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Jharkhand High Court · body

2009 DIGILAW 899 (JHR)

Anosh Ekka v. State

2009-06-29

R.R.PRASAD

body2009
JUDGMENT : The question which has been raised in this application is as to whether the Special Judge, Vigilance does have power at all to refer the complaint under section 156(3) of the Code of Criminal Procedure for institution of a first information report and its investigation ? The facts giving rise this application are that the complainant-respondent no.7 lodged a complaint case before the learned Special Judge, Vigilance, Ranchi alleging therein that the petitioner (the then Minister, Government of Jharkhand) has acquired the assets disproportionate to his known source of income which allegation was based on the news item published in the daily Hindi Newspaper the “Prabhat Khabar”; paper cutting of which was also annexed with the complaint petition. On receiving the complaint, learned Special Judge, vide its order dated 24.11.2008 referred the complaint under section 156(3) of the Code of Criminal Procedure to the Vigilance Police Station Ranchi for institution of a first information report and investigation. Pursuant to the aforesaid order, Vigilance P.S. case no.26 of 2008 was instituted under sections 406, 409,420, 423, 424, 465,120(B) of the Indian Penal Code as also under sections 11/13(2) read with section 13(1) of the Prevention of Corruption Act. Being aggrieved with the said order passed by the learned Special Judge, this writ application has been filed for quashing of the said order dated 24.11.2008 under which the compliant case was referred to the vigilance Police Station for institution of a first information report. Learned counsel appearing for the petitioner submits that the Special Judge is not a Magistrate within the meaning of section 156(3) of the Code of Criminal Procedure, rather the Special Judge happens to be the court of sessions in terms of the provision as contained in section 5(3) of the Prevention of Corruption Act and as such, he has got no jurisdiction to refer the complaint under section 156(3) of the Code of Criminal Procedure to the vigilance for institution of a first information report and its investigation and as such, the impugned order is quite illegal and is fit to be set aside, in view of the decision rendered by the Division Bench of the Orissa High Court in the case of Surendra Nath Swain vs. State of Orissa [2006(2) East. Cr. Cr. C 209 (Ori)] wherein it has been categorically held that the Special Judge is not to be treated as a Magistrate within the meaning of sub-section (3) of Section 156 of the Code and thereby he is quite incompetent to refer the complaint to the police to investigate the same. Besides this, submission was also advanced to the effect that the complainant had no concerned with the affairs of the office of the petitioner and as such, learned Special Judge should not have entertained the complaint filed on behalf of him particularly when the allegation made against this petitioner and other persons were based on the news item published in the newspaper. As against this, learned counsel appearing for the vigilance submits that the court of Special Judge is a court of original jurisdiction under the High Court and as such, it has to function as a court of original criminal jurisdiction, subject to restriction put under the statute and since the Special Judge has not being denuded with power to exercise its jurisdiction either under section 190 or under section 156(3) of the Code of Criminal Procedure, the Special Judge assumes all the power to act in terms of the provision either under section 190 or under section 156(3) of the Code of Criminal Procedure. Learned counsel further submits that though the provision as enshrined under section 190 of the Code of Criminal Procedure refers about the Magistrate but that expression has to be read as Special Judge under the principle of legislation by incorporation in order to give full effect to the provision of the statute and this proposition of law has been laid down by the Hon’ble Supreme Court in the case of A.R.Antulay vs.Ramdas Sriniwas Nayak and another [ (1984) 2 SCC 500 ] and [1984 SCC (Cri) 277]. Thus it was submitted that leaned Special Judge does have all the power to refer the case to the Vigilance for its institution and investigation and, therefore, there has been absolutely no merit in this application and hence, it is fit to be dismissed. It is a well known recognized principle of criminal jurisprudence that any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. It is a well known recognized principle of criminal jurisprudence that any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. Section 190 of the Code of Criminal Procedure permits any one to approach the Magistrate with a complaint, it does not prescribe any qualification for the complainant to be eligible to file a complaint. But where an eligibility criteria for a complainant is contemplated, specific provisions have been made which can be found out in sections 195 to 199 of the Code of Criminal Procedure. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In this situation, I do not find any merit in the submission advanced in this respect. Coming to other point raised on behalf of the petitioner, I may first refer to the provision as contained in Section 4 of the Code of Criminal Procedure which reads as follows: 4 (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 offence.” From its perusal it appears that section 4(1) provides for investigation, inquiry or trial for every offence under the Indian Penal Code according to the provision of the Code whereas section 4(2) provides for offences under other law to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In absence of a specific provision relating to inquiry, trial, etc. under the special statute it has to be dealt with in accordance with the Code of Criminal Procedure. In absence of a specific provision relating to inquiry, trial, etc. under the special statute it has to be dealt with in accordance with the Code of Criminal Procedure. Going further into the matter, I may indicate that the Code prescribes four methods of taking cognizance upon the complaint or upon a report of the police officer or where the Magistrate himself comes to know of the commission of offence through some other source and in the case of Sessions Court upon a commitment by the Magistrate. The court of Special Judge being a criminal court has been conferred with the power to take cognizance of the offences under section 190 of the Code of Criminal Procedure in any of the manner as indicated above excluding one, i.e, upon commitment by a Magistrate as set out in Section 193 with a view to initiate a proceeding and ultimately to try the accused. Since the provision as contained in section 190 of the Code of Criminal Procedure is confined to Magistrate, the submission has been advanced on behalf of the petitioner that Special Judge does not have power to refer the complaint case under section 156(3) of the Code of Criminal Procedure but in a case of A.R.Antulay vs.Ramdas Sriniwas Nayak and another (supra), the Hon’ble Supreme Court in the similar context has held that in order to give full effect to the provision of the Prevention of Corruption Act (old), Special Judge has to be read wherever expression Magistrate has been used under the principle of legislation by incorporation. In that view of the matter, the Special Judge certainly does have power to refer the compliant before the vigilance for its institution and investigation. This apart let the matter be examined from another angle. By referring to the provision of section 4 of the Code of Criminal Procedure, it has been noted that the offences under other laws in absence of any provisions under the special statute, the same would be investigated, inquired into, etc. under the Code of Criminal Procedure. In that context let us examine the provision as contained in section 5 of the Prevention of Corruption Act as to whether restriction has been put to the power of the Special Judge so as to denude him from exercising power under section 156(3) of the Code of Criminal Procedure. The said provision reads as under: “5. In that context let us examine the provision as contained in section 5 of the Prevention of Corruption Act as to whether restriction has been put to the power of the Special Judge so as to denude him from exercising power under section 156(3) of the Code of Criminal Procedure. The said provision reads as under: “5. Procedure and powers of Special Judge – (1) A Special Judge may take cognizance of offence without the accused being committed to him for trial and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure,1973 (2 of 1974) for the trial of warrant cases by the Magistrate. (2) A Special Judge, may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence tender a pardon to such persons on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to have other persons concerned, whether as principal or abettor in the commission thereof and any pardon so tendered shall for the purposes of sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974) be deemed to have been tendered under section 307 of that Code. (3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal procedure, 1973 (2 of 1974),shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge and for purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor. (4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply to proceedings before a Special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate. (5) A Special Judge may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted. (5) A Special Judge may pass upon any person convicted by him any sentence authorized by law for the punishment of the offence of which such person is convicted. (6) A Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law (Amendment) Ordinance, 1944 (Order 38 of 1944)” Conjoint effect of all the provisions as contained in sub sections (1), (2), (3) and (4) of Section 5 of the Act appears to be that the provision of the Code of Criminal Procedure including Sections 326 and 475 as far as they are not inconsistent with the provisions of the Prevention of Corruption Act shall be applicable in a proceeding before the Special Judge, who has been empowered to take cognizance of the offence without the accused being committed to him for trial. It be stated that had the provision as enshrined in sub section (1) of Section 5 be not there in the Act, the Special Judge being the Sessions Judge or Additional Sessions Judge would not have been competent to take cognizance because of the embargo put by Section 193 of the Code of Criminal Procedure. Therefore, Legislature in his wisdom has put it in sub-section (3) of Section 5 that all the provisions of the Code of Criminal Procedure so far they are not inconsistent save and except as provided in sub-section (1) of Section 5, shall be applicable. Further the provision as contained in sub-section (3) again makes it clear that Special Judge would be deemed to be Court of Sessions for any proceeding arising out of the applicability of other provision but the Legislature is conspicuous silent about the status of the court while taking recourse of the provision in terms of subsection (1) of Section 5 of the Act. But keeping in view the provision of Section 190 which never seems to have been excluded, speaking about taking of the cognizance by the Magistrate, but the Special Judge, while taking cognizance of the offence under the Prevention of Corruption Act would be deemed to be a Magistrate which proposition of law has already been laid down by the Hon’ble Supreme Court as indicated above. That being the situation, the learned Special Judge would always be empowered to exercise his power in terms of Section 156(3) of the Code of Criminal Procedure. Thus, the view expressed by the Orissa High Court in the case, referred to above, appears to be contrary to the law laid down by the Hon’ble Supreme Court in the case of A.R.Antulay vs. Ramdas Sriniwas Nayak and another (supra). Thus, it can safely be said that the Special Judge does have power to deal with the matter under section 156(3) of the Code of Criminal Procedure. Accordingly, I do not find any merit in this application. Hence, it is dismissed.