1. The applicants along with five other persons were put on trial before the Special Court constituted under the Madhya Bharat Public Security Act, 1953, on charges under Sections 302, 307, 395, 397 and 149, I. P. C. The learned Special Judge returned the challan to the police for presentation before the competent Court holding that an offence under Section 149 was not one of those offences which ha was authorised to try under a notification issued under Section 14 of the Act. It is against this order that the present revision petition is directed.
2. In my opinion this petition must be rejected. Under Section 14 of the Madhya Bharat Public Security Act 1953 the Special Judge is competent to try only
such offences or classes of offences or classes of cases affecting, in the opinion of the Government, the Security of the State, the public safety or the maintenance of public order in such area as the Government may by general or special order in writing direct.
On 22nd April 1954 the Government issued a notification under Section 14 specifying the offences which the Special Court constituted for the disturbed area of the revenue district of Morena could try. In those enumerated offences, ,the offence under Section 149, I. P. C. has not been included. Now as held by the Supreme Court in Nanakchand v. State of Punjab : 1955CriLJ721 and Pandurang v. State of Hyderabad : 1955CriLJ572 , Section 149, I. P. C. creates a specific offence but the punishment depends on the offence of which the offender is by that section made guilty and a charge for the substantive offence say under Section 302 or Section 325, I. P. C. is for a distinct and separate offence from that under Section 302 read with Section 149 or Section 325 read with Section 149. On a plain reading of Section 14 of the M. B. Public Security Act and the notification issued thereunder, and in view of the authoritative pronouncement of the Supreme Court as regards Section 149, I. P. C. creating a distinct offence, there can * be no doubt that it the notification under Section 14 does not empower the Special Judge specifically to try an offence under Section 149, then the Special Judge is not competent to try any person charged with any of the enumerated substantive offences read with Section 149, I. P. C. The matter seems to me to be too plain for argument. But it was contended by Mr. Prabhudayal Gupta learned Counsel for the applicants that under Section 29(2) of the Code of Criminal Procedure read with the second schedule an offence under Section 149, I. P. C. is triable by the very Court by which the offence for which the accused person is sought to be made guilty and that, therefore, the Special Judge was competent to try the accused persons for offences under Sections 302, 307, 395, 397 specified in the notification under Section 14 of the M. B. Public Security Act read with Section 149, I. P. C. The argument must be rejected on the short ground that Section 29(2) refers to
any Court constituted under the Code by which an offence shown in the 8th column of the Second Schedule is triable.
The Special Court constituted under the M. B. Public Security Act, 1953 is not a Court constituted under the Code. Mr. Mungre learned Government Advocate, however, relied on Section 28(c) of the Code in support of the contention that the Special Court could try the applicants for an offence under Section 149, I. P. C. though it was not specified in the notification issued under Section 14 of the M. B. Public Security Act, 1953. This argument also ignores the fact that 'any other Court' stated in Section 28(c) means a Court which is neither the High Court nor the Court of Session but is a Court referred to in Section 6 of the Code. In other words ''any other Court'' means a magisterial Court constituted under the Code and not a Special Court constituted under the M. B. Public Security Act, 1953.
3. In my judgment, the learned Special Judge was right in holding that he could not try the applicants for offences under Sections 302, 307, 395 and 397 read with Section 149, I. P. C. This petition is, therefore, rejected.