STATE OF TAMIL NADU

V. KRISHNNASW AMI NAIDU & ANR.

May 3~ 1979

[S. Muli.TAZA FAZAL ALI AND P. S. KAILASAM, JJ.]

Criminal I.Dw (A.mtnclmtnt) Act, 1952 (66 of 1952)-Sptclal ludge- W'htthi!r can txtrdu powtr undtr S. 167 Cr. P. C. to aurhorist dtttntion of an Grcust4 /11 polict cu8tody.

The Criminal Law (Amendment) Act, 1952 (66 of 1952) was enacted on 28-7-52 to further amend the Indian Penal Code, 1860 nnd tbe Criminal Procedure Code, 1898 and to provide for a more speedy trial of offence. Section

(f of the Act enables the State Government by notification in the official gazette to appoint Special Judges to try offences punishable under Sections 161-165Aof tbe Indian Penal Code or Section S of the Prevention of Corruption Act, 1947.

The Special Judge thus appointed ahall not be qualified for appointment aa a

Special Judge under the Act unless he ia or hal been a Sessions Judge or an Add!. Sessions Judge or an Asstt. Sessions Tudgc under the Code of Criminal Procedure 1898. Section 7 provides that notwithstanding anything contained in the Code of Criminal Prdure 1898 or in any other law, the offence specified in Sub-eection 1 of Section 6 ehnll be triable by a Special Judge only. By Section S the Special Tudge is empowered to take cogn.iz.ance of en ofl'ence without the accused being commit~ to him for trial and in trying the accused persons he il required to follow the procedure prescribed by the Code of Criminal Proce dure In the trial of warrant cases by Magistrates. Section 8(A) empowers the Special Judge to try "rt.ain offenoet in a aummary way end the rrovisions of Section 262 to 265 o( the Crimlntl Procedure Code arc m11de applic&ble so far u they may apply.

Tbc rccponc!ents were lllTeeted by the Vi&ilance end Anti-Corruption Unit of the StAte Government for alleged otfenco under tho Prevention of Corruption.

Act. They were produced before the Spe<:ia.l Judge on the following day. 'I11•

rc.tpondents• application for enlu1ement on bail wu dismis3ed by the Special 1\ldae. Tho Police moved the SP"ial Jud&e for committing tho respondl!ni.J to

pollee c:w; tody for 1$ daye. Tho1•gh the arplication wn' rejected another one wa. med.

The rpondcnts there upor~ moved the Jllgh Court for ( 1) a direction. tbat ey ahould bo kePt ln judicial custody pe11ding inYestiptlon of the crime anJ (.) tor qua.h!.ng au: llppllcatlon before the Special Judge by the pollee tor comm!ttlnt thtm to pollee cuetody: contendtns that Special Judge I• not ,. Magistrate u dftn~ In the Crimlnal Proc:.e4ure Code an<! u euch not empowered to

fact er Secuoo 167 or the Criminal Procedure Code llnd to place tho accued

Jl fO•ICO CIUtody,

~ w, b Court accepted tht contention and Jranted relit(.

}.lto•llll the •PP"l. \.

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TAMIL NADU v. V. K. NAIDU i21

HELD: 1. Th• Special. Jud~ notified ullder 1. 6 the Criminal Law (Amend- A llltDI) Act 1952 can exen:lllc tho power conferred on a Macistrato under 1. 167 of tb• Criminal Procedure Code to a11thorise detention of the accused ill. the cm1odY of th• polico. [936Cj

2. Section 8 of the Criminal Law (Amendment) Act, apccifica!ly empowefl tbe Special Judge to take COi!lizance of the offence without the accused bei~ committed to him for trial. In taking: cognizance o! an offence without the B accuKd being committed to him he is not a S=iona Judge for Section 193 Cr. P.C. provides that no Court of Sessiona Judge shall t:k:e cognizance for any otlence ; u a Court of original jurisdiction unless the ca!e has been committed to it by a Magistrate under the Code. Strictly he it not a Se..sions Judge for no

Se&iollll Judlle can take coinizance u a Court of Session• without committnt.

[934CDl C

3. The Criminal Law (Amendment} Act being on amending Act the provi sio111 are intended to provide for a 1peedy trial o! certain offences. The Criminal Law (Amendment) Act ia not intended to be a complete Code relating to procedure. The provisions of the Cr.P.C. are not excluded unless they are incontillent with the Criminal Law (Amendment) Act Thus read there can be no difficulty in coming to the conclusion that the Criminal Procedure Code il D

applie<ble when there is no conflict with the provision' of the Criminal Lnw ( . .O.mendment) Act. [934 EJ

4. If a Special Judge who is empowered to take cognizance without com mittal is not empowered to exercise powers of remanding an accused person produced before him or release him on bail, it will lead to an anomalous situa lion. A Magistrate other than a Magistrate having jurisdiction cannot keep him E in Cllltody for more than IS da}'! and after the expiry of the period if the Magis tnte havin~~: jurisdiction to try the case does not include Special Judge, it would mean that he would bawe no authority to extend the period of remand or to relcase him on bail. So also if the Specilll Judge is not held to bo a Magistrate bnilla juriadiction, a charge sheet under a. 173 cannot be submitted to him.

[934F-Gl

5. The General Clausea Act, •· 32 defin~ a 'Magistr:lto' as including eYery penon excrcisine all or any of the powers of a Magistr:lte under the Code of Orirninul Procedure for the time being in force. Section 3 of the Criminal Procedure Code proYides that any reference without any qualying ords: to a

haiatrate, aholl be construed unk&t the context otherwl3e requares m the manner alated In the aub-ectlns. If the conte:u otherwise require• the word, 'Marilltrate may include Magistrates who are not apecified in the section. Read alooa with the definition, of Magislrntc in the General .clauses Act there can be 110 diniculty in construina the Special Judge u a Magtstrate for the purposo of

1 167. [934H-93SB1

6. The Hiah Court wu In error in applying the decision of ti:is Court in l.{qjo, E. G. Basudev v. State of Bombay, (1962] 2 SCR 195 re!Btrng to Ru!c 3 which is framed under •· '49 of the Crimiool Procedure Code. The MalS

lrat~ wntemplated under rule l ;. a Magistrate who it empowered to inqull'e Wft\ a "~"' to commltt; aJ whicll cannot appiJ' to a Speci•l Judae. [9J6Bl

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93o.

[1979} 3 S.C.R.

CRIMiNAL APPELLATE JUIUSDICTIO~ (Criminal Appeal No. '-292 of" 19.76.

From the Judgment and Order dated -22·4~1976 of the Mad.rcis High Court in Criminal M.P. No. 1592 and 1605/76. ,

V. P. Raman, Adv. Geni. and A. V. Rangam for the Appella.ilt.

B Hanjev Singh and R. S. Sodhi for the Respondent.

The Judgment of the Court was delivered , bY

KAILASAM, J. The question that arises in this appeal is whetitu the Special Judge under the Criminal Law (Amendment) Act, 1952 can exercise the power conferred on a Magistrate under section 167 of c the Criminal Procedure Code to authorise detention of the accused in the custody of the poice.

This appeal by certificate is preferred by the State of Tamil Nadu against an Order of the Madras High Court in C.M.Ps. Nos. 1582 and

1605 of 197 6 dated 22-4-197 6.

D The first respondent V. Krishnaswami Naidu is the lion of the second respondent L. Venkataswami Naidu. The first respondent was the Gazetted Personal Assistant to the former Minister for Health,

State of Tamil Nadu. He and the second respondent were arrested by the Vigiance and Anti-corruption unit of the Tamil Nadu Police on April 2, 1976 for alleged offence under the Prevention of Corruption E Act. They were produced before the Special Judge on the next day i.e. 3-4-1976. The respondent~ moved Special Judge for enlargement of bail.

The petition was dismissed.

The inspector of police (Vigilance) moved the Special Judge for committing the respondents to police custody for a period of 15 days. That application was also

rjected.

Inpite of the rejection of this application the police filed F Cr. M.P. No. 617 of 1976 before the Special Judge for directing the

repondent~ to be placed under the police custody for. a period of 1 5 days.

The respondents moved before the High Court Cr.M.P. No. 1587 of 1976 for a direction that the respondent should be kept in judicial custody pending investigation of the crime.

The respondents also filed another Cr. M.P. No. 1605 of 1976 for quashing the applica- G tion Cr. M.P .. No. 617 of 1976 before the Special Judge by the Police

fo~ coitini the respondents .to po-lice custody on the ground. . that

th~ Special Judge is not a Magitrate as defined in the Criminal Procedure Code and as such not empowered to act under section 167 of the

Cr:iiniilal Procedure Code and to place the accused irt police -custody. . . . H ·.Jn order to appreciate the contntio~ -raised in this appeal it is nocessary to examine the relevant provisions of the Criminal Law

Amendment Act of 1952 and the relevant provisions of the Criminal

.,.

TAMIL NAim v. V. K. NAIDU (Kailasam, ].)

9!H

Pr6cedure Code Act of 1974. The Criminal Law Amendment Act 6 6 of 19 52 was enacted on 28-7-19 52 to further amend - the Ittditn Penal Code ana the Criminal Procedure Code i 89S and to provide for a more ipeedy trial o~ offences. It may be noted that the Act"is in the nature of an Amending Act in respect of the indian Penal Code and the Code of Criffiinal Procedure, 1898. Section 6 of the Act enables the Stato Government by notification in the official gazette to appoint as many Special Judges as may be necessary for such area or areaa li may be ipecified in the notification to try offences punishable. under section 161, 162, 163, 164, 165 or 165A of the Indian Penal Code or Section 5 of the Prevention of Corruption Act, 1947, and alio in conspiracy to commit or in attempt to commit or in abetment of tny of the offences specified.

The Special Judge thus appOinted o try the offences mentioned shall not be qualified for appointment as a Special Judge under the Act unless he)s or lias been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure 1898. Section 7 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure,

1898. or in any other law the offence specified in sub-section. 1 of Section 6 ihall be triable by a Special Judge only.

By section 7(1), therefore, the jurisdiction to try offences mentioned in Section 6(1) HI conferred on the Special Judge only.

Section 8 is important for the purpose of our discussion and may be extracted in full.

The Special Judge is empowered under this section :

(i) to take cognizance of offence without the accused being

committed to him for trial; and

(ii) in trying the accused persons he is required to follow the

procedure prescribed by the Code of Criminai Procedure in the trial of warrant cses-by Magistrates.

It may be noted that 'the Special Judge is not a Sessions Judge, Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure though no perscirt can be appointed as a Special Judge unless -he is or has been either a Sessions Judge or an G Additional Sessions Judge or an Assistant Sessions Judge. The SiJe~ cial'Judge is empowered to take cognizances of the offences without the

accued being committed to him fcir trial. . The jurisdiction to try the offence by a Sessions Judge is only after committal to him.

Further the.' Sessions Juoge does not follow the procedure for 'the . trial of warrant cses by Magistrates.

The Special Judge is deemed to be a 11 Court of Sesions only for certain purposes as mentioned. in Section

~(3} of the Act while the first part of stib section 3. provides 'that

SUPUME COUJ.T REPORTS

[1979] 3 S.C.R.

except u provided in sub sectiohs (1) and (2) of Section 8 the provisiotul of the Code of Criminal Procedure, 1898 shall so far as they are not inconsistent with this Act, apply to the proeeedinp before die Special Judge, The sub-section further provides that "for the purpose of the said provi!ions, the Courrof the Special Judge shall be deemed to be 1 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". The deemed provisions haS to be confined for the pulJ)O!es mentioned m the sub section. Section 8(2) enables the Special Judge to tender a pardon to a person with a view to obtaining evidence supposed to have been concerned for the commission of an offence and the pardon so tendered was for the purposes ofJSection 339 and 339(a) of the Code of Criminal Procedure, 1898. This sub section was enacted because Special Judge not being a Court to which a commitment has been made can

not tender pardon under the provisions of Section 338 and so this section is introduced to enable the Special Judge to tender a pardon.

Sub-section 3 (a) has made !}le provisions of section 350 and 549 applicable to proceedings before a Special Judge and for the purposes of the said provisions a Special Judge shall be deemed to be a Magistrate. Section 350 of the Code of Criminal Procedure enable~

a succeeding Special Judge to act on the evidence recorded by his prea decessor or partly recorded by his predecessor and partly recorded by himself. Section 549 empowers a Magistrate when any person is brought before him charged with an offence for which he is liable to be tried by a Court to which this Court applies or by a Court-martial, the Magistrate shall deliver him to the Commanding Officer of 'the Regiment for the purpose of being tried by the Court-martial. This

provision also is made specifically applicable to the Special Judge.

Section 8(A) empowers the Special Judge to try certain offences in a summary way and the provisions of section 262 to 265 of the Criminal Procedure Code is made applicable so far ls they may apply.

It will be thus seen that section 8(1) empowers the Special Judge to take cognizance of offence without committal and directs that in trying the accused persons it hall follow the procedure prescribed by the Code of Criminal Procedure. Sub-section 3 deems a special judge to be a Court of Sessions for certain purposes while sub-section (2) empowers the Special Judge to grant a tender of pardon. Sub-section

3(a) makes the provisions of Section 350 and 549 of the Code of Criminal Procedure applicable to the Special Judge and for the purposes of those provisions the Judge is deemed to be a Magistrate.

Under section 8(A) the Special Judge is empowered to try cases summarily

TAMIL NADU V. V. K. NAJDU (Kdilalam, ].) 933

which are triable by the Magistrate.

The Special Judge in the Criminal Law (Amendment) Act .i& thus for aome purposes deemed to be a &Jsions Judge and for some other purposes deemed to be a Magistrate

and some powers exercised by the Magistrate are conferred on him.

It is necessary to note that Special Judge is empowered to take cognizance without the accused being committed and in trying the accused

persons he is required to follow the procedure for trial of warrant cases by a Magistrate. Under section 8 (3) except as regards the provisions in sub-section ( 1) and (2) tho provisions of Code of Criminal Procedure is made applicable in so far as they are not inconsistent with the Criminal Law (Amendment) Act. This taken alongwith the fact that the Criminal Law (Amendment) is an Amending Act so far as a

Criminal Procedure Codo and Indian Penal Code is concerned the pro- . visions of Cr. P.C. should be considered to be in force unless there are certain provisions in the Criminal Law (Amendment) Act which is inconsistent with the provisions of the Criminal Procedure Code.

We will now examine the provisions of Section 167 of the D Criminal Procedure Code. Section 167 of the Criminal Procedure Code requires that whoneve.r any person is arrested and detained in custody and when it appears that the investigation cannot be completed within a period of 24 hours the polico officer is required to forward the accused to the Magistrate. The Magistrate to whom the accused is forwarded if he is not the Magistrate having jurisdiction to try the case may authorise the detention of the accused in such custody as he thinks fit for a: term not exceeding 15 days on the whole. If he has no jurisdiction to try the case and if he considers that further detention is necessary he. may order the accused to be forwarded to any Magistrate having jurisdiction.

The Magistrate having jurisdiction may authorise the detention of the ccused person otherwise than in custody of the polico beyond the period of 15 days but for a total period not exceeding 60 days.

In the present c~ tbe accused were produced before the Special Judge who admittedly is the person who has jurisdiction to try the case.

The contention which found favour with the High Court is that the words 'Magistrate having jurisdiction' cannot apply to a Special Judge having jurisdiction to try the case. No doubt the word 'Special Judge' is not mentioned in section 167 but the question is whether that would exclude the Special Judge from being a MagiStrate having jurisdiction to try the case. The provisions of chapter XII Cr.P.C. relate to the infonnation to tlie police and their powers of investigation. It is seen that there are certain sections which require the police to take directions from

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the Magistrate having jurisdiction to try the case.

Section 155 (2) requires thatno police shaH take _up non-cognizable case without a~ order of the Magistrate having power to try such case or commit the case for trial.. Again Section 157 requires that when the police officer. has reason to SUSpect the COmllliMion Of an offence which is empower~. ed under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. Section 173 requires that on the com-- pletion of every im;.estigation under the Chapter the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence a police report as required in tl1e form prescribed.

Section 8 of the Criminal Law Amendment Act sped- , fically empowers the Special Judge to take cognizance of the offence without the accused being committed to him.

In taking cognizance of an offence without the accused being committed to him he is not a Sessions Judge for section 193 Cr.P.C. provides that no Court af.

Sessions Judge shaH take cognizance for any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Strictly he is not a Sessions Judge for no Sessions Judge can take cognizance as a Court of Session without committal. The Criminal Law (Amendment) Act being an amend~.

ing Act the provisions are intended to provide for a speedy tri31 of certain offences.

The Criminal Law (Amendment) Act is not intended to be a complete code relating to procedure. The provisions of the Cr.P.C. are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act.

Thus read there could be ne difficulty in coming to the conclusion that the Cr.P.C. is applicable when there is no conflict with the provisions of Criminal Law (Amendment) Act. If a' Special Judge who is empowered to take cognizance without committal is not empowered to exercise powers of remandint an accused person produced before him or relese him on bail it will lead to an anomalous situation. A Magistrate other than a Magistrate having jurisdiction cannot keep him in custOt.ly for more than l 5 rln~ and after the expiring of the period it the Magistrate having jurisdiction to try the case does not include the Special Judge, it would mea• that he would have no authority to extend the period of remand or to release him on bail.

So also if the Special Judge is not held to be a Magistrate having jurisdiction, a charl!e sheet under section 173 cannot be submitted to him.

It is relevant to note that the General Oauses Act section 32 defines a Magistrate as including every perso• exercising all or any of the powers of a Majzistrate under the Code of Criminal Procedure for the time being in force. Section 3 of the Criminal Procedure Code provides that any reference without aey

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.'. ·: ·,: ' ~-. ;_TAMIL NAIHJ. }1 • .V. K. NAJDJ_J_ (Kaisam, ],) 9 3§

qualifying_words, -- to a Magistrat~, shall be construed, unle!s the con~ text otherwise requires. in _the ma, nner stated in the .aub:s_ections. If the

cootxt otherwise requires the word 'Magistrate' may include Ma.giiil-

Q:!ltea who are_ not specified in the Section. Read alongith the defi~

nition_ o~ the Magistrate in the General Cla1.1ses Act Jh.ere can be. no difficulty in construing the Special Judge as a Magistrate for the pur- _ B

l po111es of Section 167.

Jn coming to the conclusion that the Special Judge is not a Magistrate the High Court strongly relied on a decision o• this Court reported in fl962J 2 S.C.R. page 195 Major E. G. Basudev Ters'us State of Bombay. This Court in construing rule 3 made under section 549 of the Criminal Procedure Code held that the rule was applicable to only a Magistrate and not to a Special Judge who is not a Magistrate within the meaning of rule 3. Section 549 of the Code of Criminal Procedure empowers the Central Government to make rules as to easel to which persons subject to military, naval or air-force shall be tried by the ourt to which this Code applies, or by a Court-martial. The Centr_al Government made rules in xercise of the powers conferred on it under this section. Rule 3 which is considered by the Court l'UJl8

.a11 follows :-

"Where a person subject to military, naval or ail'-force law js brought before a Magistrate and charged with an offence for which he is liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or . the High Court for any offence triable by

such Court, unless,

(a) he is of opinion, for reasons to be recorded that h~ should so proceed without being moved thereto by competent military, naval or air-force authority; or

(b) he is moved thereto by such authority."

Rule 3 it will be seen provides that the Magistrate hall not proc

ceed to try such persons or inquire with a view to his commitment G fa trial by the Court of Sessions Judge unless he is of opinion that ho should so proceed without being moved thereto by such authority.

The sub-section, therefore, contemplates a Magistrate who can try the

offence himself or inquire with a view to commitment. This part of

the section is not applicable to a Special Judge as he cannot inquire with a view to his commitment.

Therefore, the Magistrate referred./ 11 to under rule (3) cannot include a Special Judge. This Court observed

tbat Section 549 is not one cA. the sections in chapter 21 of the Code

t36 SUPJ.nU COUIY :J.EPOllTS [1979) l S.C.t.

A of Criminal Procedure and that it does not empower to Cen!nt Government to modify the warrant proctdure and tlut ru!e 3 wcm~

not be applicable 2lld .farther it cannot be sald th.tt by r~ f!l tb procedure to be Cofiowed by a Special Jg: l:e would be a

gi!trate empowered to try roch a person v.11hin the meanm, of role 3. Relying on thi5 decision the learned Jud~ held that the same B ratio would govern the facts of the present case. The learned Ittdge

was in error in applying the decision of this Court relating to rule 3 which is Iramtd under section 549 to section 167 o! the Cr.P.C.

The Magistrate contemplated under rule 3 is a Magistrate who is empowered to inquire with a view to committal which cannot apply C to a special judge.

In the result on consideration of the relevant proV1~11ons of the Criminal Law (Amendment) Act and the Cr.P.C. we have no hesitation m coming to a conclusion that a Special Judge would be a M, agistrate empowered to try a case under section 167 ot the Cr. P.C: The Special Judge will proceed to exercise the powers that are conferred upon a Magistrate having jurisdiction to try the case. The appeal is allowed and the order of the High Court set aside.

N.V.K.

Appeal allowed.

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