LAL SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD Sri Daya Shankar Mishra, Sri Chandrakesh Mishra, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri N.I. Zafri, learned counsel for the C.B.I.

(2.) IT is contended by learned counsel for the applicant that the offence in which the applicant is accused is triable by Court of sessions. The Special Judge (Anti Corruption), U.P. (East), Ghaziabad is a Court of sessions. The proceedings of the applicant were pending in the Court of Special Magistrate (Anti Corruption)/CBI Dehradun, Uttranchal. The case has not been committed to the Court of sessions under Section 209 Cr.P.C. It is a necessary requirement, without committal of the case the Special Judge (Anti corruption U.P. (East), Ghaziabad may not proceed further against the applicant, the warrant of the arrest issued by Special Judge (Anti Corruption), U.P. (East), Ghaziabad is also illegal. It is a case in which the copies of the police report and other documents have not been supplied to the applicant as required under Section 207 Cr.P.C. The provision of Section 193 Cr.P.C., does not empower the sessions Court to take the cognizance directly, the language of Section 193 Cr.P.C. is - 'except as otherwise expressly provided by this Court or by any other law for the time being enforced, no Court of sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Court". For taking the cognizance otherwise has not been provided. In view of Section 193 Cr.P.C. the Special Judge (Anti Corruption), U.P. (East), Ghaziabad is not empowered to take the cognizance against the applicant. In the present case the provision of Section 207 and 209 Cr.P.C. have not been followed. In such circumstances, the order passed by Special Magistrate (Anti Corruption)/CBI Dehradun, Uttranchal and the orders passed by Special Judge (Anti Corruption), U.P. East, Ghaziabad are also illegal, because the Court of Special Judge (Anti Corruption), U.P. (East), Ghaziabad is not empowered to take the cognizance which is barred by provisions of Section 193 Cr.P.C., therefore, the order passed by the special Judge (Anti Corruption) may be quashed.

(3.) CONSIDERING the submissions made by learned counsel for the applicant, counsel for the C.B.I. and perusing the records it appears that in the present case the applicant was accused in a case pending in the Court of Special Magistrate (Anti Corruption)/CBI Dehradun. On a transfer petition, filed by the applicant and co -accused Subhash Chandra the Supreme Court of India transferred the proceedings of case pending against the applicant from the Court of Special Magistrate CBI, Dehradun to Special Judge (Anti Corruption), U.P. (East), Ghaziabad, vide order dated 19.12.2003. The case was not committed to the Court of Special Judge (Anti Corruption) by any Magistrate but it has come to the Court of Special Judge (Anti corruption) in pursuance of order dated 19.12.2003 passed by the Supreme Court of India. In crucial circumstances the requirement of committal of the case triable by the Court of session be done by learned Magistrate concerned and without proper committal, the cognisance is barred by the provisions of Section 193 of the code of Criminal Procedure. The Section 193 Cr.P.C. reads as under: