Ameeta Kulkarni Modi v. State of U. P. — 1989 DIGILAW 17 (ALL)

JUDGMENT : S. Sahgir Ahmad, J. The petitioner, by means of the present petition filed under Article 226 of the Constitution, has challenged the notification dated June 18, 1987 (Annexure-1) by which opposite party No. 3, Sri Gaur Chandra was appointed by the High Court as Presiding Officer of the Court of Judicial Magistrate Ist Class, Lucknow to exercise jurisdiction in the local areas specified in the notification to try or enquire into and to commit to the Court of Sessions all such cases in which investigations are made or charge-sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (Act No. XXV of 1946). 2. It may be stated that there is a Crime Case No. 722 of 1988 registered at P.S. Hazratganj, Lucknow, which was investigated by the Central Bureau of Investigation, New Delhi (hereinafter referred to as C.B.I.), impleaded in this petition, under our orders passed yesterday, as opposite party No. 4. It has-been stated in para 2 of the petition "that despite the petitioner being innocent, she has been implicated in the case with the aid of Section 120-B IPC" and "that the case is pending a the court of opposite party No. 3 mainly for the purposes of compliance and proceedings of Section 207 and/or 209 of the Code of Criminal Procedure". 3. The principal contention urged on behalf of the petitioner is that since under the proviso to Sub-section (1) of Section 11 of the Code, the State Government, after consultation with the High Court, could establish Special Courts of Judicial Magistrates "to try any particular case or particular class of cases" the impugned notification issued by the High Court u/s 11(2), which purports to enlarge the jurisdiction of the Magistrate inasmuch as he has also been empowered "to enquire into and commit the cases to the Court of Sessions," is bad. This contention is based on the assumption (which we shall presently see is wrong) that the court presided over by opposite party No. 3, was established under the Proviso to Sub-section (1) of Section 11 of the Code. 4. This contention is based on the assumption (which we shall presently see is wrong) that the court presided over by opposite party No. 3, was established under the Proviso to Sub-section (1) of Section 11 of the Code. 4. Section 11 of the Code of Criminal Procedure, 1973 is as under: 11 (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judical Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification specify: 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 or 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. (2) The presiding officers of such Courts shall be appointed by the High Court. (3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court. 5. It may be stated that prior to the coming into force of the Code of Criminal Procedure, 1973, Special Magistrates were appointed u/s 14 of the Code of Criminal Procedure, 1898 by a notification of the State Government. Section 484(2)(b) of the present code provides that all notifications published, proclamations issued, powers conferred etc. including appointments, not being appointments as Special Magistrate, made under the Old Code which were in force immediately before the commencement of the Code, shall be deemed to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code. 6. including appointments, not being appointments as Special Magistrate, made under the Old Code which were in force immediately before the commencement of the Code, shall be deemed to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code. 6. In exercise of the powers conferred by Section 11(1) of the Code of Criminal Procedure, 1973, the State Government by Notification No. 1592/VII-AN-208-74 dated April 20, 1974 published in the U.P. Gazettee, established a common court of Judicial Magistrate of the First Class for all districts of Uttar Pradesh, with its place of sitting at Lucknow, to try or enquire into and commit to the Court of Sessions, all such cases arising in any local area within the State of Uttar Pradesh in which investigations were made or charge sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946. By another notification dated May 7, 1974 this Court appointed one Sri Rama Kant Rai, Chief Judicial Magistrate, with effect from 1-4-74 as Judicial. Magistrate of the first class also for all districts of Uttar Pradesh with Head Quarter at Lucknow to try or enquire into and commit to the Court of Sessions all such cases in which-investigations are made or charge sheets filed by the Special Police Establishment. 7. Both the notifications referred to above were challenged in this Court in T.S. Bajpai Vs. K.K. Ganguly and Others, (1976) CriLJ 514 and it was held that the notifications referred to above were illegal. It appears that it was" at this stage that U.P. Ordinance XIII of 1976 was issued followed by the Code of Criminal Procedure (U.P. Amendment) Act, 7976 (U.P. Act XVI of 1976) which inserted Sub-section (1-A) in Section 11 of the Code which reads as under: (1-A). The State Government may like-wise establish as many Courts of Judicial Magistrates of the first class and of the second class in respect to particular cases, or to a particular class or particular classes of cases or in regard to cases generally, in any local area. By Section 11 of the above Amending Act, namely, U.P. Act XVI of 1976, it was provided as under: 11. By Section 11 of the above Amending Act, namely, U.P. Act XVI of 1976, it was provided as under: 11. Notwithstanding any judgment, decree or order of any Court-- (a) any notification of the State Government issued before November 28, 1975 purporting to establish any Court of Judicial Magistrates having jurisdiction over more than one district shall be deemed to have been issued u/s 11 read with Section 13 of the said Code as amended by this Act and be deemed to be and always to have been valid. (b) any order of the State Government issued before November 28, 1975 directing the control over Assistant Public Prosecutors to be exercised through officers of the Police Department shall be deemed to be and always to have been valid as if the amendment made in Section 25 of the said Code by this Act were in force at all material times. 8. Thereafter in exercise of the powers under Sub-section (1) and (1-A) of Section 11 of the Code of Criminal Procedure, 1973 (Act II of 1974) as amended in its application to Uttar Pradesh by U.P. Act XVI of 1976 read with Section 21 of the General Clauses Act, 1897 and in super sessions of Government Notification dated 20th April, 1974, the Governor, after consultation with the High Court, established the Courts of Judicial Magistrates of the first class one at Dehradun and the other at Lucknow (defining their local areas of jurisdiction) to try or enquire into and commit to the Court of Sessions, all such cases in which investigations are made or charge sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946. 9. 9. The whole of the notification is reproduced below: In exercise of the powers under Sub-section (1) and (1-A) of Section 11 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) as amended in its application to Uttar Pradesh by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 "(U.P. Act No. 16 of 1976) read with Section 21 of the General Clauses Act, 1897 (Act No. X of 1897) and in super session of Government Notification No. 1592/VII-AN-208-74, dated April 20, 1974, the Governor, after consultation with the High Court, is pleased to establish with effect from the date, the Presiding officer takes over charge at Dehra Dun, the Courts of Judicial Magistrates of the First Class specified in Column 2 of the Schedule below to exercise jurisdiction in the local areas specified against each in Column 3 thereof to try or inquire into and commit to the Court of Sessions all such cases arising within their respective local areas in which investigations are made or charge-sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (Act No. XXV of 1946): Schedule Sl. No. Name of Court with place of sitting Local area of Jurisdiction 1 2 3 1 Judicial Magistrate, First Class, Dehra Dun Districts of Dehra Dun, Nainital, Pithoragarh, Almora, Chamoli, Garhwal, Tehri-Garhwal, Uttar Kashi, Meerut, Ghaziabad, Muzaffarnagar, Bulandshahr, Saharanpur, Agra, Etah, Aligarh, Mainpuri and Mathura. 2 Judicial Magistra- the, First Class, Districts of Bareilly, Bijnor, Badaun, Moradabad, Shahjahanpur, Pilibhit, Lucknow. Rampur, Farrukhabad, Etah, Kanpur Dehat, Kanpur Nagar, Fatehpur, Allahabad, Jhansi, Jalaun, Hamirpur, Banda, Lalitpur, Varansi, Mirzapur, Jaunpur, Ghazipur, Ballia, Gorakhpur, Deoria, Basti, Azamgarh, Lucknow, Unnao, Sitapur, Raebareli, Lakhimpur Kheri, Faizabad, Gonda, Bahraich, Sultanpur, Pratapgarh and Bara Banki. 10. A perusal of the aforesaid notification would indicate that the Court of Special judicial Magistrate at Lucknow was established under Sub-section (1-A) of Section 11 of the Code of Criminal Procedure, 1973 and not under the Proviso to Sub-section (1) of Section 11 which was inserted by Criminal Procedure Code (Amendment) Act, 1978. 11. 10. A perusal of the aforesaid notification would indicate that the Court of Special judicial Magistrate at Lucknow was established under Sub-section (1-A) of Section 11 of the Code of Criminal Procedure, 1973 and not under the Proviso to Sub-section (1) of Section 11 which was inserted by Criminal Procedure Code (Amendment) Act, 1978. 11. It will be seen on a perusal of sub-Section (1-A) inserted by U.P. Act 16 of 1976 in Section 11 that the State Government could establish as many courts of Judicial Magistrate first or of second class as it deemed necessary for any particular case or particular class or classes of cases or with regard to cases generally in any local area without there being any statutory constraint as to the extent of their jurisdiction, i.e. the courts could be established not only to try cases but also to enquire into and to commit cases to the Court of Sessions. To make it more clear, a Court established by the State Government under Sub-section (1-A) of Section 11 of the Code is a normal Criminal Court which can legitimately exercise all the powers available to it under the Code including the power to try, enquire into and to commit to the Court of Session, cases arising within its area of jurisdiction. 12. The argument of the learned Counsel for the petitioner that under the Proviso to Sub-section (1) of Section 11, a Court of Special Judicial Magistrate could be established only to "try the cases" and not "to enquire into and commit cases to the Court of Sessions" is wholly misconceived, as in the instant case, the Court of Special Judicial Magistrate was created under Sub-Section (1-A) of Section 11 and not under the Proviso to Sub-section (1) of Section 11. As a matter of fact, prior to the coming in to force of the Proviso to Sub-section (1) of Section 11, which was introduced in 1978, the Court of Special Judicial Magistrate had already been established by the notification dated December 4, 1976 referred to above. As a matter of fact, prior to the coming in to force of the Proviso to Sub-section (1) of Section 11, which was introduced in 1978, the Court of Special Judicial Magistrate had already been established by the notification dated December 4, 1976 referred to above. It was in pursuance of the establishment of the Court of Special Judicial Magistrate under the said notification that the High Court had been issuing, from time to time the notifications u/s 11(2) appointing, including Sri Gaur Chandra opposite party No. 3, Presiding Officer of the said court and authorising them, exactly in consonance with and borrowing the words used in the notification dated December 4, 1976, "to try, or enquire into and to commit to the Court of Sessions," all cases in which investigations are made or charge sheets filed by the Special Police Establishment. The impugned notification, therefore, does not, in our opinion, suffer from the infirmity pointed out by the learned Counsel for the petitioner and the contention is rejected as ill-founded. 13. It was next contended by the learned Counsel for the petitioner that since the Proviso to Sub-section (1) of Section 11 of the Code of Criminal Procedure, 1973 had been introduced by an Act of Parliament, namely, the Code of Criminal Procedure (Amendment) Act, 1978 it shall be treated to have an over-riding effect and the provisions contained in Sub-section (1-A) of Section 11 introduced by U.P. Act 16 of 1976, shall be deemed to have been superseded with the result that the Courts of Special Magistrate could be established and function only under the Proviso and those established under Sub-section (1-A) could not function. This argument is also fallacious. 14. We may point out that immediately on the coming into force of U.P. Act 16 of 1976, the State Government had established the Court of Special Judicial Magistrate by the notification dated December 4, 1976. The establishment of such courts would not be disturbed by the insertion of the Proviso to Sub-section (1) of Section 11 by the Code of Criminal Procedure (Amendment) Act, 1978. The Court of Special Judicial Magistrate having already been created in 1976 will continue to exist notwithstanding the insertion of the said Proviso which, in our opinion, does not have the effect of de-establishing the said Courts. The Court of Special Judicial Magistrate having already been created in 1976 will continue to exist notwithstanding the insertion of the said Proviso which, in our opinion, does not have the effect of de-establishing the said Courts. In creating or establishing these Courts, the provisions contained in the Proviso to Sub-section (1) of Section 11 have not been invoked. The Courts, as stated above, have been created under Sub-section (1-A) of Section 11 prior to the coming into force of the aforesaid proviso. 15. Relying on a decision of the Hon'ble Supreme Court in State of U.P. v. Lakshmi Brahman 1983 AWC 378 : 1983 ACR 198 to support his contention that "trial" was different from "enquiry", learned Counsel for the petitioner urged that since the intention of the Parliament, as expressed in the Proviso appended to Sub-section (1) of Section 11 was only to create Courts "to try cases" such Special Courts cannot be created or invested with the power to enquire into and commit cases to the Court of Sessions. 16. It may be, as of course, it is, that the trial is not the same thing as the enquiry, the above argument cannot be accepted. We have already indicated that the Special Courts were created under Sub-Section (1-A) of Section 11 and not under the Proviso which came into force after about two years of the creation of such courts. If, therefore, the courts had already been invested with the power not only to try but also to enquire into and commit cases to the Court of Session, such powers will continue to be exercised by these courts even after the insertion of the proviso in Section 11. 17. There is another fallacy in the argument. If the court of the Special Magistrate are treated to have been created only "to try cases" then, to cite an example, in all cases (triable exclusively by the Magistrate) in which a final report is submitted by the investigating agency or a charge sheet is submitted, it would not be possible for the court even to order further investigation. 18. Let us consider another example. 18. Let us consider another example. If during the course of the trial of a case exclusively triable by the Magistrate, an offence is disclosed to have been committed by the accused which was exclusively triable by the Court of Sessions, it would not be possible even at that stage to commit the case to the Court of Sessions. Such fallacy was neither contemplated by the Parliament while enacting the Proviso nor is otherwise deducible from any of the provisions contained in various Sub-sections of Section 11. On the contrary, Section 323 of the present Code (which corresponds to Section 347 of the Old Code of 1898) provides that if, in any enquiry into an offence, or a trial before a Magistrate, it appears to him at any stage of the proceedings, before signing the judgment, that the case is one which ought to be tried by the Court of Session, he shall commit it to that court. Section 323 is quoted below: 323. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the 'proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions herein before contained (and thereupon the provisions of Chapter XVIII shall apply to the commitment so made). 19. This section specially empowers a Magistrate either at the enquiry stage or at the stage of trial to commit cases to the Court of Session. 20. In view of the above, it is not possible for us to give restricted meaning to the phrase "to try cases" as is contended by the learned Counsel for the petitioner. But, in our opinion, power to try case would include power to enquire into and commit a case to the Court of Session. 21. In this view of the matter, although the question of repugnancy is not involved in the instant case, there is, in fact, no repugnancy in the Proviso (added to sub-section (1) by amendment in 1978) and sub-section (1-A)(inserted by U.P. amendment in 1976), as under both the provisions the Courts have not only the power to try cases but also to enquire into and commit cases to the Court of Session. 22. 22. In addition to what has been stated above, the fact remains (which is also not disputed by the learned Counsel for the petitioner) that Mr. Gaur Chandra (opposite party No. 3) is basically a Magistrate First Class, who, in that capacity has all the powers available to such a Magistrate under the Code of Criminal Procedure including the power to commit a case to the Court of Session u/s 209. 23. For the reasons stated above, we see no merit in the petition which is dismissed summarily. 24. Immediately after the judgment was pronounced, learned Counsel for the petitioner made an oral prayer for leave being granted to file an appeal in the Supreme Court. Since, in our opinion, no question of general importance is involved which requires to be considered and decided by the Supreme Court, the leave prayed for is refused.