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TMI Blog1997 (8) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... ons Judge in the District Headquarters who is the Judicial Magistrate of the First Class in each district where one Additional District and Sessions Judge is functioning in the District headquarters and the First Additional District and Sessions Judge in the District headquarters who is the judicial Magistrate of the First Class in each district where more than one Additional District and Sessions Judges are functioning in the District headquarters as Chief Judicial Magistrates for the respective Districts and has conferred on them all the powers of the Chief Judicial Magistrate under the said Act or under any other law for the time being in force, where the said Court for economic offences which is created for the limited purpose of trial of cases only and bail under S. 437 and not for grant of bail by the High Court and the Court of Session under Ss. 438 and 439 of the Code, felt that the view taken in E. Krishnamachari's case (1 supra) is doubtful and accordingly referred the matter for resolving the controversy to a Division Bench. 3. Radhakrishna Rao, J. (as he then was) in E. Krishnamachari's case (supra) has held : A combined reading of S. 11 of S. 2(j) read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate, an appeal lies to the Court of Sessions Judge, depending upon the, quantum of sentence. In the Cr. P.C., it has been contemplated that the Chief Judicial Magistrate, though holding the cadre of a District and Sessions Judge, is inferior to Sessions Judge. But the Special Court now constituted under the provisions, is distinct and different one. The District and Sessions Judge, Nellore, should not have entertained the application for bail, when it was brought to his notice that the IInd Additional Judicial 1st Class Magistrate, Nellore dismissed the applications with an observation that the Special Judge for Economic Offences alone has got jurisdiction to the cases. If we read the G.O. Rt. No. 734 dated 13-3-1981 along with the Proviso to sub-section (1) of S. 11 and Clause (j) of S. 2 and S. 14 of the Cr. P.C. it is clear that the jurisdiction of the Sessions Divisions in the State of Andhra Pradesh has been excluded and that the Special judge for Economic Offences alone is competent to consider the application for grant of bail. 4. Before we enter into the controversy, we may point out that the Government of India, Ministry of Home Affairs, in letter No. 2/1/79-Judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on any member of the Judicial Service of the State, functioning as' a Judge in a Civil Court . Section 2(j) of the Code defines local jurisdiction to mean in relation to a Court or Magistrate, the local area within which the Court or Magistrate may exercise all or any of its or his powers under the Code which has been further amended to read : such local area may comprise the whole of the State, or any part of the State, as the State Government may, by notification, specify. The notification of the Government of the State, however, reads as follows : In exercise of the power conferred by the proviso to sub-section (1) of S. 11 read with clause (j) of S. 2 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) and after consultation with the High Court of Andhra Pradesh, the Governor of Andhra Pradesh hereby - (i) specifies the whole of the State of Andhra Pradesh as the local area for the purpose of establishing a Special Court for the offences arising under the enactments mentioned in the Annexure hereto; and (ii) establishes a Special Court of Judicial Magistrate of the First Class to try cases arising under the enactments mentioned in the Annexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habad High Court in Bharat Traders v. Spl. Chief Judicial Magistrate, Allahabad, 1988 Cri LJ 1117 has pointed out that after the amendment of S. 2(j) by Act 45 of 1978, the State Government is empowered to declare the whole of the State or any part as local jurisdiction. The State Government now has power to issue a notification including the whole of the State within the local jurisdiction of a Magistrate. So also under proviso to S. 11(1) the State Government could establish one Special Court in respect of the case for the whole of State which it was advised to do in consultation with the High Court. It is improper to say that as sub-section (1) of S. 11 excludes metropolitan area, therefore, no notification under S. 11(1), excluding the jurisdiction of the Metropolitan Magistrate could be issued by the State Government. It is true that sub-section (1) of S. 11 of the Code of Criminal Procedure excludes metropolitan, area, but the proviso to sub-section (1) makes an exception to the provisions of sub-section (1) of S. 11 and the words for any local area used in the proviso of sub-section (1) of S. 11 overrides the words in every district not being metropolitan area used in sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge has exclusive jurisdiction to try offences enumerated in S. 6(1)(a) and (b). Where there are more than one special Judge for the same area, the State Government is under an obligation to specify the local jurisdiction of each special Judge, it may be case-wise, it may be area-wise. Sub-section (3) enlarges the jurisdiction to try other offences which have been committed in the course of the same transaction and for which the accused could be charged at the same trial. Then comes S. 8. It reads as under : 8 (1). A special Judge may take cognizance of offences 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, 1898, for the trial of warrant cases by Magistrates. (2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or in directly concerned in, or privy to, an 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 or abettor, in the commission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a definite opinion that investigation by a police officer in contravention of the provision contained in S. 5-A bears the stamp of illegality. What is the effect of this illegality on the outcome of a concluded trial does not arise for our consideration but there are certain observations which were relied upon to urge that a prior investigation under S. 5-A being held to be mandatory and as a special Judge can take cognizance of an offence upon a police report submitted at the end of a valid and legal investigation in consonance with S. 5-A, by necessary implication, taking cognizance of an offence by a special Judge under S. 8(1) of 1952 Act upon a private complaint is excluded. We must frankly say that we find nothing in this judgment even remotely to bear out the submission. Section 5-A is a safeguard against investigation by Police officers lower in rank than designated officers. In this connection at p. 1159 (of SCR) : (at p. 202 of AIR), the Court has observed as under : The underlying policy in making these offences by public servants non-cognizable appears to be that public servants who have to discharge their functions often enough in difficult circumstances should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the competence or the procedure relating to cognizance or trial'. The Court examined the scheme of Ss. 190, 193 and 195 to 199 of the Criminal P.C. and observed : that 'the language of S. 190 is in marked contrast with that of the other sections of the group under the same heading i.e., Ss. 193 and 195 to 199. These latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith, S. 190 does not'. The Court concluded by observing that 'where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby'. Having minutely read this judgment on which firm reliance was placed on behalf of the appellant, we find nothing in it to come to the conclusion that an investigation under S. 5-A is a condition precedent before cognizance can be taken of offences triable by Special Judge. Reliance next was placed upon the decision of this Court in the State of Madhya Pradesh v. Mubarak Ali, . This Court held that S. 5-A was inserted in the 1952, Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of an investigation does not affect the competence and jurisdiction of the Court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby, and in reaching this conclusion reliance was placed on the case of H. N. Rishbund, . In P. Sirajuddin v. State of Madras, , it was held that the Criminal P.C. is an enactment designed inter alia to ensure a fair investigation of the allegations against a person charged with criminal misconduct. This is undeniable but has hardly any relevance. Some guidance is given to the Enquiry Officer and the means to be adopted in investigation of offences. This has no bearing on the issue under discussion. Reference was also made to , which does not advance the case at all. Having carefully examined these judgments in the light of the submissions made, the only conclusion that unquestionably emerges is that S. 5-A is a safeguard investigation of offences committed by public servants, by petty or lower rank police officer. It has nothing, to do directly or indirectly w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined. 27. It is, however, necessary to decide with precision and accuracy the position of a Special Judge and the Court over which he presides styled as the Court of a special judge because unending confusions have arisen by either assimilating him with a Magistrate or with a Sessions Court. The Prevention of Corruption Act, 1947 was enacted for more effective prevention of bribery and corruption. Years rolled by and experience gathered showed that unless a special forum for the trial of such offences as enumerated in the 1947 Act is created, the object underlying the 1947 Act would remain a distant dream. This led to the enactment of the Criminal Law Amendment Act, 1952. The Statement of Objects and Reasons accompanying the Bill refers to the recommendations of the Committee chaired by Dr. Bakshi Tek Chand appointed to review the working of the Special Police Establishment and to make recommendations for improvement of laws relating to bribery and corruption. To take the cases of corruption out of the maze of cases handled by Magistrates, it was decided to set up special Courts. Section 6 conferred power on the State Government to appoint as many special judges as may be nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, it was made explicit in S. 8(1) itself that it is not a Court of Sessions because it can take cognizance of offences without commitment as contemplated by S. 193, Cr. P.C. Undoubtedly in S. 8(3) it was clearly laid down that subject to the provisions of sub-secs. (1) and (2) of S. 8, the Court of special Judge shall be deemed to be a Court of Sessions trying cases without a jury or without the aid of assessors. Incontra-distinction to the Sessions Court this new Court was to be a Court of original jurisdiction. The Legislature then proceeded to specify which out of the various procedures set out in the Code, this new Court shall follow for trial of offences before it. Section 8(1) specifically says that a special judge in trial of offences before him shall follow the procedure prescribed in the Criminal P.C. for trial of warrant cases by Magistrates. The provisions for trial of warrant cases by the Magistrate are to be found in Chapter XXI of 1898 Code. A glance through the provisions will show that the provisions therein included catered to both the situations namely, trial of a case initiated upon Police report (Section 251-A) and trial of cases instituted otherwise than on po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of original criminal jurisdiction, it had to refer to the Criminal P.C. undaunted by any designation claptrap. When taking cognizance, a Court of Special Judge enjoyed the powers under S. 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of Session. The entire argument inviting us to specifically decide whether a Court of a special judge for a certain purpose is a Court of Magistrate or a Court of Session revolves round a mistaken belief that a special Judge has to be one or the other, and must fit in in the slot of a magistrate or a Court of Session. Such an approach would strangulate the functioning of the Court and must be eschewed. Shorn of all embellishment, the Court of a special Judge is a Court of original criminal jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout the accused being committed to him for trial and while holding trial he has to follow the procedure prescribed by the Code of Criminal Procedure for trial of warrant cases by magistrate. So, the expression the Magistrate empowered to take cognizance of the offence and the Magistrate having power to try such case appearing in various sections of Chapter XII of the Cr. P.C., would only mean the special Judge appointed under the Prevention of Corruption Act, 1988. It is, therefore, not possible to hold that the Special Judge does not come in picture during the course of police investigation and prior to taking cognizance of the offence under the said Act. The Special Judge, on the contrary is entitled to exercise all the powers conferred on a Magistrate under Chapter XII of the Code of Criminal Procedure as he has got exclusive jurisdiction to take cognizance and try the offences under the Prevention of Corruption Act, 1988. Speaking in particular about the power to grant anticipatory bail the Court referred to sub-section (3) of S. 5 of the Prevention of Corruption Act and concluded that the Special Judge shall be deemed to be a Court of Session and stated that when a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of death passed by any such Judge shall be subject to confirmation by the High Court, and an Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for term exceeding ten years. Section 29 of the Code says that the Court of a Chief Judicial Magistrate may pass, any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years and the Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both and a Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both and the Court of a Chief Metropolitan Magistrate shall have the powers of the court of a chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class. 12. The above rules out any possibility of a contention that if a superior Court is specially provided for to that of a first class Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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