Delhi High Court
N.G. Sheth vs C.B.I. & Ors. on 11 July, 2008
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ 1. W.P.(CRL) 312/2007 & CRL.M.A.2670/2007
# N.G. SHETH ..... Petitioner through
! Mr.Siddhartha Luthra, Sr. Adv.
with Ms.Arundhati Katju,
Mr. P.K. Dubey and
Mr.Anurag Ahluwalia, Advocates
versus
$ C.B.I & ORS ..... Respondent through
^ Mr.Harish Gulati, Adv.for CBI/R-1
Mr.P.P.Malhotra, Ld. ASG with
Mr.Chetan Chawla and
Mr. Ashwani Bhardwaj,
Advocates for R-2.
WITH
2. W.P.(CRL) 451/2008
ANIRUDDHA BAHAL ..... Petitioner through
Mr.Siddhartha Luthra, Sr. Adv.
with Ms.Arundhati Katju,
Mr. P.K. Dubey and
Mr.Anurag Ahluwalia, Advocates
versus
C.B.I & ORS ..... Respondent through
Mr.R.M.Tewari, Adv. for CBI/R-1
Mr.P.P.Malhotra, Ld. ASG with
Mr.Chetan Chawla, Adv. for R-3
Date of Hearing : 21st May, 2008
% Date of Decision : 11th July, 2008
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
WP(Crl.)312/2007 1 of 42
VIKRAMAJIT SEN, J.
JUDGMENT
1. The legal nodus which has arisen in these writ petitions
concerns the interpretation of Section 13 of the Official Secrets
Act, 1923 (OS Act for short), read in conjunction with sundry
sections of the Criminal Procedure Code, 1973 (CrPC hereafter).
Vide Gazette Notification dated 6.3.1998 the Central Government,
in exercise of powers conferred upon it by Section 13(1) of the
OS Act, empowered the Chief Metropolitan Magistrate (CMM),
Delhi to try offences punishable under this statute. In terms of
Notification dated 21.6.2006 of the Ministry of Home Affairs
the Central Government rescinded the earlier Notification dated
6.3.1998 thereby withdrawing the special empowerment of the
CMM under the OS Act in this regard. Predicated on the
decision of the Delhi High Court on the Administrative side the
Registrar General, Delhi High Court addressed a letter
No.28088/G-3/OS Act/Gaz/06 dated 7.12.2006 to the District &
Sessions Judge, Delhi directing that all the cases pending
under the OS Act be withdrawn from the Court of the CMM
and be assigned to the Special/Sessions Judges. It is this
administrative decision of the Delhi High Court that has been
challenged by the Petitioners.
WP(Crl.)312/2007 2 of 42
2. In WP(Crl.) 312/2007 a Complaint was lodged on 30.8.1983
under Section (5)(1)(a) of the OS Act and its cognizance was
taken on 25.10.1983. Thereafter, on 23.8.2002 the Petitioner had
orally exercised the option made available to him by virtue of
Section 13 and has declined to be tried by the Court of Sessions.
Consequent upon the passing of the impugned Notification
dated 21.6.2006 counsel for the Petitioner submits that the
CMM has committed the case to the Court of Sessions. We have
called for the Trial Court Records and find that this submission
is not correct. On the contrary the application filed by the
Central Bureau of Investigation for committal of the case to
the Court of Sessions in view of the Notification dated
21.6.2006 of the Government of India is still pending. Emphasis
has been laid on the fact that the Petitioners had, on
20.9.2002, exercised the option in writing to be tried by the
CMM, Delhi. Mr. Siddhartha Luthra, learned Senior Counsel
underscores the further position that the Trial has commenced
under Chapter XIX Part B of the CrPC and the case is at the
stage of recording of pre-charge evidence.
3. In Writ Petition (Crl.) 451/2008 the Petitioner was facing
trial in the Court of Chief Metropolitan Magistrate, Delhi for
offences under Sections 3 and 5 of the OS Act read with
Section 120-B of the Indian Penal Code (IPC). By virtue of
WP(Crl.)312/2007 3 of 42
Notification dated 6.3.1998 the Central Government had
empowered the CMM to try offences punishable under the OS Act.
The CMM took cognizance on 15.6.2005. As we have already
mentioned, in terms of Notification dated 21.6.2006 of the
Ministry of Home Affairs, the Central Government has rescinded
the earlier Notification dated 6.3.1998 empowering the CMM
under the OS Act. By way of the implementation of an
administrative decision of this Court, in terms of directions dated
7.12.2006 of the Registrar General, High Court of Delhi, the
subject complaint case was transferred by the Sessions Judge,
Delhi from the Court of the CMM to Court of Shri Vinod Goel,
Special Judge. It is this transfer which has been assailed by
the Petitioner.
4. Our principal concern centres upon the interpretation of
Section 13 of the OS Act which reads thus:-
13. Restriction on trial of offences.--(1)No court
(other than that of a Magistrate of the first class
specially empowered in this behalf by the Appropriate
Government) which is inferior to that of a District or
Presidency Magistrate, shall try any offence under this
Act.
(2) If any person under trial before a Magistrate
for an offence under this Act at any time before a
charge is framed, claims to be tried by the Court of
Sessions, the Magistrate shall, if he does not
discharge the accused, commit the case for trial by that
WP(Crl.)312/2007 4 of 42
court, notwithstanding that it is not a case exclusively
triable by that court.
(3) No court shall take cognizance of any offence
under this Act unless upon complaint made by order
of, or under authority from, the Appropriate
Government or some officer empowered by the
Appropriate Government in this behalf:
(4) For the purposes of the trial of a person for
an offence under this Act, the offence may be deemed
to have been committed either at the place in
which the same actually was committed or at any
place in India in which the offender may be found.
(5) In this section, the appropriate Government means-
(a) in relation to any offences under section
5 not connected with a prohibited place or with a
foreign power, the State Government; and
(b) in relation to any other offence, the Central
Government.
Our research shows that the parenthesis that is to be found in
sub-section(1) exists from the commencement of the Act. It
appears to us that Section 13(2) makes it absolutely clear that the
Legislature intended that only in the extraordinary course was
the trial of offences under the Act to be conducted by the
Magistrate of the First Class. It is noteworthy that if the
offences were normally triable by the Magistrate of the First
Class/MM Section 13(2) would become unnecessary and otiose.
When we read Section 13(2) it fortifies us in the view that, even
WP(Crl.)312/2007 5 of 42
in those abnormal cases where jurisdiction to try an offence has
been vested in the MM by virtue of a special empowerment,
the Court of Sessions would nevertheless not be divested of the
power to try those very offences under the OS Act.
Furthermore, special empowerment would be unnecessary if the
Magistrate of the First Class had competency to try these offences.
5. We must straight away determine the procedure that has
to be followed with regard to prosecutions under the OS Act.
Section 4(2) of the CrPC, 1973 prescribes that offences under any
law other than the IPC shall be investigated, inquired into,
tried or otherwise dealt with according to the provisions of the
CrPC, subject to any other enactment in force. Section 5 of
CrPC, 1973 removes any doubts that may prevail in this
context by clarifying that any special or local law that may
then have been in existence shall remain unaffected by the
provisions of CrPC. Therefore, whilst the trial of offences
under Section 381 of IPC must be conducted in consonance
with the CrPC ( as laid down in Section 4(1) thereof), for
offences under the OS Act (being statute other than the IPC)
the provisions of the CrPC would not be attracted if they are
in variance with or incongruent or irreconcilable thereto. In
other words, any part of the CrPC which is in disharmony
with the OS Act will not have any pertinence or efficacy.
WP(Crl.)312/2007 6 of 42
This is also the position that obtains so far as the Court
which is to try offences under the OS Act is concerned, as
adumbrated by Section 26(2) of CrPC. Ergo, the correct course
to charter is to first ascertain the postulations in the OS Act,
and only if there are none, should one travel to the CrPC
and not the other way around. This distinction will be of
seminal importance when the sundry sections are interpreted
by us.
6. A piquant position had emerged in State of Uttar
Pradesh -vs- Sabir Ali, AIR 1964 SC 1673 because in the duration
of the Trial under the UP Private Forest Act, 1948, the
Presidency Officer, who was a Magistrate of the Second Class,
had been conferred with powers of the Magistrate of the
First Class. The sentence passed by him was successfully
challenged on the premise that Section 15(2) of that Act
prescribed that offences would be triable by a Magistrate of
the Second or Third Class. Their Lordships opined that the
provisions of the CrPC (that is Section 29 of the repealed
Code corresponding to Section 26 of the extant Code) were
peremptory. Connected to the conundrum before us, their
Lordships had also observed en passant that in view of the
position that a Magistrate of the Second or Third Class was
not empowered under the CrPC to impose the maximum
WP(Crl.)312/2007 7 of 42
sentence prescribed by Section 15(1) of the UP Private Forest
Act, two possibilities could arise, namely, either "that by
implication the powers of these Magistrates are extended
beyond what is prescribed under Section 32" (of the CrPC 1898)
or that if "the Magistrate feels that a heavier punishment
should be imposed he can take recourse to the provisions of
Section 349 of the Code and make a recommendation to a
Magistrate who can impose adequate punishment in the case";
(Section 349 corresponds to Section 325 of the CrPC 1973).
In the context of the CrPC this question has now been
definitively answered in Rosy -vs- State of Kerala, 2002(2) SCC
230. In our opinion it would be untenable to extrapolate the
Rosy opinion to any Special Act which is to be construed,
especially in view of the 'peremptory' quality and character
of Section 26(b) of the CrPC. In the case of a Special Act
which prescribes the Court which is to try and then punish
the offender for the offence, the first postulate of Sabir Ali
would apply, namely, that it would have to be assumed that
the powers of that Court, to impose a sentence greater than
that contemplated in the CrPC, stand automatically augmented.
Keeping the impugned Notification and the Administrative
decision of this High Court in perspective, this question does not
arise before us.
WP(Crl.)312/2007 8 of 42
7. Sections 6 of CrPC, 1898 and CrPC, 1973 are
reproduced in juxtaposition for ready reference and
comparison, and this exercise will reveal one of the
significant changes brought about is the deletion of the
Court of the Presidency Magistrate in the current Code:
CrPC 1898 CrPC 1973
6.Classes of Criminal Courts.--- 6.Classes of Criminal Courts.---
Besides the High Courts and the Besides the High Courts and the
Courts constituted under any law Courts constituted under any law,
other than this Code for the time other than this Code, there shall
being in force, there shall be five be, in every State, the following
classes of Criminal Courts in classes of Criminal Courts,
India, namely: namely:--
I Courts of Session : (i) Courts of Session;
II Presidency Magistrates : (ii) Judicial Magistrate of the first
III Magistrates of the first class : class and, in any metropolitan
IV Magistrates of the second area, Metropolitan Magistrate;
class : (iii) Judicial Magistrate of the
V Magistrates of the third class. second class; and
(iv) Executive Magistrates.
8. Section 13(1) of the OS Act makes reference to the
District or Presidency Magistrate. A perusal of the Table will
show that Presidency Magistrates were at the second tier in
the hierarchy of courts contemplated in the old CrPC at the
time when the OS Act came into existence. This grade of
magistrates stands abrogated in the current CrPC, on the
promulgation of which appropriate changes ought to have been
simultaneously carried out in Section 13(1) of the OS Act. Had
this exercise been undertaken at the relevant time, the
conundrum before us would not have manifested itself now.
WP(Crl.)312/2007 9 of 42
Unfortunately this exercise has been overlooked, and thereby
the formidable task pertaining to the interpretation of the
statute has to be completed by us. Not the least of these
difficulties is to determine whether or not the posts of
District Magistrate and Presidency Magistrate are mirror
posts in the present procedural dispensation, as are to be
found in the extant CrPC. We have perforce to revert to
Section 3 of the CrPC 1973 which clarifies that, unless the
context otherwise requires, any reference in any enactment
passed before 1973 to a Presidency Magistrate or a Chief
Presidency Magistrate shall be construed as a reference,
respectively, to an MM or the CMM.
9. Prior to the passing of the Union Territories (Separation
of Judicial and Executive Functions) Act, 1969 the entire
magistracy operated under the District Magistrate of Delhi; it
now functions under the direct control of the High Court.
Towns having a population in excess of one million can be
declared as metropolitan areas. Delhi was so designated by
Notification No.155 dated 28.3.1974 under Section 8 of the
CrPC, 1973 with effect from 1.4.1974. Presently, there are only
MMs, Additional CMMs and CMMs functioning in the Union
Territory of Delhi. Furthermore, consequent upon the
separation of the Executive from the Judiciary, today there is
WP(Crl.)312/2007 10 of 42
no functionary/official corresponding to the post of District
Magistrate as it existed prior to October, 1969. In this
regard, it is necessary to refer to Section 20 of the CrPC
which postulates the appointment of Executive Magistrates, now
at the lowest level of the magistracy, one of whom is
appointed as the District Magistrate. It is palpably clear, but
the distinction must be drawn, that the present post of District
Magistrate does not correspond in powers and functions to
the extremely important and multifariously powerful post of
District Magistrate prior to October, 1969. So far as
Presidency Magistrates are concerned, we have already
mentioned that they now correspond to MMs, unless the context
otherwise requires. These underlined words will assume great
significance in the interpretation of Section 13 of the OS Act,
as we shall presently discuss. One of the conclusions of our
analysis of pertinent law is that any MM can be specially
empowered by the appropriate government to try any offence
under the OS Act by virtue of its Section 13(1). One vexed
question is whether such empowerment shall always remain
subject and restricted to the trying of offences which do
not attract punishment in excess of three years so far as
the OS Act is concerned, which we have expanded upon
below. Section 17 of the CrPC vests in the High Court the
power of appointment of any MM as the CMM and
WP(Crl.)312/2007 11 of 42
Additional Chief Metropolitan Magistrate(ACMM). It is beyond
cavil that the CMM as well as the ACMM can also, consequent
upon special empowerment by the appropriate government, try
any offence under the OS Act.
10. The interesting yet intricate question which is in our
hands has already engaged the energies and attention of
three Single Benches of this Court. Major General F.D.
Larkins -vs- State, 26(1984) DLT 486, decided by J.D. Jain, J.
holds that those offences under the OS Act which attract a
sentence of upto 14 years can be tried by Court of Sessions
alone, regardless of any special empowerment by the
appropriate government in favour of an MM. The learned
Judge spoke of Section 13(1) of the OS Act as "a disabling
provision so far as inferior courts are concerned", which
indeed cryptically interprets the said Section. The reason for
our reference to these words requires a comparison between
the old and current Criminal Procedure Codes, which we
furnish for facility of perusal. We have deleted columns 1,
4, 6 and 7 of the Table below (pertaining to the old CrPC)
since it is not relevant for the purpose of comparison with
the extant CrPC:
WP(Crl.)312/2007 12 of 42
CrPC, 1898
Offence Whether Whether By what Court triable
the police bailable
may or not
arrest
without
warrant
or not
If punishable with May Not Court of Session
death or arrest bailable
imprisonment for 7 without
years or upwards. warrant.
If punishable with Ditto .... Ditto ... Court of Session.
imprisonment for 3 Presidency Magistrate
years and or Magistrate of the
upwards, but less first class.
than 7.
If punishable with Shall not Bailable Court of Session,
imprisonment for 1 arrest Presidency Magistrate
year and upwards, without or Magistrate of the
but less than 3 warrant. first or second class.
years.
If punishable with Ditto ... Ditto ... Any Magistrate
imprisonment for
less than 1 year, or
with fine only.
WP(Crl.)312/2007 13 of 42
CrPC, 1973
Offence Cognizable Bailable or By what court
or non- non-bailable triable
cognizable
If punishable with Cognizable Non-bailable Court of Session
death,
imprisonment for
life, or
imprisonment for
more than 7 years.
If punishable with Cognizable Non-bailable Magistrate of the
imprisonment for 3 first class
years, and upwards
but not more than
7 years.
If punishable with Non- Bailable Any Magistrate
imprisonment for cognizable
less than 3 years or
with fine only.
11. Penalties for spying are prescribed in Sections 3 and 5 of the
OS Act and are in two categories only--(i) imprisonment which may
extend upto 3 years and/or with fine or (ii) upto 14 years. Under the
old Code the first category of offences were triable even by a
Magistrate of the second class; the present CrPC prescribes that such
offences shall be triable by any Magistrate. In other words Section
13(1) of the OS Act disables the Magistrate Courts from trying
espionage cases. This provision further generally disables even the
next rung of Courts, namely Magistrates of the First Class or MMs,
from exercising jurisdiction inasmuch as special empowerment is
WP(Crl.)312/2007 14 of 42
required to be infused into them by the appropriate government for
them to enjoy or attain competency. Mr. Luthra has unduly laid great
store on the decision of a learned Single Judge of the Himachal
Pradesh High Court reported as Syed Khushanand Anwar Naqvi -vs-
State of HP, 2006(2) ShimLC 180. After recording the concession of
the Advocate General to the effect that no special empowerment has
been made, the Court held the ongoing proceedings to be non est.
The question whether any other or superior Court, such as the
Sessions Court, was competent to try the complaint neither arose for
consideration nor was contemplated upon. It is irrefutable that a
Magistrate of the First Class or an MM is altogether incompetent to
try any offence under the OS Act in the absence of a special
empowerment in its favour.
12. Our learned Brother, Badar Durrez Ahmed, J. while following
Larkins has perspicuously analysed the law in Rachna Singh -vs-
State of NCT of Delhi decided on 31.5.2006. The ASJ had upheld the
sentence of seven years rigorous imprisonment but in Revision the
conviction and sentence was set aside by Ahmed, J. holding that since
the maximum sentence was upto 14 years, only the Court of Sessions
was competent to try the case. In Saimuddin -vs- State decided by
our learned Brother P.K. Bhasin, J. both the earlier decisions of
Larkins and Rachna were applied.
WP(Crl.)312/2007 15 of 42
13. Pankajbhai Nagjibhai Patel -vs- State of Gujarat, 2001(2) SCC
595 is of topical importance. The Judicial Magistrate First Class had
convicted the accused of an offence under Section 138 of the
Negotiable Instrument Act, 1881 (NI Act for short) and sentenced him
to imprisonment for six months and a fine of Rs.83,000/-. Their
Lordships referred to Section 29(2) of the CrPC which stipulates that
the Court of a Magistrate of the First Class may pass a sentence of
imprisonment for a term not exceeding three years, and/or a fine not
exceeding Rupees ten thousand, or of both. Mention was also made to
Section 4(2) of the CrPC which lays down that in the case of offences
under any law other than the IPC investigation or inquiry or trial or
any other dealing would be in accordance with the CrPC subject to
any procedure prescribed in such other enactment. For purposes
relevant to the task before us Section 142(c) of the NI Act specifies
that, notwithstanding anything contained in the CrPC, no Court
inferior to that of a Metropolitan Magistrate or a Judicial Magistrate
of the First Class shall try any offence punishable under Section 138.
The Apex Court held that Section 142 of the NI Act had not conferred
any "special jurisdiction or power" on a Judicial Magistrate of the
First Class and therefore it only excluded the powers of other
Magistrates from trying offences under Section 138 thereof but did
not, in any way, enhance the amplitude of its jurisdiction or powers.
Speaking for the Court Hon'ble Justice Thomas upheld the sentence of
imprisonment for six months but deleted the direction for payment of
WP(Crl.)312/2007 16 of 42
Rs.83,000/- as compensation to the Respondent/Complainant.
Obviously, this was because the quantum of the fine exceeded the sum
of Rs.10,000/- set down in Section 29(2) CrPC. The ratio of this case
can be applied to the facts before us in two ways. Firstly, that the
powers of the Court specially empowered to try any offence can be
increased and widened, but in the absence of any such stipulation, the
CrPC prescriptions would apply. This is in consonance with what
Sabir Ali enunciates. Secondly, enactments of this category or
species restrict the vesting of powers of trial of offences under special
Act only to those specially empowered to do so. Applying them to the
case in hand, there would have to be an explicit provision in the OS
Act overriding the Schedules of the old and the current CrPC so far
as the punishment awardable by the Court is concerned. In the
absence thereof even where the MM has been specially empowered
by the appropriate government such Court would not have the power
to try a case which attracts a possible sentence extending upto 14
years.
14. We have already reproduced Section 13 of the OS Act, which,
regretfully, can be read in diverse and disparate manners. Ignoring
the parenthesis found therein, the Section could indicate that no
Court other than that of a Magistrate of the First Class specially
empowered in this behalf by the appropriate Government can try any
offence under the OS Act. The use of the phrase 'other than'
WP(Crl.)312/2007 17 of 42
confounds the task of interpretation. An analysis of these words can
be found in Fowler's Modern English Usage which records that their
use is a matter which cannot be resolved. The Cambridge Guide to
English Usage by Pam Peters states that "other" is historically an
adjective meaning "second" or "alternative". The Random House
Dictionary ascribes as many as twelve meanings to the word 'other'
including additional or further, different. The Concise Oxford
Dictionary speaks of the use of the word 'other' to refer to "a person
or thing that is different from one already mentioned or known;
alternative of two; those not already mentioned. The word could also
mean additional or that which is distinct from, different from, or
opposite to something or oneself". Collins Cobuild English Dictionary
for Advanced Learners contains fifteen connotations of the word
'other' which include -"You use nothing other than and no other
than when you are going to mention a course of action, decision, or
description and emphasize that it is the only one possible in the
situation". The same Dictionary then states - "You use other than
after a negative statement to say that the person, item, or thing that
follows is the only exception to the statement." The American
Heritage ® Dictionary defines 'other than' as - "With the except of;
except for; besides". We have gone into considerable depth on the
meaning of the word 'other' because we were of the opinion, at first
blush, that the opening words of the Section appear to indicate that it
is a Magistrate of the First Class, specially empowered in this behalf
WP(Crl.)312/2007 18 of 42
by the appropriate Government, who can alone or exclusively try
offences under the Act. This is also what learned counsel for the
Petitioners would have us hold; but is contrary to the administrative
decision of this Court which has been resolutely defended by the
learned Additional Solicitor General. However, the use of the
negative word 'no' at the very commencement of the Section is a
pointer to the position that the section specifies that there is only one
exception, viz, the specially empowered Magistrate of the First Class,
to the normal appointment, namely, a Court not inferior to a District
or Presidency Magistrate. In other words, the appointment and
empowerment of the Magistrate of the First Class is an exception to
the rule.
15. The use of punctuations such as brackets/parenthesis
endeavours to achieve the same outcome, namely, to clarify that an
MM of the First Class can be specially empowered to try cases under
the OS Act although this ought not to be the usual practice. The
English Cobuild Dictionary defines parenthesis as a pair of curved
marks that are to be put around the numbers to indicate that they are
additional, separate, or less important. The 21st Century Dictionary
speaks of parenthesis as a "digression". American Heritage
®Dictionary defines parenthesis as "(a) a qualifying or amplifying
word, phrase or sentence inserted within written matter in such a way
as to be independent of the surrounding grammatical structure and
WP(Crl.)312/2007 19 of 42
(b) a comment departing from the view of discourse; a digression".
Fowler's Modern English Usage explains that parenthesis interrupts
the flow of a sentence, generally in order to explain or elaborate on
something just written and because they are interruptions,
parenthesis should be kept short. A Guide to Punctuation and its
allies by Eric Partridge, John W. Clark inter alia states - "The essence
of all parentheses is that, without them, the sentence is grammatically
and logically complete: they explain or modify, but they do not
determine the sense. 'The test of a parenthesis is whether the other
words make sense without it' (CHARLES C. BOYD, Grammar for great
or small, 1928) : If they do not, either the whole or a part of the
parenthesis should be removed from within parenthesis". The New
Oxford American Dictionary states the meaning of parenthesis as - "A
word, clause or sentence inserted as an explanation or afterthought
into a passage that is grammatically complete without it, in writing
usually marked off by curved brackets, dashes, or commas".
Therefore, essentially the flow of Section 13(1) of the OS Act is to the
effect - "No court which is inferior to that of a District or Presidency
Magistrate shall try any offence under this Act". The reference to the
Magistrate of the First Class connotes and indicates the exception to
the rule. Therefore, in normal course offences under the OS Act are to
be tried by a Court which was not inferior to the erstwhile District or
Presidency Magistrate. Magistrates of the First Class would have
jurisdiction only in the event of their special empowerment by the
WP(Crl.)312/2007 20 of 42
appropriate government. Since a state of vacuum is always a
abomination, common sense dictates that a Court higher in status to
that of an MM or Magistrate of the First Class, should ordinarily
exercise jurisdiction over alleged offences under the OS Act.
16. Rules of interpretation of statutes inter alia recommend that
each and every word found in any legislation should be given a
meaning; that words should not be introduced by the Court into the
Section so as to give it a particular meaning, unless no sense
whatsoever can be derived from the statutory provision as it stands.
In practical terms these rules of statutory construction obviate the
possibility of a Judge imparting a meaning or interpretation to
legislation in keeping with his own preference or thinking, rather than
that of the Legislature. "A judge must not alter the material of which
the Act is woven, but he can and should iron out the creases" - Lord
Denning in Seaford Court Estates -vs- Asher, (1994) 2 All ER 155.
Approbation of this approach can be found in Bangalore Water Supply
-vs- A Rajappa, AIR 1978 SC 548:(1978) 2 SCC 213. The roots of an
enactment have to be nourished and strengthened rather than
deracinating the plant and provisions by adopting a negative or
destructive dialectic; to avoid absurdities and incongruities that may
have crept in because of clumsy or incomplete and inchoate
amendment. The constant jural endeavour should be to give complete
effect to the legislative policy, intention and objective. The rule that a
WP(Crl.)312/2007 21 of 42
Judge should abjure the rejection of words as surplusages would be
inappropriate if, because of it, the policy or intent of the legislation is
likely to be defeated. Since the Court is required, so to speak, to
penetrate into the mind of the Legislator, where myriad meanings or
numerous interpretations are plausible, the Court should revert or
relate back to the state of affairs prevailing at the time of the passing
of the statute. Otherwise the incongruences and inconsistencies which
invariably become evident in any anachronism, will mar the result. At
the time when the OS Act was passed the repealed CrPC, 1898 was in
force, in terms whereof the Magistrate of the First Class occupied a
rung lower or inferior to that of the Presidency Magistrate. In order
to interpret the Section to indicate that only the Metropolitan
Magistrate or Judicial Magistrate of the First Class can try offences
under the OS Act one would have to excise or ignore the words
"which is inferior to that of a District or Presidency Magistrate" for
the simple reason that a Magistrate of the First Class was inferior to
that of the District or Presidency Magistrate in the jural dispensation
that had been brought into being by the erstwhile/repealed CrPC.
Normally an interpretation which ignores or treats as a surplusage
some words in the Section, should be abjured.
17. Section 13 of the OS Act could also be read simply to mandate
that no Court inferior to that of a District or Presidency Magistrate
shall try any offence under the Act. There are several similar
WP(Crl.)312/2007 22 of 42
provisions that can be found such as, to give only a few examples,
Section 142(c) of the NI Act (supra), and also Section 26(2) of the
Securities and Exchange Board of India, 1992 (SEBI), which we shall
advert to when we analyse the very recent decision of a Division
Bench of this Court reported as Mahender Singh -vs- High Court of
Delhi, 148(2008) DLT 391(DB). The SEBI provision previously
prescribed that no Court inferior to that of Metropolitan Magistrate or
Judicial Magistrate of the First Class could try an offence punishable
under that Act. Consequent upon the 2002 Amendment, Section 26(2)
now reads that -"No Court inferior to that of a Court of Session shall
try any offence punishable under this Act". Section 511 of Schedule-II
of the old CrPC dealt with offences under other laws, which enabled a
Second Class Magistrate along with the Court of Sessions, Presidency
Magistrate or Magistrate of the First Class to try any offence
punishable for one year and upwards but less than three years. The
Legislature was mindful of this position and obviously was of the view
that offences under the OS Act should be entrusted for trial to a
senior and experienced Judge of the level of at least a Presidency
Magistrate. It is with this intent in mind that Section 13 states, in a
fashion akin to the NI Act or the SEBI Act, that no Court inferior to
that of the Presidency Magistrate can try offences under the OS Act.
At the same time the Legislature thought it prudent to carve out an
exception to this general rule, conceivably because the Presidency
Magistrate may, at a given point of time, be inundated with dockets.
WP(Crl.)312/2007 23 of 42
The exception that was created by the Legislature was the Magistrate
of the First Class, but since he was 'inferior' to the Presidency
Magistrate, he would have to be specially empowered by the
appropriate government in this regard. Once this understanding of
the Section is preferred, none of the words contained therein are
required to be ignored.
18. We have already observed that the CrPC, 1973 has abolished
the tier of Presidency Magistrates. Section 3(3) states that unless the
context otherwise requires any reference in any enactment passed
before the commencement of this Code to a Presidency Magistrate
shall be construed as a reference to a Metropolitan Magistrate. In the
case in hand, keeping the annals of the OS Act in perspective, we are
of the view that the context requires us not to equate Presidency
Magistrate with that of Metropolitan Magistrate. Since the extant
CrPC has eliminated from the then existing hierarchy of Courts Judges
occupying the tier of Presidency Magistrates, we reiterate that
Parliament ought to have simultaneously incorporated the logical and
necessary change in Section 13 of the OS Act by substituting the
existing words "which is inferior to that of a District or
Presidency Magistrate" by the words "which is inferior to that of a
Court of Sessions". Alternatively, if their resolve was that such cases
should henceforward normally be tried by an MM, it should have
mentioned so. This would, however, have led to an absurdity since
WP(Crl.)312/2007 24 of 42
there are no Courts 'inferior' to that of an MM. We may also reiterate
that the use of the parenthesis/brackets is to indicate the creation of
an exception either to the preceding word or to the words that follow.
Since a Magistrate of the Second Class (under the old CrPC) and a
Metropolitan Magistrate or Magistrate of the First Class in the
current Code is ordinarily competent to try offences which attract a
punishment upto three years, Section 13 has the effect of disabling
them from doing so, unless specially empowered by the Central
Government to do so. The conclusion, therefore, is that if a
Metropolitan Magistrate or Magistrate of the First Class is to be made
competent to try offence under the OS Act he would require special
empowerment by the appropriate government, but all courts
'superior' to that of a Metropolitan Magistrate/Magistrate of the First
Class (Court of Sessions and the High Court in the existing
hierarchy of courts) would ordinarily possess jurisdiction in this
regard. No intelligent purpose can be achieved by the statutory
draftsman in mentioning in Section 13 of the OS Act a particular
Court and immediately speaking of a Court inferior thereto so far as
jurisdictional powers are concerned.
19. The interpretation of Section 13 to the effect that no Court
inferior to the Court of Sessions can ordinarily try cases under the OS
Act, and that only a Metropolitan Magistrate who has been specially
empowered in this behalf by the Central Government would be
WP(Crl.)312/2007 25 of 42
competent to try such cases, renders the decisions of Single Benches
of this Court in Larkins, Rachna and Saimuddin in harmony with
our views. We reiterate our view that on the coming into force of the
CrPC 1973, with the deletion of the Court of Presidency Magistrates,
which was earlier sandwiched between the Court of Sessions and the
Magistrate of the First Class, and with the separation of the executive
and judicial functions which resulted in the emasculation of the
powers of the erstwhile District Magistrate, and with a view to give
effect to the Legislature's intentions, it is the Court of Sessions that
normally and ordinarily possesses jurisdiction to try cases under the
OS Act. It is axiomatic that the MM would not be competent to try
these cases unless and until he is 'specially empowered' to do so. The
words 'specially empowered' cannot be ignored or rendered otiose.
The Central Government by virtue of being the appropriate
government can always exercise the option of specially empowering
any MM or the ACMM/CMM to exercise jurisdiction in these matters.
20. In this analysis we hold that the Court of Sessions shall
ordinarily be competent to try any offences under the OS Act unless
an MM or a Magistrate of the First Class is specially empowered to
try any offence under the OS Act. This is implicit in the stand of the
Union of India which has supported the administrative decision of this
High Court since all that has been carried out by the withdrawal of
the Notification dated 6.3.1998 by the impugned Notification dated
WP(Crl.)312/2007 26 of 42
21.6.2008 is to divest the MM of powers specially conferred on it by
the Central Government to try offences under the OS Act.
21. Mr. Luthra, learned Senior Counsel for the Petitioners, has
drawn attention to A.R. Antulay -vs- R.S. Nayak, AIR 1988 SC 1531
for two reasons. Firstly, because it has been enunciated therein by
the Supreme Court that wherever a special Court has been created
for the trial of offences by a special statute, they cannot be tried by
any other even if it be a superior court. Their Lordships have
observed - "The power to create or enlarge jurisdiction is legislative in
character, so also the power to confer a right of appeal or to take
away a right of appeal." We are unable to agree with Mr. Luthra that
the Administrative Orders of this Court, or the Order of the Sessions
Court, suffer from the vice of unauthorisedly eradicating the right to
appeal. Since a Magistrate of the First Class is competent to try such
offences only if it had been specially empowered to do so, these
offences would normally be triable by the Court of Sessions. The
situation is altogether dissimilar to that which existed in Antulay. The
Legislature has bestowed and reposed the authority of special
empowerment on the appropriate government, and not the Supreme
Court which directed the High Court to assume jurisdiction. It has not
been argued that this power of special empowerment by the Central
Government cannot be withdrawn by it. If and when this event
transpires, the Court must pass appropriate orders to give effect to
WP(Crl.)312/2007 27 of 42
either or both actions. Ergo, the two impugned Orders do not stem
from the Courts volition but rather are prompted by the purpose of
implementing the decision of the appropriate government, and
consequently removing the cases from a Court which had lost
jurisdiction to one which always possessed it.
22. Reliance on Antulay has also been placed by Mr. Luthra to
buttress his argument that, upon the transfer of the cases to the Court
of Sessions, the Petitioners have lost one forum of appeal. In Antulay
the Supreme Court ordered the trial to be conducted by a Bench of
the Bombay High Court. It was in that context that their Lordships
observed that "the appellant has a further right under Article 21 of
the Constitution a right to trial by a Special Judge under section 7(1)
of the 1952 Act which is the procedure established by law made by
the Parliament, and a further right to move the High Court by way of
revision or first appeal under section 9 of the said Act." This is not
the situation before us. The answer to this vexed question, that is
perceived loss of one appeal, can be found in the detailed Judgment of
another Division Bench of this Court in Mahender Singh. Certain
complaints had been filed by SEBI which, at that time, attracted a
punishment which could not exceed one year term of imprisonment.
By an amendment of the SEBI Act the maximum punishment was
increased to ten years imprisonment, thereby necessitating a
Sessions' trial. It was in this context that Antulay came to be
WP(Crl.)312/2007 28 of 42
discussed in the Judgment authored by our learned Brother, A.K.
Sikri, J.. As in the present case, if the trial had been conducted by an
MM, an appeal would lie under Section 374(3)(c) of the CrPC to the
Court of Sessions. It was held that the Petitioners did not have a
vested right of appeal to the Court of Sessions since this right is
granted by the statute itself. The Judgment further holds that the
right of Revision had not been curtailed or affected in any manner.
We are in respectful agreement with the Mahender Singh ratio and
find that it applies to the case in hand. Reverting back to Section 13 of
the OS Act, and reiterating our view, the intent of the enactment is
that offences under the OS Act would normally be triable by the Court
of Sessions. It cannot, therefore, be argued that the Petitioners have a
vested right to appeal to the Court of Sessions. That right would exist
only in these exceptional instances where the appropriate government
had considered it expedient to specially empower an MM to try the
offences under the OS Act. This argument is accordingly rejected.
23. Our attention has also been drawn by Mr. Luthra to the
decision of Division Bench of this Court in A.S. Impex Ltd. -vs- Delhi
High Court, 108(2003) DLT 559(DB). This Court had transferred
complaints under Section 138 of the NI Act from the Court of the MM
to the Court of the Additional Sessions Judge. The Division Bench
held that since these offences were triable by the MM, the High Court
was not possessed of powers to order that the trial be conducted by
WP(Crl.)312/2007 29 of 42
the Court of Sessions. The ratio decideni is that "the High Court on
the administrative side by invoking the provisions of Article 227 of the
Constitution or for that matter Section 497 of the code could not have
widened or expanded the powers beyond what is fixed under the Act."
We humbly concur with this opinion which is exactly on the lines
drawn in Antulay. However, as already analysed above, the wordings
of the two provisions are not in pari materia. If the Legislature's
intent was to vest jurisdiction only with the MM it could have
unambiguously ordained that - "Offences under this Chapter shall be
tried by the Court of the Metropolitan Magistrate." The Division
Bench had specifically noticed Section 143 (introduced into the NI Act
with effect from 6.2.2003) which simply speaks so. It needs to be
clarified that the non-obstante clause in Section 142 is with prejudice
to the CrPC, and not the rest of its provisions including sub-section(c).
It seeks to allay doubts that despite the provisions of the CrPC which
indicate that an offence punishable with imprisonment upto one year
(which has been increased to two years by Act 5 of 2005) a Magistrate
of the Second Class is competent to try the case, by virtue of Section
29(3) of the CrPC.
24. In fairness to Mr. Luthra A.S. Impex Ltd. was cited by him on
the grievance of the loss of the appeal to the Sessions Judge and the
perceived loss of the remedy of a Revision to the High Court. It must
immediately be reiterated that the so called "right" of appeal is a
WP(Crl.)312/2007 30 of 42
misnomer since it is a bestowal of the legislature or is a creature of
the statute which contains it. This continues to be the view of the
Apex Court in State of Haryana -vs- Maruti Udyog Ltd., AIR 2000 SC
2941 wherein their Lordships opined that the "right of appeal is the
creature of the statute and has to be exercised within the limits and
according to the procedure provided by law. It is filed for invoking
the powers of the superior Court to redress the error of Court below,
if any. No right of appeal can be conferred except by express words.
An appeal, for its maintainability, must have a clear authority of law".
Ganga Bai -vs- Vijay Kumar, (1974) 2 SCC 393 clarifies that whereas
there is an inherent right in every person to file a civil suit, "the right
of appeal inheres in no one and therefore an appeal for its
maintainability must have the clear authority of law". Vijay Prakash
D. Mehta/Shri Jawahar D. Mehta -vs- Collector of Customs
(Preventive), Bombay, (1988) 4 SCC 402 is to the same effect and this
facet of law has been articulated in these words-"Right to appeal is
neither an absolute right nor an ingredient of natural justice the
principles of which must be followed in all judicial and quasi-judicial
adjudications. The right to appeal is a statutory right and it can be
circumscribed by the conditions in the grant".
25. It is somewhat difficult to reconcile A.S. Impex Ltd. with the
very recent Judgment of another Division Bench in Mahender Singh.
Placed in this situation, with due respect to the views in A.S. Impex
WP(Crl.)312/2007 31 of 42
Ltd. we are in agreement with the approach and understanding of the
law in Mahender Singh. We have carefully read the former
Judgment of which the decision on this point is to be found in its
paragraph 16. The Bench has, however, not articulated the reasons
for arriving at the conclusion that it finds force in the submissions of
the Petitioners that two ladders of remedies have been taken away.
There can be no gainsaying that the scrutiny in an Appeal, which is
always in exercise of a right granted by the statute to the appellant, is
much wider than in a Revision, which is a discretionary relief. Since a
person can avail of a full hearing before the High Court in the
exercise of appellate jurisdiction, no prejudice or detriment can
possibly be suffered by him merely because these two remedies
coalesce with each other where an offence is triable by the Court of
Sessions. In the view that we have taken, that is, that it is the Court
of Sessions which is competent to try offences under the OS Act
unless/except where the Central Government especially empowers an
MM to do so, the result is exactly similar. Our view, therefore, is in
harmony on this point with Mahender Singh.
26. The NI Act reveals several conundrums in the context of the
legal nodus confronting us, one of which is the apparent overlapping
between its Sections 142 and 143, both of which are in the fasciculus
of Chapter XVII, which deals with "Penalties in case of Dishonour of
certain cheques for insufficiency of funds in the Accounts." Whilst
WP(Crl.)312/2007 32 of 42
Section 142 of NI Act prescribes with effect from 1.4.1989 that no
Court inferior to an MM shall try any offence punishable under
Section 138, Section 143 requires with effect from 6.2.2003 that all
offences under Chapter XVII (which includes Section 138) shall be
tried by an MM. The difference in language normally indicates that
disparate treatment is intended by the legislature, which in fact is not
so. The earlier Section speaks of "taking cognizance" and the later of
"shall be tried by." Is there a difference in the contemplated jural
activity? Black's Law Dictionary defines cognizance as - "Jurisdiction,
or the exercise of jurisdiction, or power to try and determine causes;
judicial examination of a matter, or power and authority to make it.
Judicial notice or knowledge; the judicial hearing of a cause;
acknowledgment; confession; recognition." It, therefore, seems to us
that the jural enquiry is the same and amendments have been
introduced without keeping existing provisions in perspective. If
exclusive jurisdiction is to be given to any Court the words that should
be employed should be unambiguous and definitive such as are to be
found in Section 143 -viz. "offences ... shall be tried ... by a Judicial
Magistrate/MM". However, where concurrent jurisdiction is intended
to be bestowed on more than one Court it would be appropriate to
ordain it by using the words "no Court inferior to that of an MM/JM Ist
Class ..." We are of the conviction that this applies as much to the NI
Act as to the OS Act.
WP(Crl.)312/2007 33 of 42
27. It has next been contended by Mr. Luthra that the Petitioners
should not be prejudiced by the impugned Notification inasmuch as
they have already exercised the right or election made available to
them by virtue of Section 13(2)of the OS Act for trial by the ACMM.
We have already expressed the opinion that Section 13 postulates
that, in the normal course, trial of offences under the Act would be
conducted by the Court of Sessions. When we read Section 13(2) it
fortifies us in the view that even in those abnormal cases where
jurisdiction to try such offences has been vested in the MM by virtue
of a special empowerment, the Court of Sessions would nevertheless
not lose the power to try those very offences under the Act.
Whenever a statute alludes to a Court which is not inferior to any
other it endeavours to preserve the concurrent jurisdiction of more
than one Court. We now revert to the argument of Mr. Luthra that the
option bestowed on the accused to be tried by the Court of Sessions
has been rendered nugatory by virtue of the impugned Notifications.
This is indeed so. However, this appears to us to be the intent of the
Legislature.
28. N.G. Mitra -vs- State of Bihar, AIR 1970 SC 1636 clarifies that
common law enjoins that all pending proceedings will be governed by
the amended law, with the qualification that whatever was concluded
under the old law would retain legal propriety. In Waheed Hasan
Khan -vs- State of Hyderabad, AIR 1954 Hyderabad 204 the Full
WP(Crl.)312/2007 34 of 42
Bench comprising five Learned and Worthy Judges of what is now the
Andhra Pradesh High Court, were called upon to decide whether the
accused could exercise his right of further cross-examination under
the repealed Hyderabad Criminal Procedure Code. The Full Bench
opined that a qualified procedural right cannot be preserved even
after the amendment or repeal of the statute which conferred it; that
the analogy of an appeal cannot be extended to such cases. Hence,
the law that was in force at the time of the trial would alone be
efficacious. In the wake of the coming into force of the Companies
Act, 1956 the Full Bench of the Punjab High Court in National
Planners Ltd. -vs- Contributories, AIR 1958 P&H 230 had to decide
the fate of winding-up proceedings pending in the Court of the District
Judge. The Court reiterated the common law that when an action is
brought under a statute which is afterwards repealed, the Court loses
jurisdiction of the suit pending under the repealed Act and is unable
to deliver judgment thereon; that the repeal of a statute giving
jurisdiction to a Court deprives it of the right to pronounce judgment
in proceedings then pending. The Full Bench, however, noted that
Section 647 of the Companies Act, 1956 specifically saved the
proceedings pending before the District Judge by virtue of Section
647(II) thereof which reads - "The other provision with respect to
winding up contained in this Act shall not apply, but the company
shall be wound up in the same manner and with the same incidents as
if this Act had not been passed". Although we are presently dealing
WP(Crl.)312/2007 35 of 42
with an appointment which has been recalled, if this principle is
superimposed on the facts of this case, the consequence would be that
had the trial been concluded before the MM, in the pendency of an
appeal, the appointment would endure and remain steadfast.
Applying this enunciation of the law to the case in hand, the inchoate
proceedings pending before the MM would be devoid of jurisdiction
consequent upon the withdrawal of the special empowerment in terms
of the impugned Notification dated 21.6.2006. We are also unable to
accept the argument of Mr. Luthra that those proceedings were
'saved' by the Notification itself inasmuch as it states that this
rescission "shall not affect anything done or omitted to be done under
the said notification before such rescission". In our opinion, in order
to nullify an amendment or a repeal there must be a specific and
unequivocal saving such as is contained in Section 647 of the
Companies Act, 1956. The impugned Notification could have stated,
but it significantly does not do so, that proceedings pending in any
Court at the time of the rescission would continue in that Court.
29. It is trite that alongwith the power to appoint there is always
the right to withdraw the appointment. The impugned Notification
has the effect of withdrawing the special empowerment of the MM
and as soon as this takes place exercise of any option during the
period when that functionary possessed power is automatically
rendered ineffectual. Since the accused would now, in the normal
WP(Crl.)312/2007 36 of 42
course, be tried by the Court of Sessions, he cannot seek perpetuation
of the abnormality. In fact, great pains have been taken by the
Legislator to protect the interests of the accused by allowing him to
exercise the option to be tried before the Court of Sessions even in
the exceptional or extraordinary cases where an MM had been
specially empowered to try the offences. We do not, therefore, find
any merit in this contention. We find a fallacy in the reliance of Mr.
Luthra on Section 6 of the General Clauses Act, 1897, for the simple
reason that it contemplates the repeal of any Central Act or
Regulation and in such event preserves any right or privilege accrued
under that enactment. The right is a qualified one; it is a concession
which springs from the exercise of discretion. Such a 'right' cannot
be viewed as an absolute one, insulated and impervious to change.
The impugned Notification is not a Central Act or Regulation. It
essentially is procedural in nature and therefore not immutable. It is
trite that procedural changes take effect retrospectively.
30. Mr. Luthra has argued that the mandate of Section 13 of the OS
Act stands satisfied as soon as a prosecution under the OS Act is
taken up by the CMM or the ACMM, specially empowered in this
regard, since neither of them are 'inferior' to that of the erstwhile
'District' or 'Presidency' Magistrates. The argument is beset with
problems. We cannot accept that the CMM and the ACMM are
'superior' to the MMs or that the latter are 'inferior' to the former.
WP(Crl.)312/2007 37 of 42
Black's Law Dictionary contains this topical entry viz.:- "Superior and
inferior courts -- The former being courts of general original
jurisdiction in the first instance, and which exercise a control or
supervision over a system of lower courts, either by appeal, error, or
certiorari; the latter being courts of small or restricted jurisdiction,
and subject to the review or correction of higher courts. Sometimes
the former term is used to denote a particular group or system of
courts of high powers, and all others are called inferior courts". We
have already mentioned that Section 6 of the CrPC has only four
categories of criminal courts. The MMs including the CMM and
ACMM function below the Courts of Session. Section 17 speaks of the
power of the High Court to appoint an MM to be a CMM and any MM
to be an ACMM. Thereafter, Section 19 specifies that every MM shall,
subject to the general control of Sessions Judge, be subordinate to the
CMM. Sub-section(2) thereof preserves the power of the the High
Court to define the extent of the subordination, if any, of the ACMM to
the CMM. Sub-section(3) of Section 19 empowers the CMM to make
rules or give special orders as to the distribution of business among
the MMs and as to the allocation of business to an ACMM. Section
29(1) empowers the Chief Judicial/Metropolitan Magistrate to pass
any sentence authorised by law except a sentence of death or of
imprisonment for life or of imprisonment for a term exceeding seven
years. The distinction in the powers of the CMM vis-a-vis MMs is
borne out from Sub-section(2) of Section 29 which stipulates that the
WP(Crl.)312/2007 38 of 42
MM cannot pass a sentence for a term exceeding three years. We
have not been shown any provision of the CrPC which is indicative of
the position that MMs are inferior in the strict legal sense as per
Black's definition, to that of the CMM or ACMM. We would like to
exorcise the ghost of the old CrPC as well as the extant CrPC with
regard to the powers of the sundry Magistrates but continue to be
drawn under their spell. In the present case, since we are dealing
with a special statute, which specifically stipulates the courts which
must try offences under that statute, we need not refer to the
repealed or the extant CrPC, especially in view of Section 26(b) of the
CrPC, 1973 which lays down that any offence under the OS Act shall
be tried by the Court mentioned in Section 13 of the OS Act. To that
extent Part II of the First Schedule of the CrPC is, therefore,
redundant and irrelevant for our purposes. For the same reason
Section 3(3)(c) of the CrPC which enunciates that unless the context
otherwise requires any reference in any enactment passed before the
commencement of the CrPC 1973 to a Presidency Magistrate or Chief
Presidency Magistrate shall be construed as a reference respectively
to an MM or the CMM. So far as Section 13 of the OS Act is
concerned, its context requires otherwise inasmuch as it speaks of
Courts 'inferior' to that of a Presidency Magistrate but there are no
Courts inferior to an MM. It would therefore be erroneous to
extrapolate Section 3(3)(c) of CrPC into the scheme of the OS Act
because it would create a formulaic incongruency in the Section. We
WP(Crl.)312/2007 39 of 42
must hasten to add that in non-metropolitan areas this interpretive
difficulty would not arise since in those areas there are in existence
Courts 'inferior' to that of the Judicial Magistrate of the First Class.
Nevertheless, our understanding of the import of the Section remains
unchanged even so far as these areas are concerned.
31. One point which has generated considerable cogitation is the
seeming contradiction in the trial of offences under the OS Act
attracting punishment of imprisonment of upto fourteen years by an
MM who is competent under the CrPC to order incarceration for a
term not exceeding seven years. Mr. Luthra has painstakingly culled
out Sections 326, 327, 363A, 377, 386, 388, 389, 392, 394, 409, 454,
455, 457, 458, 467, 472, 474, 475, 477, 493, 495 from the other
provisions of the CrPC where the possible punishment exceeds seven
years. We do not propose to delve deeper in the muddle since it does
not detain us here for the reason that the alleged offences are
punishable by imprisonment of not more than three years. So far as
offences dealt with by the IPC is concerned the CrPC applies and
therefore the answer can be resolved by adverting to and
implementing Rosy. In respect of special statutes such as the OS Act,
as adumbrated in Sabir Ali; there are two possible views, namely,
either that the powers of the Court stand automatically enhanced, or,
that the Rosy procedure has to be adhered to. State of UP -vs- Khushi
Ram, AIR 1960 SC 905 is very relevant.
WP(Crl.)312/2007 40 of 42
32. Mr. Luthra has also submitted that because of the very nature
of prosecution under the OS Act it is imperative, in the interests of
justice and fairplay, that a warrants case trial should be conducted
before an MM. According to him, since the criminal proceedings are
not predicated on police investigations, the accused should have the
right to cross-examine the complainant and any of the witnesses
produced by him. We have taken the view that Section 13 of the OS
Act enables a trial by an MM only on special empowerment, and in its
absence, nay in the normal course, a Sessions Trial is contemplated
on the coming into effect of the extant CrPC. We must record that
Mr. Luthra has not argued that the Court of Sessions is incompetent
to try offences under the OS Act. The intendment of the statute
appears to expect the appropriate government to keep all the
peculiarities of a prosecution in perspective for coming to the
conclusion that trial by an MM is not essential in the interests of
justice. Criminal jurisprudence fastens the pious obligation on the
prosecution to safeguard the interests of each and every citizen; to
ensure that an innocent person is not vexatiously prosecuted; and to
preserve the rights of every accused to a fair trial. This obligation
does not rest on the Court alone.
33. In these circumstances, we do not find merit in the Petitions.
The cumulative effect of the impugned Notification is that the CMM
has ceased to have jurisdiction to try the criminal cases pending
WP(Crl.)312/2007 41 of 42
before him. Consequent upon the withdrawal or rescission of the
special empowerment the Court of Sessions would have jurisdiction to
try the cases. The impugned administrative decision of this Court,
therefore, validly transfers the pending cases from the Court of CMM
to the Court of Sessions. The Petitions are dismissed but in view of
the complexity of the contentions raised before us imposition of costs
would be totally unjustified.
( VIKRAMAJIT SEN )
JUDGE
July 11, 2008 ( RAJIV SAHAI ENDLAW )
tp JUDGE
WP(Crl.)312/2007 42 of 42
