S. Saghir Ahmad, J. - (1.) THE petitioner, by means of the present petition filed under Article 226 of the Constitution, has challenged the notification dated June 18, 1987 (Annexure-1) by which opposite party no. 3, Sri Gaur Chandra was appointed by the High Court as Presiding Officer of the Court of Judicial Magistrate 1st Class, Lucknow to exercise jurisdiction in the local areas specified in the notification to try or enquire into and to commit to the Court of Sessions all such cases in which investigations are made or charge-sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (Act No. XXV of 1946).
(2.) IT may be stated that there is a Crime Case No. 722 of 1988 registered at P. S. Hazratganj, Lucknow, which was investigated by the Central Bureau of Investigation, New Delhi (hereinafter referred to as C.B.I.), impleaded in this petition, under our orders passed yesterday, as opposite party no. 4. IT has been stated in para 2 of the petition "that despite the petitioner being innocent, she has been implicated in the case with the aid of section 120-B IPC" and "that the case is pending a the court of opposite party no. 3 mainly for the purposes of compliance and proceedings of section 207 and/or 209 of the Code of Criminal Procedure". The principal contention urged on behalf of the petitioner is that since under the proviso to sub-section (1) of section 11 of the Code, the State Government, after consultation with the High Court, could establish Special Courts of Judicial Magistrates "to try any particular case or particular class of cases" the impugned notification issued by the High Court under section 11 (2), which purports to enlarge the jurisdiction of the Magistrate inasmuch as he has also been empowered "to enquire into and commit the cases to the Court of Sessions," is bad. This contention is based on the assumption (which we shall presently see is wrong) that the court presided over by opposite party no. 3, was established under the Proviso to sub-section (1) of Section 11 of the Code. Section .11 of the Code of Criminal Procedure, 1973 is as under : "11 (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judical Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification specify : Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other court or Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established. (2) The presiding officers of such Courts shall be appointed by the High Court. (3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court. It may be stated that prior to the coming into force of the Code of Criminal Procedure, 1973, Special Magistrates were appointed under section 14 of the Code of Criminal Procedure, 1898 by a notification of the State Government. Section 484 (2) (b) of the present code provides that all notifications published, proclamations issued, powers conferred etc. including appointments, not being appointments as Special Magistrate, made under the Old Code which were in force immediately before the commencement of the Code, shall be deemed to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code. In exercise of the powers conferred by section 11 (1) of the Code of Criminal Procedure, 1973, the State Government by Notification No. 1592/ VII-AN-208-74 dated April 20, 1974 published in the U. P. Gazettee, established a common court of Judicial Magistrate of the First Class for all districts of Uttar Pradesh, with its place of sitting at Lucknow, to try or enquire into and commit to the Court of Sessions, all such cases arising in any local area within the State of Uttar Pradesh in which investigations were made or charge sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946. By another notification dated May 7, 1974 this court appointed one Sri Rama Kant Rai, Chief Judicial Magistrate, with effect from 1-4-74 as Judicial Magistrate of the first class also for all districts of Uttar Pradesh with Head Quarter at Lucknow to try or enquire into and commit to the Court of Sessions all such cases in which investigations are made or charge sheets filed by the Special Police Establishment.
(3.) BOTH the notifications referred to above were challenged in this court in R. S. Bajpai v. K. K. Ganguly, 1976 CrLJ 514 and it was held that the notifications referred to above were illegal. It appears that it was at this stage that U. P. Ordinance XIII of 1976 was issued followed by the Code of Criminal Procedure (U. P. Amendment) Act, 1976 (U. P. Act Xvl of 1976) which inserted sub- section (1-A) in section 11 of the Code which reads as under : "(1-A). The State Government may like-wise establish as many Courts of Judicial Magistrates of the first class and of the second class in respect to particular cases, or to a particular class or particular classes of cases or in regard to cases generally, in any local area." By section 11 of the above Amending Act, namely, U. P. Act XVI of 1976, it was provided as under : "11. Notwithstanding any judgment, decree or order of any Court- (a) any notification of the State Government issued before November 28, 1975 purporting to establish any Court of Judicial Magistrates having jurisdiction over more than one district shall be deemed to have been issued under section 11 read with section 13 of the said Code as amended by this Act and be deemed to be and always to have been valid. (b) any order of the State Government issued before November 28, 1975 directing the control over Assistant Public Prosecutors to be exercised through officers of the Police Department shall be deemed to be and always to have been valid as if the amendment made in section 25 of the said Code by this Act were in force at all material times." Thereafter in exercise of the powers under sub-section (1) and (1-A) of Section 11 of the Code of Criminal Procedure, 1973 (Act II of 1974) as amended in its application to Uttar Pradesh by U. P. Act XVI of 1976 read with section 21 of the General Clauses Act, 1897 and in supersessions of Government Notification dated 20th April, 1974, the Governor, after consultation with the High Court, established the Courts of Judicial Magistrates of the first class one at Dehradun and the other at Lucknow (defining their local areas of jurisdiction) to try or enquire into and commit to the Court of Sessions, all such cases in which investigations are made or charge sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946. The whole of the notification is reproduced below : "In exercise of the powers under sub-section (1) and (1-A) of Section 11 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) as amended in its application to Uttar Pradesh by the Code of Criminal Procedure (Uttar Pradesh Amendment) Act, 1976 (U. P. Act No. 16 of 1976) read with section 21 of the General Clauses Act, 1897 (Act No. X of 1897) and in supersession of Government Notification No. 1592/VII-AN-208-74, dated April 20, 1974, the Governor, after consultation with the High Court, is pleased to establish with effect from the date, the Presiding officer takes over charge at Dehra Dun, the Courts of Judicial Magistrates of the First Class specified in Column 2 of the Schedule below to exercise jurisdiction in the local areas specified against each in Column 3 thereof to try or inquire into , and commit to the Court of Sessions all such cases arising within, their respective local areas in which investigations are made or charge-sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (Act No. XXV of 1946) " JUDGEMENT_816_AWC2_1989Image1.jpg ;