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Naresh Chandra Agarwal and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1978CriLJ546
AppellantNaresh Chandra Agarwal and anr.
RespondentThe State
Excerpt:
- - it was provided that the special magistrate could be of first class as well as of second class. pc clearly, there was a reference to old section 14 of the cr. as well as the judicial magistrate of the first class under the new cr. as well as under the new cr......the judicial magistrate of the first class had been empowered by a government notification to try cases investigated by the delhi special police establishment at lucknow. there was thus a special magistrate appointed under the old or, p. c. gr. misc. no. 639 of 1973 (all) had been filed by ganga mani dubey and sheo pd. trivedi mainly on the ground that the sanction under section 196-a (2) of the cr.pc had not been obtained-this petition was dismissed by bakshi, j. on 28-1-1976. the present petition was then filed on 8-7-1976 by the other accused persons namely, naresh chandra agarwal and gauri shanker, besides repeating grounds taken in the earlier petition (cr. misc. no. 639 of 1973) they have also taken a ground that investigation itself was defective and no permission under section.....
Judgment:
ORDER

H.N. Kapoor, J.

1. This petition has been filed Under Section 561-A Cr.PC by the applicants Naresh Chandra Agarwal and Gauri Shanker for quashing the proceedings pending against them in the court of the Special Magistrate, U. P. at Lucknow in a case Under Sections 120B, 420, 467, 474 and 466 read with Section 109, IPC The applicants were said to have entered into a conspiracy and were engaged in selling forged railway tickets for Bombay and Mathura from Delhi. The other three accused were Jugraj Singh, Ganga Mani Dube and Sheo Pd. Trivedi, Jugraj Singh was actually found selling a ticket for Rs. 780/- to a witness. The printing material, machine, dye etc. were said to be recovered from the house of the co-accused Ganga Mani Dnbey. The case was investigated by the Delhi Special Police Establishment, The offence was committed at Kanpur. After completing the investigation, the Special Police had submitted a charge sheet Under Sections 120-B, 420, 467, 474 and 466 read with Section 109, I. P- C on 1-1-1973 in the court of the Special Magistrate U. P. at Lucknow. The Judicial Magistrate of the First Class had been empowered by a Government notification to try cases investigated by the Delhi Special Police Establishment at Lucknow. There was thus a Special Magistrate appointed under the old Or, P. C. Gr. Misc. No. 639 of 1973 (All) had been filed by Ganga Mani Dubey and Sheo Pd. Trivedi mainly on the ground that the sanction Under Section 196-A (2) of the Cr.PC had not been obtained-This petition was dismissed by Bakshi, J. on 28-1-1976. The present petition was then filed on 8-7-1976 by the other accused persons namely, Naresh Chandra Agarwal and Gauri Shanker, Besides repeating grounds taken in the earlier petition (Cr. Misc. No. 639 of 1973) they have also taken a ground that investigation itself was defective and no permission Under Section 155(2) Cr.PC had been obtained. Another ground taken is that the Notification issued under the new CrIPC empowering Sri Ram Prasad Sri-vasrava, (Chief Judicial Magistrate) and subsequently Sri Y. S. Raizada, Addl. Chief Judicial Magistrate taking the cases investigated by the special police establishment do not cover the case of the applicants under the old Code,

2. So far the first two grounds are concerned, the matter should be deemed to be concluded by the decision of this Court dated 28-1-1976 in Cri. Misc, Case No. 639 of 1973 (All). Bakshi, J. placed reliance on the case of Bhanwar Singh v, State of Rajas-than : [1967]66ITR596(SC) in which according to the Head Note he following observations were made.

No sanction is necessary Under Section 196-A ) Cr.PC when the object of the conspiacy is to commit the offence of cheating (Section 420, I. P. C). but forgery of documents (Section 467 IPC) and similar non-cognizable offences are also committed as merely steps taken by one or other of the accused for the urpose of effecting the main object of the conspiracy. A trial in such circumstances for offences Under Sections 120-B read with Ss, 467/ 471 and 420, I. P. C without obtaining sanction, is neither illegal nor void.

3. learned counsel for the applicants has placed on the case of Madan Lai v. State of Punjab : 1967CriLJ1401 in which it was held that the court can proceed to try cognizable offences and may not try non-cognizable offences when no sanction had been obtained for the same under Section 196 (A) Cr.PC But in that case the offences were separate. In the present case the principle laid down by their Lordships of the Supreme Court in the case reported in : 1968CriLJ867 (Supra) will apply. learned counsel for the applicants has also argued that no offence Under Section 420 IPC is made out. When the forged tickets were sold and other persons were induced to part with the money on the basis of the forged tickets, I see no reason why the offence under Section 420, I. P, C. is not made out. In any view of the matter, this can be agitated before the trial court and cannot be looked into in a petition Under Section 561-A Cr. P. C In fact, the present petition should have been Under Section 482 Cr.PC as it was filed after the coming into force of the new.Cr. P. C. However, I have treated this petition as one Under Section 482 Cr.PC As regards Section 155(2) Cr.PC the police can certainly investigate even if there is a single cognizable offence.

4. The last ground with regard to the jurisdiction was argued at some length and I have given my careful consideration to it. According to the learned counsel for the applicants, such Special Magistrates could have been appointed Under Section 14 Cr.PC (old) for exercising jurisdiction over whole of Uttar Pradesh or over several districts of Uttar Pradesh with regard to the offences investigated by the Delhi Special Police Establishment. But according to him only those Special Magistrates could have continued the trial Under Section 484 Cr, P. C. (new). According to him, on account of the further provisions Under Section 484(2)(b) Cr.PC the appointment of the Special Magistrate could terminate on the coming into force of the new Code of Cr.PC and it would not be possible for any other Magistrate to proceed with this case under the new Code of Cr.PC Thus according to the learned counsel for the applicants, the accused in all such cases would automatically be discharged. I do not agree with this contention. The Spe- cial Magistrate appointed under the old Cr.PC will certainly not be in a position to proceed with the trials. In ordinary cases it could have been possible for the Chief Judicial Magistrates to withdraw all the cases pending in the court of any Special Magistrate appointed under the old Cr. P. C and transfer the same to other Magistrate of the First Class or of the Second Class, as the case may be. There is no bar in transferring cases to the courts of other Magistrates even after coming into force of the new Cr. P. C inespective of the fact that the trial in such a case may be continued under the old Cr.PC It cannot, therefore, be said that the accused in all cases which were pending before the court of Special Magistrate under the old Cr.PC would be au-tomaticaly discharged after coming into force of the new Cr. P C.

5. The only difficulty in the present case is that the Special Magistrate appointed under the old Cr. P. C- would exercise jurisdiction over several districts according to the Government Notification for trying cases investigated by the Delhi Special Police Establishment. Even under the new Cr.PC there is a provision Under Section 13 for appointment of Special Magistrates, This section was amended by U. P. Ordinance No. 38 of 1975 with retrospective effect. It was provided that the Special Magistrate could be of First Class as well as of Second Class. It was also provided that the words 'in any local area' were substituted for the words 'in any district not being metropolitan area.' Rertospec-tive effect was given to this amendment. Soon after the coming into force of the new Ci. P. C notification No. 91/administration (B) dated May 7, 1974 was issued by the High Court appointing Sri- R, K. Rai Chief Judicial Magistrate, Lucknow to try cases investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (Act No. XXV of 1946) in respect of the offences committed in the whole of the State of Uttar Pradesh. This notification was on the basis of the Government notification No. 1592/ VII-A. N. 208/74 dated April 20, 1974 which had provided for establishment of common court of Judicial Magistrate of the First Class in consultation with the High Court over all districts of Uttar Pradesh with its sitting at Lucknow to try or enquire into and commit to he Court of Session all such cases arising in any local area within the State of Uttar Pradesh in which investigations are made or the charge-sheets are filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (Act No, XXV of 1946). The Notification dated 7th May 1974 was modified by the High Court by the subsequent notification No. 124 dated June 15, 1974 appointing the Chief Judicial Magistrate Lucknow as Ex. Officdo Judicial Magistrate of the First Class for all the districts of the State of Uttar Pradesh with headquarters at Lucknow for trying such cases.

6. The last notification is No. 403 (A) dated December 23, 1976 dividing Uttar Pradesh in two zones (local areas) and appointing Sri. Y. S. Raizada as Addl. Chief Judicial Magistrate, Lucknow to exercise jurisdiction over local area consisting of several Districts including Kanpur with regard to the cases investigated and in which charge-sheets had been filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, _1946. Another local area or zone consisted of Dehra Dub and some other districts and Sri. Moolchand, Addl. Chief Judicial Magistrate Dehra Dun is to exercise jurisdiction with regard to offences committed in those districts. Sri. Raizada has, thus been validly appointed to exercise jurisdiction with regard to offences investigated by the Special Police Establishment. It may also be observed that he was Magistrate of the First Class under the old Cr, P.C. Under the new Cr. P- C. he is also empowered to exercise special jurisdiction, Even Under Section 14 of the old Cr. P: C. he could have been empowered to exercise special jurisdiction with regard to cases investigated by the Special Police Establishment.

7. learned counsel for the applicants has argued that the scheme of the new Cr.PC is that the Judicial Magistrates and the Chief Judicial Magistrates can be appointed for any district only and no Magistrate can exercise power over more than one district. After Section 13 was amended by the State of U. P. I find not much difference between this section and Section 14 of the old Cr.PC The words 'local area' have been substituted for the words 'in any district not being Metropolitan area'. Under Section 14 of the old Cr.PC the words were 'in any local area outside the Presidency Town'. If it was possible to appoint Magistrates for exercising special jurisdiction in respect of cases investigated by the Special Police Establishment for the whole of Uttar Pradesh, I see no reason why such Magistrates cannot be appointed Under Section 13 of the new Cr.PC as amended by U. P. Ordinance No, 88 of 1975, Under Section 2(j)'of the new Cr.PC 'local jurisdiction' in relation to a court of Magistrate means 'local area' within which the court of the Magistrate may exercise all or any of its or his powers under the Code. It is true that the original notification No. 1592/VII A. N. 208/74 dated April 20, 1974 purported to be issued Under Section 11 of the new Cr.PC Clearly, there was a reference to old Section 14 of the Cr.PC 1898. At that time, the difficulty was that Under Section 13 the Special Magistrate of Second Class for a district only could have been appoint-ed. After retrospective effect was given to the amendment, this notification would easily be deemed to have been issued Under Section 13 of the new Cr, P C as amended by the Ordinance. Irregularity, if any, in issuing this notification was thus cured subsequently with retrospective effect. For all practical purposes, the Magistrate empowered to exercise special jurisdiction under the notification dated April 20, 1974 and the subsequent notification dated May 7, 1974 issued by the High Court will be deemed to be the Successor of the Magistrate appointed to exercise special jurisdiction with regard to the cases investigated by the Special Police Establishment under the old Cr.PC Similarly, the Magistrate empowered to exercise such powers by the subsequent notification will be deemed to be his successor. It is certainly not the intention of Section 484(2) Cr.PC that the cases under the old Cr.PC can be continued only by the Magistrate before whom they were pending and not by the successor of such Magistrate. I had occasion to consider the question of successor even if he was posted in the district after 1-4-74 in Cr. Revision No. 1036 of 1975 Raja Yadvendra Dutt v. D. S. A. Jaunpur decided on 3-2-1976: (1976 All WC 139): (1977 Cri. LJ (NOC) 63) (All), To that case I had held that even the Executive Magistrates retained their powers as First Class Magistrates for trying cases under the Old Cr.PC In the present case, Sri. Raizada was the Magistrate of the First Class under the old Cr. P- C. as well as the Judicial Magistrate of the First Class under the new Cr. Pt C Powers to tryises in the whole of the State of Uttar Pradesh or some districts of Uttar Pradesh in respect of the offences investigated by the Special Police Establishment could have been conferred on him under the old Cr, P. C. as well as under the new Cr.PC There is thus no illegality in conferring powers on him to try this case,

8. In the result the petition is dismissed and the stay order is vacated. The record shall be sent back to the lower court at a very early date and the learned Magistrate is directed to proceed with this case without any further delay


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