RAGHUNATH RAI v. STATE OF UTTAR PRADESH — 1992 DIGILAW 1499 (ALL)

V. N. MEHROTRA, J. ( 1 ) THIS petition has been filed under Section 482 of the Code of Crirninal Procedure by the applicants praying that the order by the Special Court of Judicial Magistrate 1st Class, Lucknow holding that it has jurisdiction to try the cornplaint be quashed. ( 2 ) THE brief facts of the case are that in the year 1983, the U. P. Pollution Control Board, Lucknow filed a cornplaint against M/s. Modi Distillary, Modi Nagar, Ghaziabad and 10 others alleging that the accused persons had comrnitted the offence punishable under section 44 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the Act ). On this cornplaint, the Chief Judicial Magistrate, Ghaziabad issued processes against the accused persons. That order was challenged by the accused persons before this Court. This Court, while exercising the revisional jurisdiction, set aside the order by the Chief Judicial Magistrate, concerned. The U. P. Pollution Control Board then filed an appeal before the Honble Suprerne Court. The Honble Suprerne Court, vide its order passed in the year 1987 allowed the appeal and upheld the order passed by the trial court. It also directed the Magistrate concerned to proceed with the trial as expeditiously as possible in accordance with law. ( 3 ) IT appears that during the pendency of the proceedings before the Chief Judicial Magistrate, Ghaziabad, the U. P. Government created a Special Court of Judicial Magistrate I class at Lucknow with effect from 1st August, 1988 to try and inquire into cases arising within the limits of any district in Uttar Pradesh under the Water (Prevention and Control of Pollution) Act, 1974. Later on, the Presiding Officer of that court was appointed by this Court vide order dated 28/8/1988. Subsequently, this Court issued administrative directions by letter dated September 9, 1988 directing that all cases pending in other courts under the above mentioned Act should be transferred to the special court of Judicial Magistrate First Class, Lucknow. In accordance with this order, the present complaint was also transferred to that court. It is now pending in the same court. The accused persons then raised contention before the special court of judicial Magistrate First. In accordance with this order, the present complaint was also transferred to that court. It is now pending in the same court. The accused persons then raised contention before the special court of judicial Magistrate First. Class, Lucknow asserting that under the relevant Government Order, only the fresh cases instituted after 1st August, 1988 could be tried by the special court of Judicial Magistrate 1st Class and not the cases, which were already pending before the competent court. Annexure 6 to the affidavit accompallying the petition is a copy of that objection filed on behalf of the accused persons. The Special Judicial Magistrate, Lucknow, however rejected the objection by his order dated 29. 8. 1992 holding that he has jurisdiction to try the present complaint also. ( 4 ) IN this petition, it has been asserted on behalf or the applicants that actually no special court of Judical Magistrate First Class was created by the Government Order dated 22. 7. 1988 and it has further been contended that even if the special court of judicial Magistrate First Class had been created, even then that court will have no jursdiction to try the pending cases nor such cases could be transferred to that court. ( 5 ) I have heard the learned counsel for the applicants at the admission stage and I proposed to dispose of this petition at the stage of admission itself. ( 6 ) SECTION 49 (1) of the above mentioned Act provides that no court shall take cognizance of any offence under this Act except on a complaint made by, or with the previous sanction in writing of the State Board, and no court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act. Sub Section (2) of Section 49 of the Act provides that notwithstanding anything contained in section 32 of the Code of Criminal Procedure, it shall be lawful for any Magistrate of the first Class or for any Presidency Magistrate to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand rupees on any person convicted of an offence punishable under this Act. This provision has obviously been made because the offences under sections 25 and 26 of the Act were made punishable with imprisonment for a term which shall not be less than six months by which may extend to six years and with fine. In case of subsequent offence, the imprisonment could extend to even seven years as provided under section 45 of the Act Thus, though under the provisions of the Code of Criminalprocedure, the Magistrate of 1st Class could not impose the maximum sentence provided under Sections 44 and 45: Sub Sections (2) of Section 49 confers these powers upon any Magistrate of the First Class trying the offence under the Act. The only limitation provided under Section 49 (1) of the Act is that the offence shall be tried by a court which is not inferior to that of a Presidency Magistrate or a Magistrate of the First Class. There is no provision under this Act which expressly or by necessary implications, bars the creation of special court of Judicial Magistrate First Class for trying the offence punishable under the Act. Under proviso to Sub Section (1) of Section 11 of the Code of Criminal Procedure, the State Government is competent to establish Special Court of Judicial Magistrate of the First Class to try any particular case or particular class of cases after consultation with the High Court. This proviso further mentions that 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. Sub Section (2) of Section 11, Cr. P. C. provides that the presiding Officers of the Court shall be appointed by the High Court. This sub section also applies to the appointment of the Presiding Officers of the Special Court of Judicial Magistrate First Class. ( 7 ) THE State Government issued a notification on 22nd July 19,88 by which it established special court of Judicial Magistrate of the first Class at Lucknow with effect from August 1, 1988 to try and inquire into cases arising within the limits of any district in Uttar Pradesh under the Water (Prevention and Control of Pollution) Act, 1974. ( 7 ) THE State Government issued a notification on 22nd July 19,88 by which it established special court of Judicial Magistrate of the first Class at Lucknow with effect from August 1, 1988 to try and inquire into cases arising within the limits of any district in Uttar Pradesh under the Water (Prevention and Control of Pollution) Act, 1974. The contention raised by the petitioner in the petition is that by the notification, no special court of Judicial Magistrate First Class was established. This contention has no force in view of the clear language of the notification. Subsequently, by an order dated 25th August, 1988, the High Court had appointed a Presiding Officer of the special court of Judicial Magistrate First Class at Lucknow exercising its powers under section 11 (2) of the Code of Criminal Procedure. ( 8 ) THE contention by the learned Counsel for the petitioners is that even if the special court of Judicial Magistrate First Class has been established, the pending cases could not be transferred to that court. I am, however, unable to accept this contention in view of the clear language of the proviso to Section 11, Cr. P. C. as mentioned earlier. The relevant portion of the said proviso runs as under: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 on established. 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 circum stances, 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. ( 9 ) THE learned counsel for the petitioners has referred to the decisions in the cases Unique Motor and General Insurance Co. ( 9 ) THE learned counsel for the petitioners has referred to the decisions in the cases Unique Motor and General Insurance Co. Ltd. Bombay v. Kartar Singh and another, and Manibai and another v. Raj Kumar Harpal Dec and another, in support of his contention that the pending cases could not be transferred to the Special Court of Judicial Magistrate of the First Class. In my view these rulings are not applicable to the present case. Both these rulings relate to the establishment of Claims Tribunal under the Motor- Vehicles Act. The provisions of the Motor Vehicles Act and the provisions of Section 11 of the Code of Criminal Procedure are quite distinct and different. The Motor Vehicles Act does not provide that on the creation of the Tribunal the civil courts will cease to have jurisdiction to try the pending cases for compensation under that Act. It only provides that on the creation of Claims Tribunal, the other courts will not entertain the claims for compensation. It does not refer to the claim cases pending-before the competent civil courts. ( 10 ) THE learned counsel for the petitioners has also referred to the decision in the case Garikapati Veeraya v. N. Subhash Choudhry and others3. This case refers to the right of appeal vested in the litigants. In the present case, the right of appeal is not, in any way, affected by the creation of Special Court of Judicial Magistrate of the First Class. The learned counsel for the petitioners has also referred to the decision in the case Kuldip Singh v. The State of Punjab and another4, in which it has been held that a court of Additional Judge and the court of District Judge are separate and distinct courts. In my view, this case is of no help in deciding the matter before us as a different question was in issue in that case. In the case Jagannath Sonu Parkar and others v. The State of Maharashtra and another5, it was held by the Supreme Court that the provision for Special Magistrates for trial of the offence relating to seizure of foreign gold was- not ultra vires of Article 14 of the Constitution of India. In the case Jagannath Sonu Parkar and others v. The State of Maharashtra and another5, it was held by the Supreme Court that the provision for Special Magistrates for trial of the offence relating to seizure of foreign gold was- not ultra vires of Article 14 of the Constitution of India. Learned counsel for the petitioners while referring to this decision, has argued that creation of the court of special Judicial Magistrate of the First Class does not amount to transfer of any case. That may be so in view of the words used in the notification creating the court of Special Judicial Magistrate by the Maharashtra Government but in the present case as mentioned earlier, on the creation of Special Court of Judicial Magistrate of the First Class, all other courts ceased to have its jurisdiction to try such offence under the proviso of Section 11 (1), Cr. P. C. obviously the observation made in this ruling cannot be made applicable to the present case. ( 11 ) THE learned counsel for the petitioners has also referred to the decision in the case A. R. Antulay v. R. S. Nayak and another, in support of his contention that the special court is a different court and it is not possible to transfer cases from that court even to the High Court. It is obvious that the facts of that case arc quite distinct from the facts of the present case. In that case, the Supreme Court had earlier directed transfer of the case pending before the Special Judge to the High Court. However, when it was subsequently challenged, a larger Bench of the Supreme Court held that the case could not have been transferred from the court of Special Judge to the High Court for trial. Obviously, this decision cannot be applied to the facts of the present case which are quite distinct. ( 12 ) CONSIDERING the above mentioned facts and circumstances I am of the view that the Special Court of Judicial Magistrate First Class, Lucknow has Jurisdiction to try the present complaint and that the case was rightly transferred from the court of Chief Judicial Magistrate, Ghaziabad to the above mentioned Special Court of Judicial Magistrate First Class, Lucknow for trial. This petition in the circumstances has no force and is rejected at the admission stage itself. Petition dismissed. .