TaxTMI 
TaxTMI 
2008 (7) TMI 1063
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....e under this statute. In terms of Notification dated 21.6.2006 of the Ministry of Home Affairs the Central Government rescinded the earlier Notification dated 6.3.1998 thereby withdrawing the special empowerment of the CMM under the OS Act in this regard. Predicated on the decision of the Delhi High Court on the Administrative side the Registrar General, Delhi High Court addressed a letter No. 28088/G-3/OS Act/Gaz/06 dated 7.12.2006 to the District & Sessions Judge, Delhi directing that all the cases pending under the OS Act be withdrawn from the Court of the CMM and be assigned to the Special/Sessions Judges. It is this administrative decision of the Delhi High Court that has been challenged by the Petitioners. 2. In WP(Crl.) 312/2007 a Complaint was lodged on 30.8.1983 under Section 5(1)(a) of the OS Act and its cognizance was taken on 25.10.1983. Thereafter, on 23.8.2002 the Petitioner had orally exercised the option made available to him by virtue of Section 13 and has declined to be tried by the Court of Sessions. Consequent upon the passing of the impugned Notification dated 21.6.2006 counsel for the Petitioner submits that the CMM has committed the case to the Court of Sess....
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....any offence under this Act unless upon complaint made by order of, or under authority from, the Appropriate Government or some officer empowered by the Appropriate Government in this behalf: (4) For the purposes of the trial of a person for an offence under this Act, the offence may be deemed to have been committed either at the place in which the same actually was committed or at any place in India in which the offender may be found. (5) In this section, the appropriate Government means- (a) in relation to any offences under Section 5 not connected with a prohibited place or with a foreign power, the State Government; and (b) in relation to any other offence, the Central Government. Our research shows that the parenthesis that is to be found in Sub-section (1) exists from the commencement of the Act. It appears to us that Section 13(2) makes it absolutely clear that the Legislature intended that only in the extraordinary course was the trial of offences under the Act to be conducted by the Magistrate of the First Class. It is noteworthy that if the offences were normally triable by the Magistrate of the First Class/MM Section 13(2) would become unnecessary and otiose. Wh....
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.... provisions of the CrPC (that is Section 29 of the repealed Code corresponding to Section 26 of the extant Code) were peremptory. Connected to the conundrum before us, their Lordships had also observed en passant that in view of the position that a Magistrate of the Second or Third Class was not empowered under the CrPC to impose the maximum sentence prescribed by Section 15(1) of the UP Private Forest Act, two possibilities could arise, namely, either "that by implication the powers of these Magistrates are extended beyond what is prescribed under Section 32" (of the CrPC 1898) or that if "the Magistrate feels that a heavier punishment should be imposed he can take recourse to the provisions of Section 349 of the Code and make a recommendation to a Magistrate who can impose adequate punishment in the case"; (Section 349 corresponds to Section 325 of the CrPC 1973). In the context of the CrPC this question has now been definitively answered in Rosy v. State of Kerala 2002(2) SCC 230. In our opinion it would be untenable to extrapolate the Rosy opinion to any Special Act which is to be construed, especially in view of the 'peremptory' quality and characte....
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.... the posts of District Magistrate and Presidency Magistrate are mirror posts in the present procedural dispensation, as are to be found in the extant CrPC. We have perforce to revert to Section 3 of the CrPC 1973 which clarifies that, unless the context otherwise requires, any reference in any enactment passed before 1973 to a Presidency Magistrate or a Chief Presidency Magistrate shall be construed as a reference, respectively, to an MM or the CMM. 9. Prior to the passing of the Union Territories (Separation of Judicial and Executive Functions) Act, 1969 the entire magistracy operated under the District Magistrate of Delhi; it now functions under the direct control of the High Court. Towns having a population in excess of one million can be declared as metropolitan areas. Delhi was so designated by Notification No. 155 dated 28.3.1974 under Section 8 of the CrPC, 1973 with effect from 1.4.1974. Presently, there are only MMs, Additional CMMs and CMMs functioning in the Union Territory of Delhi. Furthermore, consequent upon the separation of the Executive from the Judiciary, today there is no functionary/official corresponding to the post of District Magistrate as it existed prior ....
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.... since it is not relevant for the purpose of comparison with the extant CrPC: CrPC, 1898 Offence Whether the police may arrest without warrant or not Whether bailable or not By what Court triable If punishable with death or imprisonment for 7 years or upwards. If punishable with imprisonment for 3 years and upwards, but less than 7. If punishable with imprisonment for 1 year and upwards, but less than 3 years. If punishable with imprisonment for less than 1 year, or with fine only. May arrest without warrant. Ditto.... Shall not arrest without warrant. Ditto.... Not bailable Ditto.... Bailable Ditto.... Court of Session Court of Session. Presidency Magistrate or Magistrate of the first class. Court of Session, Presidency Magistrate or Magistrate of the first or second class. Any Magistrate CrPC, 1973 Offence Cognizable or non-cognizable Bailable or non-bailable By what court triable If punishable with death, imprisonment for life, or imprisonment for more than 7 years. If punishable with imprisonment for 3 years, and upwards but not more than 7 years. If punishable with imprisonment for less than 3 years or with fine only. Cognizable Cognizab....
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....tenced him to imprisonment for six months and a fine of ₹ 83,000/-. Their Lordships referred to Section 29(2) of the CrPC which stipulates that the Court of a Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years, and/or a fine not exceeding Rupees ten thousand, or of both. Mention was also made to Section 4(2) of the CrPC which lays down that in the case of offences under any law other than the IPC investigation or inquiry or trial or any other dealing would be in accordance with the CrPC subject to any procedure prescribed in such other enactment. For purposes relevant to the task before us Section 142(c) of the NI Act specifies that, notwithstanding anything contained in the CrPC, no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138. The Apex Court held that Section 142 of the NI Act had not conferred any "special jurisdiction or power" on a Judicial Magistrate of the First Class and Therefore it only excluded the powers of other Magistrates from trying offences under Section 138 thereof but did not, in any way, enhance....
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.... additional or that which is distinct from, different from, or opposite to something or oneself". Collins Cobuild English Dictionary for Advanced Learners contains fifteen connotations of the word 'other' which include -"You use nothing other than and no other than when you are going to mention a course of action, decision, or description and emphasize that it is the only one possible in the situation". The same Dictionary then states - "You use other than after a negative statement to say that the person, item, or thing that follows is the only exception to the statement." The American Heritage (r) Dictionary defines 'other than' as - "With the except of; except for; besides". We have gone into considerable depth on the meaning of the word 'other' because we were of the opinion, at first blush, that the opening words of the Section appear to indicate that it is a Magistrate of the First Class, specially empowered in this behalf by the appropriate Government, who can alone or exclusively try offences under the Act. This is also what learned Counsel for the Petitioners would have us hold; but is contrary to the administrativ....
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....ot;. Therefore, essentially the flow of Section 13(1) of the OS Act is to the effect - "No court which is inferior to that of a District or Presidency Magistrate shall try any offence under this Act". The reference to the Magistrate of the First Class connotes and indicates the exception to the rule. Therefore, in normal course offences under the OS Act are to be tried by a Court which was not inferior to the erstwhile District or Presidency Magistrate. Magistrates of the First Class would have jurisdiction only in the event of their special empowerment by the appropriate government. Since a state of vacuum is always a abomination, common sense dictates that a Court higher in status to that of an MM or Magistrate of the First Class, should ordinarily exercise jurisdiction over alleged offences under the OS Act. 16. Rules of interpretation of statutes inter alias recommend that each and every word found in any legislation should be given a meaning; that words should not be introduced by the Court into the Section so as to give it a particular meaning, unless no sense whatsoever can be derived from the statutory provision as it stands. In practical terms these rules of sta....
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....ry any offence under the Act. There are several similar provisions that can be found such as, to give only a few examples, Section 142(c) of the NI Act (supra), and also Section 26(2) of the Securities and Exchange Board of India, 1992 (SEBI), which we shall advert to when we analyze the very recent decision of a Division Bench of this Court reported as Mahender Singh v. High Court of Delhi 148(2008) DLT 391. The SEBI provision previously prescribed that no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the First Class could try an offence punishable under that Act. Consequent upon the 2002 Amendment, Section 26(2) now reads that -"No Court inferior to that of a Court of Session shall try any offence punishable under this Act". Section 511 of Schedule-II of the old CrPC dealt with offences under other laws, which enabled a Second Class Magistrate along with the Court of Sessions, Presidency Magistrate or Magistrate of the First Class to try any offence punishable for one year and upwards but less than three years. The Legislature was mindful of this position and obviously was of the view that offences under the OS Act should be entrusted for t....
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....offences which attract a punishment up to three years, Section 13 has the effect of disabling them from doing so, unless specially empowered by the Central Government to do so. The conclusion, Therefore, is that if a Metropolitan Magistrate or Magistrate of the First Class is to be made competent to try offence under the OS Act he would require special empowerment by the appropriate government, but all courts 'superior' to that of a Metropolitan Magistrate/Magistrate of the First Class (Court of Sessions and the High Court in the existing hierarchy of courts) would ordinarily possess jurisdiction in this regard. No intelligent purpose can be achieved by the statutory draftsman in mentioning in Section 13 of the OS Act a particular Court and immediately speaking of a Court inferior thereto so far as jurisdictional powers are concerned. 19. The interpretation of Section 13 to the effect that no Court inferior to the Court of Sessions can ordinarily try cases under the OS Act, and that only a Metropolitan Magistrate who has been specially empowered in this behalf by the Central Government would be competent to try such cases, renders the decisions of Single Benches of this Co....
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....ate of the First Class is competent to try such offences only if it had been specially empowered to do so, these offences would normally be triable by the Court of Sessions. The situation is altogether dissimilar to that which existed in Antulay. The Legislature has bestowed and reposed the authority of special empowerment on the appropriate government, and not the Supreme Court which directed the High Court to assume jurisdiction. It has not been argued that this power of special empowerment by the Central Government cannot be withdrawn by it. If and when this event transpires, the Court must pass appropriate orders to give effect to either or both actions. Ergo, the two impugned Orders do not stem from the Courts volition but rather are prompted by the purpose of implementing the decision of the appropriate government, and consequently removing the cases from a Court which had lost jurisdiction to one which always possessed it. 22. Reliance on Antulay has also been placed by Mr. Luthra to buttress his argument that, upon the transfer of the cases to the Court of Sessions, the Petitioners have lost one forum of appeal. In Antulay the Supreme Court ordered the trial to be conducte....
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....e offences were triable by the MM, the High Court was not possessed of powers to order that the trial be conducted by the Court of Sessions. The ratio decidendi is that "the High Court on the administrative side by invoking the provisions of Article 227 of the Constitution or for that matter Section 497 of the code could not have widened or expanded the powers beyond what is fixed under the Act." We humbly concur with this opinion which is exactly on the lines drawn in Antulay. However, as already analysed above, the wordings of the two provisions are not in pari materia. If the Legislature's intent was to vest jurisdiction only with the MM it could have unambiguously ordained that - "Offences under this Chapter shall be tried by the Court of the Metropolitan Magistrate." The Division Bench had specifically noticed Section 143 (introduced into the NI Act with effect from 6.2.2003) which simply speaks so. It needs to be clarified that the non-obstante clause in Section 142 is with prejudice to the CrPC, and not the rest of its provisions including Sub-section (c). It seeks to allay doubts that despite the provisions of the CrPC which indicate that an offence ....
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....titioners that two ladders of remedies have been taken away. There can be no gainsaying that the scrutiny in an Appeal, which is always in exercise of a right granted by the statute to the appellant, is much wider than in a Revision, which is a discretionary relief. Since a person can avail of a full hearing before the High Court in the exercise of appellate jurisdiction, no prejudice or detriment can possibly be suffered by him merely because these two remedies coalesce with each other where an offence is triable by the Court of Sessions. In the view that we have taken, that is, that it is the Court of Sessions which is competent to try offences under the OS Act unless/except where the Central Government especially empowers an MM to do so, the result is exactly similar. Our view, Therefore, is in harmony on this point with Mahender Singh. 26. The NI Act reveals several conundrums in the context of the legal nodus confronting us, one of which is the apparent overlapping between its Sections 142 and 143, both of which are in the fasciculus of Chapter XVII, which deals with "Penalties in case of Dishonour of certain cheques for insufficiency of funds in the Accounts." Whil....
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....to preserve the concurrent jurisdiction of more than one Court. We now revert to the argument of Mr. Luthra that the option bestowed on the accused to be tried by the Court of Sessions has been rendered nugatory by virtue of the impugned Notifications. This is indeed so. However, this appears to us to be the intent of the Legislature. 28. N.G. Mitra v. State of Bihar 1970CriLJ1396 clarifies that common law enjoins that all pending proceedings will be governed by the amended law, with the qualification that whatever was concluded under the old law would retain legal propriety. In Waheed Hasan Khan v. State of Hyderabad AIR 1954 Hyd 204 the Full Bench comprising five Learned and Worthy Judges of what is now the Andhra Pradesh High Court, were called upon to decide whether the accused could exercise his right of further cross-examination under the repealed Hyderabad Criminal Procedure Code. The Full Bench opined that a qualified procedural right cannot be preserved even after the amendment or repeal of the statute which conferred it; that the analogy of an appeal cannot be extended to such cases. Hence, the law that was in force at the time of the trial would alone be efficacious. In....
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.... as soon as this takes place exercise of any option during the period when that functionary possessed power is automatically rendered ineffectual. Since the accused would now, in the normal course, be tried by the Court of Sessions, he cannot seek perpetuation of the abnormality. In fact, great pains have been taken by the Legislator to protect the interests of the accused by allowing him to exercise the option to be tried before the Court of Sessions even in the exceptional or extraordinary cases where an MM had been specially empowered to try the offences. We do not, Therefore, find any merit in this contention. We find a fallacy in the reliance of Mr. Luthra on Section 6 of the General Clauses Act, 1897, for the simple reason that it contemplates the repeal of any Central Act or Regulation and in such event preserves any right or privilege accrued under that enactment. The right is a qualified one; it is a concession which springs from the exercise of discretion. Such a 'right' cannot be viewed as an absolute one, insulated and impervious to change. The impugned Notification is not a Central Act or Regulation. It essentially is procedural in nature and Therefore not immu....
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....definition, to that of the CMM or ACMM. We would like to exorcise the ghost of the old CrPC as well as the extant CrPC with regard to the powers of the sundry Magistrates but continue to be drawn under their spell. In the present case, since we are dealing with a special statute, which specifically stipulates the courts which must try offences under that statute, we need not refer to the repealed or the extant CrPC, especially in view of Section 26(b) of the CrPC, 1973 which lays down that any offence under the OS Act shall be tried by the Court mentioned in Section 13 of the OS Act. To that extent Part II of the First Schedule of the CrPC is, Therefore, redundant and irrelevant for our purposes. For the same reason Section 3(3)(c) of the CrPC which enunciates that unless the context otherwise requires any reference in any enactment passed before the commencement of the CrPC 1973 to a Presidency Magistrate or Chief Presidency Magistrate shall be construed as a reference respectively to an MM or the CMM. So far as Section 13 of the OS Act is concerned, its context requires otherwise inasmuch as it speaks of Courts 'inferior' to that of a Presidency Magistrate but there are n....