TaxTMI 
TaxTMI 
1984 (2) TMI 317
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....3 and they need not be recapitulated here. After the learned special Judge Shri P. S. Bhutta took cognizance of the offences upon a complaint of Ramdas Sriniwas Nayak, the first respondent (Original complainant), the case was adjourned to October 18, 1982 for recording the evidence of the complainant. On that day, learned counsel appearing for the appellant in the trial court moved an application questioning the jurisdiction of the court on two specific counts; (i) that the Court of special Judge set up under Sec. 6 of the Criminal Law Amendment Act, 1952 ('1952 Act' for short) cannot take cognizance of any of the offences enumerated in Sec. 6 (1) (a) and (b) upon a private complaint of facts constituting the offence and (ii) that where there are more special Judges than one for any area, in the absence of a specification by the State Government in this behalf, specifying the local area over which each special Judge would have jurisdiction, the special Judge (Mr. Bhutta) had no jurisdiction to take cognizance of the offences and try the case. The learned special Judge rejected both the contentions. The appellant filed Criminal Revision Application No. 510 of 1982 in the Bom....
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.... in the course of the judgment. On behalf of the respondent-complainant it was urged that it is one of the fundamental postulates of the administration of criminal justice that anyone can set the criminal law into motion unless the statute enacting the offence makes a special provision to the contrary both with regard to the locus standi of the complainant, the manner and method of investigation and the person competent to investigate the offence, and the court competent to take cognizance. It was submitted that in Sec. 8 (1) which specifically confers power on the special Judge to take cognizance of an offence without commitment of the case to it there is nothing which would preclude a complainant from filing a private complaint or which would deny jurisdiction of the special Judge to take cognizance of the offences on such a private complaint. It was submitted that even if Sec. 5A is treated as mandatory and incorporates a safeguard, it is a safeguard against investigation of offences committed by a public servant by police officers of lower rank and nothing more. It was lastly urged that on a comprehensive view of the provisions of 1952 Act, it does not transpire that any of its....
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....rol Act, 1968 (iii) Sec. 6 of Import and Export Control Act, 1947 (iv) Sec. 271 and Sec. 279 of the Income Tax Act, 1961 (v) Sec. 61 of the Foreign Exchange Regulation Act, 1973,(vi) Sec. 621 of the Companies Act, 1956 and (vii) Sec. 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Sec. 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Secs. 195 to 199 of the Cr. P. C. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i. e. an act or omission made punishable by any law for the time being in forc....
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.... special Judge the prosecution shall be conducted by a Public Prosecutor, though that itself would not have been decisive of the matter. And the third opportunity was when the Legislature while prescribing the procedure prescribed for warrant cases to be followed by special Judge did not exclude by a specific provision that the only procedure which the special Judge can follow is the one prescribed for trial of warrant cases on a police report. The disinclination of the Legislature to so provide points to the contrary and no canon of construction permits the court to go in search of a hidden or implied limitation on the power of the special Judge to take cognizance unfettered by such requirement of its being done on a police report alone. In our opinion, it is no answer to this fairly well-established legal position that for the last 32 years no case has come to the notice of the court in which cognizance was taken by a special Judge in a private complaint for offences punishable under the 1947 Act. If something that did not happen in the past is to be the sole reliable guide so as to deny any such thing happening in the future, law would be rendered static and slowly whither away.....
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....signed by the informant and a copy thereof shall be given to him. If information given to an officer in charge of a Police Station disclosed a non- cognizable offence, he has to enter the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and to refer the informant to the Magistrate (Sec. 155 (1) Sub-s. (2) puts an embargo on the power of the police officer in charge of the police station to investigate a non-cognizable offence without the order of a Magistrate having power to try the case or commit the case for trial. Sec. 156 sets out the powers of the officer in charge of police station to investigate cognizable cases. Sub-s. (2) of Sec. 156 may be noticed. It says that 'no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under the section to investigated Sub-s. (3) confers power on the Magistrate empowered under Sec. 190 to take cognizance of an offence, to order an investigation as set out in sub-ss.(1) and (2) of Sec. 156. Sec 167 enables the Magistrate to remand the accused to Pol....
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....whether known or unknown, has committed an offence, but does not include a police report.' There is an explanation appended to the section which has some relevance. 'A report made by a police officer in a case which disclosed, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.' Sec. 2 (e) defines 'non-cognizable offence' to mean 'an offence for which' and "non-cognizable" case means a case in which, a police officer, has no authority to arrest without warrant.' Police report is defined in Sec. 2 (r) to mean 'a report forwarded by a police officer to a Magistrate under sub-sec. (2) of Sec. 173.' 'Officer in charge of a police station' has been defined in Sec. 2 (o) to include any police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.' In other words, a Head-constable of Police that is one step higher from a constable can be in charge of a police station. It ....
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....t class can grant permission to an officer of the lower rank to investigate the offence in teeth of the statute. Therefore, two safeguards were sought to be incorporated in the predecessor provision of the present Sec. 5A, being the proviso to Sec. 3, namely, these offences having become cognizable shall not be investigated by an officer of a rank below that of a Deputy Superintendent of Police but it if becomes so necessary, it shall not be done without the order of a Magistrate of the first class. Left to police, investigation by the designated officer of superior rank guaranteed a protection against frivolous investigation. In larger public interest non-availability of such higher officers was catered to by conferring power on the Magistrate of the first class to grant permission to an officer of the rank lower than the designated officer to investigate such offences. Two conclusions emerge from this situation, that investigation by a police officer of the higher rank on his own may tend to curb frivolous or speculative prosecution but even if an officer of a rank lower than the designated officer is to undertake the investigation for the reasons which he must convince the Magis....
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....r, and therefore a fortiori, it must exclude cognizance being taken by the special Judge upon a private complaint because that would completely render illusory the safeguard prescribed in Sec. 5A. It was said that where a person is threatened with the deprivation of his liberty and the procedure prescribed incorporates statutory safeguards, the court should be very slow to dilute or do away with the safeguards or render the same ineffective. It was said that if the courts were to hold that a private complaint can be entertained by the special Judge and the latter is under no obligation to direct investigation of the same by an officer of the designated rank, the safeguard incorporated in Sec. 5A becomes illusory and that is impermissible. Before we proceed further, it is now necessary to take notice of salient provisions of the Criminal Law Amendment Act, 1952. The Act was enacted as its long title shows to amend the Indian Penal Code and the Code of Criminal Procedure, 1898 and to provide for a more speedy trial of certain offences. Sec. 1A is the dictionary clause. Sec. 2, 3, 4 and 5 have been repealed by various amendments. Then comes Sec. 6. It reads as under: &nbs....
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....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 indirectly 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 thereof; and any pardon so tendered shall, for the purposes of Secs. 339 and 339A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under Sec. 338 of that Code. (2) Save as provided in sub-section (1) or sub- section (2), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not consistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of the special Judges shall be deemed to be a Court of Session trying cases with out a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor. (3A) In particular, and without prejudice to the generali....
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....the case by the Magistrate. Sec. 6 of the Code of Criminal Procedure provides for setting up of criminal courts under the High Court in every State. They are (i) Courts of Session: (ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrate, (iii) Judicial Magistrates of the second class, and (iv) Executive Magistrates. These are to be the criminal courts in every State. The Code made detailed provision for powers of police officers entitled to investigate offences, procedure of investigation, powers of various courts to take cognizance of offences which that particular court is entitled to try under the Code. Sec. 190 Cr. P. C. confers power on the Magistrate to take cognizance of an offence in one of the manners therein prescribed. The expression `Magistrate' in Sec. 190 is a compendious term which includes Judicial Magistrate of the first class, Metropolitan Magistrate, Judicial Magistrate of the second class and Executive Magistrate, All the three are comprehended in Sec. 190. But then there is another court of original jurisdiction, namely, Court of Session also being set up under Sec. 6. Can Court of Session take cognizance directly....
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....provisions hereinafter contained. (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 or place of investigating, inquiring into, trying or otherwise dealing with such offences." Sec. 4 (1) provides for investigation, inquiry or trial for every offence under the Indian Penal Code according to the provisions of the Code. Sec. 4 (2) provides for offences under other law which may be investigated, inquired into, tried and otherwise dealt with according 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 and 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 Procedure. In other words, Code of Criminal Procedu....
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.... but it shall not take it on commitment of the accused to the court. As a necessary corollary, it must appear that the special Judge can take cognizance of offences enumerated in Sec. 6 (1)(a) and (b) upon a complaint or upon a police report or upon his coming to know in some manner of the offence having been committed. With regard to the last of the modes of taking cognizance, it was urged that there is inherent evidence to show that Sec.190 (1)(c) cannot be availed off by special Judge because Sec. 191 is not available to him so as to transfer the case. A little while later, we shall point out that the provisions of the Court of special Judge in such manner and to such extent as to retain the separate identity of the Court of special Judge and not that he must either fulfil a role of a Magistrate or a Session Court. It is a well-established canon of construction that the court should read the section as it is and cannot rewrite it to suit its convenience; nor does any canon of construction permit the court to read the section in such manner as to render it to some extent otiose. Sec. 8 (1) says that the special Judge shall take cognizance of an offence and shall not take it on c....
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....ve and except with the permission of the Magistrate or as per the first proviso to Sec. 5A The submission is that upon its true evaluation, the safeguard clearly points in the direction of a prior investigation before cognizance of the offences can be taken by the special Judge and any other view would dilute the safeguard or render it illusory. It was also submitted that if defective investigation can vitiate the proceedings a fortiori the total absence of and investigation whatsoever as contemplated by Sec. 5A, which would be the position if a private complaint can be directly entertained by the special Judge, would of necessity vitiate the proceeding. The sheet anchor of the supmission was the decision of this Court in M.N. Rishbud & Inder Singh v. The State of Delhi.(') In that case the question posed was whether the provision Sec. 5A of the 1947 Act requiring that the investigation into the offences specified therein shall not be conducted by any police officer of a rank lower than a Deputy Superintendent of Police without the specific order of a Magistrate, is directory or mandatory ? The Court rendered the opinion that Sec. 5A is mandatory and not directory, and that an....
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....at the three vital stages relevant to initiation of proceedings in respect of offences enumerated in Sec. 6(1) (a) and (b) have been clearly delineated in this judgment when at page 1162 it is observed; 'trial follows cognizance and cognizance is preceded by investigation.' This is the basic scheme of the Code in respect of cognizable offences but that too where in respect of a cognizable offence, the informant approaches an officer in charge of a police station. When in the case of a cognizable offence, a police officer on receipt of information of an offence proceeds under Chapter XII, he starts with investigation and then submits his report, called the police report, upon which cognizance is taken, and then follows the trial. And these three stages in that chronology are set out with regard to an investigation by an officer in charge of a police station or a police officer entitled to investigate any particular offence. This sentence cannot be read in isolation or torn out of the context to lend support to the submission that in no case cognizance can be taken without prior investigation under Sec. 5A. In fact the Court proceeded to make it abundantly clear that 'a d....
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....s implicity, and it prescribed an additional guarantee that in the case of police officers below the rank, the previous order of a Presidency Magistrate or a Magistrate of the first class as the case may be. Comes thereafter a pertinent observation 'that the Magistrate's status gives assurance to the bonafides of the investigation. 'This would rather show that Legislature while on the one hand conferred power on the police officers of the designated rank to take upon themselves the investigation of offences committed by public servants, it considered intervention of the Magistrate as the real safeguard when investigation was permitted by officers lower in rank then the designated officers. In other words, the Court was a safeguard and it ought to be so because the judicially trained mind is any day a better safeguard then any police officer or any rank. In State of Uttar Pradesh v. Bhagwant Kishore Joshi the observation of the Court in Mubarak Ali's case was affirmed. In S.N. Bose v. State of Bihar.(2) this Court held that the order of the Magistrate giving permission to the Inspector of Police to investigate the case did not give any reasons and there was thus a vi....
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....t be done in that way or not at all Other methods of performance are necessarily forbidden. Once Sec. 5A is out of the way in the matter of taking cognizance of offences committed by public servants by a special Judge, the power of the special Judge to take cognizance of such offences conferred by Sec. 8(1) with only one limitation, in any one of the known methods of taking cognizance of offences by courts of original jurisdiction remains undented. One such statutorily recognised well-known method of taking cognizance of offences by a court competent to take cognizance is upon receiving a complaint of facts which constitutes the offence. And Sec. 8(1) says that the special Judge has the power to take cognizance of offences enumerated in Sec. 6(1)(a) and (b) and the only mode of taking cognizance excluded by the provision is upon commitment. It therefore, follows that the special Judge can take cognizance of offences committed by public servants upon receiving a complaint of facts constituting such offences. It was, however, submitted that even if it be held that the special Judge is entitled to entertain a private complaint, no further steps can be taken by him without directing ....
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....the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor; it was urged that for the purpose of procedure to be followed by a special Judge in the trial of the case before him, he is a Magistrate as provided in Sec. 8(1) but not a Sessions Judge because no Sessions Court can take cognizance of offences without commitment while a special Judge has to take cognizance of offences without accused being committed to him for trial yet the provisions of sub-Secs. (2) and (3) leave no one in doubt that for all other purposes he is to be treated as a Sessions Judge or a Court of Sessions. Proceeding along it was urged that if a special Judge has all the trappings of the Court of Sessions, he cannot take cognizance as provided by Sec. 190, Cr. P. C. because it confers power on Magistrate to take cognizance of any offence in any one of the three modes therein prescribed. Therefore, it was submitted that a private complaint cannot be entertained. For more than one reason it is not possible to accept this submission. If Sec. 190 cannot be availed, we fail to see how a special Judge would be entitled to take cognizance on a police report. If Sec. 190 is....
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.... 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 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 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 ....
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....rch of 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-s (2) of Sec. 8 and to leave no one in doubt further provided in sub-s. (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 (Sec 338) and then after declaring is status as comparable to a Court of Sessions proceeded to prescribe that all provisions of the Code of Criminal Procedure will ap....
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....rs XXXI and XXXIII of the Code of Criminal Procedure, 1898 on a High Court as if the court of special Judge were a court of Sessions trying cases without a jury within the local limits of the jurisdiction of the High Court. Therefore, there is no gainsaying the fact that a new criminal court with a name, designation and qualification of the officer eligible to preside over it with powers specified and the particular procedure which it must follow has been set up under the 1952 Act. The court has to be treated as a court of original criminal jurisdiction and shall have all the powers as any court of original criminal jurisdiction has under the Code of Criminal Procedure, except those specifically excluded. Once the position and power of the Court of a special Judge in the hierarchy of criminal courts under the High Court is clearly and unambiguously established, it is unnecessary to roam into an enquiry examining large number of decisions laying down in the context of each case that the Court of a special Judge is a Court of Sessions and the contrary view taken in some other decisions. Reference to those judgments would be merely adding to the length of this judgment without achievi....
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....ain a conviction at all costs. His duty is to fairly analyse the evidence for and against the accused and that he should not withheld any evidence which has a bearing on the issues before the court. In other words, he must be fair and objective in his approach to the case animated by a desire to vindicate justice and no more. It was urged that if this be the well-recognised role of a public prosecutor, how horrendous it would appear if a private complainant motivated by a desire to wreck vengeance against the accused is to be deemed to be a public prosecutor. It was said that such a private complainant cannot be elevated to the status of a public prosecutor but the deeming fiction enacted in latter part of Sec. 8 (3) would clothe him with such a status of a public prosecutor which he was hardly qualified to enjoy. As a second string to the bow, it was said that Sec. 321 of the Code of Criminal Procedure generally confers power on a public prosecutor to withdraw the prosecution subject to limitations therein prescribed. The submission is that if a private complainant who chooses to conduct his case and thereby enjoys the status of a deemed public prosecutor he would be able to poute....
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....se of deciding whether or not there is sufficient ground for proceeding. (Sec. 202(1)). If the Judge proceeds to hold the inquiry himself, he is obliged to take evidence on oath but it was said that if the Court of special Judge is a Court of Sessions, the case would be governed by proviso to sub-s (2) of Sec. 202, Cr P.C. and that therefore, he will have to call upon the complainant to produce all his witnesses and examine them on oath. This would certainly thwart a speedy trial was the apprehension disclosed and therefore, it was said that there is internal contra-indication that a private complaint is not maintainable. We find no merit in the submissions. As has been distinctly made clear that a Court of special Judge is a court of original criminal jurisdiction and that it can take cognizance of an offence in the manner hereinbefore indicated, it may be that in order to test whether the complaint disclosed a serious offence or that there is any frivolity involved in it, the Judge may insist upon holding an inquiry by postponing the issue of process. When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Se....
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....ingappa Konjalgi and Ors.) Upon a complaint being received and the court records the verification, it is open to the court to apply its mind to the facts disclosed and to judicially determine whether process should or should not be issued. It is not a condition precedent to the issue of process that the court of necessity must hold the inquiry as envisaged by Sec. 202 or direct investigation as therein contemplated. The power to take cognizance without holding inquiry or directing investigation is implicit in Sec. 202 when it says that the Magistrate may if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer..... for the purpose of deciding whether or not there is sufficient ground for proceeding.' Therefore, the matter is left to the judicial discretion of the court whether on examining the complainant and the witnesses if any as contemplated by Sec. 200 to issue process or to postpone the issue of process. This discretion which the court enjoys cannot be circumscribed or denied by making it mandatory upon the court either to hold the inquiry or direct investigation.....
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.... complainant which will be required to be tried according to the procedure prescribed for trial of warrant cases instituted otherwise than on a police report was not within the contemplation of the Legislature. The modification made in sub-s. (8) of Sec. 251A is marginal and minimal. It is to the effect that instead of the words 'the accused shall then be called upon' the words 'the accused shall then be required to give in writing at once or within such time as the Magistrate may allow, a list of persons (if any) whom he proposes to examined as his witnesses and all the documents (if any) on which he proposes to rely, and he shall then be called upon to enter his defence' shall be substituted. It was urged that no corresponding amendment was made in Sec. 256 of the Code of Criminal Procedure, 1898 and that this glaring omission would clearly indicate that the procedure prescribed for trial of warrant cases otherwise than on police report was not within the contemplation for the trial of offences under the 1947 Act. Sec. 251A came to be introduced in the Code of Criminal Procedure, 1898 in 1955. Prior thereto there was uniform procedure for trial of warrant cases by....