V. Krishnaswami v. State of Tamil Nadu — 1986 DIGILAW 326 (MAD)

ORDER Both these revision cases have been heard together and are disposed of by a common order. 2. Crl.R.C.No.7 of 1983 is in respect of C.C.No. 6 of 1978 pending before the IV Additional Special Judge, Madras and Crl.R.C.No.10 of 1983 in respect of C.C.No. 7 of 1978 pending before the same Judge. In C.C. Nos.7 and 10 of 1983, the petitioner and the approver were said to have been involved in acts constituting offences under Secs.120-B and 163 ,I.P.C. and Sec.5(1)(d) read with Sec.5(2) and (3) of the Prevention of Corruption Act, 1947. 3. The petitioner was the Gazetted P.A to the Minister for Health in the Government of Tamil Nadu between 23.3.1971 and 31.1.1976. Thiru Renganathan was employed as the Special B.D.O. and later Administrative Officer in Madras Metropolitan Development Authority during March, 1971 to January, 1976. In the course of the investigation, Thiru Renganathan turned into an approver. His statement under Sec.164, Cr.P.C, was recorded by the V Metropolitan Magistrate, Madras. He was tendered pardon on 31.5.1976 by the II Metropolitan Magistrate, Madras. The first information report was sent to the Special Judge and the final report was filed before the same Judge on 30.1.1978. The case against the petitioner/accused, according to that report, was that the petitioner herein had received illegal gratification from public servants for their transfers etc., and was in possession of assets to the tune of Rs.8,00,000 and odd, highly disproportionate to his known sources of income and for which the petitioner could not satisfactorily account. 4. On 4.4.1979, the accused filed a writ petition in W.P.No. 1111 of 1979 before this Court questioning the jurisdiction of the Special Court to try these cases and obtained a stay thereof. That writ petition was dismissed on 12.11.1979. Immediately thereafter, on 19.11.1979, the accused filed W.P.Nos. 5106 and 5107 of 1979 in which he challenged the validity of the provisions of the Prevention of Corruption Act, 1947 , and those of the Criminal Law Amendment Act, 1952, and obtained stay. A Division Bench of this Court dismissed those writ petitions on 13.2.1981 and the appeal therefrom before the Supreme Court was also dismissed on 29.3.1982. 5. Before the trial Court, charges have been framed. The trial started and the approver was examined as P.W. 1 on 14.10.1982 and 16.10.1982. A Division Bench of this Court dismissed those writ petitions on 13.2.1981 and the appeal therefrom before the Supreme Court was also dismissed on 29.3.1982. 5. Before the trial Court, charges have been framed. The trial started and the approver was examined as P.W. 1 on 14.10.1982 and 16.10.1982. At that stage, the accused filed a petition stating that the IV Additional Special Judge, who has examined the accused, should not proceed with the trial and should send the cases to another Special Judge and that he had no jurisdiction to proceed further in view of the provisions contained in Sec.306 , Cr.P.C. which provides that the Magistrate who examined the accused under Sec.306(4) , Cr.P.C. should send it to another judicial authority under Sec.306(5), Cr.P.C. The trial Court rejected the plea of the accused on 21.12.1982; aggrieved by that decision, which is common to both the cases, the accused has filed these revision cases. 6. The case of the accused is as follows: As per Sec.306, Cr.P.C, once the accused has been tendered pardon and has been made an approver, he should be first examined in the Court of the Magistrate taking cognizance of the offence and then committed for trial to the Court of the Special Judge. It was argued that the scheme of the Act is that the person who takes cognizance of the offence cannot himself try the case. The argument of the learned counsel for the petitioner is that this position would apply even if the Special Judge himself takes cognizance of the offence under Sec.8(1) of the Criminal Law Amendment Act, 1952. He would specifically contend that when he takes cognizance of the offence under Sec.8(1) of the Criminal Law Amendment Act, 1952, he is a ‘Magistrate’ within the meaning of Sec.306(4), Cr.P.C, and that, therefore, after examining the approver as a witness, he should commit the case to another Special Judge. In support of this contention, the learned counsel for the petitioner relies on the decision of the Supreme Court in Naidu State of Tamil Nadu v. V. Krishnaswami Naidu 1979 Crl.L.J. 1069: 1979 L.W. (Crl.) 199 in which it was held that for the purpose of Sec.167, Cr.P.C, the Special Judge is a Magistrate. In support of this contention, the learned counsel for the petitioner relies on the decision of the Supreme Court in Naidu State of Tamil Nadu v. V. Krishnaswami Naidu 1979 Crl.L.J. 1069: 1979 L.W. (Crl.) 199 in which it was held that for the purpose of Sec.167, Cr.P.C, the Special Judge is a Magistrate. The learned counsel for the petitioner then relies on the decision of the Supreme Court in A.R. Antulay v. Ramdas Srinivas Nayak A.R. Antulay v. Ramdas Srinivas Nayak 1984 Crl.L.J. 647:1984 S.C.C. (Crl.) 277.It was contended that the Supreme Court has, in that decision in para 27, clearly held that under the Code the Special Judge will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied. The line of the argument is that as a Court of original criminal jurisdiction, it would take the place of the Magistrate under Sec.306(4), Cr.P.C, and, therefore, once the Court has examined the approver, under that sub-section it should necessarily commit the case to another Special Judge. This contention of the learned counsel for the petitioner cannot be accepted, firstly because Sub-Sec.5(a)(ii) of Sec.306, Cr.P.C, contemplates committal for trial by a Magistrate to the Court of the Special Judge. This is in contrast with the provisions of Sub-Sec.(5)(b) of Sec.306, Cr.P.C, where the case is made over by the Magistrate taking cognizance of the offence to the Chief Judicial Magistrate. As it is well known, two judicial authorities vested with the same powers may make over the case from one to another. But committal can be made only by a judicial authority of a lower rank to a judicial authority of higher rank, in matters of powers. Therefore, there is no possibility of a committal by a Special Judge to another Special Judge. Therefore, for the purpose of Sec.306 , Cr.P.C, the Special Judge cannot be construed to be a Magistrate under Sub-Sec.(4) of Sec.306, Cr.P.C. It is, therefore, clear that in the scheme of the Act which has taken into account all the possibilities which may arise, there is no provision for the committal of a case by one Special Judge to another Special Judge. Secondly, the observation of the Supreme Court in A.R. Antulay v. Ramdas Srinivas Nayak A.R. Antulay v. Ramdas Srinivas Nayak 1984 S.C.C. (Crl.) 277: 1984 Crl.L.J. 647 relied on by the learned counsel for the petitioner himself would show that the fact of attributing arbitrarily a qualification to the Special Judge would lead to complications and situations not contemplated in law. In this connection, the following observations of the Supreme Court in the above quoted decision in para 27 deserve to be reproduced: “The net outcome of this petition is that a new Court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific questions brought before it as Court of original criminal jurisdiction, it has to refer to the Code of Criminal Procedure undaunted by any designation claptrap. When taking cognizance, a Court of Special Judge enjoyed the powers under Sec.190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Session. The entire argument inviting us to specifically decide whether a Court of a Special Judge for a certain purpose is a Court of Magistrate or a Court of Session revolves round a mistaken belief that a Special Judge has to be one or the other, and must fit in the slot of a Magistrate or a Court of Session. Such an approach would strangulate the functioning of the Court and must be eschewed.” The scheme of Sec.306, Cr.P.C, does not allow the Special Judge to be treated as a Magistrate its Sub-Sec.(b). (Sic). This Contention fails. 7. Such an approach would strangulate the functioning of the Court and must be eschewed.” The scheme of Sec.306, Cr.P.C, does not allow the Special Judge to be treated as a Magistrate its Sub-Sec.(b). (Sic). This Contention fails. 7. The second contention of the learned counsel for the revision petitioner is that under the provisions of Sec.306(4) and (5), Cr.P.C, the Legislature has contemplated double examination of the approver as a witness, one by the Magistrate taking cognizance of the offence and another by a Court to which the case is committed or made over for trial and that the availability of an earlier statement of oath by the approver is a great advantage to the accused for the purpose of cross-examination at the time of the ultimate trial and that if there was no such double examination at the time of the ultimate trial and that if there was no such double examination, he would be prejudiced. It was also added that any course leading to the deprivation of the double examination was illegal and therefore, the Court which has taken cognizance of the offence should not proceed with the trial. In the first instance, under Sec.306(4), Cr.P.C, in the phrase, “Every person accepting a tender of pardon made under Sub-Sec.(1)(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any: ”the stress is on the word witness’. There is nothing mandatory on the fact that he should be examined twice. What is mandatory is that he should be examined as a witness and the provision for an examination by the Magistrate taking cognizance of the offence is not for the purpose of providing an earlier statement on oath for the purpose of cross-examination by the accused at the ultimate trial, but to have an earliest possible statement on oath by the approver for the purpose of knowing the truth. Another feature of the provision is that whenever there is an approver, the trial should be by the highest possible Court. As far as this case is concerned, that last condition is met. Secondly, the double examination which has been prescribed in the interest of justice need not be resorted to in all cases. It is not the law that whenever there is an approver, there should be necessarily a double examination. As far as this case is concerned, that last condition is met. Secondly, the double examination which has been prescribed in the interest of justice need not be resorted to in all cases. It is not the law that whenever there is an approver, there should be necessarily a double examination. The provisions of Sec.307 , Cr.P.C, as well as those under Sec.8(2) of the Criminal Law Amendment, 1952, are there to show that whenever the statements are made when the witnesses are examined by the highest possible Court, there is no reason for a double examination. I do not, therefore, find any real force in the contention put forth by the learned counsel for the petitioner. In fact, the same question was examined from a different angle by the Delhi High Court in S. Iqbal Singh v. State S. Iqbal Singh v. State 1977 Crl.L.J. 501 and it was contended therein that the fact of filing the charge-sheet directly before the Special Judge would amount to circumventing the provisions giving the right of double cross-examination of the approver by the accused and, therefore, in order to give effect to the provisions of the Cr.P.C, entitling the accused to have the double right, no effect should be given to Sec.8(1) of the Criminal Law Amendment Act, 1952 and that the Special Judge should not be allowed to take cognizance of the offence directly. That contention was negatived by the Delhi High Court which held that the Criminal Law Amendment Act, 1952 was a specific provision which should prevail over a more general provision of the Cr.P.C. The accused took the matter on appeal to the Supreme Court and urged that there was violation of Art. 14 of the Constitution in allowing the proceeding to be instituted directly before the Special Judge. It was more particularly argued that in giving the choice to the prosecution either to institute the proceeding before the Magistrate, who would commit it to the Special Judge, or to institute the proceeding directly before the Special Judge, who is empowered to take cognizance of the offence under Sec.8(1) of the Criminal Law Amendment Act, 1952, the existing legal provision created a situation of inequality. In other words, when the proceeding was instituted before a Magistrate, the accused has the advantage of the double examination of the approver, but whereas when the case was instituted directly before the Special Judge, he is denied such a right. The Supreme Court held in that case reported in Sardar Iqbal Singh v. State (Delhi Administration) A.I.R. 1977 S.C. 2437: 1978 Crl.L.J. 192 that to attract the inhibition of Art. 14 of the Constitution there must be substantial and qualitative difference between the two procedures so that one is really and substantially more drastic and prejudicial than the other and that there was no such qualitative and drastic difference in the two procedures, whether a witness was examined once or twice. In that case the accused accepted that the law as it existed did not require the provision for examination of the approver by a Magistrate and that such a relation was not normal. His contention was only that it created for the prosecution two channels, which should be prohibited. The Supreme Court negatived that contention and thereby also gave its approval to the procedure of examining only once the approver before the Special Judge without any necessity of making over or committing the case. That decision of the Supreme Court was followed by a decision of this Court in Natarajan v. State represented by the Inspector of Police, C.B.I., Madras 1986 L.W. (Crl.) 116. Therefore, this contention also is rejected. 8. The third contention urged by the learned counsel for the petitioner is that Sec.308, Cr.P.C, provides for the prosecution of the approver for the offence of giving false evidence and for that purpose evidence on oath should have been recorded. This contention has no merit whatsoever. False evidence can be proved by any other manner than with reference to statement on oath. In fact, the opening words of Sec.308 , Cr.P.C, itself says that the Section would apply where a person has accepted the tender of pardon under Sec.306 or Sec.307, Cr.P.C, dealing with the tender of pardon by the Court receiving the case after commitment. Tender of pardon at that stage obviously does not entail any provision for examination under Sec.306(4), Cr.P.C. It is thus found that the contentions raised by the learned counsel for the petitioner in these revision cases are all without any merit. The criminal revision cases are accordingly dismissed. Tender of pardon at that stage obviously does not entail any provision for examination under Sec.306(4), Cr.P.C. It is thus found that the contentions raised by the learned counsel for the petitioner in these revision cases are all without any merit. The criminal revision cases are accordingly dismissed. B.S. ----- Petitions dismissed.