V.Bhargava, J. - (1.) I have had the benefit of reading the judgment proposed to be delivered by my brother Mulls, J. I agree with him that Section 350 of the Code of Criminal Procedure is not applicable in the case of a Special Judge appointed under the Criminal Law Amendment Act No. 46 of 1952, but I would like to give the reasons for my opinion in my own language. My brother, Mulla, J., has already discussed the three relevant decisions of the Madras, the Patna and the Punjab High Courts and it does not appear to be necessary for me to comment on those cases again.
(2.) It appears to me that, in designating the Court, which is empowered to try cases under the Criminal Law Amendment Act, 1952, as a Court of a Special Judge, the legislature clearly intended to indicate that a Special Judge will neither be a Magistrate nor a Court of Session as constituted under the Code of Criminal Procedure. Had there been any intention that the Special Judge was to be a Magistrate or a court of session, it was easy for the legislature to lay down in the Criminal Law Amendment Act, 1952, itself that the power of trying cases under that law would be exercised by a Magistrate or a Court of Session. Consequently, in considering the applicability of the provisions of the Code of Criminal Procedure to a Special Judge, it has to be kept in view that he is neither a Magistrate nor a Court of session. His is a special class of Court constituted under that special law and, consequently, the Code of Criminal Procedure is to be applied in his case only to the extent that the Criminal Law Amendment Act, 1952, itself makes it applicable. The relevant provision, as has been pointed out by my brother, Mulla, J., is contained in Section 8 of that Act. Under Sub-section (1) of Section 8 the Special Judge, who is neither a Magistrate nor a Court of session, is empowered to take cognizance of offences without the cases being committed to him for trial and then there is the further direction that, in trying the accused persons, he is to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates. The language of this sub-section does not indicate that the Special Judge has been equated with a Magistrate or has been constituted a Magistrate for the purpose of trying cases under that Act. All that Sub-section (1) of Section 8 does is to empower the Special Judge to take cognizance of cases without proceedings of commitment and then it lays down the procedure which is to be followed bv him in the trial of a case of which he has taken cognizance. The fact that he is to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates cannot convert a Special Judge into a Magistrate. Then comes Sub-section (3) of Section 8 under which, subject to the overriding provision of Sub-section (1), the remaining provisions of the Code of Criminal Procedure have also been applied to proceedings before him to the extent, that those provisions are not inconsistent with the provisions of the Criminal Law Amendment Act, 1952. Sub-section (3) then further proceeds to lay down a fiction of law that, for purposes of those provisions of the Code of Criminal Procedure which become applicable under Sub-section (3) of Section 8, the Court of a Special Judge is to be deemed to be a Court of session trying cases without a jury or without the aid of assessors. Thus Sub-section (3) of Section 8 also recognises the fact that a Special Judge is neither a Magistrate nor a Court of session but, by a legal fiction, which is frequently resorted to by the legislature, the Special Judge is to be deemed to be a Court of session for the limited purposes of those provisions of the Code of Criminal Procedure which become applicable to proceedings before him under Sub-section (3) of Section 8 but excluding those provisions of the Code of Criminal Procedure which become applicable to proceedings under Sub-section (1) of that section. The effect, it appears to me, of the provision made in this manner in the Criminal Law Amendment Act, 1952, is that, even though a Special Judge is neither a Magistrate nor a Court of session, he has to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by a Magistrate and except for those provisions which relate to the procedure for the trial of warrant cases by Magistrates, he is to be considered in law to be a Court of session for all other provisions of the Code of Criminal Procedure which become applicable to him under Sub-section (3) of Section 8. Section 350 of the Code of Criminal Procedure only governs proceedings before a Magistrate and not before a Court of session. Consequently section 350 of the Code of Criminal Procedure cannot be applied to proceedings before him unless it be held that this section incorporates or lays down the procedure for the trial of a warrant case by a Magistrate. Under Sub-section (3) of Section 8, only those sections are applicable to the proceedings before a Special Judge which are applicable to a trial before a Court of session and when these provisions of the Code of Criminal Procedure become applicable, they apply exactly as if the Special Judge was a Court of session. Since Section 350 of the Code of Criminal Procedure does not apply to proceedings before a Court of session at all, Sub-section (3) of Section 8 of the Criminal Law Amendment Act, 1952, does not make Section 350 of the Code of Criminal Procedure applicable to the proceedings before a Special Judge. The only question that has to be examined is whether it can be held that Section 350 of the Code of Criminal Procedure incorporates in it a part of the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates. If it be held that Section 350 of the Code of Criminal Procedure is not a part of the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates, this section would not be applicable at all to the proceedings before a Special Judge. In the circumstances, I proceed to examine the interpretation of the expression "the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates" used in Sub-section (1) of Section 8 in order to examine whether Section 350 of the Code of Criminal Procedure is covered by this expression.
(3.) In interpreting the expression used in Sub-section (1) of Section 8, a significant point that prominently comes up is that the expression used is "the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates". If the same expression is used in the Code of Criminal Procedure itself, it would appear to me that the words used in Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952, must be given the same meaning as given to those words in the Code of Criminal Procedure. Chapter XXI of the Code of Criminal Procedure deals with the trial of warrant cases by Magistrates and Section 251 of that chapter is to the following effect : "251. In the trial of warrant-cases by Magistrates, the Magistrates shall (a) in any case instituted on a police report, follow the procedure specified in Section 251-A; and (b) in any other case, follow the procedure specified in the other provisions of this chapter." This Section 251 of the Code of Criminal Procedure, which is the first section in Chapter XXI, thus indicates what is meant by the expression "the procedure for the trial of warrant cases by Magistrates". If the case is instituted on a police report, the procedure is that specified in Section 251-A whereas in any other case, the procedure is that specified in the other provisions of that Chapter XXI viz., Sections 252 to 259. When the Code of Criminal Procedure itself limits the expression "the procedure for the trial of warrant cases by Magistrates"' to Section 251-A and Sections 252 to 259 of the Code of Criminal Procedure, the interpretation of the expression "the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates" used in Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952, must also be that it is the provisions of Section 251-A and Sections 252 to 259 which have been made applicable to the trial of cases by a Special Judge appointed under the Criminal Law Amendment Act, 1952. Section 350 of the Code of Criminal Procedure is not included in Chapter XXI of the Code of Criminal Procedure nor is it one of the sections which, in view of the language of Section 251 of the Code of Criminal Procedure, can be held to be a part of the procedure for the trial of warrant cases by Magistrates. The contention of learned counsel for the applicants that Section 350 of the Code of Criminal Procedure is a general provision prescribing the procedure for the trial of all kinds of cases by Magistrates and must, therefore, be held to be a part of the procedure for the trial of warrant cases by Magistrates cannot be accepted. This argument can be supported by learned counsel only on the basis or the language of Section 251 of the Code of Cr. P. C. which existed at the time when the Criminal Law Amendment Act, 1952 was passed. At that time the Code of Criminal Procedure had not been amended by the Code of Criminal Procedure (Amendment) Act No. 26 of 1955 and Section 251 of the Code read as follows : "251. The following procedure shall be observed by Magistrates) in the trial of warrant cases." The use of the word 'following' in that section at that time was sought to be construed as indicating that all procedural sections, which apply to the trial of a warrant case by a Magistrate, must be treated as a part of the procedure for the trial of warrant cases by Magistrates under the Code of Criminal Procedure but a further examination of the other provisions of the Code leads to the inference that this interpretation cannot be correct. Chapter XXI, which contains Sections 251 to 259, deals exclusively with the procedure for the trial of warrant cases by Magistrates. That chapter is followed by Chapter XXII which lays down the procedure for summary trials and contains Sections 260 to 265. Then comes Chapter XXIII containing Sections 266 to 335 which lays down the procedure regulating trials before High Courts and Courts of session. Though these two chapters follow Section 251, clearly, the provisions in these chapters cannot be applied to the trial of warrant cases by Magistrates and cannot be said to have been referred to by the use of the word 'following' in Section 251. Section 350 is placed in Chapter XXIV which comes subsequent to Chapters XXII and XXIII. The provisions of this section contained in a later chapter cannot be held to be referred to by the use of the word 'following' in Section 251. Consequently, it must be held that, by using the expression "the procedure, prescribed by the Code of Criminal Procedure, for the trial of warrant cases by Magistrates", the law laid down in Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952 only made the provisions of Sections 252 to 259 of the Code of Criminal Procedure applicable to the trial of a case by a Special Judge and did not make all other subsequent provisions so applicable. Section 350 not having been made applicable by Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952, it cannot be held to apply on any other consideration, because, as I have said above, a Special Judge is not a Magistrate and Section 350 of the Code of Criminal Procedure applies only to proceedings before Magistrates and not to proceedings before all kinds of Courts.;