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2007 DIGILAW 542 (MP)

Satish v. State of M. P.

2007-05-08

B.M.GUPTA

body2007
ORDER 1. The point under consideration in this revision is that as to whether the offence punishable under sections 364-A read with section 34 and 302 read with section 34 of IPC for which the petitioners are facing trial are exclusively triable by the Special Judge appointed under section 6 (2) of Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 (herein after referred to as the Adhiniyam) or can be tried by a Sessions Judge also. 2. The facts in brief are -- (A) That the incident was happened on 11th March, 2006 in the area of Morar, Gwalior as it appears from the charge dated 25th April, 2006. (B) That vide notification No. F. 12-223-2001-B (1)-II issued on 16th October, 2001 under the Adhiniyam, Gwalior has been declared a dacoity affected area. (C) That initially the case was made over on 5th April, 2006 by the Sessions Judge to the Special Judge appointed under the Adhiniyam, but thereafter vide letter No. 1615/06 dated 17th April, 2006 it was withdrawn from the Court of Special Judge and is being tried by the Sessions Judge himself. Vide order dated 4th May, 2006 passed by the Sessions Judge, Gwalior, it appears that prosecution evidence has been closed. Vide order dated 20th May, 2006 passed by this Court further proceedings are stayed. Vide letter No. 1615 dated 17th April, 2006 written by Sessions Judge, Gwalior to the Special Judge appointed under the Adhiniyam for withdrawal of the case, it appears that on an oral information given by the reader of the lower Court that in the covering letter sending the committal order, section 11/13 of the Adhiniyam was wrongly mentioned and challan was filed only under sections 365, 364A and 302/34 of IPC, the case has been withdrawn. 3. It is submitted by Shri Ahirwar that the petitioners are facing trial in the aforementioned case for the offence punishable under sections 364A/34, 302/34 of IPC. These offences being specified offences, are to be tried by the Special Judge appointed under the Adhiniyam. 4. It is submitted by Shri Ghuraiya that the case being not related with the offence of dacoity, it is not required to be tried only by the Special Judge, as observed by the Full Bench of this Court in Gulab Chand v. State of M.P. [ 1982 JLJ 170 ]. 5. 4. It is submitted by Shri Ghuraiya that the case being not related with the offence of dacoity, it is not required to be tried only by the Special Judge, as observed by the Full Bench of this Court in Gulab Chand v. State of M.P. [ 1982 JLJ 170 ]. 5. To appreciate the contentions of the parties, perusal of the following relevant provisions will be required, hence, those are being reproduced herein below : "Section 2 of the Adhiniyam. Definitions.--In this Act, unless the context otherwise requires,-- (a) ........... (b)........... (c) "dacoity" and kidnapping affected area" means an area declared as a dacoity and kidnapping affected area under section 3; (d) ............ (e) ............ (f) "specified offence" means -- (i) an offence specified in the schedule committed in relation to an area declared under section 3 being an offence forming part or arising out of/or connected with the commission of dacoity or kidnapping. The Schedule (i) Offences punishable under sections (***), 302, 303, 304, 307, 308, 325, 326, 327, 329, 331, 333, 363, 364, 365, 368, 369, 386, 387, 400 and (435) of the Indian Penal Code, 1860 (XLV of 1860), (ii) kidnapping or abduction for ransom; (iii) ............... (iv) ............... (v) ............... (vi) ............... (vii) ............... (viii) ............... Section 4 of CrPC. 4. Trial of offences under the Indian Penal Code and other laws.-- (1) all offences under the Indian Penal Code 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. Section 5 of CrPC. 5. Saving.--Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any specific form of procedure prescribed, by any other law for the time being in force. 7. Jurisdiction of Special Courts.--(1) 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. 7. Jurisdiction of Special Courts.--(1) 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. (2) 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." 6. On combined reading the definition of specified offence under section 2 (f) and jurisdiction of Special Courts, it appears that the aforementioned offences are specified offences and being such offences shall only be triable by the Special Court. In the light of the observation of the full Bench of this Court in the case of Gulab Chand (supra) the contention of Shri Ghuraiya, is correct. However, in the present case the observation cannot fruitfully be utilized in his favour. The reason being that while dealing with the case of Gulab Chand the full Bench of this Court was considering the provisions of Dakaiti Prabhavit Kshetra Adhyadesh, 1981. After this Adhyadesh, the aforementioned adhiniyam came into force with some changes and vide section 23 of the Adhiniyam, the aforesaid Adhyadesh of 1981 has been repealed. "Specified offence" was defined in the Adhyadesh in the following words : "2. (f) "specified offence", in relation to a dacoity-affected area means an offence specified in the Schedule, being an offence forming part of, arising out of, or connected with, the commission of dacoity." 7. Apparently the word kidnapping was missing in this definition given in the Adhyadesh. But subsequently when the Adhiniyam came into force this word has been added in this definition. While explaining the specified offence, the full Bench of this Court in the case of Gulab Chand has observed -- Section 2 (f) of the ordinance makes it clear that for an offence to be a specified offence within the definition it is not enough that it should be an offence mentioned in the schedule and that it is further necessary that the offence should forming part or arise out of, or to be connected with, the commission of dacoity. It was only because of the fact that previously only the word dacoity was used in the definition of specified offence. It was only because of the fact that previously only the word dacoity was used in the definition of specified offence. For the present when alongwith the word 'dacoity' the word 'kidnapping' has also been added by the legislature, the aforesaid observation of the full Bench of this Court may be read on the same analogy that -- section 2 (f) of the Act makes it clear that for an offence to be a specified offence within the definition it is not enough that it should be an offence mentioned in the schedule and that it is further necessary that the offence should forming part or arise or be connected with the commission of dacoity or kidnapping. 8. With the aforesaid change if we consider the present case, because a charge of abduction has also been tried alongwith the charge of murder, it will be deemed that these offences are forming part or arise out of or be connected with the offence of abduction. 9. On perusal of the charge framed against the petitioners on 25.4.2006, it appears that Kalu @ Trilok Singh was abducted, kept in confinement and thereafter he was murdered. By this charge, it also appears that the offence of murder has also been committed in relation to the offence of abduction. 10. In view of the aforesaid discussion, it is clear that both the aforesaid offences under which the petitioners are being tried are specified offences under the definition of section 2 (f) and compulsorily be tried by the Special Judge as provided by section 7 of the Adhiniyam. Thus, the trial of these offences by the Sessions Judge is without jurisdiction and required to be quashed. 11. Consequently, the revision is allowed. The impugned order dated 17.4.2006 is set aside. It is directed that petitioners shall be tried for the aforesaid offences by the Special Judge appointed under section 6 (2) of the Adhiniyam.