1984 (2) TMI 317 - SC - Indian Laws

Whether the cognizance can be taken on a private complaint or not? Held that - Having examined the matter from all the different angles, it is satisfied that the conclusion reached both by the learned special Judge and Division Bench of the Bombay High Court that a private complaint filed by the complainant was clearly maintainable and that the cognizance, was properly taken, is correct. Accordingly, this appeal fails and is dismissed

Issues Involved:
1. Jurisdiction of the Special Judge under Section 6 of the Criminal Law Amendment Act, 1952.
2. Requirement of prior investigation under Section 5A of the Prevention of Corruption Act, 1947.
3. Power of the Special Judge to take cognizance of offences on a private complaint.
4. Procedural requirements for taking cognizance of offences by the Special Judge.
5. Role and status of the Special Judge in the hierarchy of criminal courts.

Issue-Wise Detailed Analysis:

1. Jurisdiction of the Special Judge under Section 6 of the Criminal Law Amendment Act, 1952:
The appellant questioned the jurisdiction of the Special Judge, arguing that the court set up under Section 6 of the 1952 Act cannot take cognizance of offences upon a private complaint. The High Court held that the Special Judge is competent to take cognizance of offences under Section 6 (1) (a) and (b) upon a private complaint. The Supreme Court affirmed this, stating that the Special Judge has exclusive jurisdiction to try the specified offences and can take cognizance without the accused being committed for trial.

2. Requirement of Prior Investigation under Section 5A of the Prevention of Corruption Act, 1947:
The appellant contended that a prior investigation by a police officer of the designated rank under Section 5A is a condition precedent for the Special Judge to take cognizance of offences. The High Court rejected this, and the Supreme Court agreed, stating that Section 5A is a safeguard against frivolous investigations by lower-rank officers, but it does not preclude the Special Judge from taking cognizance based on a private complaint. The Court emphasized that the provision is not a condition precedent for initiating proceedings before the Special Judge.

3. Power of the Special Judge to Take Cognizance of Offences on a Private Complaint:
The appellant argued that a private complaint cannot be entertained by the Special Judge. The High Court and the Supreme Court rejected this contention, holding that the Special Judge can take cognizance of offences upon receiving a private complaint. The Court explained that the Criminal Procedure Code allows anyone to set the criminal law into motion, and there is no statutory provision that restricts the Special Judge from taking cognizance on a private complaint.

4. Procedural Requirements for Taking Cognizance of Offences by the Special Judge:
The appellant argued that the Special Judge must follow the procedure prescribed for warrant cases by Magistrates, which includes examining the complainant and witnesses. The Supreme Court clarified that the Special Judge, while taking cognizance, must follow the procedure for trial of warrant cases instituted otherwise than on a police report. The Court noted that the Special Judge has the discretion to either proceed based on the complaint or direct an investigation, but it is not mandatory to always direct an investigation.

5. Role and Status of the Special Judge in the Hierarchy of Criminal Courts:
The appellant questioned whether the Special Judge should be treated as a Magistrate or a Sessions Judge. The Supreme Court clarified that the Special Judge is a court of original criminal jurisdiction, distinct from both Magistrate and Sessions courts. The Court emphasized that the Special Judge has powers akin to a Magistrate for taking cognizance and follows the procedure for trial of warrant cases by Magistrates, but is also deemed to be a Court of Sessions for certain purposes, such as the application of provisions of the Code of Criminal Procedure.

Conclusion:
The Supreme Court upheld the decision of the High Court, affirming that the Special Judge has the jurisdiction to take cognizance of offences upon a private complaint without the necessity of prior investigation under Section 5A. The Court emphasized the independent and original jurisdiction of the Special Judge and the procedural flexibility granted under the Criminal Law Amendment Act, 1952. The appeal was dismissed.

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