A VAIDYANATHA IYER Vs. STATE OF TAMIL NADU
HIGH COURT OF MADRAS
STATE OF TAMIL NADU
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Govinda Menon, J. -
(1.) At the time the Criminal Law Amendment Act, 1952, Act 46 of 1952 came into force on 28-7-1952, certain proceedings were pending against the petitioner herein under Section 161, I. P. C. before a Special Magistrate who had already framed charges against the petitioner and posted the case for further hearing to 12-8-1952. Under Section 10 of Act 46 of 1952 this case stood transferred to the Special Judge who at that time was the Sessions Judge of Coimbatore who in his turn transferred the case to the Additional Sessions Judge for disposal. Subsequently the Principal Assistant Sessions Judge of Coimbatore (Sri S. Varadarajulu Naidu) having been appointed as a Special Judge, in virtue of the powers conferred under Section 6 of the Act on 18-2-1953, took up the case for hearing and proceeded with the examination of some witnesses when he was promoted and transferred from the station. When his successor Sri C. Rajabadar Odayar took up the enquiry, an application was made on behalf of the State that in view of some reported decisions of the High Court the enquiry should be recommenced afresh consequent on the change of Judges. Thereupon notice was given to the accused-officer and after hearing his counsel the learned Special Judge passed an order on 20-7-1953 to the effect that the witnesses who had already been examined will be re-examined. Against that order of the learned Special Judge, this Criminal Revision Petition has been filed.
(2.) In order to appreciate the question of law-raised, it would be advantageous to briefly trace the various provisions of Act 46 of 1952. By Section 3 of that Act a new section is enacted and inserted in the Indian Penal Code as Section 165-A, the result of which introduction is that along with the principal offender, the abettor, who offers a bribe is also made liable. Section 4 of that Act deals with an amendment of Section 164, Criminal P. C. It is unnecessary to refer to the amendments carried out by Section 5. Section 6 confers power on the State Government to appoint Special Judges. Sub-clauses (a) and (b) of Sub-section (1) of Section 8 relate to offences for the trial of which such special Judges can be appointed, among which are offences under Sections 65 and 165-A. Sub-section (2) of Section 6 lays down that no person shall be qualified for appointment as a Special Judge unless he is, or has been, a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898. It is therefore clear that the Special Judge contemplated by the statute must have exercised the powers of a Sessions Judge or an assistant Sessions Judge. Section 8 is the really important section to be construed in the present case. It runs thus :
"Procedure and powers of special judges (1). A special judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act 5 of 1898), for the trial of warrant cases by magistrates. (2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of Sections 339 & 339-A, Criminal P. C., 1898, be deemed to have been tendered under Section 338 of that Code." (3) Save SB provided in Sub-section (1) or Sub-section (2) the provisions of the Code of Criminal Procedure, 1898, shall so far as they are not inconsistent with this Act, apply to the proceedings before a special Judge; and for the purposes of the said provisions, the court of the special Judge shall be deemed to be a court of session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor. (4) A special judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted."
(3.) Under Section 9 it is laid down that the High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Criminal Procedure Code, 1898, on a High Court as if the court of the special Judge were a court of session trying cases without a jury. It is clear from this section that even though ordinarily, from a conviction by an Assistant Sessions Judge an appeal will not lie to the High Court except when the sentence of imprisonment exceeds a term of four years, or where the sentence is transportation for life, still in the case of an Assistant Sessions Judge appointed as a special Judge appeals would lie to the High Court as if he is a Sessions Judge under Section 410, Criminal P. C. If therefore the procedure for the trial of these cases by the Sessions Judge is that laid down in ordinary sessions cases, then according to certain decisions it will have to be held that a succeeding Judge cannot act on the evidence taken by his predecessor.;
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