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Uttarakhand High Court · body

2017 DIGILAW 194 (UTT)

SATPAL v. CENTRAL BUREAU OF INVESTIGATION

2017-03-27

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J. (Oral) 1. By means of present Application under Section 482 Cr.P.C., the applicant seeks following relief, among others: “Allow the present application and quash the FIR bearing No.RC0072011A0006 dated 12.05.2011, P.S. CBI, SPE, Dehradun, under Sections 120-B, 420, 468, 471 IPC and Sections 7, 8, 12, 13(2) read with 13(1)( d) P.C. Act and further suspension and police/judicial custody period be treated as duty and all pay and allowance, increments within interest, etc. be restored back to applicant with cost.” 2. It may be mentioned, at the very outset, that the present application under Section 482 Cr.P.C. has been filed by the applicant after substantial prosecution evidence has been recorded by the trial court. Needless to say that the charge was already framed against the applicant for the offences punishable under Sections 120-B, 420, 467, 468, 471 IPC and Sections 7, 8, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘P.C. Act’) to which, he (applicant herein) pleaded not guilty and claimed trial. 3. Learned counsel for the applicant fairly submitted, at the very outset, that the arguments, which he is going to advance, today before this Court, were not argued by the applicant at the time of framing of charge. The main plank of applicant’s, argument is that the special law will prevail over the general law. Learned counsel for the applicant cited, decisions of Hon’ble Supreme Court in Suresh Nanda vs, Central Bureau of Investigation, (2008) 3 SCC 674 ; Pankajakshi (dead) through LRs & others vs. Chandrika & others, AIR 2016 SC 1213 and P. Rajan Sandhi vs. Union of ‘India & another, 2010 (10) SCALE 163 in this regard. 4. Reliance is placed upon the provision of Section 25 of the. P.C. Act, which reads as under: “25. Military, Naval and Air Force or other law not to be affected- (1) Noting in this Act shall affect the jurisdiction exercisable by, or the procedure applicable to, any court or other authority under the Army Act, 1950 (45 of 1950), the Air Force Act, 1950 (46 of 1950), the Navy Act, 1957 (62 of 1957), the Border Security Force Act, 1968 (47 of 1968), the Coast Guard Act, 1978 (30 of 1978), and the National Security Guard Act, 1986 (47 of 1986). (2) For the removal of doubts, it is hereby declared that for the purposes of any such law as is referred to in sub-section (1), the court of a Special Judge shall be deemed to be a court of ordinary criminal justice.” 5. This Court agrees to such submission of learned counsel for the applicant that Section 25 of the P.C. Act, which provides that Military, Naval and Air Force or other law shall not to be affected by the provisions of this Act. The result would be - had any proceedings under the Army Act, Air Force Act, Navy Act, the Border Security Force Act, Coast Guard Act, National Security Guard Act, etc. been on the anvil, the provisions of the P.C. Act would not have affected them. 6. In respect of offences alleged against the applicant, the Army Act, Air force Act, Navy Act, the Border Security Force Act, the Coast Guard Act, etc. nowhere uses such type of language as ”notwithstanding anything contained in any other law for the time being in force, the provisions of the Army Act, Air Force Act, .......... etc. shall prevail” or shall have overriding effect”. 7. Although, the Indo-Tibetan Border Police Force Act, 1992 (hereinafter referred to as ‘ITBP Act’) does not find mention in Section 25 of the P.C. Act, yet learned counsel for the applicant made an endeavour to bring home the point that the applicant should only be tried under the ITBP Act. To start with Section 5 of the ITBP Act, nobody is disputing that the general superintendence, direction and control of the force shall vest inthe Central Government, The same has nothing to do with the trial of the applicant-accused by the Special Judge under the P.C. Act. 8. Now, Rule 41 of the Indo Tibetan Border Police Force Rules, 1994 (hereinafter referred to as the ‘ITBP Rules’) speaks as under: “41. Trial of cases either by Force Court or ‘Criminal Court. 8. Now, Rule 41 of the Indo Tibetan Border Police Force Rules, 1994 (hereinafter referred to as the ‘ITBP Rules’) speaks as under: “41. Trial of cases either by Force Court or ‘Criminal Court. - (1) Where an offence is triable both by a Criminal Court and a Force Court, an officer referred to in section 92 may; (i)(a) where the offence is committed by the accused in the course of the performance of his duty as a member of the Force, or (b) where the offence is committed in relation to property belonging to the Government or the Force, or a person subject to the Act; or (c) where the offence is committed against a person. subject to the Act, direct that any person subject to the Act who is alleged to have committed such an offence, be tried by a Force Court; and (ii) in any other case, decide whether or not it would be necessary in the interests of discipline to claim for trial by a Force Court any person subject to the Act who is alleged to have committed such an offence. (2) In taking a decision to claim an offender for trial by a Force Court an officer referred to in section 92 may take into account all or any of the following factors, namely:- (a) the offender is an active duty or has been warned for active duty and it is felt that he is trying to avoid such duty; (b) the offender is a young person undergoing training and the offence is not a serious one and the trial of the offender by a Criminal Court would materially affect his training; the offender can, in view of the nature of the case, be dealt with summarily under the Act.” 9. Such powers are exercisable by the Judge Attorney as per Rule 92 of the ITBP Rules. The criminal proceedings against the applicant are pending before the Special Judge, P.C. Act and not before the Judge Attorney. The proceedings before the Judge Attorney are not under challenge before this Court under Section 482 Cr.P.C. 10. Section 49 of the ITBP Act deals with civil offences, which is quoted hereinbelow: “49. The criminal proceedings against the applicant are pending before the Special Judge, P.C. Act and not before the Judge Attorney. The proceedings before the Judge Attorney are not under challenge before this Court under Section 482 Cr.P.C. 10. Section 49 of the ITBP Act deals with civil offences, which is quoted hereinbelow: “49. Civil offences.- Subject to the provisions of section 50, any person subject to this Act who at any place in, Or beyond, India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section shall be liable to be tried by a Force Court and, on conviction, be punishable as follows, that is to say,- (a) if the offence is one which would be punishable under any law in force in India with death, he shall be liable to suffer any punishment, assigned for the offence, by the aforesaid law and such less punishment as is ‘in this Act mentioned; and (b) in any other case, he shall be liable to suffer any punishment, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.” 11. Likewise, Section 50 of the ITBP Act prescribes that civil offences shall not be triable by a Force Court, which reads as under: “50. Civil Offences not triable by a Force Court.- A person subject to this Act who commits an offence of murder or culpable homicide not amounting to murder against, or of rape in relation to, a person not subject to this Act shall not be deemed to be guilty of an offence against this Act and shall not be tried by a Force Court, unless he commits any of the said offences- (a) while an active duty; or (b) at any place outside India; or (c) at any place specified by the Central Government by notification, in this behalf.” 12. Certain civil offences shall, therefore, be tried by Force Court and certain other shall not be tried by the Force Court. Certain civil offences shall, therefore, be tried by Force Court and certain other shall not be tried by the Force Court. Had any offence allegedly committed by the applicant been tried by the Force Court and had the question arisen as to whether the such offence shall be tried by the Force Court or not, then only this Court would have decided whether the alleged offence is triable by the Force Court or riot. But, in the instant case, such question is not under consideration of this Court. 13. Further, a reference of Rules 176 & 177 of the ITBP Rules has been given. These Rules pertain to the court of enquiry and not the regular civil/criminal court. 14. Suresh Nanda’s case (supra) deals with the Passport Act, 1967 and the dispute was on impounding of passport of Suresh Nanda. The passport of Suresh Nanda-appellant was seized by the CBI. He moved an application before the Special Judge, CBI for release of his passport. The Special Judge, CBI directed the release of his passport by imposing upon him certain conditions. Feeling aggrieved by this, the CBI preferred a criminal revision before the Delhi High Court. Vide order dated 05.02.2007, the High Court reversed the order of the Special Judge and refused to release the passport. When the matter travelled up to Hon’ble Supreme Court, it was held that neither the passport authority has passed any order of impounding nor was any opportunity of hearing given to the appellant by such authority for impounding the document. It was also held by Hon’ble Supreme Court that the retention of passport by the Central Government (i.e. CBI) can only be for a period of four weeks and, thereafter, it can only be retained by an order of passport authority. The Hon’ble Supreme Court set aside the order of High Court and held as under: “9 When we read Section 104 CrPC and Section 10 of the Act together, under CrPC, the court is empowered to impound any document or thing produced before it whereas the Act speaks specifically of impounding of the passport. 10. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 CrPC authorizes the court. to impound document or thing produced before it. 10. Thus, the Act is a special Act relating to a matter of passport, whereas Section 104 CrPC authorizes the court. to impound document or thing produced before it. Where there is a special Act dealing with specific subject, resort should be had to that Act instead of general Act providing for the matter connected with the specific Act. As the Passports Act is a special Act. the rule that ‘general provision should yield to the specific provision’ is to be applied.” [emphasis supplied] 15. In Suresh Nanda’s case (supra), Hon’ble Supreme Court specifically held that the Passports Act is a special Act and it would override the provisions of Cr.P.C. for the purpose of impounding of passport. 16. It is true that the special law will prevail over the general law, but that is applicable only when the matter of accused is covered by the such special Act. In the instant case, the case of the applicant-accused is not covered by any special Act, but is only covered by the P.C. Act. 17. Likewise, P. Rajan Sandhi’s case (supra) deals with the Payment of Gratuity Act vis-a-vis the Working Journalists Act. It was held in the said case that Section 5 of the Working Journalists Act being a special law will prevail, over Section 4(6) of the Payment of Gratuity Act, which is a general law. The context in the instant case is entirely different and therefore, this Court should not be swayed by such argument of learned counsel for the applicant that the applicant should be tried by the Force Court and not by the criminal court i.e. Special Judge, P.C. Act. 18. The decision in Pankajakshi’s case (supra) was on the Travancore Cochin High Court Act. Facts and basic question being distinguishable, the same is not applicable in the present case. 19. The gravamen of the aforesaid decision is the working test to determine, which statute is general and which is special. The same is the principal subject matter here. Hon’ble Supreme’ Court in Pankajakshi’s case (supra) observed as follows: “4. ........... Facts and basic question being distinguishable, the same is not applicable in the present case. 19. The gravamen of the aforesaid decision is the working test to determine, which statute is general and which is special. The same is the principal subject matter here. Hon’ble Supreme’ Court in Pankajakshi’s case (supra) observed as follows: “4. ........... In our view, the law contained in the Travancore-Cochin Act and the Kerala Act regulating the practices, procedure and powers of the Chief Justice and Judges of the High Court in relation to all cases from all enactments appearing before them is a general law which cannot be made applicable to appeals from the Code of Civil Procedure regulated by special law that is contained in Sections 96 to 98 of the Code. There is a clear conflict between the provisions contained in Section 23 of the Travancore-Cochin Act which allows the reference by differing Judges who have delivered separate judgments or opinions to a third Judge on issues both on fact and law and the provisions contained in proviso of sub-section (2) of Section 98 of the Code which permits reference to one or more Judges only on the difference of opinion on the stated question of law. When the Courts are confronted with such a situation, the Courts’ approach should be “to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific”. The principle is expressed in the maxims generalia specialibus non derogant (general things do not derogate from special things) and specialia generalibus derogant (special things from general things). These principles have also been applied in resolving a conflict between two different Acts and in the construction of statutory rules and statutory orders. 36. ......... In particular he relied strongly on Life Insurance Corporation of India v. D.J. Bahadur and Others, (1981) 1 SCC 315 .............. . The working test laid down by this Court to determine which statute is general and which special, is laid down in paragraph 52 of the said judgment thus- “In determininq whether a statute is a special or a general one, the focus must be on the principal subject- matter plus the particular perspective. . The working test laid down by this Court to determine which statute is general and which special, is laid down in paragraph 52 of the said judgment thus- “In determininq whether a statute is a special or a general one, the focus must be on the principal subject- matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes - so too in life. The ID Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements.” [emphasis supplied] 20. Since the decision of Pankajakshi (supra) is on different footing, therefore, this Court need not discuss the ratio of the aforesaid decision any further. 21. Section 4 of the P.C. Act clinches the issue against the applicant and in favour of respondents. Section 5 of the Cr.P.C. says that the special law will prevail over the general law. Section 4 of the P.C. Act says that the P .C. Act shall have overriding affect over the provisions of Cr.P.C. or any other law for the time being in force. [We may read ITBP Act or the Rules made thereunder here] 22. It says, in no uncertain terms, that the offences specified in sub-section (1) of Section 3 of the P .C. Act. shall be tried by the Special Judge only. [as is being done in the present case] 23. It will be useful to reproduce Section 4 of the P .C. Act hereunder for convenience. “4. Cases triable by Special Juclges.-(l) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force. the offences specified in sub-section (1) of Section 3 shall be tried by Special Judges only. “4. Cases triable by Special Juclges.-(l) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force. the offences specified in sub-section (1) of Section 3 shall be tried by Special Judges only. (2) Every offence specified in sub-section (1) of Section 3 shall be tried by the Special Judge for the area within which it was committed, or, as, the case may be, by the Special Judge appointed for the case, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government. (3) When trying any case, a Special Judge may also try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Crintinal Procedure, 1973 (2 of 1974), be charghed at the same trial. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a Special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.” [emphasis supplied] 24. Further, it will also be useful to quote Section 3 of the P.C. Act hereinbelow for convenience: “3. Power to appoint Special Judges.- (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many, Special Judges as may be necessary for such area or areas or for such case or group of cases as, may be specified in the notification to try the following offences, namely :- (a) any offence punishable under this Act; and (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a), (2) A person shall not be qualified for appointment as a Special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973.” [underlines mine] 25. The applicant-accused, in the instant case, is being tried for the offences punishable under Sections 120-B, 420, 467, 468, 471 IPC and Sections 7, 8, 12, 13(2) read with Section 13(l)(d) of the P.C. Act, which may be tried only by the Special Judge, Anti Corruption (CBI). The applicant-accused, in the instant case, is being tried for the offences punishable under Sections 120-B, 420, 467, 468, 471 IPC and Sections 7, 8, 12, 13(2) read with Section 13(l)(d) of the P.C. Act, which may be tried only by the Special Judge, Anti Corruption (CBI). If the applicant-accused is being tried by the Special Judge not only for the offences punishable under the Prevention of Corruption Act but also under the IPC, the same is also in order and it cannot be pleaded as to why the Special Judge is trying the accused for different offences (i.e. IPC as well as P.C. Act) in view of the aforesaid provisions of the P.C. Act. 26. A last minute effort is made by learned counsel for the applicant by arguing that since the P.C. Act was enacted in the year 1988 and the ITBP Act was enacted in the year 1992, therefore, the provisions of latter Act shall prevail. Again, this Court is unable, to accept such contention of learned counsel for the applicant, inasmuch as it is the 1988 Act (P.C. Act), which has overriding effect over any other law for the time being in force and not the 1992 Act (ITBP Act). Had the intention of legislature been to give overriding effect to 1992 Act, a specific provision would have been made in the Act itself in this regard, which has not been done. 27. As a consequence thereof, application under Section 482 Cr.P.C. is liable to be dismissed and is hereby dismissed.