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TMI Blog2001 (9) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... Bakshi, Rani Jethmalani, Ms. Gouri K. Das, Ms. Susila Ram, A.D. Chaugule, P.G. Sabnis, Ms. Gitanjali Malviya, Saurabh Avasthi, Pervez A. Siddiqui, Surender Chandra Gupta, A. Subba Rao, R.S. Mhamane, Tara Chandra Sharma, P. Parmeswaran, Ms. Lata Krishnamurthi, Ms. Sushma Suri, Ajay Bhalla, P.K. Goswami, P.K. Jain, S.V. Deshpande, Bishwajit Bhattacharya Ranjan Mukherjee, Ms. Puja Khatkar for the appearing parties. JUDGMENT Sabharwal, J. - Criminal Courts are normally constituted under the provisions of the Code of Criminal Procedure. Section 6 of the Code of Criminal Procedure, 1973 ( the Code ) provides for the classes of criminal courts. In addition to the provisions contained in the Code or the old Code of 1898, from time to time, enactments have been passed providing that in respect of certain offences, there will be Special Court manned by persons having specified qualifications. In the present appeals, we are concerned with such an enactment, namely. The Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 ( the Act ). The passing of the Act was preceded by an Ordinance which was promulgated on 6-6-1992. 2. It is an Act to provide f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of exclusive jurisdiction in respect of offences referred to in sub-section (2) of section 3. 5. Section 9 of the Act lays down the procedure and powers of Special Court and stipulates the following of the procedure prescribed by the Code for the trial of warrant cases before a Magistrate. Section 9(2), inter alia, provides for the applicability of the provisions of the Code to the proceedings before the Special Court insofar as they are not inconsistent with the provisions of the Act. As provided in this provision, the Special Court is deemed to be a Court of Session. The main bone of contention is the interpretation of section 9 which reads as under : "9. Procedure and powers of Special Court. (1) The Special Court shall, in the trial of such cases, follow the procedure prescribed by the Court for the trial of warrant cases before a magistrate. (2) Save as expressly provided in this Act, the provisions of the Code shall, insofar as they are not inconsistent with the provisions of this Act, apply to the proceedings before the Special Court and for the purposes of the said provisions of the Code, the Special Court shall be deemed to be a Court of Session and shall hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pardon was accepted by Prabhu and Choudhury. 8. The appellants by applications dated 9-1-1996 filed before the Special Court sought revocation of the pardon. It was pleaded in the applications that the pardon granted to Prabhu and Choudhury was void and non est in the eyes of law mainly on the ground of lack of the jurisdiction of the Special Court to grant pardon. It was urged that the power to grant pardon had to be expressly conferred; there is no inherent power in any court to grant pardon and that no such power had been conferred on the Special Court. 9. The applications seeking revocation were dismissed by the Special Court by order dated 6-2-1996 holding that the Special Court has the power to tender pardon. The Special Court rejected the contention that the orders dated 22-6-1993 were without jurisdiction. The legality of the order dated 6-2-1996 is in issue is before us. 10. Chapter XXIV of the Code deals with the general provisions as to inquiries and trials. Sections 300 to 327 are in this Chapter. Sections 306 and 307 deal with tender of the pardon to accomplice. Section 306 confers power on Magistrates and section 307 on the court to which the commitme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 952), if the offence is triable exclusively by that Court ; ( b ) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. 307. Power to direct tender of pardon. At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person. 308. Trial of person not complying with conditions of pardon. (1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence : Provided that such person shall no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lts in the grantee escaping the punishment for the offence. The nature of power of pardon under section 306 or 307 is essentially different than the nature of such power under the Constitution of India whereby the President and/or Governor are empowered to grant pardon. Those powers are exercised after a person is found guilty. That is not so here. Under sections 306 and 307, the pardon is tendered during the investigation, enquiry or trial, as the case may be. The object is to obtain evidence of an accomplice so as to facilitate conviction of others. Undoubtedly, as contended by Mr. Jethmalani, such a power has to be conferred specifically. It is a substantive power. The power has to be derived from the statutory provisions. Section 306 confers the power to grant pardon in respect of serious offences and on certain class of Magistrate. From the scheme of the section and having regard to the nature of the power, we find that Mr. Jethmalani is right in contending that the power to grant pardon is not an inherent power of a criminal court and is a substantive power to be specifically conferred. It, therefore, follows that such a substantive power does not flow from section 9(4) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded by necessary implication is an aspect which needs serious consideration. 17. Mr. Jethmalani, the learned counsel appearing for the appellant, contends that sections 306 and 307 have not been extended to the Special Court under the Act. It is contended that the Special Court is not a class of a court enumerated in sub-section (1) of section 306 or a court as contemplated by section 307 to which commitment is made. Therefore, the contention is that neither section 306 nor section 307 is applicable to the proceedings before the Special Court under the Act and hence that courts has no power or jurisdiction to tender pardon. The learned counsel further contends that it was a matter of policy for the law makers to confer or not upon the Special Court such a power and in their wisdom, probably considering the gravity of the offence and situation with which the country was confronted, it took a policy decision not to confer power of pardon so that no one should excape punishment and every accused is equally treated. The learned counsel contends that this course was adopted by the Legislature despite the fact that law makers were fully conscious that in all similar earlier enact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses of the said provisions of Special Judge shall be deemed to be a Magistrate (4) 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." 19. Mr. Jethmalani contends that for all intents and purposes, the aforesaid provisions have been repeated while enacting section 9 but by not providing in section 9 a provision similar to abovesaid section 8(2) conferring on the Special Court under the Act power to grant pardon almost conclusively shows the legislative intendment of not conferring power of pardon on the Special Court. This omission, according to the learned counsel, provide a complete answer to the question. Our attention has also been drawn to the Special Courts Act, 1979. Section 9 thereof provides for procedure and powers of the Special Courts established under the said Act. It confers on the Special Court power to tender pardon as stipulated in sub-section (2) of section 9 which is similar to section 8(2) of the 1952 Act. 20. Mr. Jethmalani contends that a plain reading of the provisions of sections 306 and 307 shows that these provisions do not fit in the schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has no power to tender pardon in the absence of specific provision to that effect in the Act, strong reliance has been placed by Mr. Jethmalani on the decision of this Court in Lt. Commander Pascal Fernandes v. State of Maharashtra [1968] 1 SCR 695. The relevant passage reads thus : "Before we discuss the validity or propriety of the tender of pardon to Jagasia we shall refer briefly to the statutory provisions on the subject of the tender of pardon. The topic of tender of pardon to an accomplice is treated in the twenty-fourth Chapter of the Code as part of the general provisions as to inquiries and trials. Sections 337 to 339 and 339A contain all the provisions which refer to courts of criminal jurisdiction established under the Code. The Special Judge created under the Criminal Law Amendment Act, 1952 (Act 46 of 1952) is not one of them. For the cases triable by Special Judges under the Criminal Law Amendment Act a special provision is to be found in section 8(2) of that Act, for tender of pardon to an accomplice, as part of the procedure and powers of Special Judges. The section is set out below. The second sub-section necessarily differs in some respects from the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under the provisions of section 338 and so this section is introduced to enable the Special Judge to tender a pardon. Sub-section 3( a ) has made the provisions of sections 350 and 549 applicable to proceedings before a Special Judge and for the purposes of the said provisions a Special Judge shall be deemed to be a Magistrate. Section 350 of the Code of Criminal Procedure enables a succeeding Special Judge to act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself. Section 549 empowers a Magistrate when any person is brought before him charged with an offence for which he is liable to be tried by a Court to which this Court applies or by a Court-martial, the Magistrate shall deliver him to the Commanding Officer of the Regiment for the purpose of being tried by the Court-martial. This provision also is made specifically applicable to the Special Judge. Section 8(A) empowers the Special Judge to try certain offences in a summary way and the provisions of sections 262 to 265 of the Criminal Procedure Code is made applicable so far as they may apply." (p. 931). 25. The contention of the learned counsel is that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Relying upon statutory interpretation by Francis Bennion (1984 Edition), the counsel contends that where, as in the present case, the provisions of the later enactment (the Act) are contrary to those of the earlier (the Code), the later by implication repeals the earlier in accordance with the maxim leges posteriores priores contrerios abrogant (later laws abrogate earlier contrary laws). This is, however, subject to the exception embodied in the maxim generatia specialitous non derogant (a general provision does not derogate from a special one). 30. One of the important test to determine the issue of implied repeal would be whether the provisions of the Act are irreconcilably inconsistent with those of the Code that the two cannot stand together or the intention of the Legislature was only to supplement the provisions of the Code. This intention is to be ascertained from the provisions of the Act. Courts lean against implied repeal. If by any fair interpretation both the statutes can stand together, there will be no implied repeal. If possible implied repeal shall be avoided. It is, however, correct that the presumption against the intent to repeal by implication is over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court and courts of other countries, in S.P. Gupta v. M. Tarkunde AIR 1982 SC 149, a Bench of seven judges said : "But there is one principle on which there is complete unanimity of all the courts in the world and this is that where the words or the language used in a statute are clear and cloudless, plain, simple and explicit unclouded and unobscured, intelligible and pointed so as to admit of no ambiguity, vagueness, uncertainty or equivocation, there is absolutely no room for deriving support from external aids. In such cases, the statute should be interpreted on the face of the language itself without adding, subtracting or omitting words therefrom ( para 197 ). Where, however, the words or expressions used in the constitutional or statutory provisions are shrouded in mystery, clouded with ambiguity and are unclear and unintelligible so that the dominant object and spirit of the Legislature cannot be spelt out from the language, external aids in the nature of Parliamentary debates, immediately preceding the passing of the statute, the report of the Select Committees or its Chairman, the Statement of Objects and Reasons of the statute, if any, or any statement made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d either tender pardon itself or order the committing Magistrate or the District Magistrate to so do. Now under section 307, there is no power to so order the committing Magistrate. In the old Code, the Court of Session and that of the Magistrate had concurrent jurisdiction to grant pardon seems evident. In State of U.P. v. Kailash Nath Agarwal [1973] 1 SCC 751 the question for consideration was whether a District Magistrate is competent under section 337 of the old Code to exercise power of pardon even after commitment and the conferment of the power to grant pardon on the Special Judge under section 338. It was held that section 338 does not deprive the District Magistrate of his power to grant pardon under section 337. This Court said that even after commitment, a District Magistrate will have power to grant pardon, though it was necessary to bear in mind that the authorities under sections 337 and 338 have to exercise jurisdiction in harmony in order to further the interest of justice and avoid conflicting orders being passed. This decision also takes note of other provision of the old Code which provide for exercise of conferment of concurrent powers and when the Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the two provisions which were under consideration before the Special Court which is evident from the following : "It follows that the powers of the Special Judge are not circumscribed by any condition except one, namely, that the action must be with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to an offence. The pardon so tendered is also 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 or abettor. The disclosure must be complete as to himself and as to any other person concerned as principal or abettor. There is no provision for the recording of reasons for so doing, nor is the Special Judge required to furnish a copy to the accused. There is no provision for recording a preliminary statement of the person. There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender a pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to an offence. This must necessarily include a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is forwarded is not the Magistrate having jurisdiction to try the case, he may authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days on the whole. If he has no jurisdiction to try the case and if he considers that the further detention is necessary, he may order the accused to be forwarded to any Magistrate having jurisdiction who may authorize detention of the kind provided beyond period of 15 days but for a total period not exceeding 60 days. The accused in that case were produced before the Special Judge who had the jurisdiction to try the case. The contention which found favour with the High Court was that the words magistrate having jurisdiction cannot apply to a Special Judge having jurisdiction to try the case. It was held in this case that no doubt the word Special Judge is not mentioned in section 167 but the question is whether that would exclude the Special Judge from being a Magistrate having jurisdiction to try the case. On examining various provisions of the Code including section 193 thereof, it was held that in taking cognizance of an offence without the accused being committed to him, he is not a Sessions Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Criminal Procedure Code provides that any reference without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires in the manner stated in the sub-sections. If the context otherwise requires the word Magistrate may include Magistrates who are not specified in the section. Read along with the definition of the Magistrate in the General Clauses Act there can be no difficulty in construing the Special Judge as a Magistrate for the purposes of section 167." (p. 934) Mr. Jethmalani, of course, contends that to the aforesaid extent, Krishnnaswami Naidu s case ( supra ) is not correctly decided. We are unable to accept the contention. 39. Mr. Jethmalani also contends that at pre-cognizance stage no power of any nature has been conferred on the Special Court under the Act and this, the counsel says is clear from the language of sections 6 and 7 of the Act. It, however, needs to be noticed that while section 6 uses the expression case in the context of Special Court taking cognizance or trying such cases as instituted before it or transferred to it as provided therein, on the other hand, section 7 uses the expression prosecution in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g section 307 prescribing the power of the court, three reasons are given by the learned counsel in support of the submission that the said provision has not been extended to the Special Court, namely, (1) No commitment is made to the Special Court, (2) It operates after commitment and only thereafter the court will have power to grant pardon and (3) It does not confer power to grant pardon during investigation of the offence. It was submitted that in these appeals the pardon was granted during investigation as the order was passed by Special Court granting pardon on 22-6-1993 whereas the charge sheet was filed later i.e. on 24-6-1993. 41. Section 306(4)( a ) postulates that every person accepting a tender of pardon made under sub-section (1) of section 306, shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Here, it is pointed out, the cognizance cannot be taken by the Magistrate in view of sections 6 and 7 and it can be exclusively taken by the Special Court and, therefore, this section becomes redundant, is the contention. Likewise, section 306(5) is also inapplicable since there can be neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning and Weaving Mills Co. Ltd. v. State of U.P. AIR 1961 SC 1170, it was contended that there is a presumption that the Legislature inserts every part of a statute for a purpose and that every part should have effect and since sub-sections (4) and (5) of section 306 would not have effect as those sub-sections cannot be complied, it is evident that the power of section 306 was not intended to be conferred on the Special Court by the Legislature when that court with exclusive power of cognizance cannot comply with section 306. The later part of submission does not follow from J.K. Cotton Spinning and Weaving Mill s case ( supra ). Even the earlier part of the submission does not lead to the conclusion that power of pardon was intended to be excluded. The reliance upon the decision in the celebrated case of Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 laying down that every provision of the Code of Criminal Procedure is meant to be obeyed is also of no help for resolving the issue in these appeals. 45. To our mind, the Special Court has all the powers of a Court of Session and/or Magistrate, as the case may be, after the prosecution is instituted or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depending upon the stage of the case, there will be a complete hiatus. It is also to be kept in view that the Special Court under the Act comprises of a High Court Judge and it is a court of exclusive jurisdiction in respect of any offence as provided in section 3(2) which will include offences under Indian Penal Code, Prevention of Corruption Act and other penal laws. It is only in the event of inconsistency that the provisions of the Act would prevail as provided in section 13 thereof. Any other interpretation will make the provision of the Act unworkable which could not be the intention of the Legislature. Section 9(2) does not exclude sections 306 to 308 of the Code from the purview of the Act. This section, rather provides that the provisions of the Code shall apply to the proceedings before the Special Court. The inconsistency seems to be only imaginary. There is nothing in the Act to show that sections 306 to 308 were intended to be excluded from the purview of the Act. 46. Reliance has been placed by the learned Solicitor General on A.R. Antulay s case ( supra ). That case holds that in contra-distinction to the Sessions Court, the court of Special Judge to be a court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w court which is indisputably a criminal court because it was not even whispered that the Court of Special Judge is not a criminal court, is set up, to make it effective and functionally oriented, it becomes necessary to prescribe its powers, procedure, status and all ancillary provisions. While setting up a court of a Special Judge keeping in view the fact that the high dignitaries in public life are likely to be tried by such a court, the qualification prescribed was that the person to be appointed as a Special Judge has to be either a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge. These three dignitaries are above the level of a Magistrate. After prescribing the qualification, the Legislature proceeded to confer power upon a Special Judge to take cognizance of offences for the trial of which a Special Court with exclusive jurisdiction was being set up. If a Special Judge has to take cognizance of offences, ipso facto the procedure for trial of such offences has to be prescribed. Now the Code prescribes different procedures for trial of cases by different courts. Procedure for trial of a case before a Court of Sessions is set out in Chapter XVIII; trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Special Judge, therefore, become a Magistrate? This is the fallacy of the whole approach. In fact, in order to give full effect to section 8(1), the only thing to do is to read Special Judge in sections 238 to 250 wherever the expression Magistrate occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of section 190 which conferred power on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate? What is to be done is that one has to read the expression Special Judge in place of Magistrate, and the whole thing becomes crystal clear. The Legislature wherever it found the grey area clarified it by making specific provision such as the one in sub-section (2) of section 8 and to leave no one in doubt further provided in sub-section (3) that all the provisions of the Code of Criminal Procedure shall so far as they are not inconsistent with the Act apply to the proceedings before a Special Judge. At the time when the 1952 Act was enacted what was in operation was the Code of Criminal Procedure, 1898. It did not envisage any Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of A.R. Antulay s case ( supra ) it was not necessary to make specific provision in the Act conferring power on the Special Court to grant pardon at trial or pre-trial stage. The Special Court is a court of original criminal jurisdiction and has all the powers of such a court under the Code including those of sections 306 to 308 of the Code, the same not having been excluded specifically or otherwise. 49. There is no provision in the Act which negates the power of the Special Court to grant pardon. The Special Court has power to grant pardon at any stage of the proceedings. The power under section 307 cannot be denied merely because no commitment of the case is made to the Special Court. The learned Solicitor General, in our view, rightly contends that the other statutes are only an external aid to the interpretation and to rely upon the omission of a provision which is contained in another different enactment, it has to be shown that two acts are similar which is not the position here. The scheme of two acts is substantially different as has been earlier noticed by us. It is also evident from Lt. Commander Pascal Fernandes s case ( supra ) as well. 50. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commitment of a case to the Sessions Court. It is the Special Court which is to take cognizance of the case instituted before it or transferred to it. Another deviation is provided in section 7 which stipulates that any prosecution of any offence relating to transactions in securities shall be instituted only in Special Court. Provisions of the Code not inconsistent with the Act shall apply to the proceedings before the Special Court (section 9(2)). 54. The power to tender pardon is not controlled by sub-sections (4) or (5) of section 306. These sub-sections deal with the matters pertaining to post-pardon stage. These provisions only show that where there is no commitment, sub-section (5) of section 306 will not apply. But this does not take away the power of pardon as provided in sub-section (1) of section 306. It only means that these provisions will apply to the extent applicable. 55. Reference may also be made to a decision of Calcutta High Court strenuously relied upon by Mr. Salve. In Harihar Sinha v. Emperor AIR 1936 Cal. 356 a Full Bench of Calcutta High Court was faced with a question whether a Special Magistrate appointed under section 24 of the Bengal Suppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate was acting within his powers in granting the conditional pardon. 56. The second contention which in fact is more relevant for the present purpose was that the Special Magistrate having tendered a conditional pardon to Gouranga was bound, under sub-section (2A), to commit the other accused for trial to the Court of Session or the High Court but as he was directed to try the accused himself and, therefore, could not commit them to the Sessions or the High Court, the whole of the provisions of section 337 are nugatory in this case, from which it follows that if he is to try the accused, he cannot pardon any one of them under section 337. The contention was held not to be sound and for that basis, the provision of section 26(2) of the aforesaid 1932 Act in question was referred to. The said provision provided that the provisions of the Code so far as they are not inconsistent with the Chapter ( i.e. Chapter 2), shall apply to the proceedings of a Special Magistrate and section 34 of the said Act provided that the provisions of the Criminal Procedure Code in so far as they may be applicable and in so far as they are not inconsistent with the provisions of this Chapter ( i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conviction was dismissed. The observations of the Chief Justice Rankin from that decision which was cited with approval by the Full Bench are to the following effect : "It is right to notice the contention that was put forward to the effect that the proceedings before the Special Magistrate were bad. It is said that his having tendered pardon to the approver, sub-section 2A, section 337, Criminal P.C., made it obligatory upon him to commit the accused for trial to the Court of Session. It is not disputed that, under the Ordinance (2 of 1932), he certainly could not commit the accused for trial to any Court of Session. When we look at the Ordinance, we find that there is an express provision that the provisions of the Code are to apply in the case of Special Magistrates so far as they are not inconsistent with the Ordinance, and similar phrasing is used more elaborately in section 52 and also in connection with Sessions Judges in section 32. It makes no difference whatever, so far as I can see, whether the Magistrate tendering the pardon had been the District Magistrate and not the Magistrates trying the case. The provisions of sub-section (2A) would apply equally, whoever had be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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