IQBAL SINGH Vs. STATE

JUDGEMENT

(1.) The short question which arises for determination in this petition is whether in a case where the accused person's are to be tried for an offence punishable under section 120-B, Indian Penal Code . section 5(2) of the Prevention of Corruption Act, 1947 and sections 161 and 165, Indian Penal Code . triable by a special judge but where pardon has been tendered by a magistrate to an accomplice in pursuance of the provisions of section 337(1) of the Code of Criminal Procedure, 1898 (herein called 'the Code'), the prosecution is under an obligation to file the charge sheet in the Court of the magistrate having jurisdiction to take cognizance of the case or whether the special Judge can entertain the charge-sheet by taking congizance of the case in pursuance of the provisions of section 8(1) of the Criminal Law Amendment Act, 1952 (herein called the 'Amendment Act').

(2.) Shri B. B. Lal, the learned counsel appearing for the petitioner vehemently contends that in such a case cognizance of the case in the first instance has to be taken by the magistrate competent to entertain the charge sheet. Not to do so, he contends, would be nullifying the salutary provision of sub-section (2-B) of section 337 of the Code which provision was incorporated in the Code by the Amendment Act itself by which a special judge was empowered to take cognizance in a case like the present one without the accused being committed to him tor trial. Despite the provisions of section 8(1) of the Amendment Act, the Parliaent in its wisdom also incorporated sub-section (2-B) in section 337 of the Code so as not to deprive an accused person of the benefit of cross-examining an approver twice once in the court of the Magistrate taking cognizance and then second time during trial. The benefit so extended to an accused, goes the argument, would seem to consist in (i) that the approver would have to disclose his evidence at the preliminary stage before the trial by a special judge and (ii) that an accused thus not only knows what the evidence is against him but gets an opportunity to rely upon the deposition of the approver before the Magistrate for the purpose of proving the approver's evidence at the trial untrustworthy, if there are contradictions or improvements. That being so, the learned counsel strenuously contends that if the prosecution files the charge-sheet directly before a Special Judge the accused would be deprived of the salutary benefit set out above. The intention of the Parliament being to provide two opportunities to an accused person to cross-examine an approver, it is urged, the prosecution cannot choose to file the charge sheet directly before a special Judge and thus whittle down the mandatory provisions of law envisaged by sub-section (2-B) of section 337.

(3.) The above submissions were sought to be reinforced by urging that a perusal of section 337 of the Code and section 8 of the Amendment Act leaves no manner of doubt that besides the Special Judge, a Magistrate can also take cognizance of offences mentioned in section 6 of the Amendment Act upon a report submitted to him by a police officer, in pursuance of the provisions of section 190 (1-B) of the Code. Reliance for this submission was placed on a Division Bench decision of the Bombay High Court in State v. Shankar Bau Rau Khirodi, A.I.R. 1959 Bombay, 437 (1), wherein it was observed that the important thing to be noted under sub-section (2-B) of section 337 of the Code is that a Magistrate has not only the power to tender a pardon to an accomplice but would have the power to examine him under sub-section (2) even in respect of offences triable exclusively by a Court of Special Judge. On examining the provisions of section 190 of the Code under which any District Magistrate or Sub-Divisional Magistrate or any judicial Magistrate specially empowered in that behalf may take cognizance of any offence upon a report in writing of such facts made by any police officer, it was held that a Magistrate was not deprived of his powers to take cognizance of even offences mentioned in section 6 of the Amendment Act upon a report submitted to him by a police officer.