- (1.) IMTIYAZ Murtaza, J Present petition has been filed for quashing of the outer dated 5. 10. 2005 passed by Judicial Magistrate, Mohammadi, Kheri in Crl. Case No. 1215 of 2005 Data Ram v. Maya Ram and others whereby the petitioners have been summoned under sections 147, 148, 149, 323, 504, 506 IPC and section 3 (1) (x)of S. C. S. T. Act.
(2.) HEARD learned Counsel for the petitioners and the learned A. G. A. for the State. The first submission of the learned Counsel for the petitioners is that the impugned summoning order is without jurisdiction. It was passed on 5. 10. 2005 and on the said date it is alleged in paragraph 13 that the applicants have gathered information that the learned Magistrate has been transferred from Mohammadi to District Lakhimpur vide order dated 3. 10. 2005 passed by Hon'ble High Court, which was served upon the District Judge Lakhimpur Kheri on 4. 10. 2005 by means of Fax and the learned Magistrate had been intimated regarding his transfer on 4. 10. 2005 in the evening. The learned Magistrate himself disclosed about his transfer on 5. 10 2005 in the early hours of working. Hearing the news the members of the Bar arranged farewell party of the learned Magistrate around 12 'o'clock. In view of the averments made in this paragraph it is submitted by learned Counsel for the petitioners that on 5. 10. 2005 the Court has become functus officio and it was not lawful for him to pass the summoning order. This paragraph is vague, there is no averment in the petition that on the said date the Magistrate had relinquished the charge. Merely information about transfer from Mohammadi to Lakhimpur or giving a farewell party by Bar cannot be said that he had no jurisdiction on the said date to pass the impugned order. This submission has no substance and is rejected 5. The next submission of learned Counsel for the petitioner is that the Magistrate has taken cognizance under section 3 (1) (x) of S. C/s. T. Act and it is submitted that under the S. C. /s. T. (P. A) Act only a special Court, as specified under section 14 of the said Act, can take cognizance of the offence under the Act. Learned Counsel also placed reliance on the decision in Re: Director General of Prosecution 1993 Crl. L. J. 760, wherein it was mentioned that the word 'try' used in section 14 of the Act means that the Special Court has not only got the power to try the offences but it has got the power to make every kind of inquiry as a Criminal Court of original jurisdiction in terms of the provisions contained in the Court. 6. This submission of the Counsel for the appellant has no substance as the Apex Court has already decided this question in the case of Gangula Ashok v. State of A. P (2000 (40) ACC 508 (SC) = 2000 (2) SCC 504 ). 7. The Apex Court had observed as under: " 11. Neither in the Code nor in the Act is there any provision whatsoever, not even by implication, that the specified Court of Session (Special Court) can take cognizance of the offence under the Act a$ a Court of original jurisdiction without the case being committed to it by a Magistrate. If that be so, there is no reason to think that the charge-sheet or a complaint can straight away be filed before such Special Court for offences under the Act. It can be discerned from the hierarchical settings of Criminal Courts that the Court of Sessions is given a superior and special status. Hence we think that the legislature would have thoughtfully relieved the Court of Sessions from the work of performing all the preliminary formalities which Magistrates have to do until the case is committed to the Court of Sessions. 12. We have noticed from some of the decisions rendered by various High Courts that contentions were advanced based on sections 4 and 5 of the Code as suggesting that a departure from section 193 of the Code is permissible under special enactments. Section 4 of the Code contains two sub-sections of which the first sub-section is of no relevance since it deals only with offences under the Indian Penal Code. However, sub-section (2) deals with offences under other laws and hence the same can be looked into. Sub-section (2) of section 4 is extracted below : 4. (2) All offences under any other law shall be Investigated inquired into,, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 13. A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if another enactment contains any provision which is contrary to the provisions of the Code, such other functions (sic provision) would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby. This aspect has been emphasised by a Constitution Bench of this Court in para 16 of the decision in A. R. Antulay v. Ramdas Sriniwas Nayak. It reads thus: (SCC p. 517, para 16 ). Section 4 (2) provides for offences under other law which may be investigated, inquired into, tried and otherwise dealt with according to 'the provisions of the Code of Criminal Procedure but Subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal courts of various designations. 14. Nor can section 5 of the Code be brought in aid for supporting the view that the Court of Session specified under the Act can obviate the interdict contained in section 193 of the Code as long as there is no provision in the Act empowering the Special Court to take cognizance of the offence as a Court of original jurisdiction. Section 5 of the Code reads thus: " 5. Saving, Nothing contained in this 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 form of procedure prescribed, by any other law for the time being in force. " 15. This Court in Directorate of Enforcement v. Deepak Mahajan,on a reading of section 5 in juxtaposition with section 4 (2) of the Code, has held (at SCC p. 479, para 128) that-it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does, not nullify the effect of section 4 (2 ). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction or applicability of the Code. 16. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it b the Magistrate in accordance wit the provisions of the Code. In other words, a complaint or a charge sheet cannot straight away be laid down before the Special Court under the Act. " In the Case mentioned above the Ape: Court had also held that the legal position stated in the decision of the Kerala High Court in Re: Director General of Prosecution was not in accordance with law. Lastly, it was submitted by the Counsel for the petitioner that the allegations of the complaint are highly improbable because in the complaint and the statement of the witnesses, role of assaulting the victim was assigned to large number of persons but there was no medical examination report to support the allegations of the complaint. 8. In my view, the truthfulness or otherwise of the allegations of the complaint is to be decided by the Trial Court and there is no illegality in the summoning order, allegations made in the complaint and statement of witnesses attract the provisions of the offences for which summoning order has been passed. 9. The petition has got no merit and is dismissed. However, it is provided that in case the petitioners surrenders before the Court below within four weeks from today, their bail applications shall be decided expeditiously by the Court below in accordance with law. The office is also directed to communicate this order to the Magistrate concerned within three weeks from today. Petition Dismissed. .;