M R MELHOTRA Vs. STATE

JUDGEMENT

(1.) I have had the benefit of reading the judgment proposed to be delivered by my brother Mulls, J. I agree with him that Section 350 of the Code of Criminal Procedure is not applicable in the case of a Special Judge appointed under the Criminal Law Amendment Act No. 46 of 1952, but I would like to give the reasons for my opinion in my own language. My brother, Mulla, J., has already discussed the three relevant decisions of the Madras, the Patna and the Punjab High Courts and it does not appear to be necessary for me to comment on those cases again.

(2.) It appears to me that, in designating the Court, which is empowered to try cases under the Criminal Law Amendment Act, 1952, as a Court of a Special Judge, the legislature clearly intended to indicate that a Special Judge will neither be a Magistrate nor a Court of Session as constituted under the Code of Criminal Procedure. Had there been any intention that the Special Judge was to be a Magistrate or a court of session, it was easy for the legislature to lay down in the Criminal Law Amendment Act, 1952, itself that the power of trying cases under that law would be exercised by a Magistrate or a Court of Session. Consequently, in considering the applicability of the provisions of the Code of Criminal Procedure to a Special Judge, it has to be kept in view that he is neither a Magistrate nor a Court of session. His is a special class of Court constituted under that special law and, consequently, the Code of Criminal Procedure is to be applied in his case only to the extent that the Criminal Law Amendment Act, 1952, itself makes it applicable. The relevant provision, as has been pointed out by my brother, Mulla, J., is contained in Section 8 of that Act. Under Sub-section (1) of Section 8 the Special Judge, who is neither a Magistrate nor a Court of session, is empowered to take cognizance of offences without the cases being committed to him for trial and then there is the further direction that, in trying the accused persons, he is to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates. The language of this sub-section does not indicate that the Special Judge has been equated with a Magistrate or has been constituted a Magistrate for the purpose of trying cases under that Act. All that Sub-section (1) of Section 8 does is to empower the Special Judge to take cognizance of cases without proceedings of commitment and then it lays down the procedure which is to be followed bv him in the trial of a case of which he has taken cognizance. The fact that he is to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates cannot convert a Special Judge into a Magistrate. Then comes Sub-section (3) of Section 8 under which, subject to the overriding provision of Sub-section (1), the remaining provisions of the Code of Criminal Procedure have also been applied to proceedings before him to the extent, that those provisions are not inconsistent with the provisions of the Criminal Law Amendment Act, 1952. Sub-section (3) then further proceeds to lay down a fiction of law that, for purposes of those provisions of the Code of Criminal Procedure which become applicable under Sub-section (3) of Section 8, the Court of a Special Judge is to be deemed to be a Court of session trying cases without a jury or without the aid of assessors. Thus Sub-section (3) of Section 8 also recognises the fact that a Special Judge is neither a Magistrate nor a Court of session but, by a legal fiction, which is frequently resorted to by the legislature, the Special Judge is to be deemed to be a Court of session for the limited purposes of those provisions of the Code of Criminal Procedure which become applicable to proceedings before him under Sub-section (3) of Section 8 but excluding those provisions of the Code of Criminal Procedure which become applicable to proceedings under Sub-section (1) of that section. The effect, it appears to me, of the provision made in this manner in the Criminal Law Amendment Act, 1952, is that, even though a Special Judge is neither a Magistrate nor a Court of session, he has to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by a Magistrate and except for those provisions which relate to the procedure for the trial of warrant cases by Magistrates, he is to be considered in law to be a Court of session for all other provisions of the Code of Criminal Procedure which become applicable to him under Sub-section (3) of Section 8. Section 350 of the Code of Criminal Procedure only governs proceedings before a Magistrate and not before a Court of session. Consequently section 350 of the Code of Criminal Procedure cannot be applied to proceedings before him unless it be held that this section incorporates or lays down the procedure for the trial of a warrant case by a Magistrate. Under Sub-section (3) of Section 8, only those sections are applicable to the proceedings before a Special Judge which are applicable to a trial before a Court of session and when these provisions of the Code of Criminal Procedure become applicable, they apply exactly as if the Special Judge was a Court of session. Since Section 350 of the Code of Criminal Procedure does not apply to proceedings before a Court of session at all, Sub-section (3) of Section 8 of the Criminal Law Amendment Act, 1952, does not make Section 350 of the Code of Criminal Procedure applicable to the proceedings before a Special Judge. The only question that has to be examined is whether it can be held that Section 350 of the Code of Criminal Procedure incorporates in it a part of the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates. If it be held that Section 350 of the Code of Criminal Procedure is not a part of the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates, this section would not be applicable at all to the proceedings before a Special Judge. In the circumstances, I proceed to examine the interpretation of the expression "the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates" used in Sub-section (1) of Section 8 in order to examine whether Section 350 of the Code of Criminal Procedure is covered by this expression.

(3.) In interpreting the expression used in Sub-section (1) of Section 8, a significant point that prominently comes up is that the expression used is "the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates". If the same expression is used in the Code of Criminal Procedure itself, it would appear to me that the words used in Sub-section (1) of Section 8 of the Criminal Law Amendment Act, 1952, must be given the same meaning as given to those words in the Code of Criminal Procedure. Chapter XXI of the Code of Criminal Procedure deals with the trial of warrant cases by Magistrates and Section 251 of that chapter is to the following effect :