Munnu Lal vs State Of U.P. & 3 Others
2013 Latest Caselaw 7032 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42                                                                             A.F.R.
 

 
Case :- APPLICATION U/S 378 DEFECTIVE No. - 23 of 2013
 

 
Applicant :- Munnu Lal
 
Opposite Party :- State Of U.P. & 3 Others
 
Counsel for Applicant :- Sanjay Kumar Nigam
 
Counsel for Opposite Party :- Govt. Advocate,A.C. Tiwari
 

 
Hon'ble Dharnidhar Jha,J.

Hon'ble Pankaj Naqvi,J.

We have heard Sri Sanjay Kumar Nigam, learned counsel appearing on behalf of the appellant and Sri A.C. Tiwari, learned counsel appearing on behalf of the complainant. We have also heard Sri A.K. Srivastava, the learned A.G.A. on behalf of the State.

The case was listed for hearing argument on condonation of delay of 26 days, which has been reported by the Stamp Reporter of the Court. However, when the matter was called out and we had a glance of the impugned judgment passed in Special Sessions Trial No. 105 of 2005 by the learned Addl. Sessions Judge-cum-Special Judge (Dacoity Affected Area), Kanpur Dehat dated 25.07.2013, we had another issue before us and we found it necessary first to decide that issue, then only the matter could be proceeded further. We are not going onto the merits of the appeal, and to the question as to whether the reported delay of 26 days in filing the appeal could be condoned or not merely because, in our opinion, the very procedure, which was adopted by the learned trial Judge to carry out the trial of the case was palpably illegal and against the provisions of the Special Act, i.e. U.P. Dacoity Affected Areas Act, 1983.

Before we advert to the provisions of the Special Act noted above, we want to have a glance on a few provisions of the Cr.P.C. Ordinarily, power of taking cognizance in the Cr.P.C. is vested into a Magistrate as per the provisions of Section 190, but there are other provisions also, which have vested powers of taking cognizance in other courts also, like, the Court of Session. One such provision under section 193 Cr.P.C. reads as under:

"Section 193:- Cognizance of offences by Courts of Session.- 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 case has been committed to it by a Magistrate under this Code."

As per the provision, a Court of Session can take cognizance of an offence, which is completely different from taking cognizance of an offence as a 'court of original jurisdiction', if the case has been committed to it by a Magistrate under the Code. In Kishun Singh Vs. State of Bihar, reported in 1993 S.C.C. (Cri) 470, the terminology 'as a court of original jurisdiction' was considered by the Supreme Court while it was considering the full bench judgment of the Patna High Court in S.K Latfur Rahman & Ors. Vs. State of Bihar, 1985 Cr.L.J. 1238. It was held by Their Lordships that the terminology 'as a court of original jurisdiction' indicated that the court should be clothed with all the powers of a Magistrate, when it goes to take cognizance of an offence and in that context it was held that as soon as the case was committed the Court of Session that court was empowered to apply its mind to the case diary and to summon any other person, who had not been sent up by the police for trial at the very stage of applying its mind to reach a conclusion as to whether there was sufficient ground for proceeding against any accused persons by framing charges. We are not concerned with that issue as to whether the Court of Session could be empowered to summon an additional accused at the time of hearing under Sections 227 and 228 Cr.P.C., because that judgment of the Supreme Court was over-ruled by a larger bench in Ranjit Singh v. State of Punjab, 1998 Cr.L.J. 4618(SC), but that judgment of Ranjit Singh did not express any difference of opinion as regards the explanation given by Kishun Singh on the terminology 'as a court of original jurisdiction'.

The very provisions of Section 193 Cr.P.C. itself indicate that the Court of Session may also take cognizance of an offence, if it is empowered to do so by any other law for the time being in force. This provision is completely in consonance with the saving clause contained in section 5 of the Cr.P.C., which lays down that nothing contained in the Code shall in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special forum of procedure prescribed by any other law for the time being in force. As such, if the special laws are in force, then the general laws could not be resorted to as regards the procedure of a trial or other things regarding a criminal offence made punishable either under the IPC or any other Act for the time being in force.

Now coming to the provisions of the special local Act, i.e., the Uttar Pradesh Dacoity Affected Areas Act, 1983 (hereinafter referred to as the Special Act), what we find is that there is a specific provision in Section 7 laying down the procedure and powers of a special court, which has been constituted by virtue of its Section-5 and which lays down the qualification of a Special Judge by virtue of Section 5(2) of the Special Act. As per section 5(2) a special court has always to consist of a Single Judge, who shall be appointed by the High Court from amongst certain Sessions Judges or Addl. Sessions Judges, the word 'appointment' having the same meaning assigned to it by the explanation appended to Section 9 of the code of Criminal Procedure. Thus, in ordinary parlance, the special court is also a Court of Session as is envisaged by section 9 of the Cr.P.C., but what is further found by virtue of Section 7(2) of the Special Act is that the Special Court has to try the scheduled offences by following the procedure provided by the Code of Criminal Procedure, 1973 for the trial of sessions cases. Thus, what is directed by this special provision is that irrespective of the offences not being triable under the I.P.C. by a Court of Session, a Special Judge, which we have noted, is a Court of Session has the power of trying such cases, but in all such trials, the special court has to follow the procedures set down by the Cr.P.C. under Chapter-XVIII, which relates to trial before the Court of Session. If the Court of Session departs from the procedures, which are contained in Chapter- XVIII of the Cr.P.C. to carry out the trial of any of the scheduled offences under the Special Act, then it is either a case of lack of jurisdiction or lack of corum in a Judge on account of not following the appropriate provisions set down for carrying out the trial of such scheduled offences.

After having perused the judgment, what we find is that the case was initiated on a complaint petition and the power of cognizance was rightly exercised by the said court, as it is fully clothed with those powers as we have just noted by referring to Section 7 of the Special Act, sub-section 1 whereof empowers the Special Court to take cognizance of any scheduled offence, if it receives a complaint petition of facts constituting such an offence. After it had taken cognizance and it had brought the case to the trial stage then what is required of the special court is that it has always to carry out the trial by following the provisions contained in Chapter-XVIII of the Cr.P.C.

In the present case, the learned trial Judge was following the procedure laid down in the Cr.P.C. for trial before a Magistrate, which is contained in Chapter-XIX of the Cr.P.C. and, especially, Part-B of Chapter-XIX of it, which sets down the trial procedures of cases instituted otherwise than on police report, i.e., trial of those cases, which are instituted on complaint petition. Trying the case by following a wrong procedures and fora for completely renders the judgment without jurisdiction as in our opinion, the legislature had a very sound rationale in providing different trial procedure for different categories of cases, either before a Court of Session or before a court of Magistrate. Normally, the Court of Sessions handles the cases, which indicate commission of serious offences. The rationale behind legislating the Special Act by the State of U.P. could also be appreciated from the fact that dacoities or robberies of any degree, could not be said to be lighter offences or offences, which do not concern the safety and peace of the society. These are class of offences, which are committed only for the reason that the criminals, who are mostly professionals want to plunder citizens, who are well off only for the purpose that they have a behavioural tendency of criminality of rampaging the society plundering it and drawing the sadistic pleasure out of the miseries, which they heap upon the peace loving citizens and as such, the prescribed sentence are on the higher side in comparison to ordinary offence of theft, which is the basic ingredient of such offences. As such, the procedure has to be very fair and reasonable and a Judge has to follow those procedures so that the persons, who are put on trial before such special courts, do not complain of not getting a fair trial by appropriately being tried under the right provisions of law. Is not it that if anything is required by law to be done in any particular manner that thing must be done in that manner or not at all?

In our opinion, the failure of justice was occasioned by not providing to the accused a fair trial as per the procedure, which has been set down for their trial and, as such, we have no hesitation in holding that the judgment impugned herein is grossly vitiated on account of their trial by following wrong procedure. We, as such, set aside and quash the judgment and direct the re-trial by the court below by following the provisions of Chapter-XVIII of the Cr.P.C. It may be a bit harsh that the accused persons are again subjected to the trial. We, as such, direct that the learned Special Judge, who is likely to receive the case with a copy of this judgment, shall conclude the trial in a period of three months by following procedure of Chapter-XVIII of Cr.P.C. from the date of receipt of the copy of this judgment.

Let a copy of the judgment be immediately transmitted to the learned Addl. Sessions Judge-cum-Special Judge (Dacoity Affected Area), Kanpur Dehat by which the Special Sessions Trial No. 105 of 2005 was disposed of by judgment dated 27.05.2013.

The appeal is allowed in the above terms.

Order Date :- 20.11.2013

N.S.Rathour