- (1.) N. B. Asthaaa, J. An application under Section 133 Crpc was filed by one Govendranjand alleging that the present revisionists have encroached upon public passage. Conditional order was passed. The revisionist appeared and relied against show cause notice issued to them. The Addl. City Magistrate (II), Agra vide his order dated 11-8-92 dropped the proceedings under Section 133, Crpc directing Govendranand to seek his remedy in a civil court. Aggriev ed by this order Govendranand preferred criminal revision No. 384 of 1992 which was decided on 1st. February, 1995 by Vth Addl. Sessions Judge, Agra. He was of the opinion that the proper procedure has not been followed and that compliance of Section 137 Crpc has not been made. He allowed the revision and remanded the matter back to Addl. City Magistrate (II) to decide the case in the light of the observations made in the body of judgment. Aggrieved by it Chiranji Lal and others have come to this Court in revision.
(2.) IT has been argued that compliance of Section 137 Crpc has been duly made by the Magistrate concerned and that the revisional court was in error coming to the conclusion that the procedure dresser bed by Section 137 Crpc has not followed. This Section lays down the procedure where exis tence of public right is denied. IT says that when the person against whom conditional order has been made appears and denied existence of any public right in respect of the way etc. , the Magistrate shall before proceeding under Section 138 Crpc esquire into the matter and if such enquiry the Magistrate finds that there is any reliable evidence in support of such denial he shall stay the proceeding unless the matter of existence of such right has been decided by a competent court and if he finds that there is no such evidence he shall proceed as laid down in Section 138 Crpc. Sub-section (3) of Section 137 Crpc lays down that where a person failed to deny the existence of a public right or having made such denial has failed to adduce reliable evidence in support thereof shall not in subsequent proceedings be permitted to make any such denial. While proceeding under Section 137, Crpc the Magistrate is required to take evidence of opposite party alone and in case he came to the conclusion that the denial of existence of public right in respect of the way is bonafide then he would stay the proceedings and direct the other party to get the right established in a competent civil court. The attention of the court has been initiated on page 2 of the judg ment o Addl. City Magistrate (II) in order to agree that the procedure as prescribed by Section 137 Crpc has been followed. I have gone through the entire judgment carefully, I find myself unable to come to the conclusion that the procedure as prescribed by Section 137 Crpc was followed. The Magis trate has started this page of the judgment saying that the evidence of both the parties have been taken and arguments have been heard. The conclusion of the judgment is that the passage which is being claimed is not a public passage and that from the papers filed by the appellant it has not been established beyond doubt that any such passage existed. Then he stated that a feet wide passage already exists which is being used by the persons going to the temple and that the passage has not been completely blocked. Ho then said that the proceedings under Section 138 Crpc are being dropped and the first party may seek his remedy in civil court. From a perusal o. the order it does not at all appears that procedure a prescribed by Section 137 Crpc was followed. Had such procedure on following then the finding would have been that the denial of second party of 1973 Code refers to what the Magistrate should do. Does the Special Judge, therefore, become a Magistrate ? This is the fallacy of the whole approach. In tact, in order to give full effect to Section 8 (1), the only thing to do is to read Special Judge in Sections 238 to 250 wherever the expression 'magistrate' occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile -to go in search of the fact whether for purposes of Section 190 which conferred power on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate ? What u to be done is that one has to read the expression 'special Judge' in place of Magistrate, and the whole thing becomes crystal clear. The Legis lature wherever it found the area clarified it by making specific provision such as the case sub-section (2) of Section 8 and to leave no one in doubt further provided in sub-section (3) that all the provisions of Criminal Procedure Code shall so far as they are not inconsistent with the Act apply to the proceedings before a Special Judge. At the time when the 1952 Act was enacted what was in operation was the Criminal Procedure Code, 1898. It did not envisage any Court of a Special Judge and the Legislature never wanted to draw up an exhaustive Code of Procedure for this new Criminal Court which was being set up. Therefore, it conferred power (taking cognizance of offences), prescribed procedure (trial of warrant cases by a Magistrate) indicated authority to tender pardon (Section 338) and then after declaring its status as comparable to a Court of Session proceeded to prescribe that all provisions of the Criminal Procedure Code will apply insofar as they are not inconsistent with the provisions of the 1952 Act. The net outcome of this position is that a new Court of original jurisdiction was sat up and whenever a ques tion arose as to what are its powers in respect of specific question brought before it as Court of original criminal jurisdiction, it had to refer to the Criminal Procedure Code undaunted by any desig nation claptrap. When taking cognizance, a Court of Special Judge enjoyed the powers under Section 190. When trying cases, it is obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was aquatic with a Court of Session, The entire argument inviting us to specifically decide whether a Court of a Special Judge for a certain purpose is a Court of Magistrate or a Court of Session revolves round a mistaken belief that a Special Judge has to be one or the other, and must fit in the slot of a Magistrate or a Court of Session. Such an approach would strangulate the functioning of the Court and must be eschewed. Shorn of all embellishment, the Court of a Special Judge is a Court of original criminal jurisdic tion. As a court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court of Session. Under the Lode it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied. " 16 It will be clear from a perusal of the above extract that the Court of a Special Judge was held to be a new Criminal original jurisdiction in addition to the Criminal Courts constituted under Section 6, Cr. P. C. and as a matter of act it was held that to the list of Criminal Courts functioning under the High Court under Section 6, Cr. P. C. was added the. Court of Special Judge. It was held to be a court of original jurisdiction in view of the fact that it was expressly provided in Section 8 (1) of the Act that a Special Judge may take cognizance of offences without the case being com mitted to him for trial. When once ii was held that the Court of Special Judge is a new Criminal Court of original jurisdiction, it was wholly unneces sary to embark upon an enquiry whether the Special Judge is a Magistrate or a Sessions Judge for the purposes of the Code of Criminal Procedure and indeed it was held to be fallacy of the whole approach to find out whether the Special Judge becomes a Magistrate. The provisions in Section 8 (1) of the Act that the Special Judge shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 for the trial of warrant cases by a Magistrate and that the Special Judge shall be deemed to be a Magistrate for the purpose of Sections 3 SO and 549 of that Code were considered to be of no consequence for the sake of establishing the identity of the Special Judge. These circumstances clearly suggests the inference that the observations in the judgment rendered in A. R. Antulay's case relied upon in the Kerala case, cited above, the reference to Special Judge is a reference to the Special Judge indicated by Sections 6 and 8 of the Criminal Law Amendment Act, 1952 and the enunciation of the legal position regarding the status attributes and characteristics of a Special Judge as a court of original jurisdiction is of the kind of a Court of Special Judge set up by the statute in Sections 6 and 8 of the aforesaid Act. In other words, the observations have to be read in the light of the statutory provisions governing the establishment, powers and procedures of a Special Court. 17. In the Scheduled Castes and Scheduled Tribes (Prevention of Atroci ties) Act, 1989, Section 2 (d) provides that in this Act unless the context otherwise requires the Special Court means a Court of Session specified as a Special Court in Section 14 and Section 2 (f) lays down that words and expres sions used but not defined in this Act and defined in the Code of Criminal Procedure, 1973 or the Indian Penal Code shall have the meanings assigned to them respectively in the Code, or as the case may be, in the Indian Penal Code. Section 14 provides that for the purposes of speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the official Gazaette, specify for each district a Court of Ses sion to be a Special Court to try the offences under this Act. The Special Court specified under Section 14 of the Act is essentially a Court of Session estab lished and constituted under the Code of Criminal Procedure, 1973. The object of specifying a Court of Session to be a Special Court to try the offences under the Act is for the purpose of providing for speedy trial. No provision has been made in the Act as regards the manner in which the Special Court will take cognizance of an offence under the Act nor any special provision has been made regarding the procedure to be followed by the Special Court in trying the offences under the Act. There is also no provision that a Court of Session, on being specified as a Special Court under the Ant, ceases to be a Court GI Session and acquires a new identity and becomes a new Court of original jurisdiction, in the abele of any special provisions in the Act, all of knocks under the Act shall, as envisaged in Section 4 (2) of the Code of Criminal Procedure, be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure. 1973. It will be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into and trying or otherwise dealing with such offences, but this provision in Section 4 (2) will be of no consequence, as no special provision has been made in the Act. The Special Court specified under Section 14 of the Act being a Court of Session will be governed by Section 193 of the Code of Criminal Procedure in the matter of taking cognizance of offences. Section 193 of the Code of Criminal Procedure provides that except 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. Normally a Court of Session can take cognizance of any offence as a Court of original jurisdiction when the case has been committed to it by a Magistrate under the Code. If there is any exception, it has to be expressly provided by the Code of Criminal Proce dure or by any other law for the time being in force. Where no express provision has been made to the contrary, either in Code or in the Act, as is the case here, no departure can be made from the provisions of Section 193 of the Code of Criminal Procedure and it cannot be held by implication or otherwise that the Special Court specified under Section 14 of the Act can take cognizance of an offence under the Act without the case being committed to it by a Magistrate under the Code. A perusal of the express provisions con tainted in the Act when considered its the light of the scheme and object of the enactment will clearly show that the Special Court specified under Section 14 of the Act is a Court of Session and it cannot take cognizance of any offence under the Act as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code and that the Special Court shall, in the matter of trial of offence, under the Act, be governed by the provisions of the Code relating to trial of offences by a Court of Session. 18. The appropriate legislature has power to make law with respect Co the administration of justice and constitution and organisation of all courts except the Supreme Court and the High Courts under Article 246 read with Entry 11-A of List III (Concurrent list) of Schedule VII of the Constitution of India. In State of Bombay v. Narottam Dass, AIR 1951 SC 69, the obser vations made in Mool Chand Kundan Mai v. Raman Him Lal, AIR 1949 Bom 197 were approved and it was held that the power to legislate under the afore said entry would include within its ambit legislative power in respect to juris diction and power of courts established for the purpose of administration of justice. The words appear to be sufficient to confer upon the Legislature the right to regulate and provide for the whole machinery connected with the administration of justice. The legislation on the subject of administration of justice and constitution of courts of justice would be ineffective and incomplete unless and until the courts established under it were clothed with the jurisdic tion and power to hear and decide causes. It is difficult to visualise a statute dealing with the administration of justice and the subject of constitution and organisation of courts without the definition of the jurisdiction and powers of those courts, as without such definition such a statute would be like a body without a soul. The same view has been taken in the later cases such as O. N. Mhindroo v. Bar Council, AIR 1968 SC 888 and Indu Bhushan Dey v. State of West Bengal, AIR 1986 SC 1783. 19. When if it is held that Section 14 of the Act purports to create a new criminal court of original jurisdiction, then it is to be expected, as indicated in A R, Ant lay's case, that necessary incidental and consequential provisions would also be made in the enactment with regard to the powers and procedure of the new Court with regard to the trial of the offence under the Act. Unfortunately, no special or exceptional provisions were made under the Act expressly or even by necessary implication so that the provisions contained in the Code of the Criminal Procedure were allowed to be to have their full swing on all matters concerning the trial of offences under the Act from beginning to end. With great respect to the learned Judges who have decided the Kerala take, it may be pointed oat urn an reason has been given in support of the view that Section 193 of the Code of Criminal Procedure will not apply to the Special Court. The power and procedure of a court of law established for the administration of justice are to be determined by legislative provisions and not otherwise as to what should or should not be done. It may be mentioned that in the Narcotic Drugs and Psychotropic Substances Act, 1985 Section 36 provides for the establishment of Special Courts for the purpose of providing speedy trial of offences under this Act and specific provi sion has been made in Section 36-A that the Special Court may exercise the same power of remand which a Magistrate may exercise under Section 167, Cr. P. C. and the Special Court may take cognizance of an offence without the accused being committed to it for trial. Necessary provisions have also been made with regard to the qualification, appointment and status of the Presiding Officer of the Special Court and the procedure to be followed by him in the trial of offences under the said Act as also any other offence with which the accused may be charged under the Code of Criminal Procedure at the same trial. Similar provisions have been made in Section 12-A and Section 12- AA of the Essential Commodities Act, 1955 providing for constitution of Special Courts and the matters connected therewith. Where the appropriate Legis lature has omitted to make any special provision to the contrary on the subject of taking cognizance of offences by the Special Court or the procedure to be followed by it for the trial of such offences, it would be deemed that the intention of the Legislature is clear that the matter is to be governed by the provisions of the Code of Criminal Procedure, 1973 in all respects. 20. It may be stated that Section 20 of the Act provides that save as otherwise provided in the Act, the provisions of the Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force, or any custom or usage or any instrument having effect by virtue of any such law. I his provision does not enable anyone to read into it any provision which is inconsistent with the provisions of Section 4 or Section 193 of the Code of Criminal Procedure. The provisions of Section 20 do not empower the Special Court specified under Section 14 of the Act to take cognizance of an offence under the Act as a court of original jurisdiction without the case being committed to it by a Magistrate and to follow any procedure other than that which is prescribed under the Code of Criminal Procedure, 1973. For all these reasons, we are unable, with great respect, to agree with the view taken in the Kerala case, cited above. We have come to the conclusion that the view taken by the Division Bench of this Court in the case of Pappu Singh, which is otherwise also binding on us, is a correct one. Therefore, learned 2nd Addl. Sessions Judge was not competent to take cogniz ance of the case directly on December 7, 1993 and the remand and detention of the petitioner in pursuance thereof are illegal. The contention of the peti tioner must, therefore, be upheld and he should be dealt with in the same manner in which the co-accused Pappu Singh has been dealt with in the case referred to above. 21. The writ petition is allowed and it is directed that the petitioner shall be released forthwith unless be is wanted in some 6ther case. This order will be no bar if he is re-arrested and detained again in accordance with law in Case Crime No. 1248 of 1993 of P. S. Kotwali district. Petition allowed. .;