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PETITIONER: STATE OF TAMIL NADU

       Vs.

RESPONDENT: V. KRISHNNASWAMI NAIDU & ANR.

DATE OF JUDGMENT03/05/1979

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. FAZALALI, SYED MURTAZA

CITATION:  1979 AIR 1255            1979 SCR  (3) 928  1979 SCC  (4)   5  CITATOR INFO :  R          1984 SC 718  (34)

ACT:      Criminal Law (Amendment) Act, 1952 (66 of 1952)-Special Judge- Whether  can exercise power under S. 167 Cr. P. C. to authorise detention of an accused in police custody.

HEADNOTE:      The Criminal Law (Amendment) Act, 1952 (66 of 1952) was enacted on  28-7-52 to  further amend the Indian Penal Code, 1860 and  the Criminal  Procedure Code,  1898 and to provide for a  more speedy  trial of  offence. Section  6 of the Act enables the State Government by notification in the official gazette to appoint Special Judges to try offences punishable under Sections  161-165A of the Indian Penal Code or Section 5 of  the Prevention  of Corruption  Act, 1947.  The Special Judge thus  appointed shall not be qualified for appointment as a  Special Judge under the Act unless he is or has been a Sessions Judge  or an  Addl. Sessions  Judge  or  an  Asstt. Sessions Judge  under the  Code of  Criminal Procedure 1898. Section 7  provides that  notwithstanding anything contained in the  Code of Criminal Procedure 1898 or in any other law, the offence specified in Sub-section 1 of Section 6 shall be triable by  a Special  Judge only.  By Section 8 the Special Judge is  empowered to take cognizance of an offence without the accused  being committed  to him for trial and in trying the accused  persons he  is required to follow the procedure prescribed by the Code of Criminal Procedure in the trial of warrant cases  by Magistrates.  Section  8(A)  empowers  the Special Judge  to try  certain offences in a summary way and the provisions  of  Section  262  to  265  of  the  Criminal Procedure Code are made applicable so far as they may apply.      The respondents  were arrested  by  the  Vigilance  and Anti-Corruption Unit  of the  State Government  for  alleged offence under  the Prevention  of Corruption  Act. They were produced before  the Special Judge on the following day. The respondents’  application   for  enlargement   on  bail  was dismissed by the Special Judge. The Police moved the Special Judge for  committing the  respondents to police custody for 15 days. Thorgh the application was rejected another one was filed.      The respondents there upon moved the High Court for (1)

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a direction  that they  should be  kept in  judicial custody pending investigation  of the crime and (2) for quashing the application before  the Special  Judge  by  the  police  for committing them  to police  custody; contending that Special Judge is  not  a  Magistrate  as  defined  in  the  Criminal Procedure Code  and as  such  not  empowered  to  act  under Section 167  of the Criminal Procedure Code and to place the accused in police custody.      The High  Court accepted  the  contention  and  granted relief.      Allowing the appeal, 929 ^      HELD :  1. The  Special Judge  notified under  s. 6 the Criminal Law  (Amendment) Act  1952 can  exercise the  power conferred on  a Magistrate  under s.  167  of  the  Criminal Procedure Code  to authorise detention of the accused in the custody of the police. [936C]      2. Section  8 of  the  Criminal  Law  (Amendment)  Act, specifically empowers  the Special  Judge to take cognizance of the  offence without  the accused  being committed to him for trial.  In taking  cognizance of  an offence without the accused being  committed to  him he  is not a Sessions Judge for Section  193 Cr. P.C. provides that no Court of Sessions Judge shall  take cognizance  for any  offence as a Court of original jurisdiction  unless the case has been committed to it by  a Magistrate  under the  Code. Strictly  he is  not a Sessions Judge  for no Sessions Judge can take cognizance as a Court of Sessions without committal. [934C-D]      3. The  Criminal Law  (Amendment) Act being an amending Act the  provisions are  intended to  provide for  a  speedy trial of  certain offences. The Criminal Law (Amendment) Act is not intended to be a complete Code relating to procedure. The provisions  of the  Cr.P.C. are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act. Thus read there  can be no difficulty in coming to the conclusion that the Criminal Procedure Code is applicable when there is no  conflict   with  the  provisions  of  the  Criminal  Law (Amendment) Act. [934 E]      4.  If  a  Special  Judge  who  is  empowered  to  take cognizance without  committal is  not empowered  to exercise powers of remanding an accused person produced before him or release him on bail, it will lead to an anomalous situation. A Magistrate  other than  a Magistrate  having  jurisdiction cannot keep  him in  custody for more than 15 days and after the  expiry   of  the   period  if   the  Magistrate  having jurisdiction to try the case does not include Special Judge, it would  mean that he would have no authority to extend the period of  remand or  to release him on bail. So also if the Special  Judge  is  not  held  to  be  a  Magistrate  having jurisdiction,  a   charge  sheet  under  s.  173  cannot  be submitted to him. [934F-G]      5.  The   General  Clauses   Act,  s.   32  defines   a ’Magistrate’ as including every person exercising all or any of the  powers of  a Magistrate  under the  Code of Criminal Procedure for  the time  being in  force. Section  3 of  the Criminal Procedure  Code provides that any reference without any qualifying  words. to  a Magistrate, shall be construed, unless the  context otherwise  requires in the manner stated in the  sub-sections. If  the context otherwise requires the word,  ’Magistrate  may  include  Magistrates  who  are  not specified in  the section. Read along with the definition of Magistrate in  the General  Clauses  Act  there  can  be  no difficulty in  construing the  Special Judge as a Magistrate for the purpose of s. 167. [934H-935B]

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    6. The High Court was in error in applying the decision of this  Court in  Major E.  G. Basudev  v. State of Bombay, [1962] 2 SCR 195 relating to Rule 3 which is framed under s. 549  of   the  Criminal   Procedure  Code.   The  Magistrate contemplated under  rule 3  is a Magistrate who is empowered to inquire  with a view to committal which cannot apply to a Special Judge. [936B] 930

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 292 of 1976.      From the  Judgment and  Order dated  22-4-1976  of  the Madras High Court in Criminal M.P. No. 1592 and 1605/76.      V. P.  Raman, Adv.  Genl. and  A.  V.  Rangam  for  the Appellant.      Hardev Singh and R. S. Sodhi for the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J. The question that arises in this appeal is whether the Special Judge under the Criminal Law (Amendment) Act, 1952  can exercise  the power conferred on a Magistrate under  section   167  of  the  Criminal  Procedure  Code  to authorise detention  of the  accused in  the custody  of the police.      This appeal by certificate is preferred by the State of Tamil Nadu  against an  Order of  the Madras  High Court  in C.M.Ps. Nos. 1582 and 1605 of 1976 dated 22-4-1976.      The first  respondent V.  Krishnaswami Naidu is the son of the  second respondent  L. Venkataswami  Naidu. The first respondent was the Gazetted Personal Assistant to the former Minister for  Health, State of Tamil Nadu. He and the second respondent  were   arrested  by   the  Vigilance  and  Anti- corruption unit  of the  Tamil Nadu  Police on April 2, 1976 for alleged  offence under the Prevention of Corruption Act. They were  produced before the Special Judge on the next day i.e. 3-4-1976.  The  respondents  moved  Special  Judge  for enlargement  of   bail.  The  petition  was  dismissed.  The inspector of  police (Vigilance) moved the Special Judge for committing the respondents to police custody for a period of 15 days.  That application was also rejected. Inspite of the rejection of  this application the police filed Cr. M.P. No. 617 of  1976 before  the Special  Judge  for  directing  the respondents to  be placed  under the  police custody  for  a period of  15 days.  The respondents  moved before  the High Court Cr.M.P.  No. 1587  of 1976  for a  direction that  the respondent  should  be  kept  in  judicial  custody  pending investigation of  the  crime.  The  respondents  also  filed another  Cr.   M.P.  No.  1605  of  1976  for  quashing  the application Cr.  M.P. No.  617 of  1976 before  the  Special Judge by  the Police for commiting the respondents to police custody on  the ground  that the  Special  Judge  is  not  a Magistrate as  defined in the Criminal Procedure Code and as such not  empowered to act under section 167 of the Criminal Procedure Code and to place the accused in police custody.      In order  to appreciate  the contention  raised in this appeal it is necessary to examine the relevant provisions of the Criminal  Law Amendment  Act of  1952 and  the  relevant provisions of the Criminal 931 Procedure Code  Act of  1974. The Criminal Law Amendment Act 66 of  1952 was  enacted on  28-7-1952 to  further amend the Indian Penal  Code and  the Criminal Procedure Code 1898 and to provide  for a  more speedy  trial of offences. It may be

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noted that  the Act  is in  the nature of an Amending Act in respect of  the Indian  Penal Code  and the Code of Criminal Procedure, 1898.  Section 6  of the  Act enables  the  State Government  by  notification  in  the  official  gazette  to appoint as  many Special Judges as may be necessary for such area or areas as may be specified in the notification to try offences punishable under section 161, 162, 163, 164, 165 or 165A of the Indian Penal Code or Section 5 of the Prevention of Corruption Act, 1947, and also in conspiracy to commit or in attempt  to commit  or in abetment of any of the offences specified. The  Special Judge  thus  appointed  to  try  the offences mentioned shall not be qualified for appointment as a Special  Judge under  the 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.   Section  7   of  the  Act  provides  that notwithstanding anything  contained in  the Code of Criminal Procedure, 1898 or in any other law the offence specified in sub-section 1  of Section  6 shall  be triable  by a Special Judge only.  By section 7(1), therefore, the jurisdiction to try offences  mentioned in  Section 6(1) is conferred on the Special Judge  only. Section  8 is important for the purpose of our  discussion and may be extracted in full. The Special Judge is empowered under this section:           (i)  to take  cognizance of  offence  without  the accused being committed to him for trial; and           (ii) in trying  the accused persons he is required to follow  the procedure  prescribed by the Code of Criminal Procedure in the trial of warrant cases by Magistrates.      It may  be noted  that  the  Special  Judge  is  not  a Sessions Judge,  Additional Sessions  Judge or  an Assistant Sessions Judge  under the  Code of Criminal Procedure though no person  can be  appointed as a Special Judge unless he is or has  been  either  a  Sessions  Judge  or  an  Additional Sessions Judge  or an  Assistant Sessions Judge. The Special Judge is  empowered to  take  cognizances  of  the  offences without the  accused being  committed to  him for trial. The jurisdiction to  try the offence by a Sessions Judge is only after committal  to him. Further the Sessions Judge does not follow the  procedure for  the trial  of  warrant  cases  by Magistrates. The  Special Judge  is deemed  to be a Court of Sessions only  for certain  purposes as mentioned in Section 8(3) of  the Act  while the  first part  of  sub  section  3 provides that 932 except as  provided in sub sections (1) and (2) of Section 8 the provisions of the Code of Criminal Procedure, 1898 shall so far  as they are not inconsistent with this Act, apply to the proceedings  before the  Special Judge.  The sub-section further  provides   that  "for   the  purpose  of  the  said provisions, the  Court of  the Special Judge shall be deemed to be  a Court  of session  trying cases  without 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". The deemed provisions has to be confined for the  purposes mentioned  in the subsection. Section 8(2) enables the  Special Judge  to tender  a pardon  to a person with a  view to  obtaining evidence  supposed to  have  been concerned for the commission of an offence and the pardon so tendered was  for the  purposes of Section 339 and 339(a) of the Code  of Criminal  Procedure, 1898. This sub section was enacted because  Special Judge  not being a Court to which a commitment has  been made  can not  tender pardon  under the provisions of  Section 338 and so this section is introduced to enable  the Special Judge to tender a pardon. Sub-section

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3(a)  has  made  the  provisions  of  section  350  and  549 applicable to proceedings before a Special Judge and for the purposes of  the said  provisions a  Special Judge  shall be deemed to  be a  Magistrate. Section  350  of  the  Code  of Criminal Procedure enables a succeeding Special Judge to act on the  evidence  recorded  by  his  predecessor  or  partly recorded by  his predecessor and partly recorded by himself. Section 549 empowers a Magistrate when any person is brought before him charged with an offence for which he is liable to be tried  by a  Court to  which this  Court applies  or by a Court-martial, the  Magistrate  shall  deliver  him  to  the Commanding Officer  of the Regiment for the purpose of being tried by  the Court-martial.  This provision  also  is  made speciffically applicable  to the Special Judge. Section 8(A) empowers the  Special Judge  to try  certain offences  in  a summary way  and the provisions of section 262 to 265 of the Criminal Procedure  Code is  made applicable  so far as they may apply.      It will  be thus  seen that  section 8(1)  empowers the Special  Judge   to  take   cognizance  of  offence  without committal and  directs that in trying the accused persons it shall  follow  the  procedure  prescribed  by  the  Code  of Criminal Procedure.  Sub-section 3  deems a special judge to be a  Court of  Sessions for  certain  purposes  while  sub- section (2)  empowers the Special Judge to grant a tender of pardon. Sub-section 3(a) makes the provisions of Section 350 and 549  of the Code of Criminal Procedure applicable to the Special Judge  and for  the purposes of those provisions the Judge is  deemed to  be a Magistrate. Under section 8(A) the Special Judge is empowered to try cases summarily 933 which are  triable by  the Magistrate.  The Special Judge in the Criminal  Law (Amendment)  Act is thus for some purposes deemed to  be a  Sessions Judge  and for some other purposes deemed to  be a  Magistrate and some powers exercised by the Magistrate are  conferred on  him. It  is necessary  to note that Special  Judge is  empowered to take cognizance without the accused  being  committed  and  in  trying  the  accused persons he  is required to follow the procedure for trial of warrant cases  by a Magistrate. Under section 8(3) except as regards the  provisions  in  sub-section  (1)  and  (2)  the provisions of  Code of Criminal Procedure is made applicable in so far as they are not inconsistent with the Criminal Law (Amendment) Act.  This taken  alongwith the  fact  that  the Criminal Law  (Amendment) is  an Amending  Act so  far as  a Criminal Procedure  Code and  Indian Penal Code is concerned the provisions  of Cr.  P.C. should  be considered  to be in force unless  there are  certain provisions  in the Criminal Law  (Amendment)   Act  which   is  inconsistent   with  the provisions of the Criminal Procedure Code.      We will  now examine  the provisions  of Section 167 of the Criminal  Procedure Code.  Section 167  of the  Criminal Procedure Code requires that whenever any person is arrested and detained  in  custody  and  when  it  appears  that  the investigation cannot  be completed  within a  period  of  24 hours the  police officer is required to forward the accused to the  Magistrate. The  Magistrate to  whom the  accused is forwarded if he is not the Magistrate having jurisdiction to try the  case may  authorise the detention of the accused in such custody  as he  thinks fit  for a term not exceeding 15 days on the whole. If he has no jurisdiction to try the case and if  he considers  that further detention is necessary he may order  the accused  to be  forwarded to  any  Magistrate having jurisdiction.  The Magistrate having jurisdiction may authorise the detention of the accused person otherwise than

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in custody  of the  police beyond  the period of 15 days but for a  total period  not exceeding  60 days.  In the present case the  accused were produced before the Special Judge who admittedly is  the person  who has  jurisdiction to  try the case. The  contention which found favour with the High Court is that  the words  ’Magistrate having  jurisdiction’ cannot apply to  a Special  Judge having  jurisdiction to  try  the case. No  doubt the word ’Special Judge’ is not mentioned in section 167  but the  question is whether that would exclude the  Special   Judge  from   being   a   Magistrate   having jurisdiction to  try the case. The provisions of chapter XII Cr.P.C. relate  to the  information to  the police and their powers of  investigation. It  is seen that there are certain sections which require the police to take directions from 934 the Magistrate  having jurisdiction to try the case. Section 155(2) requires  that no police shall take up non-cognizable case without  an order of the Magistrate having power to try such case  or commit  the case  for trial. Again Section 157 requires that  when the police officer has reason to suspect the commission  of  an  offence  which  is  empowered  under section 156 to investigate, he shall forthwith send a report of the  same to a Magistrate empowered to take cognizance of such offence upon a police report. Section 173 requires that on the  completion of  every investigation under the Chapter the Officer-in-charge of the police station shall forward to a Magistrate  empowered to  take cognizance of the offence a police report  as required in the form prescribed. Section 8 of the  Criminal Law Amendment Act specifically empowers the Special Judge  to take cognizance of the offence without the accused being  committed to  him. In taking cognizance of an offence without the accused being committed to him he is not a Sessions  Judge for  section 193  Cr.P.C. provides that no Court of  Sessions  Judge  shall  take  cognizance  for  any offence as  a Court of original jurisdiction unless the case has been  committed to  it by  a Magistrate  under the Code. Strictly he  is not  a Sessions  Judge for no Sessions Judge can take cognizance as a Court of Session without committal. The Criminal  Law (Amendment)  Act being an amending Act the provisions are  intended to  provide for  a speedy  trial of certain offences.  The Criminal  Law (Amendment)  Act is not intended to  be a  complete code  relating to procedure. The provisions of  the Cr.P.C.  are not excluded unless they are inconsistent with  the Criminal  Law (Amendment)  Act.  Thus read  there   could  be  no  difficulty  in  coming  to  the conclusion that  the Cr.P.C.  is applicable when there is no conflict with  the provisions  of Criminal  Law  (Amendment) Act. If  a Special Judge who is empowered to take cognizance without committal  is not  empowered to  exercise powers  of remanding an  accused person  produced before him or release him on  bail it  will lead  to  an  anomalous  situation.  A Magistrate  other  than  a  Magistrate  having  jurisdiction cannot keep  him in  custody for more than 15 days and after the  expiring   of  the  period  if  the  Magistrate  having jurisdiction to  try the  case does  not include the Special Judge, it  would mean  that he  would have  no authority  to extend the  period of  remand or  to release him on bail. So also if  the Special  Judge is  not held  to be a Magistrate having jurisdiction, a charge sheet under section 173 cannot be submitted to him. It is relevant to note that the General Clauses Act  section 32  defines a  Magistrate as  including every person  exercising all  or any  of  the  powers  of  a Magistrate under the Code of Criminal Procedure for the time being in  force. Section  3 of  the Criminal  Procedure Code provides that any reference without any

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935 qualifying words,  to  a  Magistrate,  shall  be  construed, unless the  context otherwise  requires in the manner stated in the  sub-sections. If  the context otherwise requires the word  ’Magistrate’  may  include  Magistrates  who  are  not specified in  the Section.  Read alongwith the definition of the Magistrate  in the  General Clauses  Act there can be no difficulty in  construing the  Special Judge as a Magistrate for the purposes of Section 167.      In coming  to the  conclusion that the Special Judge is not a  Magistrate  the  High  Court  strongly  relied  on  a decision of  this Court reported in [1962] 2 S.C.R. page 195 Major E.  G. Basudev  versus State  of Bombay. This Court in construing rule  3 made  under section  549 of  the Criminal Procedure Code  held that  the rule was applicable to only a Magistrate  and  not  to  a  Special  Judge  who  is  not  a Magistrate within  the meaning of rule 3. Section 549 of the Code of  Criminal Procedure  empowers the Central Government to make  rules as  to cases  to  which  persons  subject  to military, naval  or air-force shall be tried by the Court to which this  Code applies, or by a Court-martial. The Central Government made rules in exercise of the powers conferred on it under  this section.  Rule 3  which is  considered by the Court runs as follows:-      "Where a person subject to military, naval or air-force law is  brought before  a Magistrate  and  charged  with  an offence for  which he  is liable  to be  tried by  a  Court- martial, such  Magistrate shall  not  proceed  to  try  such person or to inquire with a view to his commitment for trial by the  Court of  Sessions or the High Court for any offence triable by such Court, unless,           (a) he  is of  opinion, for reasons to be recorded that he  should so  proceed without  being moved  thereto by competent military, naval or air-force authority; or           (b) he is moved thereto by such authority."      Rule 3  it will  be seen  provides that  the Magistrate shall not proceed to try such persons or inquire with a view to his  commitment for  trial by the Court of Sessions Judge unless he  is of  opinion that  he should so proceed without being moved  thereto by  such  authority.  The  sub-section, therefore, contemplates a Magistrate who can try the offence himself or  inquire with  a view to commitment. This part of the section  is not  applicable to  a Special  Judge  as  he cannot inquire with a view to his commitment. Therefore, the Magistrate referred  to under  rule  (3)  cannot  include  a Special Judge.  This Court  observed that Section 549 is not one of the sections in chapter 21 of the Code 936 of Criminal  Procedure and  that  it  does  not  empower  to Central Government  to modify the warrant procedure and that rule 3 would not be applicable and further it cannot be said that by  reason of the procedure to be followed by a Special Judge he  would be  a Magistrate  empowered to  try  such  a person within  the  meaning  of  rule  3.  Relying  on  this decision the  learned Judge  held that  the same ratio would govern the  facts of the present case. The learned Judge was in error  in applying the decision of this Court relating to rule 3  which is  framed under section 549 to section 167 of the Cr.P.C.  The Magistrate  contemplated under  rule 3 is a Magistrate who  is empowered  to  inquire  with  a  view  to committal which cannot apply to a special judge.      In  the   result  on   consideration  of  the  relevant provisions of  the Criminal  Law  (Amendment)  Act  and  the Cr.P.C. we have no hesitation in coming to a conclusion that a Special  Judge would  be a  Magistrate empowered  to try a

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case under section 167 of the Cr.P.C. The Special Judge will proceed to  exercise the  powers that  are conferred  upon a Magistrate having  jurisdiction to  try the case. The appeal is allowed and the order of the High Court set aside. N.V.K.                                       Appeal allowed. 937