RATNAM, J. - (1.) IN this writ petition, the petitioner, who was formerly a Special Honorary Magistrate, has prayed for a declaration that Sections 13 and 18 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and the Rules framed thereunder by the High Court are ultra vires the Constitution of INdia. Briefly stated, the complaint of the petitioner is that while under the system of Honorary and Special Honorary Magistrates which prevailed before the coming into force of the Code, all citizens from all walks of life were considered for conferment of powers and appointment as Honorary and Special Honorary Magistrates, Sections 13 and 18 of the Code did away with that and confined it only to those, who hold or have held a post under the Government and that is opposed to Art. 14 of the Constitution of INdia. The petitioner has also challenged the Tamil Nadu Special Judicial Magistrates and Special Metropolitan Magistrates Qualification Rules, 1974 (hereafter referred to as 'the Rules') that have been framed under Sections 13 and 18 of the Code read with S. 477(1)(d) of the Code on the ground that the Rules so framed are invalid and have not been made with the previous approval of the Government of Tamil Nadu.
(2.) THE State of Tamil Nadu is the first respondent in this writ petition, while, the Government of India has been impleaded as the second respondent. In the counter-affidavit filed by the first respondent, it was stated that upon the abolition of the institution of Honorary Magistrates under the provisions of the Code, Special Judicial Magistrates and Special Metropolitan Magistrates alone can be appointed, as and when the necessity arose for such conferment of powers and appointment, from among serving or retired Government servants possessing such qualification or experience, as may be prescribed in the Rules and this is valid. THE Rules framed by the High Court in the exercise of the powers conferred under Sections 13 and 18 read with S. 477(1)(d) of the Code with the previous approval of the Government of Tamil Nadu are also valid. It was further stated that in the absence of any request to revive the system of Honorary Magistrates, the Government was considering the question of appointing former Honorary Magistrates also as Special Judicial Magistrates under Sections 13 and 18 of the Code and that appropriate necessary action was being taken by the Government and, therefore, there was no need for the issue of a writ as prayed for by the petitioner. In the counter-affidavit filed by the second respondent, it was stated that the recommendations of the Law Commission in its Forty-first Report on the Code incorporated in the Code of Criminal Procedure Bill, 1970, were referred to the Joint Select Committee of both the Houses of Parliament and taking note of the criticism levelled against the system of Honorary Magistrates, it was felt that the appointment of a sufficient number of stipendiary Magistrates would help to give relief to the other stipendiary Magistrate in the disposal of a large number of cases and since the wholesale deletion of the system of Honorary Magistrates, would give rise to certain problems in certain States, it was suggested that the power to appoint Special Magistrates should be retained and an enabling provisions be made for the appointment of Special Judicial Magistrates and Special Metropolitan Magistrates with certain modifications and that recommendation was accepted, adopted and enacted as Sections 13 and 18 of the Code. Though Sections 13 and 18 of the Code made special provisions for the appointments of Special Magistrates, those provisions were not hit by the vice of discrimination and that they are not violative of Art. 14 of the Constitution of India.
(3.) THE petitioner appeared in person and argued the writ petition. His first contention is that the conferment of all or any of the powers as Special Judicial Magistrate or Special Metropolitan Magistrate by or under Sections 13 and 18 of the provisions of the Code only on those persons, who hold or have held any post under the Government and not others, is discriminatory and offends Art. 14 of the Constitution of India, as the classification of persons for the purpose of conferment of powers as Special Judicial Magistrate or Special Metropolitan Magistrate into those who hold or have held any post under the Government and those who did not, is arbitrary and there is no intelligible differentia distinguishing persons, who hold or have held any post under the Government, from others who have been left out and such differentia has also no rational relation to the object sought to be achieved by the statute in question. On the other hand, the learned counsel for the second respondent contended that the object behind the classification is to utilise the rich experience of Government servants, who are well acquainted with the local customs, usages and practices and in the administration of criminal justice, which would facilitate the satisfactory performance and discharge of their duties as Special Judicial Magistrates and Special Metropolitan Magistrates and that such a classification has a rational relation to the administration of criminal justice and, therefore no exception could be taken to the classification so made or conferment of powers of Special Judicial Magistrate or Special Metroplitan Magistrate on that footing.;