TaxTMI 
TaxTMI 
2001 (9) TMI 991
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....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 for the establishment of a Special Court for the trial of offences relating to transactions in securities and for matters connected therewith or incidental thereto. In the year 1992, large scale irregularities and malpractices were noticed by the Reserve Bank of India in relation to transactions in both the Government and other securities, indulged in by some brokers in collusion with the banks and financial institutions. The said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of cert....
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....ession. 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 have all the powers of a Court of Session, and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor. (3) The Special Court may pass upon any person convicted by it any sentence authorized by law for the punishment of the offence of which such person is convicted. (4) While dealing with any other matter brought before it, the Special Court may adopt such procedure as it may deem fit consistent with the principles of natural justice." 6. The Act has an overriding effect as provided in section 13 which, inter alia, st....
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.... 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 commitment is made. Section 308 provides for the consequences of not complying with the conditions of pardon by a person who has accepted tender of pardon made under section 306 or section 307. These three sections read as under : "306. Tender of pardon to accomplice.-(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Mag....
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....ns 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 not be tried jointly with any of the other accused : Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence. (2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a Court under sub-section (4) of section 306 may be given in evidence against him at such trial. (3) At such trial, the accused shall be entitled to plead that he has complied with the condi....
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....hmalani, 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 the Act and to this extent the learned Special Court was not right in concluding that section 9(4), on account of the wide powers it confers, would include amongst others a right on the Special Court to grant pardon. Section 9(4) does not confer on the Special Court any such power. Section 9(4) is in the nature of a general provision. It confers inherent powers on the Special Court to deal with any matter that may be brought before it providing that for dealing with such a matter the Special Court may adopt its own procedure consistent with the principles of natural justice. Sections 3 and....
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....o 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 enactments power to grant pardon was specifically conferred by insertion of specific provision to that effect while passing law establishing Special Court. While enacting the Act the provision conferring power to grant pardon was deliberately omitted and this almost conclusively shows that such power was not intended to be conferred, is the submission of Mr. Jethmalani. 18. The reference has been made by the learned counsel, in particular, to section 8 of the Criminal Law (Amendment) Act, 1952 ('the Act'). That Act has since been repealed by the Prevention of Corruption Act, 1988. It would be ....
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....ng 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 scheme of the Act and thus cannot apply to the Special Court under the Act. The Special Court, consisting of a Judge of the High Court, is not a Magistrate falling in any of the category of the Magistrates enumerated by sub-section (1) of section 306, is the contention of the learned counsel. Further the contention is that section 307 is also not applicable since the case is not committed to the Special Court and section 307 can apply where commitment of a case is made and is available only to a court to which the commitment is made. The submission is that the Act does not postulate any commitmen....
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....es 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 provisions of the Code because the procedure of trial before the Special Judge is different, but on the tender of pardon by the Special Judge the provisions of sections 339 and 339A of the Code apply. The tender of pardon by the Special Judge is deemed by fiction to be one tendered under section 338 of the Code for purposes of sections 339 and 339A." (p. 699) 24. Reliance has also been placed by Mr. Jethmalani on State of Tamil Nadu v. V. Krishnaswami Naidu [1979] 3 SCR 928. The passage relied upon by the learned counsel reads thus : "It may be noted that the Special Judge is not a Sessions Judge, Add....
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....n 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 case in hand the Act does not postulate commitment of the case being made to the Special Court and no provision having been inserted in the Act to empower Special Court to tender pardon, the impugned order granting pardon is without jurisdiction. 26. Mr. Jethmalani further contends that simply to confer on the Special Court the power to tender pardon by itself is not enough without conferring on it the power to punish the person who accepts tender of pardon in case of violation by him of terms and conditions on which the pardon is tendered. The submission is that a reading of the provisions of the Act clearly s....
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....al 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 overthrown if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent to repeal the existing laws. Repugnancy must be such that the two statutes cannot be reconciled on reasonable construction or hypothesis. They ought to be clearly and manifestly irreconcilable. It is possible, as contended by Mr. Jethmalani, that the inconsistency may operate on a part of a statute. The learned counsel submits that in the present case the presumption against implied repeal stands rebutted as the provisions of the Act are so inconsistent with or repugnant to the provisions of the earl....
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....rds 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 the sponsor of the statute which is in close proximity to the actual introduction or insertion of the statutory provision so as to become, as it were, a result of the statement made, can be pressed into service in order to ascertain the real purport, intent and will of the Legislature to make the constitutional provision workable. We might make it clear that such aids may neither be decisive nor conclusive but they would certainly assist the courts in interpreting the statute in order to determine the avowed object of the Act or the Constitution as the case may be. [para 271(2)]." 32. On the principles of interpretation, we have no difficulty in....
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....t 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 Legislature intended that the two authorities should not exercise concurrent jurisdiction on an identical matter, it used appropriate language to that effect. Now, the facts in brief of Fernandes's case (supra) are that grant of pardon to one Jagasia was opposed by his co-accused, the objection besides others being that powers of the Special Judge in tendering conditional pardon under section 8(2) of 1952 Act, are limited to application by the prosecution in that behalf and the Special Judge cannot act suo motu without being invited by the prosecution to consider the tender of pardon to one of the accused before him. This Court upholding the order of the High Court dismissing....
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....rson 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 arraigned before him. But it may be possible to tender pardon to a person not so arraigned. The power so conferred can also be exercised at any time after the case is received for trial and before its conclusion. There is nothing in the language of the section to show that the Special Judge must be moved by the prosecution. He may consider an offer by an accused as in this case. The action, therefore, was not outside the jurisdiction of the Special Judge in this case. (p. 702) 37. It is understandable that if powers wider than the one contemplated by the Code are intended to be conferred, a provision to that effect will have to be made. It does not follow therefrom t....
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....te 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 for section 193 of the Code provides that no Court of Sessions Judge shall take cognizance for any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code and strictly he is not a Sessions Judge for no Sessions Judge can take a cognizance as a Court of Session without committal. Referring to the Criminal Law (Amendment) Act, it was held that the provisions of the Code are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act and, thus, read there could be no difficulty in coming to the conclusion that the Code is applicable when there is no conflict with the provisions of the Criminal Law (Amen....
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.... 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 the context of institution thereof in respect of any offence referred to in sub-section (2) of section 3 or transfer of any pending 'prosecution'. In the present contest, the institution of the prosecution as envisaged by section 7, is wider than the taking cognizance of or trying of such cases as provided in section 6. It does not appear from the language of sections 6 and 7 read with sections 3 and 9 that at pre-cognizance stage all steps including those of remand, bail are required to be taken before the normal criminal courts constituted under section 6. It does not seem that after the enforcement of the Act, the Legislature intended that in relation to the offences under the Act....
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....ing 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 neither any committal nor is the Special Court one of the court enumerated in this sub-section and the effect, according to the learned counsel, is that section 306(4) and (5) cannot be complied by Special Court and they stand excluded with a consequence that the entire section 306 would stand excluded from its applicability to the Act. 42. Mr. Jethmalani, however, does not dispute the applicability of section 4(2) subject to superiority of the Act as postulated in section 13 of the Act but submits that the effect of it only is that at pre-cognizance stage it is the normal court of criminal jurisdiction as constituted under section 6 which would have power and jurisdiction to deal with matters at pre-co....
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....wer 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 transferred before that Court. The width of the power of the Special Court will be same whether trying such cases as are instituted before it or transferred to it. The use of different words in sections 6 and 7 as already noticed earlier also show that the words in section 7 that the prosecution for any offence shall be instituted only in Special Court deserve a liberal and wider construction. They confer on the Special Court all powers of the Magistrate including the one at the stage of investigation or enquiry. Here, the institution of the prosecution means taking any steps in respect thereof before the Special Court. The scheme of the Act nowhere contemplates that it was intended that steps at pre-cognizance stage....
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....r 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 of original criminal jurisdiction and wherever the expression 'Magistrate' occurs, the expression 'Special Judge' is required to be read and the provisions of sections 238 to 250 of the Code stood incorporated in 1952 Act by application of the doctrine of 'Legislation by incorporation'. 47. After the pronouncement of a Constitution Bench decision in A.R. Antulay's case (supra), there can now be no doubt that the Special Court under the Act will enjoy all powers which a court of original criminal jurisdiction enjoys whether of a Magistrate or a Court of Session, save and except the one specifically denied. The passage from A.R. Antulay's case (supra) relevant for the present purposes reads thus : "It is, however, nec....
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....nfer 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 of warrant cases by Magistrates is set out in Chapter XIX and the provisions therein included catered to both the types of cases coming before the Magistrate, namely, upon police report or otherwise than on a police report. Chapter XX prescribes the procedure for trial of summons cases by Magistrates and Chapter XXI prescribes the procedure for summary trial. Now that a new criminal court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of courts under section 6 Cr. P.C. by bringing it on level more or less comparable to the Court of Session, but in order to avoid any confusion arising out of comparison by level, it was made explicit in section 8(1) itself that it is not a Cour....
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....rified 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 a Special Judge and the Legislature never wanted to draw up an exhaustive Code of Procedure for this new criminal court which was being set up. Therefore, it conferred power (taking cognizance of offences), prescribed procedure (trial of warrant cases by a Magistrate), indicated authority to tender pardon (section 338) and then after declaring its status as comparable to a Court of Session proceeded to prescribe that all provisions of the Code of Criminal Procedure will apply in so far as they are not inconsistent with the provisions of the 1952 Act. The net outcome of this position is that a new court of original jurisdiction was set up and whenever a question arose as to what are its powers in respect of specific questions brought befo....
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....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 noticed, the provisions of sections 6 and 7 of the Special Courts Act confer much wider power. Everything after institution of the prosecution is required to be done by the Special Court. There is nothing in those provisions or in section 9 to warrant exclusion of sections 306 to 308 of the Code from the purview of the Act. Reference may also be made to section 4(2) of the Code which stipulates that the investigation, inquiry and trial of all offences under any other law than the Indian Penal Code shall also be dealt with according to the provisions of the Code but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. 51. Mr. Salve also....
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.... 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 Suppression of Terrorist Outrages Act, XII of 1932 had power to tender a pardon under section 337 of 1898 Code or otherwise. The facts of the said case relevant for the present purposes were that the Special Magistrate therein tendered a conditional pardon to one of the accused under section 337; that accused was taken out of the dock, put into the witness box and he gave evidence in the trial before the Special Magistrate. The contention urged on behalf of the appellants before the High Court was that the Special Magistrate on grant of pardon by virtue of sub-section 2(a) which provided that in every case, where a person has accepted a tender of pardon and has been examined under sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is sati....
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....tion 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.e. Chapter 2), shall apply to all matters connected with, arising from or consequent upon a trial by Special Magistrates. It was concluded from these provisions that a Magistrate may, acting under section 337(1) tender a conditional pardon and under section 337(2) examine the pardoned man as a witness in his court, but must, acting under the Bengal Suppression of Terrorist Outrages Act, 1932, try the accused himself instead of committing him for trial to the Court of Session or the High Court as section 337(2A) of the Code provides. Reference was made by the Full Bench to an earlier decision of the Calcutta High Court in Abdul Majid v. Emperor 60 Cal. 652 wherein a Special Magistrate tried certain prisoners under the provisions of Ordinance 2 of 1932. Sections 37(1), 37(2)....
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....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 been the Magistrate tendering the pardon, and it is quite clear that the Special Magistrate is the Magistrate who, under the Ordinance, is to try the case. Unless, therefore, we were to hold that no approver could ever give evidence before a Special Magistrate, the appellants would not succeed in making the argument logical. But it is quite clear that, in so far as the Ordinance is inconsistent with sub-section (2A), the Ordinance prevails and there is no ground for supposing that it is impossible for the Special Magistrate to hear the evidence." 58. The Full Bench accordingly held that the Special Magistrate could try the case himself even after grant of pardon and it does not follow that the absence of power to commit the accused to the Court of Session or the High Court would....