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M.R. Melhotra and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 205 of 1957
Judge
Reported inAIR1958All492; 1958CriLJ834
ActsCriminal Law Amendment Act, 1952 - Sections 8 and 9; Code of Criminal Procedure (CrPC) , 1898 - Sections 350 and 561A; Code of Civil Procedure (CPC) , 1908
AppellantM.R. Melhotra and anr.
RespondentState
Appellant AdvocateB.L. Kaul, Adv. for ;Suri, Adv.
Respondent AdvocateAddl. Govt. Adv.
DispositionRevisions dismissed
Excerpt:
criminal - special judges - sections 8 and 9 criminal law amendment act, 1952 and section 350 of criminal procedure code, 1898 - special judges created under criminal law amendment act differ from sessions judges - special judges follow a different mode of trial other provisions of the criminal procedure code apply to both alike - special judges cannot be classed as magistrates section 350 of criminal procedure code is not applicable to them - section 9 criminal law amendment act, 1952 indicates the intention of the legislature to confer the status of a sessions judge upon special judges. - - 46 of 1952, but i would like to give the reasons for my opinion in my own language. 2. it appears to me that, in designating the court, which is empowered to try cases under the criminal law.....v. bhargava, j.1. i have had the benefit of reading the judgment proposed to be delivered by my brother mulls, j. i agree with him that section 350 of the code of criminal procedure is not applicable in the case of a special judge appointed under the criminal law amendment act no. 46 of 1952, but i would like to give the reasons for my opinion in my own language. my brother, mulla, j., has already discussedthe three relevant decisions of the madras, the patna and the punjab high courts and it does not appear to be necessary for me to comment on those cases again.2. it appears to me that, in designating the court, which is empowered to try cases under the criminal law amendment act, 1952, as a court of a special judge, the legislature clearly intended to indicate that a special judge will.....
Judgment:

V. Bhargava, J.

1. I have had the benefit of reading the judgment proposed to be delivered by my brother Mulls, J. I agree with him that Section 350 of the Code of Criminal Procedure is not applicable in the case of a Special Judge appointed under the Criminal Law Amendment Act No. 46 of 1952, but I would like to give the reasons for my opinion in my own language. My brother, Mulla, J., has already discussedthe three relevant decisions of the Madras, the Patna and the Punjab High Courts and it does not appear to be necessary for me to comment on those cases again.

2. It appears to me that, in designating the Court, which is empowered to try cases under the Criminal Law Amendment Act, 1952, as a Court of a Special Judge, the legislature clearly intended to indicate that a Special Judge will neither be a Magistrate nor a Court of Session as constituted under the Code of Criminal Procedure. Had there been any intention that the Special Judge was to be a Magistrate or a court of session, it was easy for the legislature to lay down in the Criminal Law Amendment Act, 1952, itself that the power of trying cases under that law would be exercised by a Magistrate or a Court of Session.

Consequently, in considering the applicability of the provisions of the Code of Criminal Procedure to a Special Judge, it has to be kept in view that he is neither a Magistrate nor a Court of session. His is a special class of Court constituted under that special law and, consequently, the Code of Criminal Procedure is to be applied in his case only to the extent that the Criminal Law Amendment Act, 1952, itself makes it applicable. The relevant provision, as has been pointed out by my brother, Mulla, J., is contained in Section 8 of that Act.

Under Sub-section (1) of Section 8 the Special Judge, who is neither a Magistrate nor a Court of session, is empowered to take cognizance of offences without the cases being committed to him for trial and then there is the further direction that, in trying the accused persons, he is to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates.

The language of this sub-section does not indicate that the Special Judge has been equated with a Magistrate or has been constituted a Magistrate for the purpose of trying cases under that Act. All that Sub-section (1) of Section 8 does is to empower the Special Judge to take cognizance of cases without proceedings of commitment and then it lays down the procedure which is to be followed bv him in the trial of a case of which he has taken cognizance.

The fact that he is to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates cannot convert a Special Judge into a Magistrate. Then comes Sub-section (3) of Section 8 under which, subject to the overriding provision of Sub-section (1), the remaining provisions of the Code of Criminal Procedure have also been applied to proceedings before him to the extent, that those provisions are not inconsistent with the provisions of the Criminal Law Amendment Act, 1952.

Sub-section (3) then further proceeds to lay down a fiction of law that, for purposes of those provisions of the Code of Criminal Procedure which become applicable under Sub-section (3) of Section 8, the Court of a Special Judge is to be deemed to be a Court of session trying cases without a jury or without the aid of assessors.

Thus Sub-section (3) of Section 8 also recognises the fact that a Special Judge is neither a Magistrate nor a Court of session but, by a legal fiction, which is frequently resorted to by the legislature, the Special Judge is to be deemed to be a Court of session for the limited purposes of those provisions of the Code of Criminal Procedure which become applicable to proceedings before him under Sub-section (3) of Section 8 but excluding those provisions of the Code of Criminal Procedure which become applicable to proceedings under Sub-section (1) of that section.

The effect, it appears to me, of the provision made in this manner in the Criminal Law Amendment Act, 1952, is that, even though a Special Judge is neither a Magistrate nor a Court of session, he has to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by a Magistrate and except for those provisions which relate to the procedure for the trial of warrant cases by Magistrates, he is to be considered in law to be a Court of session for all other provisions of the Code of Criminal Procedure which become applicable to him under Sub-section (3) of Section 8.

Section 350 of the Code of Criminal Procedure only governs proceedings before a Magistrate and not before a Court of session. Consequently section 350 of the Code of Criminal Procedure cannot be applied to proceedings before him unless it be held that this section incorporates or lays down the procedure for the trial of a warrant case by a Magistrate. Under Sub-section (3) of Section 8, only those sections are applicable to the proceedings before a Special Judge which are applicable to a trial before a Court of session and when these provisions of the Code of Criminal Procedure become applicable, they apply exactly as if the Special Judge was a Court of session.

Since Section 350 of the Code of Criminal Procedure does not apply to proceedings before a Court of session at all, Sub-section (3) of Section 8 of the Criminal Law Amendment Act, 1952, does not make Section 350 of the Code of Criminal Procedure applicable to the proceedings before a Special Judge. The only question that has to be examined is whether it can be held that Section 350 of the Code of Criminal Procedure incorporates in it a part of the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates.

If it be held that Section 350 of the Code of Criminal Procedure is not a part of the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates, this section would not be applicable at all to the proceedings before a Special Judge. In the circumstances, I proceed to examine the interpretation of the expression 'the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates' used in Sub-section (1) of Section 8 in order to examine whether Section 350 of the Code of Criminal Procedure is covered by this expression.

3. In interpreting the expression used in Sub-section (1) of Section 8, a significant point that prominently comes up is that the expression used is 'the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates'. If the same expression is used in the Code of Criminal Procedure itself, it would appear to me that the words used in Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952, must be given the same meaning as given to those words in the Code of Criminal Procedure. Chapter XXI of the Code of Criminal Procedure deals with the trial of warrant cases by Magistrates and Section 251 of that chapter is to the following effect :

'251. In the trial of warrant-cases by Magistrates, the Magistrates shall

(a) in any case instituted on a police report, follow the procedure specified in Section 251-A; and

(b) in any other case, follow the procedure specified in the other provisions of this chapter.'

This Section 251 of the Code of Criminal Procedure, which is the first section in Chapter XXI, thus indicates what is meant by the expression 'the procedure for the trial of warrant cases by Magistrates'. If the case is instituted on a police report, the procedure is that specified in Section 251-A whereas in any other case, the procedure is that specified in the other provisions of that Chapter XXI viz., Sections 252 to 259.

When the Code of Criminal Procedure itself limits the expression 'the procedure for the trial of warrant cases by Magistrates'' to Section 251-A and Sections 252 to 259 of the Code of Criminal Procedure, the interpretation of the expression 'the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates' used in Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952, must also be that it is the provisions of Section 251-A and Sections 252 to 259 which have been made applicable to the trial of cases by a Special Judge appointed under the Criminal Law Amendment Act, 1952.

Section 350 of the Code of Criminal Procedure is not included in Chapter XXI of the Code of Criminal Procedure nor is it one of the sections which, in view of the language of Section 251 of the Code of Criminal Procedure, can be held to be a part of the procedure for the trial of warrant cases by Magistrates. The contention of learned counsel for the applicants that Section 350 of the Code of Criminal Procedure is a general provision prescribing the procedure for the trial of all kinds of cases by Magistrates and must, therefore, be held to be a part of the procedure for the trial of warrant cases by Magistrates cannot be accepted.

This argument can be supported by learned counsel only on the basis or the language of Section 251 of the Code of Cr. P. C. which existed at the time when the Criminal Law Amendment Act, 1952 was passed. At that time the Code of Criminal Procedure had not been amended by the Code of Criminal Procedure (Amendment) Act No. 26 of 1955 and Section 251 of the Code read as follows :

'251. The following procedure shall be observed by Magistrates) in the trial of warrant cases.'

The use of the word 'following' in that section at that time was sought to be construed as indicating that all procedural sections, which apply to the trial of a warrant case by a Magistrate, must be treated as a part of the procedure for the trial of warrant cases by Magistrates under the Code of Criminal Procedure but a further examination of the other provisions of the Code leads to the inference that this interpretation cannot be correct.

Chapter XXI, which contains Sections 251 to 259, deals exclusively with the procedure for the trial of warrant cases by Magistrates. That chapter is followed by Chapter XXII which lays down the procedure for summary trials and contains Sections 260 to 265. Then comes Chapter XXIII containing Sections 266 to 335 which lays down the procedure regulating trials before High Courts and Courts of session.

Though these two chapters follow Section 251, clearly, the provisions in these chapters cannot be applied to the trial of warrant cases by Magistrates and cannot be said to have been referred to by the use of the word 'following' in Section 251. Section 350 is placed in Chapter XXIV which comes subsequent to Chapters XXII and XXIII. The provisions of this section contained in a later chapter cannot be held to be referred to by the use of the word 'following' in Section 251.

Consequently, it must be held that, by using the expression 'the procedure, prescribed by the Code of Criminal Procedure, for the trial of warrant cases by Magistrates', the law laid down in Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952 only made the provisions of Sections 252 to 259 of the Code of Criminal Procedure applicable to the trial of a case by a Special Judge and did not make all other subsequent provisions so applicable.

Section 350 not having been made applicable by Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952, it cannot be held to apply on any other consideration, because, as I have said above, a Special Judge is not a Magistrate and Section 350 of the Code of Criminal Procedure applies only to proceedings before Magistrates and not to proceedings before all kinds of Courts.

4. Another additional reason, which appears to me to justify the view that Section 350 of the Code of Criminal Procedure does not apply to proceedings before a Special Judge, is indicated by the language of Section 350 of the Code of Criminal Procedure itself which is to the following effect :

'350. (1) Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself :

Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded, is necessary in the interests of justice, he may re-summon any such witness and after such further examination, cross-examination and re-examination, if any, as he may permit the witness shall be discharged. (2) Nothing in this section applies to cases in which proceedings have been stayed under Section 346 or in which proceedings have been submitted to a superior Magistrate under Section 349.

(3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of Sub-section (1).'

The language of the section indicates that what this section purports to lay down is not a part of the procedure to be adopted by a Magistrate in the trial of a case but is much more in the nature of a rule of evidence. It empowers a Magistrate, who succeeds another Magistrate after the case has been partly heard and the whole or part of the evidence has been recorded, to act on the evidence already recorded by his predecessor or to act on the evidence partly recorded by his predecessor and partly recorded by himself.

The power of the Magistrate to act on evidence can hardly be said to be a matter of procedure for the trial of a case. It is really a power to be exercised by a Magistrate to admit evidence which has been wholly or partly recorded by his predecessor which is a modification of the normal rule of evidence that a Court must act entirely on the evidence recorded by itself. The mere fact that this provision has been made in the Code of Criminal Procedure does not necessarily mean that it must be a part of the procedure for the trial of a case.

It actually embodies a special rule relating to admissibility of evidence just as Section 162 of the Code of Criminal Procedure lays down a special rule of evidence applicable to cases governed by the Code of Criminal Procedure. For this reason also, it has to be held that Section 350 of the Code of Criminal Procedure is not a part of the procedure for the trial of warrant cases by Magistrate, so that it is not made applicable to the proceedings before the Special Judge under Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952.

5. The argument based on the provision made in Section 9 of the Criminal Law Amendment Act, 1952, has already been dealt with by my brother Mulla, J. and I do not consider it necessary to deal with this point in any greater detail.

6. Consequently, the two applications, must in my opinion, be dismissed and the stay orders vacated.

A.N. Mulla, J.

7. These are two criminal revisions which have been connected together because the decision in both the cases depends upon the determination of the same point of law. The applicants in both these cases are public servants who are being prosecuted under Section 5 (2) of the Prevention of Corruption Act (Act 2 of 1947) apart from other offences, and these cases are pending in the Court of the Special Judge, Anti-Corruption., U. P., Lucknow.

Sri B. N. Zutshi was the Special Judge who was hearing these cases, but his services were terminated before he could pronounce judgments. In one case the prosecution evidence was completed and in the other case only arguments were to be heard. They came up for hearing before Sri Shah Ghyas Alam, the successor of Sri B. N. Zutshi, on 19-8-1957.

The applicants prayed that the proceedings should be continued from the stage reached, as otherwise they would be subjected to extreme hardship, for there is a mass of evidence in both these cases, but the Special Judge although fully appreciating the equitableness of the prayer felt that the law did not permit hire to adopt this course, and so he ordered that a fresh trial would be held in these cases. It is against this order that the applicants have come up in revision.

8. There can be no doubt that a fresh trial in these cases would not only inflict unjustifiable hardship and loss upon the applicants, but will also mean substantial expense for the State. It would also delay the disposal of these cases and quite a considerable time of the Special Judge would be wasted by covering the same ground again. The relief sought, therefore, suits not only the applicants but the prosecution also. It was perhaps for this reason that the Additional Government Advocate did not oppose these applications, but took up the stand that if this relief is permissible under the Jaw he would not oppose it.

9. But the duty of a Court of Law is clear. It cannot give any relief howsoever equitable it might be if it is in conflict with the express direction contained in the statute. So long as the words of the statute are vague or ambiguous and are capable of being construed in a manner which is consistent with the equity of the case, they can be so interpreted, but where the direction contained in the statute is clear and unambiguous, it is not open to a Court to disregard that direction. In such a case it is for the legislature to amend the statute if it wants to afford the desired relief. The duty of the Court is merely to interpret the law as it stands irrespective of the consequences and pass its orders accordingly.

10. Therefore, the only point to be decided in these cases is, whether or not it was possible for the Special Judge to grant the relief sought by the applicants under the existing law. This in its turn depends upon our answer to the question whether the provisions of Section 350 of the Code of Criminal Procedure apply to the proceedings before a Special Judge, Anti-corruption, or not. If the Special Judge can be classed as a Magistrate, these provisions would apply, but if he is to be regarded as aSessions Judge, they have no application and the Special Judge had no power to grant the relief claimed.

11. It is true that in one of these cases a prayer to grant this relief under Section 561-A, Cr. P. C, is also made, but in my opinion it would not be a correct exercise of our inherent powers if we sanction a procedure which is not permissible under the Criminal Procedure Code. These powers can only be exercised within the frame work of the law and not in violation ofthe law.

12. Coming back to the point at issue, to the best of my knowledge there are only three decisions of three different High Courts which have dealt with it. These decisions are not unanimous and there is conflict between them. All the three decisions are division Bench decisions. The first in point of time is the Madras decision in In re A. Vaidyanatha Iyer : AIR1954Mad350 . This decision supports the contention of the counsel for the applicants that such a relief can be given. The learned Judges observed :

'In our opinion the mere enactment of Section 9 (Criminal Law Amendment Act, 1952) would show that the legislature did not intend the Special Judge to be a Sessions Judge at all..... We are definitely of opinion that when Sub-section (3) of Section 8 of the Act says that 'the court of the Special Judge shall be deemed to be a court of Sessions, it certainly is not in fact a court of Sessions. The court is that of a Special Judge whose procedure in the trial of such cases shall be the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases, in which case Section 350 of the Code is definitely applicable.'

This decision was considered by a Division Bench of the Patna High Court in Gopal Prasad v. The State, AIR 1954 Pat 543 (B) and the learned Judges doubted the correctness of the view expressed above. The contrary view was expressed by Das J. who observed :

'It seems to me that Sub-section (3) of Section 8, Criminal Law Amendment Act, 1952, is quite clear. It states that for the purposes of the provisions of the Code of- Criminal Procedure the Court of the Special Judge shall be deemed to be a Court of Sessions trying cases without a jury or without the aid of assessors. If the court of the Special Judge shall be deemed to be a court of Sessions for the purposes of the provisions of the Code of Criminal Procedure, I do not see how Section 350 can apply. Section 350 in express terms applies only to the Court of a Magistrate and not to the Court of Session. Even if the expression 'shall be deemed to be' creates what is called a statutory fiction, the fiction has to be accepted because the law itself creates a fiction. '

13. The third decision is of the Punjab High Court in State of Delhi v. S. Y. Krishnaswamy . In this case the learned Judges did not refer to the Madras and Patna decisions cited above, but their view was the same as that of the Patna High Court and they held that a Special Judge stood on the same footing as a Sessions Judge and he could exercise the same powers under Section 503 Cr. P.C. as any court of Session. It seems to me that the intention of the legislature to confer the status of a Sessions Judge upon the Special, Judges created under the Criminal Law Amendment Act, 1952, is expressed in as clear terms as possible and it is not open to a court to disregard it.

I, therefore, agree with the view expressed by the Patna and Punjab High Courts and the Madras view is not acceptable to me. I now proceed to give reasons for the opinion which I have expressed.

14. But before dealing with the relevant provisions of law I will first give the background of the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) by which these Special Judges were created. This in my opinion will be of great help in understanding the intention of the legislature.

15. The Prevention of Corruption Act was brought on the statute in 1947. This law was enacted to make a more effectual provision for the prevention of bribery and corruption which was rapidly spreading in the public services. This by itself indicates that the existing law was found inadequate to deal with the growing evil which had become rampant and so it had to be supplemented by a new measure which could deal with it more effectively.

The legislature, therefore, had a dual intention in enacting this law. Firstly, it wanted such offences to be tried by such Court which could inflict adequate punishment for these crimes and, secondly, it wanted a speedy procedure to dispose of these cases, for their number was alarmingly large. Several Courts were, therefore, created to deal with the situation, and as enhanced and deterrent punishment was to be awarded to the offenders, it became necessary to have experienced Judicial Officers as the Presiding Officers of these Courts.

Then came the question as to what would be the most suitable mode of trial for these cases. The procedure of a sessions trial was obviously not suitable for these cases, for a Court or Session is not a Court of original jurisdiction, and if this procedure had been accepted, it would have considerably delayed the disposal of these cases, for commitment proceedings would have been necessary and it would have defeated one of the main objects of this enactment, namely speedy disposal. As laid down in Section 193 of the Criminal Procedure Code :

'(1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf.'

Apart from this a Sessions trial starts after a charge has been framed against an accused person with recording of his plea and in the trial for an offence for which an accused was likely to be sentenced to a long term of imprisonment it was highly undesirable that heshould be called upon to plead guilty or not guilty when no evidence has been recorded and no charge has been framed.

The accused would have been highly prejudiced if he was called upon to plead to a charge which was not supported by any recorded evidence. Therefore, the only procedure amongst the existing procedures which was suitable for the trial of these cases was the procedure prescribed for 'Warrant Cases'. The legislature, therefore, selected this procedure for these trials. The Presiding Officers of these Courts were first designated as Special Magistrates although they were wholly appointed either from the retired or the functioning Sessions Judges.

The forum of appeal was determined by the applicable sections of the Criminal Procedure Code. This system of trial for these cases continued for a few years and then in 1953 Criminal Law Amendment Act (Act 46 of 1952) was enacted by which these Special Magistrates were converted into Special Judges. This change in designation was by itself highly significant for there appears to be no understandable reason why they were to be called 'Special Judges' if they were to continue to function as 'Special Magistrates'.

16. It is not difficult to understand why this change was necessary. It is one of the basic principles of justice that an appellate Court should be more experienced than the trial Court, for it has to correct the errors committed by the trial Court. Appeals from the decisions of these Special Magistrates were normally heard by the functioning Sessions Judges, who at best were only equally experienced and frequently less experienced that these Special Magistrates, for I have already mentioned above that most of these officers were retired Sessions Judges.

An anomalous position was thus created, for in almost every case the trial Court was more experienced than the appellate Court and yet the decision of a less experienced Court was to prevail over the decision of a more experienced Court. This violated a fundamental principle of justice and, therefore, the legislature had only two options before it.

It could either appoint less experienced officers as the Presiding Officers of these Special Courts and give them the power to inflict such heavy sentences or if it was to retain the services of these experienced officers, it had to confer upon them the status of a Sessions Judge so that an appeal from their decision should lie before the High Court and not before the Sessions Judge. Act 46 of 1952 only indicates that the legislature preferred the second alternative. It could not have appointed these special officers as Sessions Judges, for the term 'Sessions Judge' connotes a particular type of officer created by Section 9 of the Criminal Procedure Code, which runs as follows:

'(1) The State Government shall establisha Court of Session for every sessions division,and appoint a Judge of such Court.'

It could, therefore, only confer the status of a Sessions Judge on these Special Judges by directing that the Court of these Special Judges shall be deemed to be a Court of Session. This intention in my opinion is clearly and fully expressed in Act 46 of 1952.

17. I now take up the provisions of the Criminal Law Amendment Act, 1952. The Special Judges are appointed under Section 6 of this Act and Sub-section (2) of this section runs as follows :

'A person shall not be qualified for appointment as a special Judge under this Act unless he is, or has been, a Sessions Judge or an additional sessions Judge or an assistant sessions Judge under the Code of Criminal Procedure, 1898 (Act 5 of 1898).'

It would be seen from this that a Magistrate even of the highest grade i.e. the Presidency Magistrate is not qualified to be appointed as a Special Judge. I have drawn attention to this fact because in my opinion it gives an indication of the intention of the legislature. It is clearly expressed subsequently in Section 8 of the Act, namely that 'the Court of the Special Judge shall be deemed to be a Court of Session'. Where only Sessions Judges, acting or retired, were to be appointed as Special Judges, it is an indication that the legislature intended to confer the status of Sessions Judge on these officers.

18. Then comes Section 8, which is the most important section in this enactment. It runs as follows :

'(1) A special Judge may lake 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 (Act 5 of 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 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 Sections 339 and 339-A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under Section 338 of that Code. (3) 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 inconsistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the Court of the special Judge shall be deemed to be a Court of session trying cases without 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.

(4) A special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.

19. The very opening sentence of Sub-section (1) gives an indication of the intention of the legislature. It is only to the Court of Session that an accused is Committed and there was no point in giving a direction that the Special Judge may take cognizance of a case without any commitment proceedings, if he was a Magistrate, for cases are not committed to the Courts of Magistrates. This specific direction was incorporated in the statute to stress the fact that a departure from the normal rule of procedure was being made and though the Special Judge was not a Magistrate but an officer deemed to be a Sessions Judge, yet for the limited purposes of trial he should follow the procedure laid down in Chapter XXI of the Criminal Procedure Code. I have already given my reasons above why the procedure of a sessions trial was wholly unsuitable for these Courts. In my opinion it is an error to think that because the Special Judges were directed to follow the procedure prescribed for warrant cases, they ceased to be Judges and became Magistrates. It was perhaps to clarify this point that the status of the Special Judge was expressly mentioned in the succeeding sections.

20. The words 'shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates' again in my opinion indicate that the direction was confined to observe the procedure laid down in Chapter XXI of the Criminal Procedure Code. This chapter is entitled 'Of the trial of warrant cases by Magistrates' and Section 251, Cr. P. C. which is the first section of this Chapter clearly defines what is meant by the phrase 'Procedure in warrant cases'. Section 251, Cr. P. C. runs as follows :

'Procedure in warrant cases : In the trial of warrant cases by Magistrates, the Magistrates shall-

(a) in any case instituted on a police report, follow the procedure specified in Section 251-A; and

(b) in any other case, follow the procedure specified in the other provisions of this Chapter.'

It seems to me that when, the Special Judges were directed to follow the procedure prescribed for the trial of warrant cases, this direction was limited to the provisions of Section 251 cited above and for all other purposes the Special Judges stood on the same footing as the Sessions Judges and the same provisions of the Criminal Procedure Code applied to both. In my opinion the words of Sub-section (1) of Section 8 do not warrant the inference that the other provisions of the Code of Criminal Procedure outside Chapter XXI which were applicable to a trial held by a Magistrate also applied to the trial conducted by the Special Judge,

21. Sub-section (2) of Section 8 further illustrates the status of the Special Judge. Under the Criminal Procedure Code a pardon can be tendered to an approver both by a Magistrate and by a Sessions Judge. When the Magistrate does so, he acts under Section 337, Cr. P. C., but where the Sessions Judge tenders this pardon, he functions under Section 338, Cri. P. C. These two sections are in Chapter XXIV of the Criminal Procedure Code the same Chapter in which Section 350 occurs. By making it clear that the pardon tendered by the Special Judge shall be deemed to have been given under Section 338, the legislature has again given an express indication that the Special Judge is not to be classed as a Magistrate, but as a Sessions Judge. If the legislature intended that the Special Judge was to be grouped amongst the Magistrates, it would have mentioned Section 337 instead of Section 338 in this sub-section. It was necessary to include this sub-section because the opening words of Section 338. 'At any time after commitment' made it inapplicable to the Special Judge as there were no commitment proceedings in cases that come before him.

22. Sub-section (3) of Section 8 makes the position still more clear. It states that excepting the provisions of Sub-sections (1) and (2), the other provisions of the Code of Criminal Procedure which are not inconsistent with this Act will apply to the proceedings before the Special Judge and his Court snail be deemed to be a Court of session. In other words excepting the mode of trial prescribed in Sub-section (1), all the other provisions of the Criminal Procedure Code which apply to the Court of the Sessions Judge shall apply to the Court of the Special Judge. I have given my reasons earlier why the mode of trial had to be changed and the Special Judge could not follow the procedure of a sessions trial. I have also given my opinion while dealing with Sub-section (1) that its ambit was confined to Chapter XXI, Cr. P. C. and it did not extend beyond it. The provisions of Section 350, Cr. P. C. cannot in my opinion be brought within the scope of Sub-section (1). The very fact that in Sub-section (2) the Special Judge was classed with the Sessions Judges and not with the Magistrates is a clear indication that for the purposes of Chapter XXIV of the Code of Criminal Procedure, he is not to be grouped with the Magistrates.

23. I will now take up the words 'shall be deemed to be a court of session' for the Madras view has been largely influenced by an interpretation of these words. The phrase 'shall be deemed' is frequently used in statutes when the legislature wants to confer a status or an attribute to a person or thing which is not intrinsically possessed by that person or thing on whom this conferment is made. As observed by Curgenven J. in T. S. Ramabhadra Odayar v. T. S. Gopalaswami Odayar, 59 Mad LJ 782 at p. 809 : (AIR 1931 Mad 404 at PP. 415, 416) (D):

'No doubt the phrase 'deemed to be' is commonly used in statutes to extend the application of a provision of law to a class not otherwise amenable to it.'

The true synonym for the word 'deemed' is 'judged' and the other shades of meaning came later. Even today the Judges in the Isles of Man and Jersey are called 'Deemsters'. Whenever the word 'deemed' is used in statute, in relation to a person or thing, it implies that the legislature after due consideration exercised its judgment in conferring that status or I attribute to a person or thing. In De Beauvoir v. Welch, (1827) 108 ER 722 at p. 7.271 (E) Littledale J. observed:

'The word deemed imports also that a judgment is to be exercised,'

In the context of this sub-section the word 'deemed' imports that a judgment has been, exercised. The question, therefore, arises whether it is open to a court to sit in judgment over the judgment of the legislature and ignore the express direction contained in the statute on the ground that the person on whom a status is conferred by statutory fiction is not the real person and so it can refuse to recognize him as such a person. In my opinion this approach is not open to a Court. The important thing is not the meaning of the word deemed' but the effect of its use in the statute. In the Law Lexicon of British India by P. Ramanatha Aiyar (1940) under the words 'deemed to be,' the following extract appears;

'In Leonard v. Grant, 5 Fed. 11 at p. 16 (F) it is said: Whatever an Act requires to be 'deemed' or 'taken' as true of any person or thing, must in law, be considered as having been duly adjudged or established concerning such person or thing and have force and effect accordingly.'

I have quoted this extract from the Law Lexicon because I could not find this decision in the books which were available to me. To the same effect are the observations of Viscount Dunedin, in Commissioner of Income-fax, Bombay v. Bombay Trust Corporation, Ltd. ;

'Now when a person is 'deemed to be' some thing the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were.'

It, therefore, cannot be doubted that when, the legislature directed that the court of the Special Judge shall be deemed to be a court of session, the courts of law had no option but to follow the direction of the statute and to regard the court of the Special Judge as a court of Session irrespective of the fact whether he was in essence a Sessions Judge or not.

24. The observations of Cave J. in R. v. Norfolk County Council, (1891) 60 LJ QB 379 (H) cited in the Madras decision are also not helpful in my opinion to the view expressed in that case. The last sentence of the extract quoted is:

'..... that, notwithstanding it is not that particular thing, nevertheless, for the purposes of the Act, it is to be deemed to be that thing.'

At this stage Cave J. was only giving the meaning of the words 'deemed to be'. A few lines later when he discussed the effect of these words, he observed:

'Still, that does not entitle us to go outside what appears to me be the clear language of the statute, .....'

It, therefore, seems to me that where the statute uses the word 'deemed to be', it may be a creation of an artificial status but the courts cannot challenge it and must accept it.

25. Lastly, I find that the word 'deemed' has been used once in Sub-section (2) and twice in Sub-section (3). The same meaning must be given to it everywhere and it cannot 'be contended that while the fiction created is acceptable in the other two places, it is not so in the third place. The last sentence of Sub-section (3) runs as follows;

'The person conducting a prosecution before a Special Judge shall the deemd to be a public prosecutor.'

This implies that the provision of Chapter XXXVIII of the Code of Criminal Procedure will apply to such a person and a court cannot refuse to acknowledge this merely because the person conducting the prosecution before the Special Judge is not a duly appointed public prosecutor under the Criminal Procedure Code. It, therefore, naturally follows that the provisions of the Criminal Procedure Code applicable to sessions trial, apart from the exception made in Sub-section (1) will apply to a trial before the Special Judge. Section 350 Cr. P. C. being a general provision, which is not included In Chapter XXI of the Code of Criminal Procedure will, therefore, not apply to a trial before the Special Judge,

26. Sub-section (4) extends the power of the Special Judge to award the maximum punishment under the law upto the same extent as that of any Sessions Judge and this again clearly indicates that the Special Judges cannot be treated as Magistrates.

27. Lastly, I will deal with section 9. The Madras view was that if the Special Judges were to be regarded as Sessions Judges, this section becomes a surplusage. Perhaps the provisions of section 408(b) Cr. P. C. escaped the attention of the learned Judges when they expressed this view. Under Sub-section (3) the direction given was that the court of the Special Judge shall be deemed to be a court of session. The term 'court of session' includes the courts of the Sessions Judge, the Additional Sessions Judge and also the Assistant Sessions Judge, for the same procedure is followed in trials before all these courts. Normally the Sessions Judge hears the appeals filed against the decisions of the Assistant Sessions Judge, unless the sentence inflicted is four years or more. In order to clarify the position that an appeal from the decision of the Special Judge shall in no case lie before the Sessions Judge, it was necessary to add this section. Without this section a doubt might have arisen that in those cases where the Special Judge awarded a sentance of less than four years, the appeal lay before the Sessions Judge under Section 408 (b) of the Code of Criminal Procedure. This section, therefore, instead of being a surplusage again indicates the intention of the legislature to confer the status of a Sessions Judge upon these Special Judges.

28. For the reasons mentioned above, I am of the opinion that the Criminal Law Amendment Act (Act XLVI of 1952) has createdSpecial Judges who differ from the SessionsJudges only in this respect that they follow adifferent mode of trial, but all the other provisions of the Criminal Procedure Code apply toboth alike. They cannot be classed as Magistrates and section 350 of the Code of CriminalProcedure is not applicable to them. Theorder passed by Sri Shah Ghyas Alam is correct in my opinion and must be upheld. Thesetwo applications of Criminal revision are dismissed and the stay orders passed are vacated.


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