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2025 DIGILAW 1468 (ALL)

Sanjay Agarwal v. State Of U. P.

2025-12-19

NAND PRABHA SHUKLA

body2025
JUDGMENT : NAND PRABHA SHUKLA, J. 1. Heard Sri Atharva Dixit, learned counsel for the applicant, Mr. Sheo Ram Singh, learned counsel for the opposite party Nos. 2 to 4, Sri Ratan Singh, learned A.G.A.-I for the State and perused the record. 2. The present application under Section 528 B.N.S.S. has been filed with the prayer to quash the impugned orders dated 26.06.2024 and 30.05.2025 passed by the learned Special Judge (Dacoity Affected Area), Jhansi in Complaint Case No. 103 of 2023 (Rajeev Agarwal and others Vs. Sanjay Agarwal) under Sections 452, 323, 504, 506, 392, 406, 420, 120B IPC, Police Station-Kotwali, District-Jhansi, pending in the Court of learned Special Judge (Dacoity Affected Area), Jhansi. 3. Briefly stated, the applicant lodged a complaint in the Court of learned Special Judge (Dacoity Affected Area), Jhansi as Complaint Case No. 103 of 2023 (Sanjay Agarwal Vs. Rajeev Agrawal and others) wherein vide order dated 16.02.2024, the opposite party Nos. 2 to 4 have been summoned to face the trial under Sections 392, 452, 120B, 504, 506 IPC. 4. After taking cognizance, the learned Trial Court had fixed 06.06.2024 for the framing of the charges and on 26.06.2024, the date was fixed for recording of the evidence under Section 244 Cr.P.C. 5. It has been submitted that the respondents/accused moved an application under Section 39B before the learned Trial Court which was allowed vide order dated 30.05.2025 permitting, them to cross-examine P.W.-2 on the basis of the evidence adduced under Section 244 Cr.P.C. 6. The main submission of learned counsel for the applicant is that the procedure adopted by the learned Special Court for trying a Scheduled offence i.e., Section 392 IPC is illegal and against the procedure prescribed. It has been submitted that the instant complaint was lodged against the respondents/accused in the Court of Special Court (Dacoity Affected Area) Jhansi. The main submission of learned counsel for the applicant is that the procedure adopted by the learned Special Court for trying a Scheduled offence i.e., Section 392 IPC is illegal and against the procedure prescribed. It has been submitted that the instant complaint was lodged against the respondents/accused in the Court of Special Court (Dacoity Affected Area) Jhansi. The cognizance was taken and summoning order was passed u/s 392, 452,120B,504, 506 & 392 IPC which is a Scheduled offence under the provisions of the UP Dacoity Affected Area Act, 1983 therefore trial ought to have been conducted in the manner as prescribed under Chapter XVIII of the Code of Criminal Procedure and the provisions of Sections 244 or 245 of the Code of Criminal Procedure would not apply to the proceedings of the Complaint Case pending before a Special Court which happens to be the learned Sessions Judge under the U.P. Dacoity Affected Areas Act, 1983 (here-in-after referred to as "U.P Act No. 31 of 1983"). 7. At this juncture, it is relevant to refer the provisions of U.P. Dacoity Affected Areas Act, 1983 whose object is to make provision for specifying certain offences in the Dacoity Affected Areas of the Uttar Pradesh in order to curb effectively commission of Scheduled offences and to make provision for punishment and speedy trial thereof and further attachment of properties acquired through the commission of such offences. 8. The State of Uttar Pradesh vide Government Notification (No. 8111- P/VIII-3-31) on November 5, 1981 had declared Jhansi as a Dacoity Affected Area. 9. The Schedule appended to the said Act classifies Section 392 IPC to be a Scheduled offence under Section 2(b) of the U.P. Act No. 31 of 1983. 10. Section 7 of U.P. Act No. 31 of 1983 prescribes the procedure and powers of the Special Courts:- "Section 7. Procedure and powers of Special Courts. - (1) A Special Court may take cognizance of any scheduled offence, (a) upon receiving a complaint of facts which constitute such Courts. 10. Section 7 of U.P. Act No. 31 of 1983 prescribes the procedure and powers of the Special Courts:- "Section 7. Procedure and powers of Special Courts. - (1) A Special Court may take cognizance of any scheduled offence, (a) upon receiving a complaint of facts which constitute such Courts. offence; (b) upon a police report of such facts ; (c) upon information received from any person other than a police officer, or upon its own knowledge that such offence has been committed: Provided that all cases triable by a Special Court under this Act, pending before any Court immediately before the date of the commencement of this Act in a dacoity affected area, shall stand transferred to the Special Court having jurisdiction over such cases and shall be dealt with and disposed of in accordance with the provisions of this Act. (2) A Special Court shall, while trying a scheduled offence, so far as may be, follow the procedure provided by the Code of Criminal Procedure, 1973 for trial of sessions cases : Provided that the Special Court may, wherever necessary, perform the functions of a Magistrate under section 207 of the said Code and proceed to try the case as if the case had been committed to Court of Sessions for trial under the provisions of such Code. (3) Save as otherwise expressly provided in this Act, the provisions of the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before a Special Court and for the purposes of the provisions of the said Code, the Special Court shall be deemed to be a Court of Sessions and the person conducting the prosecution before a Special Court shall be deemed to be a public prosecutor. (4) A Special Court may, with a view to obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to any scheduled offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal abettor in the commission thereof and any pardon so tendered shall for purposes of section 308 of the said Code, be deemed to have been tendered under section 307 thereof. (5) A. Special Court may pass upon any accused person convicted by it any sentence authorised by law for the punishment of offence of which such person is convicted." 11. Ordinarily, the power of taking cognizance in a Complaint Case in the Cr.P.C., is vested with the Magistrate as per the provisions of Section 190 Cr.P.C., but Section 193 Cr.P.C., provides for cognizance of the offences in other Courts also like the Court of Session. 12. Section 193 Cr.P.C., reads as under:- " 193. Cognizance of offences by Courts of Session.- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." 13. The bare reading of provision of Section 193 indicates that the Court of Session may also take cognizance of an offence, if it is empowered to do so by any other law for the time being in force. This provision is completely in consonance with the saving clause contained in Section 5 of the Cr.P.C., which lays down that nothing contained in the 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 special forum or procedure prescribed by any other law for the time being in force. As such, if the special laws are in force then the general laws could not be resorted to as regards the procedure of a trial or other things regarding a criminal offence made punishable either under the I.P.C or any other Act for the time being in force. 14. As such, if the special laws are in force then the general laws could not be resorted to as regards the procedure of a trial or other things regarding a criminal offence made punishable either under the I.P.C or any other Act for the time being in force. 14. Section 4(2) of the Cr.P.C., deals with the trial of offences under other laws which reads as under:- "4(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 of place of investigating, inquiring into, trying or otherwise dealing with such offences." 15. The Uttar Pradesh Dacoity Affected Areas Act is a Special Act and Section 7 of the Act expressly lays down the procedure and power of a Special Court which has been constituted by virtue of Section 5 of the Cr.P.C. The Special Court thus consists of the Sessions Judge or the Additional Sessions Judge, empowered to try the scheduled offences by following the procedure provided by the Code of Criminal Procedure, 1973 for the trial of Sessions Cases. The Special Court has to follow the procedure set down by the Cr.P.C. under Chapter XVIII which relates to trial before the Court of Session. If the prescribed procedure is not adopted then it is either a case of lack of jurisdiction and is an abuse of the process of law. 16. Learned counsel for the applicant has relied upon the judgment rendered by the Hon'ble Supreme Court in Gangula Ashok and Another Vs. Andhra Pradesh 2000 (2) SCC 504 wherein it was observed that: "Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a magistrate", as provided in the Code, Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a magistrate. Neither in the Code nor in the Act there is any provision whatsoever, not even by implication, that the specified Court of Session (Special Court) can take cognizance of the offence under the Act as a court of original jurisdiction without the case being committed to it by a magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straightway be filed before such Special Court for offences under the Act. It can be discerned from the hierarchical settings of criminal courts that the Court of Session is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the Court of Session from the work of performing all the preliminary formalities which magistrates have to do until the case is committed to the Court of session. We have noticed from some of the decisions rendered by various High Courts that contentions were advanced based on Sections 4 and 5 of the Code as suggesting that a departure from Section 193 of the Code is permissible under special enactments. Section 4 of the Code contains two sub-sections of which the first sub-section is of no relevance since it deals only with offences under the Indian Penal Code. However, sub-section (2) deals with offences under other laws and hence the same can be looked into. Section 4 of the Code contains two sub-sections of which the first sub-section is of no relevance since it deals only with offences under the Indian Penal Code. However, sub-section (2) deals with offences under other laws and hence the same can be looked into. Sub- section (2) of Section 4 is extracted below : "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." A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other Laws shall also be investigated, inquired into, tried and otherwise dealt with under the provision of the Code, This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provision of the Code, If there is no such contrary provision in other laws, then provisions of the code would apply to the matters covered thereby. This aspect has been emphasised by a Constitution Bench of this Court in paragraph 16 of the decision in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr., [1984] 2 SCC 500. It reads thus: "Section 4(2) provides for offences under other law which may be investigated, inquired into, and otherwise dealt with accord-ing 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 the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Pro-cedure. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Pro-cedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations." Nor can Section 5 of the Code be brought in aid for supporting the view that the Court of Session specified under the Act can obviate the interdict contained in Section 193 of the Code as long there is no provision in the Act empowering the Special Court to take cognizance of the offence as a court of original jurisdiction. Section 5 of the Code reads thus : "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 power conferred, or any special form of procedure prescribed, by any other law for the time being force." This Court, on a reading of Section 5 in juxtaposition with Section 4(2) of the Code, has held that "it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2); In short, the provisions of this Code would be applicable to the extent, in the absence of any contrary provision in the special Act or any special provision including the jurisdiction or applicability of the Code." (vide para 128 in Directorate Enforcement v. Deepak Mahajon, [1994] 3 SCC 440. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightway laid before the Special Court under the Act." 17. Learned A.G.A. for the State could not dispute the aforesaid facts and circumstances. 18. In other words, a complaint or a charge sheet cannot straightway laid before the Special Court under the Act." 17. Learned A.G.A. for the State could not dispute the aforesaid facts and circumstances. 18. As District Jhansi has been notified by the State Government as a Dacoity Affected Area and Section 392 IPC is classified as a Scheduled offence under Section 2(b) of the U.P Act No. 31 of 1983, therefore, in the instant matter trial must proceed as per Section 7 of the U.P. Act No. 31 of 1983 which empowers the Special Court to follow the procedure as provided under Chapter XVIII of the Code of Criminal Procedure. 19. In view of the aforesaid discussion, the Court finds that the impugned orders dated 26.06.2024 and 30.05.2025 have been passed without jurisdiction and is an abuse of the process of the Court. Hence, the impugned orders dated 26.06.2024 and 30.05.2025 passed by the learned Special Judge (Dacoity Affected Area), Jhansi are hereby set aside and the matter is remitted back with a direction to the Court concerned to proceed with trial afresh, in accordance with the procedure as discussed above, after giving opportunity of hearing to both the parties, expeditiously without granting any unnecessary or long adjournments to either of the parties, if there is no other legal impediment. 20. With the aforesaid direction, the application u/s 528 B.N.S.S. is allowed.