gave exclusive jurisdiction to the Special Courts constituted under the amended provision. Section 2 provided that during the continuance in force of the Amending Act the parent Act shall have effect only subject to the amendments specified, in sections 3 to 11. That means after the amendment exclusive jurisdiction is with the Special Court. 12. But the proviso to section 2 says that amendments specified in sections 7 to 11 shall not apply to, or in relation to, any offence under the Principal Act committed before the commencement of the Special Provisions Act (1st September 1982) and the provisions of the Principal Act shall apply to, and in relation to such offence as if those amendments have not been made. Amendments were made by sections 3 to 11 of the Amending Act. Amendments were made by sections 3 to 11 of the Amending Act. But the proviso deals with only cases relating to offences coming under the amendments covered by sections 7 to 11. This is only because amendments by sections 3 to 6 do not relate to cases coming up before courts, The proviso to section 2 contains the saving clause which says that amendments specified in sections 7 to 11 will not affect cases relating to offences committed prior to 1st September 1982 and regarding such cases the provisions of the Principal Act shall apply as if the amendments had not been made. It is true that jurisdiction of a court is not decided. In relation to the point of time at which the court was established. In the absence of the above saving clause the Special Court would have been competent to entertain and try cases relating to offences committed even before the amendments. When the amendments under sections 7 to 11 are specifically excluded in relation to cases for offences committed prior to 1st September 1982 jurisdiction regarding such cases will have to be under the provisions of the unamended Principal Act. 13. The majority of the amendment including the omitting of section 12 which gave jurisdiction to Magistrates and the formation of Special Courts and giving exclusive jurisdiction to it are all covered by the amendments and new provisions introduced by section 11. When these provisions are specifically made inapplicable to offences under the Principal Act committed before 1st September 1982, the Special Judge is not having jurisdiction in relation to these cases. Those cases will have to be dealt with under the unamended provisions of the Principal Act which means the Magistrates who had jurisdiction continues to have the jurisdiction. If in relation to the said offences committed before 1st September 1982 the provisions of the Essential Commodities Act, as it stood before the amendment, will have to be applied as if the amendments have not come into force, the position is that the Special Court is not there and the jurisdiction given to the Special Court is also not there. In such a contingency the Magistrates will continue to have jurisdiction as if the new provisions were not at all introduced. Therefore in such cases the jurisdiction could be exercised as if the amendments were not at all introduced. The second point is answered accordingly. In such a contingency the Magistrates will continue to have jurisdiction as if the new provisions were not at all introduced. Therefore in such cases the jurisdiction could be exercised as if the amendments were not at all introduced. The second point is answered accordingly. One copy each of the order will be forwarded to the Chief Justice, the Senior Judge in charge of administration and the Judge in charge of Trichur District to consider the suggestion contained in para 9 of this order.