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PETITIONER: A. R. ANTULAY

       Vs.

RESPONDENT: RAMDAS SRINIWAS NAYAK AND ANOTHER

DATE OF JUDGMENT16/02/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. PATHAK, R.S. REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ERADI, V. BALAKRISHNA (J)

CITATION:  1984 AIR  718            1984 SCR  (2) 914  1984 SCC  (2) 500        1984 SCALE  (1)239  CITATOR INFO :  R          1984 SC 991  (3,4)  RF         1986 SC2045  (36)  R          1987 SC 877  (14)  D          1988 SC1531  (192)  R          1992 SC   1  (62)  RF         1992 SC 248  (44)  RF         1992 SC 604  (121)  RF         1992 SC1701  (7,8,55)

ACT:      Interpretation of  Statutes-Construction of Penal Laws- Rules for.      Criminal Procedure Code, 1973 (Act II of 1974) Sections 4, 6,  190, 200,  202,  238  to  250-Special  Judge,  taking cognizance of  offence under  the Prevention  of  Corruption Act, 1947  (Act 2 of 1947) on a private complaint in respect of the  said offences committed by Public Servants, legality of-Criminal Law Amendment Act (XLVI of 1952) Section 6 to 8, Scope of-Court  of Special  Judge is  a  Court  of  Original Criminal Jurisdiction and shall have all powers except those specifically  excluded.   Legislation  by   in  corporation, doctrine applied.

HEADNOTE:      Respondent Nayak  filed a private complaint against the appellant, alleging  that the  appellant has,  as  a  public servant committed certain offences under ss. 5, 5A and 7A of the Prevention  of Corruption  Act (Act  II  of  1947),  and section 161-165  of the Indian Penal Code before the learned Special Judge,  Shri P.  S. Bhutta.  The Special  Judge took cognizance of  the said  offences and  adjourned the case to October 12,  1982 on  which date,  the  appellants’  counsel moved an  application questioning  the jurisdiction  of  the court on  two specific counts: (i) that the Court of special Judge act  up under  s. 6 of the Criminal Law Amendment Act, 1952 (’1952 Act’ for short) cannot take cognizance of any of the offences enumerated in s. 6 (1) (a) & (b) upon a private complaint of  facts constituting  the offence  and (ii) that where there  are more  special Judges than one for any area,

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in the absence of a specification by the State Government in this behalf,  specifying the  local  area  over  which  each special Judge  would have  jurisdiction, the  special  Judge (Mr. Bhutta)  had no  jurisdiction to take cognizance of the offences  and  try  the  case.  The  learned  special  Judge rejected both  the contentions. The appellant filed Criminal Revision Application  No. 510  of 1982  in the  Bombay  High Court. On a reference made by the learned Single Judge, this revision application  was heard  by a  Division Bench of the High  Court.   The  learned   Judges  by  two  separate  but concurring judgments  held that  special Judge  is competent and is entitled to take cognizance of offences set out in s. 6  (1)   (a)  &  (b)  upon  a  private  complaint  of  facts constituting the offence and consequently rejected the first contention. In  reaching this  conclusion the learned Judges held  that   a  prior  investigation  under  s.  5A  of  the Prevention of Corruption Act, 1947 (’1947 Act’ for short) by a police  officer of  the designated rank is not a condition precedent to 915 the special Judge taking cognizance of the offences under s. 8 (1)  of 1952  Act, and  taking notice  of the Notification dated January 15, 1983 issued by the Maharashtra State under sub-s. (2)  of s.  7 of 1952 Act, specifying Shri R B. Sule, Special Judge for Greater Bombay for trying the Special Case No. 24 of 1982 rejected the second contention and therefore, the revision  petition as well. Hence this appeal by special leave.      Dismissing the appeal, the Court, ^      HELD:  1.   It  is   a  well   established  cannon   of construction that the court should read the section as it is and cannot  rewrite it to suit its convenience; nor does any cannon of  construction permit the court to read the section in such manner as to render it to some extent otiose. [936D- E]      2:1. A  private  complaint  filed  in  respect  of  the offences committed  by public servants as enumerated in s. 6 (1) and (b) of the Criminal Law (Amendment) Act, 1952 can be entertained by  the special  Judge and  taken cognizance of. The same is perfectly legal. [936B]      State of  Tamil Nadu  v. V.  Krishnaswami Naidu  & Anr. [1979] 3 S.C.R. 928; Parasnath Pande & Anr. v. State, A.I.R. 1962 Bom 205; Jagdish Prasad Verma v. The State, A.I.R. 1966 Patna 15; referred to.      2:2. It  is a  well recognised  principle  of  criminal jurisprudence that  anyone can  set or  put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The Scheme of the Code of Criminal Procedure  envisages two  parallel and  independent agencies for taking criminal offences to court. Even for the most serious  offence of  murder, it was not disputed that a private  complaint  can,  not  only  be  filed  but  can  be entertained and  proceeded  with  according  to  law.  Locus Standi of  the complaint  is a  concept foreign  to criminal jurisprudence  save   and  except  that  where  the  statute creating an  offence provides  for the  eligibility  of  the complaint, by  necessary implication  the general  principle gets excluded by such statutory provision. [923D-F]      While s.  190 of the Code of Criminal Procedure permits anyone to  approach the  Magistrate with  complaint, it does not prescribe any qualification the complaint is required to fulfil to  be eligible  to file  a complaint.  But where  an eligibility  criterion   for  a  complaint  is  contemplated specific provisions  have been  made such  as to be found in

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ss. 195  & 199  of the  Cr. P.  C. These specific provisions clearly indicate  that in  the absence of any such statutory provisions, a  locus standi  of a  complaint  is  a  concept foreign  to  criminal  jurisprudence.  In  other  words  the principle that  anyone can  set or  put the  criminal law in motion remains  intact unless contraindicated by a statutory provision. [923G-H; 924A]      This general  principle of nearly universal application is founded  on a  policy that  an offence  i.e.  an  act  or omission made  punishable by  any law  for the time being in force (See  s. 2  (n) Cr.  P. C.)  is not  merely an offence committed in  relation to the person who suffers harm but is also an offence 916 against society.  The society  for its  orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name  of the  state representing  the people which would exclude any  element of  private vendatta  or vengeance.  If such is  the public  policy underlying  penal statutes,  who brings an  act or  omission made  punishable by  law to  the notice of  the authority  competent  to  deal  with  it,  is immaterial and  irrelevant unless  the statute  indicates to the contrary.  Punishment of the offender in the interest of the society   being one of the objects behind penal statutes enacted for  larger good  of the  society, right to initiate proceedings  cannot   be  whittled  down,  circumscribed  or fettered by  putting it  into a  straight jacket  formula of locus standi  unknown to  criminal jurisprudence,  save  and except specific  statutory exception.  To hold  that such an exception exists  that a  private complaint  for offences of corruption committed  by public servant is not maintainable, the court  would require  an unambiguous statutory provision and a  tengled web  of argument  for drawing  a far  fetched implication, cannot be a substitute for an express statutory provision. [924A-E]      It is  no answer  to this fairly well-established legal position that  for the last 32 years no case has come to the notice of  the court  in which  cognizance was  taken  by  a special Judge in a private complaint for offences punishable under the  1947 Act. If something that did not happen in the past is to be the sole reliable guide so as to deny any such thing happening  in the future, law would be rendered static and slowly whither away. [925C]      The  Scheme   underlying  Code  of  Criminal  Procedure clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge  of a Police Station. If the offence complained of is a  non-cognizable one,  the  Police  Officer  can  either direct the  complaint to  approach the  Magistrate or he may obtain permission  of the  Magistrate  and  investigate  the offence. Similarly  any one can approach the Magistrate with a complaint  and even  if the offence disclosed is a serious one, the  Magistrate is  competent to take cognizance of the offence  and   initiate  proceedings.  It  is  open  to  the Magistrate  but   not  obligatory   upon   him   to   direct investigation by  police. Thus two agencies have been set up for taking offences to court. One would therefore, require a cogent and  explicit provision  to hold that s. 5A displaces this scheme. [925D-F]      2:3. Section  8(1) of  the 1952 Act which confers power on the  special Judge to take cognizance of offences set out in  s.  6(1)  (a)  (b)  does  not  directly  or  indirectly, expressly or by necessary implication indicate that the only method of  taking cognizance  is the  police report under s.

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173(2) of  the Code  of Criminal  Procedure submitted  by  a police officer of the designated rank or permissible rank as set out  in s. 5A of the Prevention of Corruption Act, 1947. [932G-H]      2:4. 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 917 is the  parent statute  which  provides  for  investigation, inquiring into  and trial  of cases  by criminal  courts  of various designations. [935A-B]      2:5. If  Court of  special Judge  is a  criminal court, which  atleast   was  not   disputed,  and  jurisdiction  is conferred upon the presiding officer of the Court of special Judge  to   take  cognizance   of  offences   simultaneously excluding one  out of  the four  recognised modes  of taking cognizance, namely,  upon commitment  of by  a Magistrate as set out  in s. 193, the only other method by which the Court of special  Judge can  take cognizance of an offence for the trial of  which it  was set  up, is any one of the remaining three other  methods known  to law by which a criminal court would take cognizance of an offence not as an idle formality but with  a view to initiating proceedings and ultimately to try the accused. If the language employed in s. 8(1) is read in this light and in the background that a special Judge may take  cognizance   of  offence  without  the  accused  being committed to  him for trial, it necessarily implies that the Court  of   special  Judge  is  armed  with  power  to  take cognizance without  commitment by  the Magistrate.  Thus the special Judge  can take cognizance of offences enumerated in s. 6(1) (a) and (b) upon a complaint or upon a police report or upon  his coming  to know  in some  manner of the offence having  been  committed.  The  provisions  of  the  Criminal Procedure Code  have to  be applied  to the Court of special Judge in  such manner  and to  such extent  as to retain the separate identity of the Court of special Judge and not that he must  either fulfil  a role  of a Magistrate or a Session Court. Section  8(1) of 1952 Act says that the special Judge shall take cognizance of an offence and shall not take it on commitment of the accused. The Legislature provided for both the positive and the negative. It positively conferred power on special  Judge to  take cognizance  of  offences  and  it negatively removed  any concept  of commitment.  It  is  not possible there  fore, to  read s.  8(1) that  cognizance can only be  taken upon  a police report and any other view will render the safeguard under s. 5A illusory. [935D-F; 936B; C; E]      2:6. Section  5A is  a safeguard against investigation, by police officers lower in rank than designated officer, of offences against public servants. This has no hearing either directly or  indirectly with  the mode  and method of taking cognizance or  trial by  the special  Judge.  Therefore,  an investigation under  s. 5A  is  not  a  condition  precedent before cognizance  can be  taken of  offences triable  by  a special Judge,  who acquires  power under  s. 8(1)  to  take cognizance of  offences enumerated in s. 6(1) (a) and (b) of the Prevention of Corruption Act, with this limitation alone that  it  shall  not  be  upon  commitment  to  him  by  the Magistrate. [941A-B]      2:7. Once  s. 5A  is out  of the  way in  the matter of taking cognizance  of offences  committed by public servants

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by a  special Judge,  the power of the special Judge to take cognizance of  such offences  conferred by s. 8(1) with only one limitation,  in any  one of  the known methods of taking cognizance of  offences by  courts of  original jurisdiction remains undented. One such statutorily recognised well-known method of taking cognizance of offences by a court competent to take cognizance is upon receiving a comp- 918 laint of  facts which  constitutes the  offence. And s. 8(1) says  that   the  special  Judges  has  the  power  to  take cognizance of  offences enumerated  in s. 6(1) (a) & (b) and the only mode of taking cognizance excluded by the provision is upon  commitment. It  therefore, follows that the special Judge can  take cognizance  of offences  committed by public servants upon  receiving a  complaint of  facts constituting such offences [941F-H]      There is  no warrant for an approach that on receipt of the  complaint,   the   special   Judge   must   direct   an investigation under s. 5A. [942C]      H. N.  Rishbud &  Inder Singh v. State of Delhi, [1955] S.C.R. 1150;  State of Madhya Pradesh v. Mubarak All; [1959] Supp. 2  S.C.R. 201;  State of  Uttar  Pradesh  v.  Bhagwant Kishore Joshi;  [1964] 3  S.C.R. 71;  S. N. Bose v. State of Bihar; [1968]  3 S.C.R.  563; P. Sirajuddin etc. v. State of Madras etc.;  [1976] 3  S.C.R. 931; Union of India v. Madhya Bhara; A.I.R.  1957 Madhya  Bharat,  43  Taylor  v.  Taylor, (1875-76) 1  Ch. Divn.  426; Nazir Ahmed v. King Emperor; A. I. R.  1936 P.  C. 253(2)  Chettiam Vettil Ammad and Anr. v. Taluk Land Board & Others; [1979] 3 S.C.R. 839; referred to.      2:8. In  order to give full effect to s. 8(1), the only thing to  do is  to read  special Judge  in s.  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  s. 190  which conferred power  on the Magistrate to take cognizance of the offence, special  Judge is  a Magistrate? What is to be done is that  one has  to read the expression special in place of Magistrate, and  the  whole  thing  becomes  crystal  clear. [945E-F]      2:9. The  Legislature wherever  it found  the grey area clarified it by making specific provision such as the one in sub-s. (1)  of s.8  and to  leave no  one in  doubt  further provided in  sub-s. (3)  that all the provisions of the Code of  Criminal   Procedure  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  code of Criminal Procedure, 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  (s.338) and then after declaring its status as comparable to a Court of Sessions  proceeded to  prescribe that  all provisions of the Code  of Criminal Procedure will apply in so far 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 set  up and  whenever a  question arose as  to what  are its  powers in  respect  of  specific questions brought  before it  as court  of original criminal Jurisdiction, it  had to  refer  to  the  Code  of  Criminal Procedure  undaunted  by  any  designation  clap-trap.  When taking cognizance,  a Court  of special  Judge  enjoyed  the

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powers under  s. 190. When trying cases, it is obligatory to follow the  procedure for  trial  of  warrant  cases,  by  a Magistrate though  as any  by way  of status  it was equated with a Court of Sessions. [945F-H; 946A-D] 919      2:10.  The  deeming  fiction  enacted  in  s.8  (3)  is confined to the limits of its requirement in that the person conducting a  prosecution before  a special  Judge is  to be deemed to be a public prosecutor. On the contrary, conscious of the position that a private complaint may be filed before a special  Judge who  may take cognizance of the offences on such a  complaint, the  Legislature  wanted  to  clothe  the person in  charge of  the prosecution before a special Judge with the  status of  a public prosecutor for the purposes of the Code of Criminal Procedure. [949A-C]      Shwe Pru v. The King; A. I. R. 1941 Rangoon 209; Amlesh Chandra &  Ors. v.  The state,  A.I.R. 1952  Cal.  481;  Raj Kishore Rabidas  v. The  State; A.I.R.  1969  Cal  321;  Re. Bhupalli  Malliah  and  Ors.  A.I.R.  1959  A.I.R.  A.P.477; Medichetty Ramakistiah  and Ors. v. State of Andhra Pradesh; A.I.R. 1955 A.P. 659; referred to.      2:11. It  is not  a condition precedent to the issue of process that the court of necessity must hold the inquiry as envisaged  by  s.202  or  direct  investigation  as  therein contemplated. The  power to  take cognizance without holding inquiry or  directing investigation  is implicit in s.202 of the Code.  Therefore the  matter is  left  to  the  judicial discretion of the Court whether on examining the complainant and the  witnesses if  any as contemplated by s.200 to issue process or to postpone the issue of process. This discretion which the  court enjoys cannot be circumscribed or denied by making it  mandatory upon  the  court  either  to  hold  the inquiry or  direct investigation.  Such an approach would be contrary to  the statutory provision. Therefore, there is no merit in  the contention  that  by  entertaining  a  private complaint, the  purpose of speedy trial would be thwarted or that a  pre-process safeguard  would be denied. Further when cognizance is  taken on a private complaint or to be precise otherwise than  on a police report, the special Judge has to try the case according to the procedure prescribed for trial of warrant  cases instituted otherwise than on police report by a  Magistrate (ss.  252 to  258 of  1898 Code of Criminal Procedure). This  procedure provides more adequate safeguard than the  investigation by police officer of designated rank and therefore,  search for  fresh or additional safeguard is irrelevant. [951A-F; H]      2:12. Prior to 1955, the procedure for trial of warrant cases instituted  on a  police report  and otherwise than on police report  was the  same and  the Act of 1952 set up the court of  special Judge  to try cases under the 1947 Act and the  trial  was  to  be  held  according  to  the  procedure prescribed for  trial of  a  warrant  case.  It  necessarily follows that  between 1952  to 1955,  the Court  of  special Judge would  have followed the same procedure for trial of a case instituted  upon a police report or otherwise than on a police report.  If in  1955, the  Legislature prescribed two different procedures  and left  the one for trial of warrant cases instituted  otherwise than on police report intact and the position  remained unaltered even after the introduction of s.7A,  it is  not suggestive  of such a grave consequence that a private complaint is not maintainable.[953A-C]      3:1.  The   entire  argument   inviting  the  court  to specifically decide whether a court of a special Judge for a certain purpose is a court o Magis- 920

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trate or  court of Sessions 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 Sessions. Such an approach  would strangulate  the functioning of the court and must  be eschewed.  Such of all embellishment, the Court of  a   special  Judge  is  a  Court  of  original  criminal jurisdiction. 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 Sessions.  Under the Code it will enjoy  all   powers  which  a  court  of  original  criminal jurisdiction enjoys  save and  except the  ones specifically denied. [946C-E]      3:2. The  Court of  a special Judge, once created by an independent statute, has been brought as a court of original criminal jurisdiction  under the  High Court  because  s.  9 confers on  the High  Court  all  the  powers  conferred  by Chapter XXXI  and XXXIII  of the Code of Criminal Procedure, 1898 on a High Court as if the court of Special Judge were a Court of  Sessions trying  cases without  a jury  within the local limit of the jurisdiction of the High Court. Therefore is no  gainsaying the  fact that a new criminal court with a name, designation  and qualification of the officer eligible to preside  over it with powers specified and the particular procedure which  it must  follow has  been set  up under the 1952 Act. The Court has to be treated as a court of original criminal jurisdiction  and shall  have all the powers as any court of  original criminal  jurisdiction has under the Code of Criminal  Procedure except  those specifically  excluded. [946G-H; 947A-B]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  CRIMINAL APPEAL NO. 247 OF 1983      From the judgment and order dated 7.3. 83 of the Bombay High Court in Criminal Revision Application No. 510 of 1982.      Dr. L.  M. Singhvi, Dalveer Bhandari, A. M. Singhvi, S. S. Parkar,  H. Bhardwaj, U. N. Bhandari, H. M. Singh, Ranbir Singh, S. G. Hasnain, Shamrao Samant, and HA Sekhar, for the appellant.      Ram Jethmalani,  PR Vakil,  Ms. Rani Jethmalani, Mukesh Jethmalani, OP Malviya, Shailendra Bhardwaj, Harish Jagtlani for the respondents.      The Judgment of the court was delivered by      DESAI, J.  This appeal  by special  leave  is  directed against the  decision of  a Division  Bench of  Bombay  High Court in  Criminal Revision  Application No.  510  of  1982, which was  preferred by  the appellant against the rejection of his  application by  the learned special Judge as per his order dated October 20, 1982. 921      The various stages through which Special Case No. 24 of 1982 progressed  upto and inclusive of October 18, 1982 have been set  out in  our Judgment  rendered  today  in  cognate Criminal Appeal  No. 356  of  1983  and  they  need  not  be recapitulated here.  After the learned special Judge Shri P. S. Bhutta  took cognizance  of the offences upon a complaint of Ramdas  Sriniwas Nayak,  the first  respondent  (Original complainant), the case was adjourned to October 18, 1982 for recording the  evidence of  the complainant.  On  that  day,

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learned counsel  appearing for  the appellant  in the  trial court moved  an application  questioning the jurisdiction of the court  on two  specific counts;  (i) that  the Court  of special Judge  set up  under Sec.  6  of  the  Criminal  Law Amendment Act,  1952 (’1952  Act’  for  short)  cannot  take cognizance of  any of  the offences enumerated in Sec. 6 (1) (a) and  (b) upon  a private complaint of facts constituting the offence  and (ii)  that where  there  are  more  special Judges  than   one  for  any  area,  in  the  absence  of  a specification  by  the  State  Government  in  this  behalf, specifying the  local area  over which  each  special  Judge would have  jurisdiction, the special Judge (Mr. Bhutta) had no jurisdiction  to take  cognizance of the offences and try the case.  The  learned  special  Judge  rejected  both  the contentions.   The   appellant   filed   Criminal   Revision Application No.  510 of  1982 in the Bombay High Court. On a reference made  by the  learned Single  Judge, this revision application was heard by a Division Bench of the High Court. The learned  Judges by two separate but concurring judgments held that special Judge is competent and is entitled to take cognizance of  offences set  out in  Sec. 6  (1) (a) and (b) upon a  private complaint  of facts constituting the offence and consequently  rejected the first contention. In reaching this  conclusion  the  learned  Judges  held  that  a  prior investigation under Sec. 5 A of the Prevention of Corruption Act, 1947  (’1947 Act’ for short) by a police officer of the designated rank  is not a condition precedent to the special Judge taking  cognizance of the offences under Sec. 8 (1) of 1952 Act.  The learned Judges also held that by the time the matter was  heard by them, the Government of Maharashtra had issued a  notification dated  January 15, 1983, under sub-s. (2) of  Sec. 7  of 1952  Act specifying  Shri  R.  B.  Sule, special Judge for Greater Bombay for trying Special Case No. 24 of  1982, After  taking note of this notification and the statement of  Shri P.  R. Vakil,  learned  counsel  for  the respondent, the second contention of the learned counsel for the  appellant   was  also   rejected.  The  learned  Judges accordingly  rejected  the  revision  petition.  Hence  this appeal by special leave. 922      On behalf of the appellant, the pivotal point canvassed was that  a private  complaint cannot  be entertained by the special Judge  in respect  of all  or any  of  the  offences enumerated in  Sec. 6  (1) (a)  and (b)  of the 1952 Act. In support of  this submission,  it was  very vehemently  urged that the provision contained in Sec. 5 A of the 1952 Act has been repeatedly held to be mandatory in character and if its non-compliance is  brought to  the notice  of  the  superior court at a stage anterior to the conclusion of the trial the proceeding would  be vitiated.  It was  urged that  Sec.  5A incorporates a safe guard against frivolous, speculative and tendentious prosecutions  and therefore,  it must  not  only held to  be mandatory  but it  must be  so interpreted as to make an investigation under Sec. 5A a condition precedent to the taking  of the  cognizance of  an  offence  or  offences committed by a public servant by the special Judge. A number of subsidiary  points were  submitted  in  support  of  this principal contention which need not be enumerated, but would be dealt with in the course of the judgment.      On behalf  of the  respondent-complainant it  was urged that  it  is  one  of  the  fundamental  postulates  of  the administration of  criminal justice  that anyone can set the criminal law  into motion  unless the  statute enacting  the offence makes  a special provision to the contrary both with regard to  the locus  standi of  the complainant, the manner

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and method  of investigation  and the  person  competent  to investigate the  offence, and  the court  competent to  take cognizance. It  was submitted  that  in  Sec.  8  (1)  which specifically confers  power on  the special  Judge  to  take cognizance of  an offence  without commitment of the case to it there  is nothing which would preclude a complainant from filing a  private complaint or which would deny jurisdiction of the  special Judge  to take cognizance of the offences on such a private complaint. It was submitted that even if Sec. 5A is  treated as mandatory and incorporates a safeguard, it is a  safeguard against  investigation of offences committed by a  public servant  by police  officers of  lower rank and nothing more.  It was  lastly urged  that on a comprehensive view of  the provisions  of 1952  Act, it does not transpire that any  of its  provisions and  more specifically  Sec. 5A denies the  power to the special Judge to take cognizance of offences enumerated in Sec. 6 (1) (a) and (b) upon a private complaint. It  was also  contended that before taking such a drastic view  of blocking  the access  to justice by holding that a  private  complaint  cannot  be  entertained  by  the special  Judge,  the  court  must  insist  on  specific  and positive provision  of such incontrovertible character as to supplant the  scheme of  Code of  Criminal  Procedure  which permits two 923 parallel and  independent agencies to take criminal offences to court.  An incidental submission was that the Legislature clearly  expresses   itself  when   it  requires  a  certain qualification for  filing the  complaint, and  to specify  a certain court  competent to  take cognizance  and the method and manner of taking cognizance of those specified offences. To substantiate this submission our attention was drawn to a number of statutes which we will presently mention.      The contention  put in  the forefront  was that Sec. 5A upon its  true interpretation  and keeping  in view  that it enacts a  mandatory safeguard  in favour of public servants, investigation therein  contemplated is a condition precedent to taking  cognizance of  offences enumerated  in Sec. 6 (1) (a) and (b) and as a corollary a private complaint would not lie and  cannot be entertained by a special Judge under Sec. 8 (1)  of 1952  Act.  The  contention  may  be  examined  on principle and precedent.      It  is   a  well   recognised  principle   of  criminal jurisprudence that  anyone can  set or  put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure  envisages two  parallel and  independent agencies for taking criminal offences to court. Even for the most serious  offence of  murder, it was not disputed that a private  complaint  can,  not  only  be  filed  but  can  be entertained and  proceeded  with  according  to  law.  Locus standi of  the complainant  is a concept foreign to criminal jurisprudence save and except that where the statue creating an offence  provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such  statutory provision  Numerous statutory provisions, can be referred to in support of this legal position such as (i) Sec. 187 A of Sea Customs Act, 1878 (ii) Sec. 97 of Gold Control Act,  1968 (iii) Sec. 6 of Import and Export Control Act, 1947  (iv) Sec. 271 and Sec. 279 of the Income Tax Act, 1961 (v)  Sec. 61  of the  Foreign Exchange  Regulation Act, 1973,(vi) Sec. 621 of the Companies Act, 1956 and (vii) Sec. 77  of  the  Electricity  Supply  Act.  This  list  is  only illustrative and  not exhaustive. While Sec. 190 of the Code of  Criminal   Procedure  permits  anyone  to  approach  the

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Magistrate with  a complaint,  it  does  not  prescribe  any qualification the  complainant is  required to  fulfil to be eligible to  file a  complaint.  But  where  an  eligibility criterion  for   a  complainant   is  contemplated  specific provisions have  been made  such as to be found in Secs. 195 to 199  of the  Cr. P.  C. These specific provisions clearly indicate  that   in  the   absence  of  any  such  statutory provision, a locus 924 standi of  a complainant  is a  concept foreign  to criminal jurisprudence. In other words, the principle that anyone can set or  put the criminal law in motion remains intact unless contra-indicated by  a  statutory  provision.  This  general principle of  nearly universal  application is  founded on a policy that  an offence  i.  e.  an  act  or  omission  made punishable by  any law for the time being in force (See Sec. 2 (n),  Cr. P.  C.) is  not merely  an offence  committed in relation to  the person  who suffers  harm but  is  also  an offence against  society. The  society for  its orderly  and peaceful development  is interested in the punishment of the offender. Therefore,  prosecution for  serious  offences  is undertaken in  the name of the State representing the people which would  exclude any  element  of  private  vendatta  or vengeance. If  such is  the public  policy underlying  penal statutes who  brings an  act or  omission made punishable by law to  the notice  of the  authority competent to deal with it,  is   immaterial  and   irrelevant  unless  the  statute indicates to the contrary. Punishment of the offender in the interest of  the society  being one  of the  objects  behind penal statutes enacted for larger good of the society, right to   initiate   proceedings   cannot   be   whittled   down, circumscribed or  fettered by  putting it  into  a  straight jacket  formula   of  locus   standi  unknown   to  criminal jurisprudence, save and except specific statutory exception. To hold  that  such  an  exception  exists  that  a  private complaint for  offences of  corruption committed  by  public servant is  not maintainable,  the court  would  require  an unambiguous  statutory   provision  and  a  tangled  web  of argument for  drawing a far fetched implication, cannot be a substitute for an express statutory provision. In the matter of initiation  of proceeding  before a  special Judge  under Sec. 8  (1), the  Legislature while conferring power to take cognizance had  three opportunities  to unambiguously  state its mind  whether the  cognizance can  be taken on a private complaint or  not. The  first  one  was  an  opportunity  to provide in  Sec. 8  (1) itself  by merely  stating that  the special Judge  may take cognizance of an offence on a police report  submitted   to  it   by  an   investigating  officer conducting investigation  as contemplated  by Sec. 5A. While providing for investigation by designated police officers of superior rank,  the Legislature  did not fetter the power of special Judge  to take cognizance in a manner otherwise than on police  report. The second opportunity was when by Sec. 8 (3) a  status of a deemed public prosecutor was conferred on a  private   complainant  if   he  chooses  to  conduct  the prosecution. The Legislature being aware of a provision like the one  contained in  Sec. 225 of the Cr. P. C., could have as well  provided that in every trial before a special Judge the prosecution  shall be  conducted by a Public Prosecutor, though that 925 itself would  not have  been decisive of the matter. And the third opportunity was when the Legislature while prescribing the procedure prescribed for warrant cases to be followed by special Judge  did not  exclude by a specific provision that

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the only procedure which the special Judge can follow is the one prescribed  for trial  of  warrant  cases  on  a  police report. The  disinclination of the Legislature to so provide points to  the contrary and no canon of construction permits the court  to go in search of a hidden or implied limitation on the  power  of  the  special  Judge  to  take  cognizance unfettered by such requirement of its being done on a police report alone. In our opinion, it is no answer to this fairly well-established legal  position that  for the last 32 years no case  has come  to the  notice  of  the  court  in  which cognizance was  taken  by  a  special  Judge  in  a  private complaint for  offences punishable  under the  1947 Act.  If something that  did not happen in the past is to be the sole reliable guide so as to deny any such thing happening in the future, law  would be  rendered static  and  slowly  whither away.      The  scheme   underlying  Code  of  Criminal  Procedure clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge  of a Police Station. If the offence complained of is a  non-cognizable one,  the  Police  Officer  can  either direct the  complainant to approach the Magistrate or he may obtain permission  of the  Magistrate  and  investigate  the offence. Similarly anyone can approach the Magistrate with a complaint and  even if  the offence  disclosed is  a serious one, the  Magistrate is  competent to take cognizance of the offence  and   initiate  proceedings.  It  is  open  to  the Magistrate  but   not  obligatory   upon   him   to   direct investigation by  police. Thus two agencies have been set up for taking offences to court. One would therefore, require a cogent and explicit provision to hold that Sec. 5A displaces this scheme.      The Prevention  of Corruption Act, 1947 (’1947 Act’ for short) was put on the statute book in the year 1947. Sec. 5A did not  form part of the statute in 1947. Sec. 5A was first introduced in  the Act in the year 1952. Prior thereto, Sec. 3 of  the 1947  Act which  made the offences under Secs. 161 and 165  IPC cognizable  had a proviso engrafted to it which precluded investigation of the offences under the Prevention of Corruption  Act by  a police  officer below  the rank  of Deputy Superintendent  of Police except without the order of a Magistrate  of the  first class.  There was  an  identical provision in sub-s. (4) of Sec. 5 for investigation of 926 the  offence   of  criminal  misconduct.  Sec.  5A  makes  a provision for  investigation by  police officers  of  higher rank. Sec.  5A  starts  with  a  non-obstante  clause  that: ’Notwithstanding anything  contained in the Code of Criminal Procedure, 1898,  no police  officer  below  the  rank...  ’ Assuming that  Sec 5A  did not make it obligatory to conduct investigation by  police officer  of a  certain  rank,  what would have been the position in law.      Chapter XII  of the  Code of  Criminal Procedure,  1973 bears the  heading ’Information  to  the  police  and  their powers to investigate.’ Sec. 154 provides for information to police in  cognizable cases.  It casts a duty on the officer in charge  of a  police station  to reduce  to writing every information relating  to commission  of a cognizable offence given to him and the same will be read over to the informant and the  same shall  be signed  by the  informant and a copy thereof shall  be given  to him.  If information given to an officer in  charge of  a Police  Station  disclosed  a  non- cognizable offence,  he has  to enter  the substance  of the information in  a book  to be  kept by  such officer in such form as  the State  Government may  prescribe in this behalf

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and to  refer the  informant to the Magistrate (Sec. 155 (1) Sub-s. (2)  puts an  embargo on  the  power  of  the  police officer in  charge of  the police  station to  investigate a non-cognizable offence  without the  order of  a  Magistrate having power  to try  the case or commit the case for trial. Sec. 156  sets out  the powers  of the  officer in charge of police station  to investigate  cognizable cases. Sub-s. (2) of Sec. 156 may be noticed. It says that ’no proceeding of a police officer in any such case shall at any stage be called in question  on the  ground that the case was one which such officer was  not empowered under the section to investigated Sub-s. (3)  confers power  on the Magistrate empowered under Sec. 190  to take  cognizance of  an offence,  to  order  an investigation as  set out in sub-ss.(1) and (2) of Sec. 156. Sec 167  enables the  Magistrate to  remand the  accused  to Police custody  in the circumstances therein mentioned. Sec. 173 provides  that ’every  investigation under  Chapter  XII shall be  completed without unnecessary delay and as soon as it is completed, the officer in charge of the police station shall forward  to a  Magistrate empowered to take cognizance of the  offence on  a police  report, a  report in  the form prescribed by  the State  Government,  setting  out  various things enumerated  in the  section. Sub-s.  (8) of  Sec. 173 provides that despite submission of the report on completion of the investigation, further investigation can be conducted in respect  of the  same offence  and  further  evidence  so collected has  to be  forwarded to  the same Magistrate. The report 927 of this  further investigation  shall by  and large  conform with the   requirements of sub-ss. (2) to (6). Fasciculus of sections in  Chapter XIV prescribed conditions requisite for initiation of proceedings. Sec. 190 provides that subject to the provisions  of the  Chapter, any Magistrate of the first class, and  any Magistrate  of the  second  class  specially empowered in  this  behalf  under  sub-sec.  (2),  may  take cognizance of  any offence-(a) upon receiving a complaint of facts which  constitute such  offence;  (b)  upon  a  police report of such facts; and (c) upon information received from any person  other than  a police  officer, or  upon his  own knowledge, that  such offence  has been  committed. Sec. 191 obliges the  Magistrate  when  he  takes  cognizance  of  an offence under  clause (c)  of sub-sec.  (1) of  Sec. 190, to inform the  accused when  he appears  before him, that he is entitled to  have the case inquired into or tried by another Magistrate, Sec.  193 provides  that  ’except  as  otherwise expressly provided  in the  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 the Code’      Cognizable offence  has been  defined in  Sec. 2 (c) of the Cr. P. C. to mean ’an offence for which, and "cognizable case" means  a case  in which,  a  police  officer  may,  in accordance with  the First Schedule or under any law for the time being  in force,  arrest without warrant.’ Complaint is defined in Sec. 2 (d) to mean ’any allegation made orally or in writing to a Magistrate, with a view to his taking action under the  Code, that some person, whether known or unknown, has committed  an offence,  but does  not include  a  police report.’ There  is an  explanation appended  to the  section which has some relevance. ’A report made by a police officer in  a   case  which   disclosed,  after  investigation,  the commission of a non-cognizable offence shall be deemed to be a complaint;  and the  police officer by whom such report is

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made shall  be deemed  to be  the complainant.’  Sec. 2  (e) defines ’non-cognizable  offence’ to  mean ’an  offence  for which’ and  "non-cognizable" case  means a  case in which, a police officer, has no authority to arrest without warrant.’ Police report  is defined  in Sec.  2 (r)  to mean ’a report forwarded by a police officer to a Magistrate under sub-sec. (2) of  Sec. 173.’  ’Officer in  charge of a police station’ has been defined in Sec. 2 (o) to include any police officer present at  the station  house who  is next  in rank to such officer and  is above  the rank  of constable  or, when  the State Government  so directs,  any other  police officer  so present.’ 928 In other  words, a Head-constable of Police that is one step higher from  a constable  can  be  in  charge  of  a  police station.      It may  now be mentioned that offences under Secs. 161, 162, 163,  164, 165, 165A IPC and Sec. 5 (2) of the 1947 Act are cognizable  offences. If  they are  cognizable offences, anyone can  go to  a police station under Sec. 154 IPC, give information of  the offence and an officer of the level of a Head-constable of  Police can  start  investigation  to  the chagrin and  annoyance of  a public  servant who  may  be  a highly placed  officer. It  must also be recalled that prior to 1947,  offence under  Sec. 161  IPC was  a non-cognizable offence meaning  thereby that a Magistrate under Sec. 190 of the Code  of Criminal Procedure would take cognizance upon a private complaint  and initiate  a proceeding.  By Sec. 3 of the 1947  Act, offences  under Sec.  161 and  165 were  made cognizable. Legislature  being aware  that  once  these  two offences are  made cognizable,  a police officer of the rank of   Head-constable    would   be   entitled   to   initiate investigation against  the public servant who may as well be highly placed  officer in police, revenue, taxation or other departments.  In  order  to  guard  against  this  invidious situation, while  making offences  under Secs.  161 and  165 cognizable by Sec. 3, as it stood in 1947, care was taken to introduce a proviso to Sec. 3 which reads as under:           "Provided that  a police officer below the rank of      Deputy Superintendent  of Police  shall not investigate      any such  offences without the order of a Magistrate of      the First  Class or  make any arrest therefor without a      warrant."      While   investigating   a   cognizable   offence,   the investigating officer  who is  an officer  in  charge  of  a police station  has a  right to arrest the accused without a warrant. On  these offences  being made cognizable, in order to protect  public servant  from being  arrested by  a petty police officer  as well to avoid investigation of an offence of corruption  being conducted  by police officers below the specified rank the proviso was enacted thereby depriving low level police  officers from  exercising this  drastic power. However, Legislature  was aware that an officer of a rank of Deputy Superintendent  of Police may not always be available and to  guard against  offences going, undetected, a further power was  conferred that although ordinarily the offence by public servant  under the  aforementioned sections shall not be investigated by an officer below the rank of 929 Deputy Superintendent of Police, the Magistrate of the first class can  grant permission  to an officer of the lower rank to  investigate   the  offence  in  teeth  of  the  statute. Therefore, two  safeguards were sought to be incorporated in the predecessor  provision of the present Sec. 5A, being the proviso to  Sec. 3,  namely, these  offences  having  become

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cognizable shall not be investigated by an officer of a rank below that  of a  Deputy Superintendent  of Police but it if becomes so necessary, it shall not be done without the order of  a  Magistrate  of  the  first  class.  Left  to  police, investigation by  the designated  officer of  superior  rank guaranteed a  protection against frivolous investigation. In larger  public  interest  non-availability  of  such  higher officers  was   catered  to   by  conferring  power  on  the Magistrate of  the first  class to  grant permission  to  an officer of  the rank  lower than  the designated  officer to investigate such  offences. Two conclusions emerge from this situation, that  investigation by  a police  officer of  the higher rank  on his  own  may  tend  to  curb  frivolous  or speculative prosecution  but even  if an  officer of  a rank lower than  the  designated  officer  is  to  undertake  the investigation for  the reasons  which he  must convince  the Magistrate of  the first  class, the  Legislature considered courts’   intervention   as   adequate   safeguard   against investigation by  police officer  of a lower rank. It may be mentioned  that   Sec.  5A   was  first  introduced  by  the Prevention of  Corruption (Second  Amendment) Act,  1952 but was substituted  by the  present Sec  5A by  Act 40  of 1964 which was  enacted to  give effect to the recommendations of the Santhanam  Committee. Sec.  5A specifies the officers of superior  rank   in  police  force  on  whom  the  power  to investigate offences under Secs. 161, 165, 165A IPC and Sec. 5 of  the 1947  Act is  conferred. Simultaneously  power was conferred on  the Presidency  Magistrate or  a Magistrate of the first  class, as  the case  may be, to permit an officer inferior in  rank to  the designated  officer  to  undertake investigation and  to make  an arrest without a warrant. The Legislative intention  is further  manifested by the proviso to Sec.  5A which  enables the State Government to authorise police officer  not below the rank of an Inspector of Police by   general   or   special   order   to   investigate   the aforementioned offences  without the order of the Presidency Magistrate or  a Magistrate of the first class, and may make an arrest without a warrant. Again while specifying officers of higher  rank in  clauses (a)  to (d)  of Sec.  5A (1) who would, by  virtue of  office, be entitled to investigate the aforementioned offences  as cognizable  offences  and  could also make  arrest without warrant power was conferred on the Presidency Magistrate  or the  Magistrate of the first class to remove this umbrella of protection by giving an authority to investigate such offences 930 to a  police officer  of rank  lower than  the  officers  of designated rank, and the proviso makes a further dent in the safeguard in that the State Government by general or special order can  bring down  the designated  rank to  the level of Inspector of Police to investigate these offences.      The whole gamut of argument is that Sec. 5A of 1947 Act incorporates such  a safeguard in favour of the accused that upon its  true interpretation  it is not open to the special Judge to  take cognizance of an offence except upon a police report that  may be  submitted by officers of the designated rank or  officers authorised by the Presidency Magistrate or the Magistrate of the first class or the Inspector of Police authorised by  the State  Government by a general or special order, and  therefore a fortiori, it must exclude cognizance being taken  by the  special Judge  upon a private complaint because that  would completely render illusory the safeguard prescribed in  Sec. 5A.  It was  said that where a person is threatened with  the deprivation  of  his  liberty  and  the procedure prescribed  incorporates statutory safeguards, the

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court should  be very  slow to  dilute or  do away  with the safeguards or  render the same ineffective. It was said that if the  courts were  to hold that a private complaint can be entertained by  the special Judge and the latter is under no obligation to direct investigation of the same by an officer of the  designated rank,  the safeguard incorporated in Sec. 5A becomes illusory and that is impermissible.      Before we  proceed further, it is now necessary to take notice of  salient provisions  of the Criminal Law Amendment Act, 1952.  The Act  was enacted  as its long title shows to amend the  Indian  Penal  Code  and  the  Code  of  Criminal Procedure, 1898  and to  provide for  a more speedy trial of certain offences.  Sec. 1A is the dictionary clause. Sec. 2, 3, 4  and 5  have been  repealed by various amendments. Then comes Sec. 6. It reads as under:           "6. (1)  The State Government may, by notification      in the official Gazette, appoint as many special Judges      as may  be necessary  for such  area as areas as may be      specified in  the notification  to  try  the  following      offences, namely:-           (a) an  offence punishable  under Sec.  161,  Sec.      162, Sec.  163, Sec. 164, Sec. 165 or Sec. 165-A of the      Indian Penal  Code or  Sec.  5  of  the  Prevention  of      Corruption Act, 1947. 931           (b) any  conspiracy to  commit or  any attempt  to      commit or any abetment of any of the offences specified      in Cl. (a).           (2)  A   person  shall   not  be   qualified   for      appointment as  special Judge  under this Act unless he      is, or  has been,  a Sessions  Judge or  an  Additional      Sessions Judge or an Assistant Sessions Judge under the      Code of Criminal Procedure, 1898."      Sec.7 confers  exclusive jurisdiction  on  the  special Judge appointed  under Sec.  6 to  try the  cases set out in Sec. 6  (1) (a)  and 6  (1) (b).  Sub-sec.  (2)  of  Sec.  7 provides that "Every offence specified in sub-section (1) of Sec.6 shall  be tried  by the  special Judge  for  the  area within which  it was  committed, or  where  there  are  more special Judges  than one  for such area, by such one of them as may be specified in this behalf by the State Government." Subsec. (3)  enlarges the  jurisdiction of the special Judge not only  to try  offences set out in Sec. 6 (1) (a) and (b) but also  to try offences other than those mentioned therein with which  the accused  may, under  the  Code  of  Criminal Procedure, be charged at the same trial. Three things emerge from Sec. 7. The special Judge has exclusive jurisdiction to try offences  enumerated in  Sec. 6  (1) (a)  and (b). Where there are more than one special Judge for the same area, the State Government is under an obligation to specify the local jurisdiction of  each special Judge, it may be case-wise, it may be  area-wise. Sub-sec. (3) enlarges the jurisdiction to try other  offences which  have been committed in the course of the  same transaction  and for which the accused could be charged at  the same  trial. Then  comes Sec. 8. It reads as under:           "8 (1):  A special  Judge may  take cognizance  of      offences without the accused being committed to him for      trial, and  in trying the accused persons, shall follow      the  procedure  prescribed  by  the  Code  of  Criminal      Procedure, 1898,  for the  trial of  warrant  cases  by      Magistrates.           (2) A  special Judge may, with a view to obtaining      the evidence  of  any  person  supposed  to  have  been      directly or  indirectly concerned  in, or  privy to, an

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    offence, tender a pardon to such person on condition of      his making  a full  and true  disclosure of  the  whole      circumstances within  his  knowledge  relating  to  the      offence and to every other person concerned, whether as      principal or abettor, in the commis- 932      sion thereof; and any pardon so tendered shall, for the      purposes of  Secs. 339 and 339A of the Code of Criminal      Procedure, 1898,  be deemed to have been tendered under      Sec. 338 of that Code.           (2) Save  as provided  in sub-section  (1) or sub-      section (2),  the provisions  of the  Code of  Criminal      Procedure,  1898,   shall,  so  far  as  they  are  not      consistent with  this Act,  apply  to  the  proceedings      before a  special Judge;  and for  the purposes  of the      said provisions,  the Court of the special Judges shall      be deemed  to be  a Court  of Session trying cases with      out a  jury or  without the  aid of  assessors and  the      person conducting  a prosecution before a special Judge      shall be deemed to be a public prosecutor.           (3A) In  particular, and  without prejudice to the      generality of  the provisions  contained in sub-section      (3), the  provisions of the Code of Criminal Procedure,      1898 shall,  so far as may be, apply to the proceedings      before a  special Judge,  and for  the purposes  of the      said provisions,  a special Judge shall be deemed to be      a Magistrate.           (4) A  special Judge  may  pass  upon  any  person      convicted by him any sentence authorised by law for the      punishment of  the offence  of  which  such  person  is      convicted."      It may  be mentioned  that Sec. 8 does not apply to the State of  West  Bengal.  This  has  some  relevance  to  the understanding of  some  of  the  decisions  bearing  on  the subject arising  from the  State  of  West  Bengal.  Sec.  9 provides for  the subordination  of the special Judge to the High Court  of the  State in  the matter of appeal, revision and other  incidental powers  which the High Court exercises over subordinate  courts. Sec.  10 provided  for transfer of certain cases, which were pending at the commencement of the 1952 Act.      Before we  undertake  a  detailed  examination  of  the submission that  Sec. 5A  incorporates a condition precedent to the  taking of  the cognizance of an offence by a special Judge, it  is necessary  to state with clarity and precision that Sec.  8 (1) which confers power on the special Judge to take cognizance  of offences  set out  in Sec. 6 (1) (a) and (b)  does  not  directly  or  indirectly,  expressly  or  by necessary implication  indicate  that  the  only  method  of taking cognizance is the police report under Sec. 173 (2) of the Code of Crimi- 933 nal  Procedure   submitted  by   a  police  officer  of  the designated rank  or permissible rank as set out in Secs. 5A. It merely  says ’A  special Judge  may  take  cognizance  of offences without  the accused  being committed  to  him  for trial, and  in trying  the accused  person, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 for the  trial of warrant cases by Magistrates.’ The Code of Criminal Procedure  has prescribed  four  known  methods  of taking cognizance of offences by the courts competent to try the same.  The court  has to  take cognizance of the offence before initiation  of the proceeding can be contemplated The court called  upon to  take cognizance  of the  offence must apply its  mind to  the facts placed before it either upon a

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police report  or upon  a complaint  or in some other manner the court  came to know about it and in the case of Court of Sessions upon commitment of the case by the Magistrate.      Sec. 6  of the  Code of Criminal Procedure provides for setting up  of criminal courts under the High Court in every State.  They  are  (i)  Courts  of  Session:  (ii)  Judicial Magistrates of  the first  class and,  in  any  metropolitan area, Metropolitan Magistrate, (iii) Judicial Magistrates of the second  class, and (iv) Executive Magistrates. These are to be  the criminal  courts in  every State.  The Code  made detailed provision for powers of police officers entitled to investigate offences,  procedure of investigation, powers of various courts  to take  cognizance of  offences which  that particular court is entitled to try under the Code. Sec. 190 Cr. P. C. confers power on the Magistrate to take cognizance of an  offence in one of the manners therein prescribed. The expression ‘Magistrate’  in Sec.  190 is  a compendious term which includes  Judicial  Magistrate  of  the  first  class, Metropolitan Magistrate,  Judicial Magistrate  of the second class  and   Executive  Magistrate,   All  the   three   are comprehended in Sec. 190. But then there is another court of original jurisdiction,  namely, Court  of Session also being set up  under Sec.  6. Can  Court of Session take cognizance directly upon  a complaint  filed before  it ? The answer is obviously in  the negative. Sec. 193 provides that except as otherwise expressly provided by the 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. In  other  words,  Court  of  Session  can  take cognizance of  an offence  only upon  an order of commitment made  by  the  Magistrate  and  in  no  other  manner.  This necessitated conferring  power on  the Magistrate  to commit cases to the Court of Session. Code of Criminal Procedure 934 makes ample provisions specifying offences which are triable by  Magistrate   of  the   first  class   and   Metropolitan Magistrate, those  triable by  a Judicial  Magistrate of the second class  and those  exclusively triable by the Court of Session. Column  6 in the First Schedule annexed to the Code of Criminal  Procedure  specifies  which  court  can  try  a particular offence under the Indian Penal Code. Accordingly, provision was  made  in  Sec.  209  for  commitment  by  the Magistrate of  a case  brought to  him either upon a private complaint or  upon a police report provided that the offence is exclusively  triable by  the Court  of  Session.  If  the Magistrate took  cognizance of  an offence upon a complaint, which appears  to be exclusively triable by Court of Session he has  to proceed  according to  Sections 202  (2), 208 and 209.  Chapter   XVIII  incorporates  provisions  prescribing procedure for  the trial before a Court of Session. Sec. 226 says that  the case  comes to  the Court  in pursuance  of a commitment of  the case under Sec. 209. Sec. 209 caters to a situation  where   the  case   was  instituted   before  the Magistrate on  a police  report or  otherwise. In  both  the cases, if  it appears  to him  that  the  offence  which  is alleged against  the accused  is exclusively  triable by the Court of  Session there  is no option but to commit the case to the  Court of  Session. The  Court of  Session thus takes cognizance of the offence upon commitment by the Magistrate. And any  other mode  of taking  cognizance  is  specifically barred under Sec. 193.      Sec. 4  of the  Code of  Criminal Procedure provides as under:           "4 (1)-All  offences under  the Indian  Penal Code

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    shall  be   investigated,  inquired  into,  tried,  and      otherwise  dealt   with  according  to  the  provisions      hereinafter contained.           (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."      Sec. 4 (1) provides for investigation, inquiry or trial for every  offence under  the Indian Penal Code according to the provisions of the Code. Sec. 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 935 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.      Now the Code of Criminal Procedure prescribed only four methods of  taking cognizance  of an offence whether it be a Magistrate or  a  Sessions  Court  is  for  the  time  being immaterial. The  Code prescribes  four  methods  for  taking cognizance upon  a complaint, or upon a report of the police officer or where the Magistrate himself comes to know of the commission of  offence through  some other source and in the case of  Sessions Court upon a commitment by the Magistrate. There is  no  other  known  or  recognised  mode  of  taking cognizance of  an offence  by a criminal court. Now if Court of special  Judge is a criminal court, which atleast was not disputed, and  jurisdiction is  conferred upon the presiding officer of  the Court of special Judge to take cognizance of offences simultaneously excluding one of the four recognised modes of  taking cognizance,  namely, upon  commitment by  a Magistrate as  set out  in Sec 193, the only other method by which the  Court of  special Judge can take cognizance of an offence for  the trial of which it was set up, is any one of the remaining  three other  methods known  to law by which a criminal court  would take  cognizance of an offence, not as an idle  formality but with a view to initiating proceedings and ultimately  to try the accused. If the language employed in Sec.  8 (1)  is read in this light and in this background that a  special Judge may take cognizance of offence without the accused being committed to him for trial, it necessarily implies that  the Court of special Judge is armed with power to take  cognizance of  offences but  that it  is denied the power to  take cognizance  on commitment  by the Magistrate. This excludes  the mode of taking cognizance under Sec. 193. Then remains only Sec. 190 which provides various methods of taking cognizance  of offences  by courts. It is idle to say that Sec. 190 is confined to Magistrate and special Judge is not a  Magistrate. We  shall deal  with the  position  of  a special Judge  a little later. The fact however remains that the Court  of the special Judge as the expression is used in sub-sec. (3) of Sec. 8 is a criminal court and in view of 936

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Sec. 9  it is under the appellate and administrative control of the  High Court. It must take cognizance of offences with a view  to trying  the same  but it  shall not  take  it  on commitment of  the accused  to the  court.  As  a  necessary corollary, it  must appear  that the  special Judge can take cognizance of  offences enumerated  in Sec. 6 (1)(a) and (b) upon a  complaint or upon a police report or upon his coming to know in some manner of the offence having been committed. With regard  to the  last of the modes of taking cognizance, it was  urged that  there is  inherent evidence to show that Sec.190 (1)(c)  cannot  be  availed  off  by  special  Judge because Sec.  191 is  not available to him so as to transfer the case.  A little while later, we shall point out that the provisions of  the Court of special Judge in such manner and to such  extent as  to retain  the separate  identity of the Court of  special Judge and not that he must either fulfil a role of a Magistrate or a Session Court.      It is a well-established canon of construction that the court should read the section as it is and cannot rewrite it to suit  its convenience; nor does any canon of construction permit the  court to  read the  section in such manner as to render it  to some  extent otiose.  Sec. 8 (1) says that the special Judge  shall take cognizance of an offence and shall not take  it on  commitment of  the accused. The Legislature provided  for   both  the  positive  and  the  negative.  It positively  conferred   power  on   special  Judge  to  take cognizance of offences and it negatively removed any concept of commitment.  It is not possible therefore, to read Sec. 8 (1) as  eanvassed on behalf of the appellant that cognizance can only  be taken  upon a  police report and any other view will render the safeguard under Sec. 5A illusory.      It  appears   well-established  that  an  investigation contemplated by Sec. 5A must ordinarily be undertaken by the police officers  of the  designated rank and except with the permission of  the Magistrate  bars investigation  by police officers of  lower rank.  It may  be that  in a  given  case permission granted  by the Magistrate for investigation by a police officer  of a rank lower than the designated rank may be judicially  reviewable. If  in cases where any illegality or irregularity  in the  process of investigation under Sec. 5A has  been brought  to the notice of the court at an early stage, a  direction has been given for a fresh investigation by a  police officer  of the  designated rank.  But this  is subject to  a well  recognised legal position that the court would not  attach any  importance to  any illegality  in the matter  of  investigation  if  it  is  relied  upon  at  the conclusion of  a trial  in the  absence of prejudice pleaded and proved. The question is whether 937 these aspects  are sufficient to provide an exception to the well recognised  general principle  apart from  the specific power conferred  under Sec.  8(1) of  the 1952  Act  on  the special Judge  to take  cognizance of the offences, the only exception being not upon a commitment to him that anyone can set the criminal law into motion ?      Let us  therefore, turn  to some  of the  decisions  to which our attention was drawn to substantiate the submission that Sec.  5A incorporates  a safeguard  in  favour  of  the accused. In  fact, it  is really  not necessary  to  analyse these decisions  in detail to arrive at the ratio of each of them  because  it  is  not  controverted  that  Sec.5A  does incorporate a  safeguard but the parameters of the safeguard are against investigation by police officers of fairly lower rank once  the offences enumerated in Sec. 6 (1) (a) and (b) were made  cognizable. The  limit of  the safeguard  is that

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ordinarily  investigation   of  such   offences   shall   be undertaken only  by officers of the designated rank save and except with  the permission  of the Magistrate or as per the first proviso  to Sec.  5A The  submission is  that upon its true  evaluation,   the  safeguard  clearly  points  in  the direction of  a prior investigation before cognizance of the offences can  be taken  by the  special Judge  and any other view would  dilute the  safeguard or  render it illusory. It was also  submitted  that  if  defective  investigation  can vitiate the  proceedings a fortiori the total absence of and investigation whatsoever  as contemplated  by Sec. 5A, which would be the position if a private complaint can be directly entertained by the special Judge, would of necessity vitiate the proceeding.      The sheet  anchor of the supmission was the decision of this Court  in M.N.  Rishbud &  Inder Singh  v. The State of Delhi.(’) In  that case  the question posed was  whether the provision Sec.  5A  of  the  1947  Act  requiring  that  the investigation into  the offences specified therein shall not be conducted  by any  police officer  of a rank lower than a Deputy Superintendent  of Police  without the specific order of a  Magistrate, is  directory or  mandatory  ?  The  Court rendered the  opinion that  Sec. 5A  is  mandatory  and  not directory, and  that an investigation conducted in violation thereof bears  the stamp  of  illegality.  Thus  so  far  as investigation  of  a  case  is  concerned,  this  Court  has recorded a  definite opinion  that investigation by a police officer in  contravention of the provision contained in Sec. 5A bears the stamp of illegality. What is the effect of this 938 illegality on  the outcome  of a  concluded trial  does  not arise  for   our  consideration   but  there   are   certain observations which  were relied  upon to  urge that  a prior investigation under  Sec. 5A  being held to be mandatory and as a  special Judge can take cognizance of an offence upon a police report  submitted at  the end  of a  valid and  legal investigation in  consonance  with  Sec.  5A,  by  necessary implication, taking  cognizance of  an offence  by a special Judge under  Sec. 8(1)  of 1952 Act upon a private complaint is excluded.  We must  frankly say  that we  find nothing in this judgment even remotely to bear out the submission. Sec. 5A is  a safeguard  against investigation by police officers lower in  rank than  designated officers. In this connection at page 1159, the Court has observed as under:           "The underlying policy in making these offences by      public  servants  non-cognizable  appears  to  be  that      public servants  who have to discharge their functions-      often enough  in difficult  circumstances-should not be      exposed to the harassment of investigation against them      on information  levelled, possibly, by persons affected      by  their   official  acts,   unless  a  Magistrate  is      satisfied that  an investigation  is called for, and on      such satisfaction authorises the same. This is meant to      ensure  the   diligent  discharge   of  their  official      functions by  public servants,  without fear or favour.      When, therefore,  the Legislature thought fit to remove      the protection  from the  public servants, in so far as      it relates  to the  investigation of  the  offences  of      corruption  comprised   in  the  Act,  by  making  then      cognizable it  was considered  necessary to  provide  a      substituted  safeguard   from   undue   harassment   by      requiring that  the investigation  is to  be  conducted      normally by  a police  officer of  a designated  higher      rank."      This observation  will leave no room for doubt that the

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safeguard  incorporated   in  Sec.   5A   is   one   against investigation by  police officer  of a  rank lower  than the designated  rank   and  that   the  Magistrate   con  permit investigation by  police  officer  of  lower  rank.  It  was however, urged  that the  three  vital  stages  relevant  to initiation of  proceedings in respect of offences enumerated in Sec.  6(1) (a)  and (b)  have been  clearly delineated in this judgment  when at  page 1162  it  is  observed;  ’trial follows   cognizance   and   cognizance   is   preceded   by investigation.’ This  is the  basic scheme  of the  Code  in respect of cognizable offences but that too where in respect of a cognizable offence, the informant approaches an officer in charge 939 of a  police station.  When in  the  case  of  a  cognizable offence, a  police officer  on receipt  of information of an offence  proceeds   under  Chapter   XII,  he   starts  with investigation and then submits his report, called the police report, upon which cognizance is taken, and then follows the trial. And these three stages in that chronology are set out with regard to an investigation by an officer in charge of a police station  or a  police officer entitled to investigate any particular  offence. This  sentence cannot  be  read  in isolation or  torn out of the context to lend support to the submission that  in no  case cognizance can be taken without prior  investigation  under  Sec.  5A.  In  fact  the  Court proceeded to  make it  abundantly clear  that ’a  defect  or illegality in  investigation however  serious, has no direct bearing on  the competence  or  the  procedure  relating  to cognizance or  trial.’ The Court examined the scheme of Secs 190, 193  and 195  to 199  of the Code of Criminal Procedure and observed:  that ’the  language of  Sec. 190 is in marked contrast with  that of the other sections of the group under the same  heading i.e.  Sections 193  and 195  to 199. These latter sections regulate the competence of the Court and bar its jurisdiction  in certain  cases excepting  in compliance therewith, Section  190 does  not.’ The  Court concluded  by observing ’that where the cognizance of the case has in fact been taken  and the  case has  proceeded to termination, the invalidity of  the precedent  investigation does not vitiate the result,  unless miscarriage  of justice  has been caused thereby.’ Having  minutely read  this judgment on which firm reliance was  placed on  behalf of  the appellant,  we  find nothing  in   it  to   come  to   the  conclusion   that  an investigation under  Sec. 5A is a condition precedent before cognizance can  be taken  of  offences  triable  by  special Judge. Reliance  next was  placed upon  the decision of this Court in The State of Madhya Pradesh v. Mubarak Ali (’) This Court held  that Sec  5A was  inserted in  the 1952  Act  to protect  the   public  servants   against   harassment   and victimization. If  it was in the interest of the public that corruption should  be eradicated,  it  was  equally  in  the interest of the public that honest public servants should be able to  discharge their  duties free  from false, frivolous and malicious  accusations. To achieve this object, Sections 5A and  6 introduced  the following  two safeguards;  (1) no police  officer  below  the  rank  of  a  designated  police officer, shall investigate any offence punishable under Sec. 161, Sec. 165 or Sec. 165A of the Indian Penal Code or under sub-Sec. (2) of Sec. 5A of the 1947 Act without the order of a  Presidency   Magistrate  and  (2)  no  court  shall  take cognizance of offences hereinabove enumerated 940 except  with  the  previous  sanction,  of  the  appropriate Government. The  Court held  that these statutory safeguards

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must be  complied with,  for they  were conceived  in public interest and  were provided as a guarantee against frivolous and vexatious  prosecutions. The Court further observed that the Legislature  was prepared  to believe  an officer  of an assured status  implicity, and  it prescribed  an additional guarantee that  in the  case of  police officers  below  the rank, the  previous order  of a  Presidency Magistrate  or a Magistrate of  the first  class as  the case  may be.  Comes thereafter a  pertinent observation  ’that the  Magistrate’s status   gives   assurance   to   the   bonafides   of   the investigation. ’This  would  rather  show  that  Legislature while on the one hand conferred power on the police officers of  the   designated  rank   to  take  upon  themselves  the investigation of  offences committed  by public servants, it considered  intervention  of  the  Magistrate  as  the  real safeguard when investigation was permitted by officers lower in rank  then the  designated officers.  In other words, the Court was  a safeguard  and it  ought to  be so  because the judicially trained  mind is  any day a better safeguard then any police officer or any rank. In State of Uttar Pradesh v. Bhagwant Kishore  Joshi the  observation  of  the  Court  in Mubarak Ali’s  case was  affirmed. In  S.N. Bose v. State of Bihar.(2) this  Court held  that the order of the Magistrate giving permission  to the Inspector of Police to investigate the case  did not  give any  reasons and  there was  thus  a violation of  Sec. 5A.  Yet this illegality committed in the course of  an investigation  does not  affect the competence and jurisdiction of the court for trial and where cognizance of the  case has  in  fact  been  taken  and  the  case  has proceeded to  termination the  invalidity of  the  preceding investigation  does   not  vitiate  the  result  unless  the miscarriage of  justice has  been  caused  thereby,  and  in reaching this  conclusion reliance was placed on the case of M.N. Rishbud  In P.  Sirajuddin  etc.  v.  State  of  Madras etc.(3) it  was held that’ the Code of Criminal Procedure is an  enactment   designed  inter   alia  to   ensure  a  fair investigation of  the allegations  against a  person charged with criminal  misconduct. This is undeniable but has hardly any relevance. Some guidance is given to the enquiry officer and the  means to  be adopted  in investigation of offences. This has no bearing on the issue under discussion. Reference was also  made to Union of India v. Mahesh Chandra Sharma(4) which does  not advance  the case  at all.  Having carefully examined 941 these judgments  in the  light of  the submissions made, the only conclusion  that unquestionably emerges is that Sec. 5A is a  safeguard against  investigation of offences committed by public  servants, by  petty or lower rank police officer. It has  nothing to  do directly  or indirectly with the mode and method  of taking cognizance of offences by the court of special Judge. It also follows as a necessary corollary that provision of  Sec.  5A  is  not  a  condition  precedent  to initiation of  proceedings  before  the  special  Judge  who acquires  power  under  Sec.  8(1)  to  take  cognizance  of offences enumerated  in Sec.  6(1) (a)  and (b),  with  this limitation alone that is shall not be upon commitment to him by the Magistrate.      Once the  contention on  behalf of  the appellant  that investigation under  Sec. 5A is a condition precedent to the initiation  of   proceedings  before  a  special  Judge  and therefore cognizance  of an  offence cannot  be taken except upon a  police report,  does not  commend to  us and  has no foundation in  law, it  is unnecessary  to refer to the long line of decisions commencing from Taylor v Taylor, (1) Nazir

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Ahamad v.  King Emperor (2) and ending with Chettiam Veettil Ahmad and Anr. v. Taluk Land Board and Ors., (3) laying down hitherto uncontroverted legal principle that where a statute requires to  do a  certain thing in a certain way, the thing must be  done in  that way  or not  at all  Other methods of performance are necessarily forbidden.      Once Sec.  5A is out of the way in the matter of taking cognizance of  offences committed  by public  servants by  a special Judge,  the power  of  the  special  Judge  to  take cognizance of such offences conferred by Sec. 8(1) with only one limitation,  in any  one of  the known methods of taking cognizance of  offences by  courts of  original jurisdiction remains undented. One such statutorily recognised well-known method of taking cognizance of offences by a court competent to take  cognizance is  upon receiving  a complaint of facts which constitutes  the offence.  And Sec. 8(1) says that the special Judge  has the  power to take cognizance of offences enumerated in  Sec. 6(1)(a)  and (b)  and the  only mode  of taking  cognizance   excluded  by   the  provision  is  upon commitment. It therefore, follows that the special Judge can take cognizance of offences committed by 942 public  servants   upon  receiving   a  complaint  of  facts constituting such offences.      It was, however, submitted that even if it be held that the  special  Judge  is  entitled  to  entertain  a  private complaint, no  further steps  can be  taken by  him  without directing  an   investigation  under  Sec  5A  so  that  the safeguard of  Sec. 5A is not whittled down. This is the self same argument  under a  different apparel.  Accepting such a submission would tantamount to saying that on receipt of the complaint the  special Judge  must direct  an  investigation under Sec.  5A. There  is no  warrant for  such an approach. Astounding as  it appeared  to us,  in all  solemnity it was submitted that  investigation of  an offence  by a  superior police officer  affords a more solid safeguard compared to a court.  Myopic   as  this  is,  it  would  topsy  turvy  the fundamental belief  that to  a person  accused of an offence there is  no better  safeguard than  a court.  And  this  is constitutionally epitomised  in Art.  22 that upon arrest by police, the  arrested person  must be  produced  before  the nearest Magistrate  within twenty-four  hours of the arrest. Further,  numerous   provisions  of  the  Code  of  Criminal procedure such  as Sec.  161, Sec  164, and  Sec. 25  of the Indian Evidence  Act would show the Legislature’s hesitation in placing  confidence on  police officers away from court’s gaze. And  the very  fact  that  power  is  conferred  on  a Presidency Magistrate  or Magistrate  of the  first class to permit police  officers of  lower rank  to investigate these offences would  speak for  the mind  of the Legislature that the court  is a  more reliable  safeguard than even superior police officers.      It was  urged that  there is inherent evidence in other provisions  of  the  1952  Act  and  the  Code  of  Criminal Procedure which  would  buttress  the  submission  that  the special  Judge   cannot  take   cognizance  upon  a  private complaint. Even  if Sec.  8(1) confers  specific  powers  of taking cognizance  of offences  without the necessity of the accused  being   committed  for  trial  and  prescribes  the procedure for  trial of  warrant cases  by Magistrates to be adopted by  a special  Judge, it  is necessary  to determine with accuracy  whether a  special Judge is a Magistrate or a Sessions Judge.  After referring to Sec. 8(3) which provides that save  as provided  in sub-sec. (1) or sub-sec. (2), the provisions of  the Code of Criminal procedure, 1898 shall so

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far as  they are not inconsistent with the 1952 Act apply to the proceedings before a special Judge; and for the purposes of the  said provisions,  the Court of a special Judge shall be deemed to be a Court of Sessions trying cases without 943 a jury  or without  the aid  of  assessors  and  the  person conducting a  prosecution before  a special  Judge shall  be deemed to  be a public prosecutor; it was urged that for the purpose of  procedure to  be followed  by a special Judge in the trial  of the  case before  him, he  is a  Magistrate as provided in  Sec. 8(1)  but not  a Sessions Judge because no Sessions Court  can  take  cognizance  of  offences  without commitment while  a special  Judge has to take cognizance of offences without  accused being  committed to  him for trial yet the  provisions of sub-Secs. (2) and (3) leave no one in doubt that  for all  other purposes he is to be treated as a Sessions Judge  or a  Court of Sessions. Proceeding along it was urged  that if  a special Judge has all the trappings of the Court of Sessions, he cannot take cognizance as provided by  Sec.  190,  Cr.  P.  C.  because  it  confers  power  on Magistrate to  take cognizance  of any offence in any one of the  three  modes  therein  prescribed.  Therefore,  it  was submitted that a private complaint cannot be entertained.      For more  than one  reason it is not possible to accept this submission.  If Sec.  190 cannot be availed, we fail to see how a special Judge would be entitled to take cognizance on a  police report.  If Sec.  190 is  not attracted all the three modalities  of taking cognizance of offences would not be available.  One cannot  pick and choose as it suits one’s convenience. Either  all the  three modalities are available or none.  And  Sec.  8(1)  which  confers  power  of  taking cognizance does  not show  any  preference.  On  this  short ground, the submission must be rejected.      It is,  however, necessary to decide with precision and accuracy the  position of a special Judge and the Court over which he  presides styled  as the  Court of  a special Judge because  unending   confusions   have   arisen   by   either assimilating him with a Magistrate or with a Sessions Court. The Prevention  of Corruption Act, 1947 was enacted for more effective prevention of bribery and corruption. Years rolled by and  experience gathered  showed that  unless  a  special forum for  the trial  of such  offences as enumerated in the 1947 Act  is created,  the object  underlying the  1947  Act would remain  a distant  dream. This led to the enactment of the Criminal  Law Amendment  Act,  1952.  The  Statement  of objects and  Reasons accompanying  the Bill  refers  to  the recommendations of  the Committee  chaired by Dr. Bakshi Tek Chand appointed  to review the working of the Special Police Establishment and to make recommendations for improvement of laws relating  to bribery  and corruption. To take the cases of corruption out of the maze of cases handled 944 by Magistrates,  it was  decided to  set up  special courts. Sec. 6 conferred power on the State Government to appoint as many special  Judges as  may be  necessary with power to try the offences  set out in clauses (a) and (b). Now if at this stage a  reference is made to Sec. 6 of the Code of Criminal Procedure  which   provides  for  constitution  of  criminal courts, it  would become  clear that  a new court with a new designation was being set up and that it has to be under the administrative and  judicial  superintendence  of  the  High Court. As  already pointed  out, there  were four  types  of criminal courts  functioning under  the High  Court. To this list was  added the court of a special Judge. Now when a new court which  is indisputably a criminal court because it was

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not even  whispered that the Court of special Judge is not a criminal  court,  is  set  up,  to  make  it  effective  and functionally oriented, it becomes necessary to prescribe its powers, procedure,  status  and  all  ancillary  provisions. While setting  up a court of a special Judge keeping in view the fact that the high dignitaries in public life are likely to be  tried by  such a  court, the qualification prescribed was that  the person to be appointed as special Judge has to be either  a Sessions  Judge, Additional  Sessions Judge  or Assistant Sessions  Judge. These three dignitaries are above the  level   of  a   Magistrate.   After   prescribing   the qualification, the  Legislature proceeded  to  confer  power upon a  special Judge to take cognizance of offences for the trial of  which a  special court with exclusive jurisdiction was being  set up. If a special Judge has to take cognizance of offences,  ipso facto  the procedure  for trial  of  such offences has  to be  prescribed.  Now  the  Code  prescribes different procedures for trial of cases by different courts. Procedure  for   trial  of  a  cases  by  different  courts. Procedure for  trial of a case before a Court of Sessions is set  out  in  Chapter  XVIII,  trial  of  warrant  cases  by Magistrates is  set out  in Chapter  XIX and  the provisions therein included  catered to  both the types of cases coming before  the   Magistrate,  namely,  upon  police  report  or otherwise than on a police report. Chapter XX prescribes the procedure for  trial of  summons cases  by  Magistrates  and Chapter XXI  prescribes the procedure for summary trial. Now that a  new criminal court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of courts under Sec. 6 Cr. P.C. by bringing it on level  more or  less comparable to the Court of Sessions, but  in   order  to  avoid  any  confusion  arising  out  of comparison by  level, it  was made  explicit in  Sec. 8  (1) itself that  it is  not a  Court of  Sessions because it can take  cognizance   of   offences   without   commitment   as contemplated by Sec. 193 Cr. P. C. Undoubtedly in Sec. 8 (3) it was clearly laid down that subject to the provi- 945 sions of  sub-Sec. (1)  and (2)  of Sec.  8,  the  Court  of special Judge  shall be  deemed to  be a  Court of  Sessions trying cases without a jury or without the aid of assessors. In contra-distinction  to the  Sessions Court this new court was to  be a court of original jurisdiction. The Legislature then  proceeded   to  specify   which  out  of  the  various procedures set  out in the Code, this new court shall follow for trial of offences before it. Sec 1 (1) specifically says that a  special Judge  in trial of offences before him shall follow the  procedure prescribed  in the  Code  of  Criminal Procedure for  trial of  warrant cases  by Magistrates.  The provisions for  trial of warrant cases by the Magistrate are to be  found in  Chapter XXI  of 1898 Code. A glance through the  provisions   will  show  that  the  provisions  therein included catered  to both  the situations namely, trial of a case initiated  upon police  report (Sec. 251A) and trial of cases instituted otherwise than on police report (Sec 252 to 257). If  a special  Judge is  enjoined with  a duty  to try cases according  to the  procedure prescribed  in  foregoing provisions he will have to first decide whether the case was instituted upon  a police report or otherwise than on police report and  follow the  procedure in  the relevant  group of sections. Each  of the  Secs. 251A to 257 of 1898 Code which are in pari materia with Secs 238 to 250 of 1973 Code refers to what  the Magistrate should do. Does the special Judge in Secs 238 to 250 wherever the expression ’Magistrate’ occurs. This is  what is  called legislation  by the  incorporation.

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Similarly, whether the question of taking congnizane arises, it  is  futile  to  go  in  search  of  question  of  taking congnizance arises,  it is  futile to  go in  search of  the Magistrate to  take cognizance of the offence, special Judge is a  Magistrate? What is 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  Legislature wherever it  found the  grey area  clarified  it  by  making specific provision  such as  the one  in sub-s (2) of Sec. 8 and to  leave no one in doubt further provided in sub-s. (3) that all  the provisions  of the  Code of Criminal Procedure 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 Code of Criminal  Procedure, 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  (Sec 338)  and then after declaring is status as comparable to a Court of Sessions proceeded to pres- 946 cribe that  all provisions of the Code of Criminal Procedure will apply  in so  far 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 set up and whenever a  question arose  as to  what are  its  powers  in respect of  specific questions brought before it as court of original criminal  jurisdiction, it had to refer to the Code of Criminal Procedure undaunted by any designation claptrap. When taking cognizance, a Court of special Judge enjoyed the powers under  Sec. 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 equated with a Court of Sessions. 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 Sessions 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 Sessions.  Such an approach would strangulate  the functioning  of the court and must be eschewed. Shorn of all embellishment, the court or a special Judge is  a court  of original  criminal jurisdiction.  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  Sessions. Under  the Code it will enjoy all powers which a  court of original criminal jurisdiction enjoys save and except the ones specifically denied.      Sec 9  of the 1952 Act would equally be helpful in this behalf. Once court of a special Judge is a court of original criminal  jurisdiction,   it  became  necessary  to  provide whether it  is subordinate to the High Court, whether appeal and revision  against its  judgments and orders would lie to the High Court and whether the High Court would have general superintendence over a Court of special Judge as it has over all criminal  courts as  enumerated in Sec. 6 of the Code of Criminal Procedure.  The court  of  a  special  Judge,  once created by  an independent  statute, has  been brought  as a court of original criminal jurisdiction under the High Court because Sec.  9 confers  on the  High Court  all the  powers

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conferred by  Chapters  XXXI  and  XXXIII  of  the  Code  of Criminal Procedure,  1898 on a High Court as if the court of special Judge  were a court of Sessions trying cases without a jury  within the  local limits  of the jurisdiction of the High Court. Therefore, there is no gainsaying the fact that 947 a  new   criminal  court   with  a   name,  designation  and qualification of  the officer  eligible to  preside over  it with powers  specified and the particular procedure which it must follow  has been  set up  under the 1952 Act. The court has  to   be  treated   as  a  court  of  original  criminal jurisdiction and  shall have  all the powers as any court of original  criminal   jurisdiction  has  under  the  Code  of Criminal Procedure, except those specifically excluded.      Once the  position and  power of the Court of a special Judge in  the hierarchy  of criminal  courts under  the High Court  is  clearly  and  unambiguously  established,  it  is unnecessary to  roam into  an enquiry examining large number of decisions  laying down  in the  context of each case that the Court  of a special Judge is a Court of Sessions and the contrary view  taken in  some other  decisions. Reference to those judgments would be merely adding to the length of this judgment without achieving any useful purpose.      It  was   submitted  that  there  is  further  internal evidence pointing  in the direction that a private complaint cannot be  entertained by  a  special  Judge.  Sec.  225  in Chapter XVIII containing provisions prescribing procedure of trial before  a Court  of Sessions  provides that  ’in every trial before  a Court  of Sessions’ the prosecution shall be conducted by  a Public  Prosecutor.’ Last part of Sec. 8 (3) of the  1952 Act  provides that’.... the person conducting a prosecution before  a special  Judge shall be deemed to be a public prosecutor. It was urged that public prosecutions are ordinarily launched  in the  name of  the State  because  in matters of  serious offences  the society  is interested  in punishing the  anti-social elements  who may  be a menace to society and  that such  prosecution is  not  for  satisfying private lust or sense of vengeance. Proceeding along, it was stated that  the scheme  of Criminal  Procedure Code clearly shows that  serious offences  are exclusively  triable by  a Court of Sessions and that even if a commitment to the Court of Sessions  is made  upon an  inquiry held  by a Magistrate taking cognizance  of the  offence on  a private  complaint, once the  case is committed to a Court of Sessions, the role of the  private complainant becomes insignificant. The State takes over  the prosecution  and the public prosecutor shall necessarily be  in charge  of the  prosecution. And  it  was pointed out  that public  prosecutor  is  appointed  by  the Central  or   the  State   Government.  It  was  urged  that appointment of a public prosecutor under Sec. 24 of the Code of Criminal  Procedure is  a solemn  duty to be performed by the Central or the State Government, as the case may be, and that too after consultation with the High Court. 948      And it  is such  public prosecutor  who shall  alone be entitled to  conduct the  trial before Court of Sessions. In order to  acquaint us  with the  role, the  dignity and  the responsibility of  a public  prosecutor, attention was drawn to Shwe  Pru v.  The King(1)  Amlesh Ceandra  & Ors.  v. The State, (1)  Raj Kishore  Rabidas  v.  The  State.(2)  In  Re Bhupalli Malliah  and Ors (3) and Medichetty Ramakistiah and Ors. v.  The State  of Andhra  Pradesh (4)  These  decisions purport to  indicate the  objectivity and  the fairness with which a  public prosecutor  in  charge  of  the  case  shall conduct the  prosecution and  it is  no part  of his duty to

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attempt to  obtain a conviction at all costs. His duty is to fairly analyse  the evidence for and against the accused and that he should not withheld any evidence which has a bearing on the  issues before  the court. In other words, he must be fair and objective in his approach to the case animated by a desire to  vindicate justice  and no more. It was urged that if this  be the well-recognised role of a public prosecutor, how horrendous  it would  appear if  a  private  complainant motivated by a desire to wreck vengeance against the accused is to  be deemed to be a public prosecutor. It was said that such a  private complainant cannot be elevated to the status of a  public prosecutor  but the  deeming fiction enacted in latter part  of Sec.  8 (3)  would clothe  him with  such  a status of  a public prosecutor which he was hardly qualified to enjoy.  As a  second string  to the bow, it was said that Sec. 321 of the Code of Criminal Procedure generally confers power on  a public  prosecutor to  withdraw the  prosecution subject to limitations therein prescribed. The submission is that if  a private  complainant who  chooses to  conduct his case and  thereby enjoys  the  status  of  a  deemed  public prosecutor he would be able to poute the fountain of justice by initiating  some frivolous  prosecution and then withdraw it if  his palms  are greased.  It was  also said  that  the accused may  put up  a bogus complainant and make a pretence of trial  and escape  a serious  prosecution upon high level investigation. These are wild imaginings, irrelevant for the purpose of construction of a provision in a statute. Further this submission  overlooks the vital role that the court has to play  before any  prosecution can  be  withdrawn  at  the instance of  a public  prosecutor. That  a public prosecutor may abuse  his office  is not determinative as to who should be a public 949 prosecutor. The  deeming fiction  enabled in  Sec. 8  (3) is confined to the limits of its requirement in that the person conducting a  prosecution before  a special  Judge is  to be deemed to  be a  public prosecutor.  In fact,  this  fiction created by  Sec. 8 (3) would rather negative the argument of the appellant  that a private complaint is not maintainable, inasmuch as  the Legislature could have inserted a provision analogous to  Sec. 225  that a  prosecution before a special Judge shall  be conducted  by a  public prosecutor.  On  the contrary, conscious of the position that a private complaint may be  filed before a special Judge who may take cognizance of the  offences on such a complaint, the Legislature wanted to clothe  the person  in charge of the prosecution before a special Judge with the status of a public prosecutor for the purposes of  the Code  of Criminal  Procedure.  This  is  an additional reason why the contention of the appellant that a private complaint is not maintainable cannot be entertained.      It was  then submitted  that if  the object  underlying 1952 Act  was to provide for a more speedy trial of offences of corruption  by a  public servant,  this  laudable  object would be  thwarted  if  it  is  ever  held  that  a  private complaint can  be entertained by a special Judge. Developing the argument it was pointed out that assuming that a private complaint  is   maintainable  before  taking  cognizance,  a special Judge  will have  to examine the complainant and all the witnesses  present as  enjoined by  Sec. 200.  The Judge thereafter ordinarily will have to postpone issue of process against the  accused,  and  either  inquire  into  the  case himself or  direct an  investigation to  be made by a police officer and  in cases  under the 1947 Act by police officers of designated  rank for  the purpose  of deciding whether or not  there   is  sufficient  ground  for  proceeding.  (Sec.

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202(1)). If  the Judge proceeds to hold the inquiry himself, he is  obliged to take evidence on oath but it was said that if the  Court of  special Judge  is a Court of Sessions, the case would  be governed by proviso to sub-s (2) of Sec. 202, Cr P.C.  and that  therefore, he  will have to call upon the complainant to produce all his witnesses and examine them on oath. This  would certainly  thwart a  speedy trial  was the apprehension disclosed and therefore, it was said that there is internal  contra-indication that  a private  complaint is not maintainable.  We find  no merit  in the submissions. As has been distinctly made clear that a Court of special Judge is a court of original criminal jurisdiction and that it can take cognizance  of an  offence in  the manner  hereinbefore indicated, it  may be  that in  order to  test  whether  the complaint disclosed  a serious  offence or that there is any frivolity involved  in it, the Judge may insist upon holding an 950 inquiry by  postponing the  issue of process. When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Sec. 200 Cr.P.C.  After   examining  the   complainant  on  oath  and examining the  witnesses present,  if any,  meaning  thereby that the  witnesses not  present need  not be  examined,  it would open  to the  court to  judicially determine whether a case is  made out  for issuing process. When it is said that court  issues   process,  it   means  the  court  has  taken cognizance of  the offence  and has  decided to initiate the proceeding  and   as  a   visible  manifestation  of  taking cognizance, process  is issued  which means that the accused is called  upon to  appear before the court. This may either take the from of a summons or a warrant, as the case may be. It may  be that  after examining  the  complainant  and  his witnesses, the  court in  order to  doubly assure itself may postpone the issue of process, and call upon the complainant to keep  his witnesses present. The other option open to the court is  to direct  investigation to  be made  by a  police officer. And  if the offence is one covered by the 1947 Act, the investigation,  if directed,  shall be  according to the provision  contained   in  Sec.  5A  But  it  must  be  made distinctly clear  that it  is neither obligatory to hold the inquiry before  issuing process  to direct the investigation of the  offence by  police. The  matter is  in the  judicial discretion  of   the  court  and  is  judicially  reviewable depending upon  the material disclosed by the complainant in his statement  under oath  under Sec.  200,  called  in  the parlance of  criminal courts  verification of  the complaint and evidence of witnesses if any. It was however, urged that if Sec.  5A can  be dispensed with by holding that a private complaint is  maintainable, the  court atleast should ensure pre-process safeguard  by insisting  upon the examination of all witnesses that the complainant seeks to examine and this will be  counter-productive as far as the object of a speedy trial is  concerned. Viewed  from either  angle, there is no merit  in   this  submission.   Primarily,  examination   of witnesses even at a preprocess stage by special Judge is not no the  footing that  case is exclusively triable by a Court of Sessions as contemplated by Sec. 202(2) proviso. There is no commitment  and therefore,  Sec. 202(2)  proviso  is  not attracted.  Similarly,  till  the  process  is  issued,  the accused does  not come  into the  picture He  may physically attend but  is not  entitled to take part in the proceeding. (See Smt.  Nagawwa v.  Veeranna Shivalingappa  Konjalgi  and Ors. (1))  Upon a  complaint being  received and  the  court records the verification, it is open to

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951 the court  to apply  its mind  to the facts disclosed and to judicially determine whether process should or should not be issued. It  is not  a condition  precedent to  the issue  of process that the court of necessity must hold the inquiry as envisaged by  Sec. 202  or direct  investigation as  therein contemplated. The  power to  take cognizance without holding inquiry or  directing investigation  is implicit in Sec. 202 when it  says that  the Magistrate  may if  he  thinks  fit, postpone the issue of process against the accused and either inquire into  the case himself or direct an investigation to be made by a police officer..... for the purpose of deciding whether or  not there  is sufficient ground for proceeding.’ Therefore, the  matter is left to the judicial discretion of the court  whether on  examining  the  complainant  and  the witnesses if  any as  contemplated  by  Sec.  200  to  issue process or to postpone the issue of process. This discretion which the  court enjoys cannot be circumscribed or denied by making it  mandatory upon  the  court  either  to  hold  the inquiry or  direct investigation.  Such an approach would be contrary to  the statutory provision. Therefore, there is no merit in  the contention  that  by  entertaining  a  private complaint, the  purpose of speedy trial would be towarted or that a pre-process safeguard would be denied.      Further when cognizance is taken on a private complaint or to  be precise  otherwise than  on a  police report,  the special Judge has to try the case according to the procedure prescribed for  trial of  warrant cases instituted otherwise than on  police report  by a  Magistrate (Sec. 252 to 258 of 1898 Code  of Criminal  Procedure). Sec.  252 requires  that when accused  is brought  before a  court, the  court  shall proceed to  hear the  complainant and take all such evidence as may  be produced  in support  of the prosecution. Accused has a  right to cross examine complainant and his witnesses. If upon  considering the  evidence so  produced,  the  court finds that  no case  against the  accused has  been made out which, if  undebutted, would  warrant  his  conviction,  the court shall  discharge the  accused (Sec.  253 ibid). If, on the other  hand, the  court is  of the opinion that there is ground for  presuming that  the  accused  has  committed  an offence, which the court is competent to try, a charge shall be framed  in writing  against the  accused (Sec. 254 ibid). After the  accused pleads  not guilty  to  the  charge,  all prosection witnesses  examined before  the charge  shall  be recalled for  further  cross  examination.  Prosecution  may examine additional  witnesses  whom  the  accused  would  be entitled to  cross examine. Thereafter the accused may enter on his  defence and  may examine  witness in  defence.  This procedure  provides   more  adequate   safeguard  than   the investigation 952 by police  officer of  designated rank and therefore, search for fresh or additional safeguard is irrelevant.      It was  however urged  that while making the provisions of the  Code of  Criminal Procedure,  1898 applicable  to an Proceeding in  relation to an offence punishable under Secs. 161, 165  and 165  IPC and  under Sec.  5 of  the 1947  Act, modification was  considered necessary in sub-s. (8) of Sec. 251A which  prescribed procedure  for trial of warrant cases instituted upon  a  police  report  while  no  corresponding amendment was made in any of the provisions contained in the same Chapter  which prescribed  procedure for  warrant cases instituted otherwise  than on  police report  and that  this wold show  that a private complainant which will be required to be  tried according to the procedure prescribed for trial

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of warrant  cases instituted  otherwise  than  on  a  police report was  not within the contemplation of the Legislature. The modification made in sub-s. (8) of Sec. 251A is marginal and minimal.  It is  to the effect that instead of the words ’the accused  shall then  be called  upon’  the  words  ’the accused shall  then be  required to give in  writing at once or within  such time  as the Magistrate may allow, a list of persons (if  any)  whom  he  proposes  to  examined  as  his witnesses and  all  the  documents  (if  any)  on  which  he proposes to  rely, and he shall then be called upon to enter his defence’  shall be  substituted. It  was urged  that  no corresponding amendment  was made in Sec. 256 of the Code of Criminal Procedure,  1898 and  that  this  glaring  omission would clearly  indicate that  the procedure  prescribed  for trial of  warrant cases  otherwise than on police report was not within the contemplation for the trial of offences under the 1947 Act. Sec. 251A came to be introduced in the Code of Criminal Procedure,  1898 in  1955. Prior  thereto there was uniform procedure  for trial  of warrant cases by Magistrate irrespective of  whether the case was instituted on a police report or otherwise than on a police report. By the Amending Act, 1955,  two different  procedures came  to be prescribed for trial of warrant cases (i) under Sec. 251A in respect of cases instituted on a police report and (ii) Sec. 252 to 258 in cases  instituted otherwise than on a police report. This distinction with  some modification has been retained in the Code of  Criminal  Procedure,  1973.  The  Legislature  made certain modifications in the procedure applicable to warrant cases instituted  otherwise than  on police report, but left the other  provisions applicable  to trial  of warrant cases instituted otherwise  that  on  police  report  intact.  The Legislature in  its wisdom  may have considered it necessary to make  changes in  one procedure  and not in the other. It should not be 953 forgotten that  prior to  1955, the  procedure for  trial of warrant cases  instituted on  a police  report and otherwise than on  police report  was the same and the Act of 1952 set up the  Court of  special Judge  to try cases under the 1947 Act and  the trial was to be held according to the procedure prescribed for trial of warrant case. It necessarily follows that between  1952 to 1955, the Court of special Judge would have followed  the  same  procedure  for  trial  of  a  case instituted upon  a police  report or  otherwise  than  on  a police report.  If in  1955, the  Legislature prescribed two different procedures  and left  the one for trial of warrant cases instituted  otherwise than on police report intact and the position  remained unaltered even after the introduction of Sec  7A. it is not suggestive of such a grave consequence that a  private complaint  is not  maintainable.  Therefore, this additional limb does not advance the case any further.      The learned  Judges composing the Division Bench of the High  Court   by  their  separate  judgments  negatived  the contention of  the appellant holding that for the purpose of taking cognizance  of an offence under the 1947 Act, special Judge was  a Magistrate  and can take cognizance as provided by Sec,  190 of  the Code of Criminal Procedure. In reaching this conclusion,  the learned Judges were largely influenced by the  decision in  State of Tamil Nadu v. V. Krishnnaswami Naidu &  Anr., (1) in which this Court held that the special Judge functioning  under Sec.  8 (1) is a Magistrate for the purposes of Sec. 167 of the Code of Criminal Procedure. They also relied upon the decision in Parasnath Pande and Anr. v. State(2) wherein  a Division  Bench of the Bombay High Court held that a report submitted upon an investigation, which is

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found to be defective, can be treated as a private complaint of  the   police  officer   submitting  the  report  and  if congnizance is  taken on  such complaint,  it would  not  be invalid. It  was said  that these  decisions run  counter to some decisions of this Court. It is not necessary to examine this aspect because as pointed out by us, a court of special Judge is a court of original criminal jurisdiction and it is not necessary to treat him either a Magistrate or a Court of Sessions save  and except  in respect  of specific provision wherein it  is so  provided. There  is the third decision in this context,  which may  be briefly  referred to  here.  In Jagdish Prasad  Verma v.  The State, (3) a Division Bench of the 954 Patna High  Court held  that  the  special  Judge  can  take cognizance  upon   receiving  a  complaint  of  facts  which constitute the  offence or  even upon  information  received from any  person other than a police officer or upon his own knowledge of  suspicion that the offence has been committed. This was treated as so obvious by the court that there is no discussion in  support of  the conclusion.  However, we  are satisfied that  these decisions  lay down the correct law on the point of maintainability of private complaint.      Having examined  the  matter  from  all  the  different angles, we are satisfied that the conclusion reached both by the learned  special Judge  and Division Bench of the Bombay High Court that a private complaint filed by the complainant was  clearly  maintainable  and  that  the  cognizance,  was properly taken,  is correct.  Accordingly, this appeal fails and is dismissed. S.R.                                       Appeal dismissed 1