V. S. DAVE, J. - (1.) THIS reference has been made by learned Special Judge Dacoity Affected Area, Karauli vide his order of reference, dated 20-6-1988 where in he has framed the following question for answer : " Whether the Magistrate having jurisdiction over the dacoity affected areas are competent to perform functions in relation to scheduled offences, prior to the stage of trial before the Special Judge, Dacoity Affected Areas"?
(2.) ALMOST connected with the aforesaid question the point also emerge in Mansingh vs. State S. B, Cr. Misc. Petition No. 369/88, Heera Lal vs. Johari S. B. Cr. Misc. Petition No. 178/89 and Hari Ram vs. State S. B. Cr. Misc. Petition No. 2859/88. These cases therefore, have also teen heard along with this reference though they will be disposed of by separate orders purely based on the result of this reference. Before appreciating the point referred to it will be essential to give the back ground in which this question has arisen. On a written report from one Manohari Mal the police station Karauli registered a case under section 384 IPC and Mansingh was arrested in the said case who was sent to Judicial custody. Against accused Chhutalli and Rati warrants were issued on application from Investigating Officer. The warrant against Chhutalli came unserved and since Rati was also not available proceedings were drawn under sec. 82/83, Cr. P. C. After completing the investigation charge sheet was submitted in the court of Addl. Chief Judicial Magistrate, Karauli by A. P. P. against accused Mansingh and absconder Rati for offence under section 398 IPC Offence under section 398, IPC is a scheduled offence as defined under Raj. Dacoity Area Act, 1986 (there in after referred to as 'the Act of 1986' ). When the charge-sheet was submitted before learned A. C. J. M. he vide his order, dated 11-5-1988 came to the conclusion that charge-sheet should have been directly submitted in the court of Special Judge, Dacoity Affected Area, Karauli, since section 398 IPC is a scheduled offence and returned the chargesheet to the A. P. P. for proceeding in the competent court. When the accused was presented before the learned Special Judge, Dacoity Affected Area he did not agree with the view taken by the learned Magistrate and since the question was of great public and private importance he referred it to this court. The learned A. C. J. M. while interpreting the provisions of section 8 of the Act of 1986 gave his reasonings in paragraphs 5 and 6 of his order as under; ***************** From the aforesaid findings it can be inferred that learned Magistrate meant that under section 8 of the Act of 1986 special procedure has been laid down for functioning of the Special Court which is identical to section 190 Cr. P. C. and the Special Court have also been asked to follow a similar procedure for dealing with the case under the Act of 1986 as far trial of the Sessions cases provided the courts perform function of Magistrate under section 207, Cr. P. C. and if the case has been committed to the court of Sessions for trial, where from a case is about scheduled offence mentioned in the Act of 1986, therefore, arises which is exclusively triable by the court of Sessions, the charge-sheet has to be filed directly before the Sessions Judge because firstly no special orders have been passed by learned Session Judge, Sawaimadhopur or High Court of Rajasthan under section 194 Cr. P. C. whereby the cases exclusively triable by Sessions court should be handed over to the special Judge, Dacoity Affected Area. Hence there are no special power for making over these cases to the Special Judge for trial. Secondly, according to section 193 Cr. P. C. no Sessions Court can take cognizance of the offence unless the case is committed to it by a Magistrate under the Code and in view of section 8 (1) of the Act of 1986 the Special Judge has been directly empowered to take cognizance and as per section 8 (2) of the Act of 1986, while starting the trial he is obliged to follow the procedure laid down for Sessions Cases under the Code of Criminal Procedure. Therefore, had the legislature meant in commital proceeding they would not have enacted a provision like this. Thirdly, under the provisions of Criminal Law Amendment Act, 1952 there is a bar about commitment to Special Judge, while there is no such power in the Act of 1986. Fourthly, a composite reading of section 8 of the Act of 1986 and section 190 Cr. P. C. 207, 307 and 308, Cr. P. C. it is clear that Special Judge has all the powers of a Magistrate and lastly that all the First Information Reports registered at police stations the information about the seized goods. Final Reports and private complaints are, all required to be forwarded to the Special Judge also the purpose of the Act is frustraetd because it would delay the proceedings due to the fact that the Magistrateare over burdoned. The learned Sp. Judge did not agree with the aforesaid reasonings given by learned A C J M. He referred to various provisions of the Act of 1986 and considered the scheme of the Act. He also considered the provisions of Criminal Law Amendment Act, 1952 and after comparing the provisions of the two Acts came to the conclusion that the trial of warrant case begins with the presentation of the challan, while begining of a sessions cases is with the commital for trial. He considered that schedule of offences appended with the Act of 1986 includes warrant trials which begins as soon as the challan is presented as mentioned above. As the trial under the Act of 1986 is that a Sessions case enabling the provision has been incorporated in section 8 (1) of the Act of 1986 empowering the Special Court also to take direct cognizance for such warrant trial scheduled offences a. 05. where ever necessary, perform the function of the Magistrate under sec. 207, Cr. P. C. and also empower it to proceed to try the cases as if the cases have been committed to the court of Sessions for trial under the provisons of the Code. Had the intention of the legislation been to empower the Special Court to take direct cognizance in all cases irrespective of warrant or the Sessions trial cases, then the words 'whenever necessary' and 'as if would not have been incorporated in proviso under sub ss. (1) and (2) of s. 8 of the Act of 1986. The learned Special Judge also, while interpreting sub sec. (3) of section 8 of the Act of 1986, held that this provision restricts the Magistral function except those which have been expressly provided for and Special Judge has been deemed to be a Sessions Judge for trial of scheduled offences. In the opinion of the Judge, therefore, function of the Magistrate up to the investigation and inquiry stage shall be taken up by the Magistrate having jurisdiction over that area up to the stage of trial which would include issuance of warrants of arrest, search proclamation and attachment (except a reference from District Magistrate for disposal of property), order under section 156 (3), Cr. P. C. recording of statements of the witnesses under sec. 164 Cr. P. C. custody remands under sec. 167, Cr. P. C. release of the accused under section 169, Cr. P. C. police reports under sec. 173 Cr. P. C. (except of challan of warrant trial cases in which trial would straight-way start with presentation of challan of directly in Special Court in view of section 8 (1) of the Act of 1986 and the proviso therein) and complaints to the Magistrates under section 200-203, Cr. P. C. The learned Special Judge referred to a decision of Punjab and Haryana High Court (1) and held that Special Judge is empowered to make reference under sec. 395 Cr. P. C. for seeking guidance from Hon'ble High Court and he thus made this reference on the point referred to above.
(3.) ON receipt of the aforesaid reference assistance of learned Advocate General, Addl. Advocate General and other lawyers was sought and the case has been argued at great length. At the out-set I may observe that while enacting the provisions of 1986 due care has not been taken as was required of the legal draftsman, with the result that ambiguities had been left in this Act. Even the definition of the Scheduled offence as given in defining section 2 is not happly worded. In order to appreciate the point referred to, it is essential to go through the scheme of the Act. In the State of Raj. there are certain Districts, particular areas of with are infested with dacoits and the offence relating to robbery, dacoity, murders with dacoity so and so-forth are rampant. In order to curb effectively the commission of such offences and which are concerned with the commission of dacoity or from part of or arise out of such offences the State Government think it proper to make law. (a) for notifying those areas as dacoity affected areas; (b) for specifying such offences as scheduled offences; (c) for making provisions of speedily trial and punishment thereof; (d) for attachment of properties acquired length the commission of such offences; (e) for any other matter connected there with or incidental thereto. and the law enacted is Rajasthan Dacoity Affected Areas Act, 1986 which has been brought into force with effect from September 23, 1985. In this Act of 1986 section 2 is a saction giving meaning to various words, i. e. , defining clause In section 2 (1 ) (b) of this Act there has to be an area which may be declared by the State Government under section 3 of the Act of 1986. The Government of Rajasthan in this respect issued a Notification No. F. 1/6 (11) Home/5/81, dated July 25, 1987 and declared the whole of the Revenue District of Dholpur (2) whole Revenue District of Bharatpur except areas covered by Tehsils Deeg, Nagar, Nadbai and Kama; and the areas covered Tehsils Karauli, Sapotara and Hindaun of Sawaimadhopur District. The Government of Rajasthan also in exercise of the powers conferred under section 6 of the Act of 1986, in consulta-tion with the High Court notified there Special Court one at Bharatpur another at Karauli mentioning the territorial jurisdiction of each of them vide Notifica-tion No. P2 (5) Nyaya/87, Jaipur, dated August 10,1987. The jurisdiction of these Special Court has been given under section 7 of the Act of 1986 which reads as under: " Section 7jurisdiction of Special Court (1) Not with standing any thing contained in the Code or in any order law for the time being in force, a scheduled offence shall be triable only by a special Court; (2) While trying any scheduled offence, the Special Court may also try at the same trial any offence other than the scheduled offence with which a scheduled offender may be charge under any law for the time being in force". A reading of the aforesaid section make it clear that the cases which are triable exclusively by the Special Courts are the scheduled offences as defined in section 2 (I) (C) of the Act of 1986 which reads as under: Section 2 (l) (c)'scheduled offence' in relation to a dacoity-affected area, means an offence specified in the schedule appended to his Act, including an offence forming part of, arising out of, or connected with the commission of, dacoity. ;