RAM DULAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) By this petition, the petitioner has challenged the jurisdiction of Sri G.D. Dubey who earlier was the I-Additional Sessions Judge, Jaunpur, and has now been designated as Special Judge under section 12A of the Essential. Commodities (Special Provisions) Act, 1981 (V.P. Act No. 18 of 1981, here-in-after referred to as the Act) to continue the trial of S.T. No. 9 of 1981, State v. Rain Dular and others, under section 302/307 Indian Penal Code pending before him. Sri G.D. Dubey had framed the charges and recorded the I evidence in the case as I Additional Sessions Judge and it was fixed for arguments before him on 18-1-1983. In the meantime, Sri G.D. Dubey was appointed a Special Judge under the I Act. Notification No. 558/VII-F-229/Admn. (A)/1982, dated 12-10-1982 under which he was appointed a Special Judge read as follows: In exercise of the powers conferred under sub-section (2) of Section 12A of the Essential Commodities (Special Provisions) Act, 1981, the High Court is pleased to appoint with immediate effect the offices mentioned in column No. 2, in the district, specified in Column No. 3, against each of them in the chart appended below, as Special Judges, in addition to their own duties, in the Special courts constituted by the Government Notification No. 1255/VII-A-Nyay-201/ 82, dated February 27, 1982 under sub-section (1) of Section, 12A of the Essential Commodities (Special provisions) Act. In each district of U.P. for the purpose of providing speedy trial of the offences under the Essential Commodities Act, 1955 (Act No. 10 of 1955): x x x It is dear from the Notification that Sri Dubey was appointed a Special Judge in addition to his own duties. By Circular Letter No. 70/VII-F-229/Admn.(A) dated November 4, 1982, this Court clarified the position that the Special Judge appointed under the aforesaid Notification continued to be Additional District and Sessions Judges or Additional Sessions Judge, and were to take up their normal work as and when necessary. The aforementioned Circular Letter read: From, Sri S.K. Bhargava, H.J.S. Registrar. High Court of Judicature at Allahabad. To, All the District Judges in U.P. Subordinate to the High Court of Judicature at Allahabad. C.L. No. 70/VII-F-229/Admn(A) Dated Allahabad: November 4, 1982. Sir, It has come to the notice of the Court that in some judgeships there seems to have arisen some confusion in following the directions made in Courts Notification No. 558/VII-F- 229/Admn(A) 1982, dated, 12th October, 1982, in as much as they have sought clarification from the Court whether the Special Judges appointed under the said Notification for trying cases relating to offences under the Essential Commodities Act, will do other work also. It has been made clear in the Notification that they will be working as Special Judges in addition to their duties i.e. the duties of Additional District and Sessions Judges/Additional Sessions Judges. This was done with a view that if the cases under the Essential Commodities Act are not sufficient to keep them fully engaged throughout the day, they may not sit idle and take up other normal work, as has been done by them before taking over a Special Judges. I am, therefore, directed to request you to please act accordingly. I am also directed to say that orders of the Court may be sought for transfer of part heard Sessions trials pending in the courts formerly held by the Special Judges to Courts of such Special Judges. Sessions Trials and other work may, as usual, be transferred to the courts of Special Judges, if and when necessary, to keep them fully engaged. Yours faithfully, Sd. S.K. Bhargava, Registrar. Since the sessions trial No. 9 of 1981 part-heard by Sri G.D. Dubey, the file was sent to his court by the Sessions Judge. It may be mentioned that no Judge has succeeded Sri G.D. Dubey as I- Additional District and Sessions Judge, Jaunpur so far.

(2.) The petitioners have challenged the continuance of the sessions trial by Sri G.D. Dubey on the ground that since he was appointed a Special Judge under Section 12A of the Essential Commodities (Special provisions) Act, 1981, he ceased to be an Additional Sessions Judge in the Sessions Division, and hence could not continue the sessions trial. This contention has been raised on the basis of the language used in Sub-section (3) of section 12A and the provisions of Subsection 2 of 12AA of the Act. Section 12A, so far as material reads: 12A. Constitution of Special Courts: (1) The State Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the, Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification.

(3.) Learned counsel for the petitioners submitted that since sub-clause (b) of subsection 3 of Section 12A, which provides for the qualification of a Judge to be appointed as Special Judge states that unless he has been a Sessions Judge or an Additional Sessions Judge for a period of not less than one year; he shall not be eligible to be appointed a Special Judge it follows that as soon as an Additional Sessions Judge is appointed a Special Judge, he ceases to be and additional Sessions Judge. The emphasis is on the words he has been a Sessions Judge or an Additional Sessions Judge. The contention has no merit. The words he has, been a Sessions Judge or an Additional Sessions-Judge have to be read along with the words for a period of not less than one year i.e. it is concerned with the length to his tenure as Sessions Judge or Additional Sessions Judge. If a Sessions Judge or an Additional Sessions Judge has been a Sessions Judge or an Additional Sessions Judge for a period of less than one year, he shall not be qualified to be appointed a Special Judge. Clause (b) of sub-section (3) of Section 12A requires two conditions to be fulfilled for the appointment of a Judge as a Special Judge: (i) that he has been a Sessions Judge or an Additional Session Judge, and (ii) that he has been a Sessions Judge or an Additional Sessions Judge for a period of not less than one year. To say that a Sessions Judge has been a Sessions Judge at the time of his appointment as a Special Judge is not to say that as soon as he is appointed a Special Judge, he ceases to be a Sessions Judge. Learned counsel submitted that the words used and not is or has been but only has been, as such the continuity of office as a Sessions Judge is not contemplated. The Section does not deal with continuity of office of the Session Judge or the Additional Sessions Judge but with the qualification of a Judge to be appoint a Special Judge. Neither by the fact of appointment as a Special Judge nor by the prescription of the condition for such an appointment the Sessions Judge or an Additional Sessions Judge. In Alok Kumar Roy v. Dr. S.N. Sarma and others it was held that appointment of a High Court Judge as Commission of Enquiry under the Commissions of Enquiry Act, 1952, does not result in the ceasing of the Judge as a High Court Judge. A Judge of the High Court when he is appointed to head a Commission of Enquiry, does not demit his office as a Judge and he remains a part of the High Court and is entitled to sit and act as a Judge of the High Court whenever he is free. It was observed that the appointment of a Judge as Commission of Enquiry does not deprive him of the lights and privileges of a Judge of the High Court. Learned counsel for the applicants suggested that so long as the cases under the Essential Commodities Act continued, Sri G.D. Dubey could not exercise the powers of an Additional Sessions Judge. He relied upon the following observations in Alok Kumar Roys (supra). It is only where a Judge of the High Court is appointed to another post, which is a whole time post that it may be said that on such appointment he can no longer work as a Judge of the High Court for the time being, though even in such a case, when the work is over, he reverts as a Judge of the High Court without fresh appointment. The appointment of Sri G. D. Dubey, Additional Sessions Judge, Jaunpur, to the post of Special Judge under the Act was for the purposes of disposing of the cases under the Act. The Notification and the Circular Letter issued clearly stated that he continued to be an Additional Sessions Judge, and when he was not engaged in disposing of the cases under the Act, he could dispose of the cases as an Additional Sessions Judge. Sri Dubey would, of course, take up his normal work as an Additional Sessions Judge when he is free from the cases under the Act. The above-cited observations of the Supreme Court do not help the petitioners. In Alok Kumar Roys case (supra) their Lordships clearly observed that the learned Judge who had been appointed to work as a Commission of Enquiry continued to be a High Court Judge, and he could act as a High Court Judge when he was free from the Commission of Enquiry. The observations to this effect were as follows: We are of opinion that the learned Chief Justice was not right when he held that Dutta J. could not act as a Judge of the High Court while he was working as a Commission of Enquiry. Learned Attorney - General appearing for the State of Assam did not support that view. It also appears that Goswami J. has said nothing on this aspect of the matter; presumably he did not agree with the view of the learned Chief Justice. Often times, Judges of High Courts are appointed under the Commission of Enquiry Act to head Commissions for various purposes. These Commissions are temporary affairs and many a time their sittings are not continuous. A Judge of the High Court when he is appointed to head a Commission of this kind does not demit his office as a Judge and when the Commission is not actually sitting he is entitled to sit as a Judge of the High Court. These observations clearly support the view that when the Special Judge is not engaged in disposing of the cases under the Act, he can act as an Additional Sessions Judge and take up his normal work as an Additional Sessions Judge.