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Zahoor Ahmad Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1975CriLJ978; 1974(7)WLN298
AppellantZahoor Ahmad
RespondentState of Rajasthan
Cases ReferredJamuna Singh v. Bhadai Shah
Excerpt:
.....out under section 5(2) of the prevention of corruption act and section 161 of the indian penal code--special judge accepts the report but takes cognizance of offence under section 409--held, order of the special judge is without jurisdiction.; the police went before the learned special judge saying that no offence was made out against the petitioner under section 6(2) of the p.c. act and section 161 of the indian penal code. that was a final report that it submitted. the learned special judge accepted the report in regard to these two offences but said that an offence under section 109 indian penal code made out. could he take cognizance of the offence under section 409, indian penal code? the answer is in the negative because he could not do so in his capacity as special judge. his..........referred to as the-p. c. act). when the case came ort february 28. 1973, mr. d. d. bajai. learned special judge, jalore after examinin't the file observed .that there was a prima. facie case against zahoor ahmed under section 409 of the indian penal code and-he took cognizance of it and registered the case, in regard to the other offences* he approved the final report. the learned' special public prosecutor was directed, to furnish copies under. section 173, criminal p. c. and zahoor ahmed was called by bailable warrant in the sum of* rs. 2,000/-. later, for the whole of rajas-than, a special judge came to be appointed at jaipur and the case therefore travelled up to him. zahoor ahmed is dissatisfied on account of the *order of february 28, 1973 passed by the special: judge,.....
Judgment:
ORDER

B.P. Beri, C.J.

1. On November 22, 1972, the Special Public Prosecutor presented a final report under Section 173, Criminal Procedure Code against Zahoor Ahmed, Assistant Registrar, Co-operative? Department, Jalore, for offences under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption. Act (hereinafter referred to as the-P. C. Act). When the case came ort February 28. 1973, Mr. D. D. Bajai. learned Special Judge, Jalore after examinin't the file observed .that there was a prima. facie case against Zahoor Ahmed under Section 409 of the Indian Penal Code and-he took cognizance of it and registered the case, In regard to the other offences* he approved the final report. The learned' Special Public prosecutor was directed, to furnish copies under. Section 173, Criminal P. C. and Zahoor Ahmed was called by bailable warrant in the sum of* Rs. 2,000/-. Later, for the whole of Rajas-than, a Special Judge came to be appointed at Jaipur and the case therefore travelled up to him. Zahoor Ahmed is dissatisfied on account of the *order of February 28, 1973 passed by the Special: Judge, Jalore and he has come up in revision.

2. Mr. Jaswant Mai, learned, counsel for the applicant, submits that under Section 6 of the Criminal Law (Amendment) Act, 1952 the State Government is authorised to appoint as many-Special Judges as may be necessary to-try the offences mentioned in Sub-section (1) (a) of Section 6 which includes offences under Section 5 of the P. C. Act. Section 7 of Criminal Law (Amendment) Act lays down that the offences specified in? Sub-section (1) of Section 6 shall be triable by Special Judges only, thus excluding the jurisdiction of the ordinary criminal courts. Sub-section (3) of Section 7, however, provides that when trying any case, Special Judge may also try any offence other than an offence specified in. Section 6 with which the accused may. under the Code of Criminal Procedure^ 1898, be charged at the same trial. Urges the learned Counsel, that having accepted the final report in regard to. the offences under Section 161 of the Indian-Penal Code and Section 5 (2) of the P. C Act, the learned Special Judge had no jurisdiction to take cognizance of the offence under Section 409, Indian Penal Code. He placed reliance on Ramautar Mahton v. The State AIR 1961 Pat 20* : (1961-1 Cri LJ 694) and Sahebkhare Umerkhan v. The State (1963).2 Cri LJ 556 a case of the Gujarat High Court, He also invited my attention to the significant observations of their Lordships-of the Supreme Court in Om Prakash v. The State of U.P. : 1957CriLJ575 to substantiate the contention that Section 5 (1) (c) of the P. C. Act is an offence distinct from the one under Section 409 of the Indian Penai Code.

3. Mr. Jain appearing for the State argues that Section 409, Indian Penal Code, is the same as Section 5 (1) (c) of the P. C. Act and it is open to the Special Judge to take cognizance thereof. He relies upon Mahammad Ali v. The State AIR 1953 Cal 631 : 1953 Cri LJ 1523 and the State v. Sahebrao Govind-rao Jadhav : AIR1954Bom549 .

4. Mf. Shrimal, learned Additional Advocate-General appeared before me to supplement the arguments of the learned Counsel for the State, He urges that Section 6 of the Criminal Law Amendment Act, 1952 restricts only the trial before the Special Judge while Section 8 speaks of taking cognizance by Special Judge of offences and Section 409, Indian Penal Code, being one of the offences, he could take cognizance thereof as distinct from trial. He places reliance on Fedders Lloyd Corporation (P) Ltd. v. B. A. Lak-fihtninarayana Swami AIR 1969 Delhi 23 : 1969 Cri LJ 168.

5. Mr. Bhim Raj also rendered assistance to the Court in answering the interesting question that confronts me.

6. In order to appreciate the rival contentions of the learned Counsel for the parties, it would be profitable to ascertain the purposes for which the Cri-Iminal Law Amendment Act was enacted |and its Scheme. The malignancy of bribery and corruption appeared to be spreading its tentacle in the body politic of our country and in order to combat this serious evil certain provisions were made by the Criminal Law Amendment 'Act. A special forum was created with a view to eliminate delays. The qualinci-Mons prescribed for appointment of a Special Judge under Section 6 (2) unambiguously placed emphasis on experience. No person is qualified to be appointed as a Special Judge unless he is or has been a Sessions Judge of an Additional Sessions Judge or an Assistant Sessions Judge. Not text books, but the book of experience has been stressed upon by the legislautre. Section 7, it will be noticed, begins with a non-obstante clause giving exclusive jurisdiction to a Special Judge for trying offences mentioned in subsection (1) of Section 6 of the Criminal Law Amendment Act. Sub-section (2) of Section 7 resolves the problem if there are more than one Special Judge in a particular area and Sub-section (3) provides that when trying any case, which evidently means one under Section 6 (1), a Special Judge may also try any offence other than an offence specified in Section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial. The purpose {obviously is to avoid multiplicity of proceedings against the accused, provided the offences other than those mentioned, in Section 6 (1) have such relationship inf regard to time, place and nature thatf they can be charged and tried together under the Code of Criminal Procedure. Section 8 makes a special provision in regard to the procedure and powers of the Special Judge which says that he may take cognizance of offences without the accused being committed to him for trial. This evidently implies that the steps of committal proceedings are eliminated to lend speed for the decision of cases. Sub-section (2) of Section 8 relates to empowering a special Judge to tender pardon and Sub-section (3) provides that the provisions of the Code of Criminal Procedure shall 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. Subsection (3-A) however makes a small departure that for the purposes of sections 350 and 549 of the Code of Criminal Procedure the Special Judge shall be a Magistrate, and Sub-section (4) gives powers to the Special Judge to pass any sentence authorised by law for offences under Section 6 (1).

7. The first argument of Mr. Jain is to be rejected because the answer is provided by the case of the Supreme Court in : 1957CriLJ575 where the Hon'ble Judges have clearly distinguished the offence under Section 409, Indian Penal Code from an offence under Section 5 (2) of the P. G. Act and they have held that these are two distinct offences. The Calcutta case : AIR1953Cal681 cited by Mr. Jain can be disposed of on the simple ground that the West Bengal Criminal Code (21 of 1949) excluded the applicability of Sections 6 and 7 6f the Criminal Law Amendment Act of 1952 and, therefore, the Calcutta case has been decided regardless of the Criminal Law Amendment Act. The Bombay case : AIR1954Bom549 Us clearly a dase converse to the one before me. The plea in that case was that Section 409 could be tried by the Special Judge in accordance with the provisions thereof and the Full Bench answered the question in the negative holding that the effect of the Criminal Law Amendment Act was not to prevent the usual criminal proceedings under the ordinary Coda of Criminal Procedure. The reasons advanced in this case help the learned Counsel for the petitioner.

8. I would now deal with the arguments advanced by the learned Additional Advocate-General to the effect that the word 'offences' in Section 8 is. not qualified the way it has been in Section 7. The question that confronts me is: whether the word 'offences' embraces within its ambit all offences under the law or only offences enumerated in Sec-'tion 6 (1) of the Criminal . Law Amendment Act My answer to the question is that the word 'offences' in Section 8 only embraces ttie offences mentioned in Section 6 (1) of the Criminal Law Amendment Act. The reasons are that the Criminal. Law Amendment Act was enacted to achieve the object of speedy trial by competent and experienced Judges so that there may be a quick and effective impact in regard to the evil of corruption: it was not a piece of legislature designed to supplant the Code of Criminal Procedure. The legislature when it employed the word 'offences' in Section 8 had clearly in mind what offences were intended to be taken cognizance by a Special Judge. The Delhi case : AIR1969Delhi26 cited by the. learned Additional Advocate-General merely illustrates the distinction between taking cognizance and trial. Cognizance, as has been held by the Supreme Court in Jamuna Singh v. Bhadai Shah : 1964CriLJ468 means taking notice of an offence in a judicial capacity with a view to the initiation against an offender in respect of that offence. The learned Additional Advocate-General conceded that if a person presented a complaint under Section 409, Indian Penal Code simoliciter before the Special Judge he would have no jurisdiction to take cognizance thereof. In the circumstances of the case before me the police went before the learned Special Judge saying that no offence was made out against the petitioner under Section 5 (2) of the P. C. Act and Section 61 of the Indian Penal Code. That was a final report that it submitted. The learned Special Judge accepted the report in regard to these two offences but said that an offence under Section 409, Indian Penal Code was made out. Could he take cognizance of the offence under Section 409, Indian Penal Code The answer is in the negative because he could not do so in his capacity as Special Judge. His power to take cognizance is circumscribed by the statute of which he is the creature. The Patna case : AIR1961Pat203 lends assistance to this view.

9. The result is that this revision application is accepted and the ordar dated February 28, 1973, of the Court below in set aside.


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