STATE Vs. HANS RAJ

JUDGEMENT

(1.) WHETHER a Special Judge appointed Under Section 6 of the Criminal Law (Amendment) Act, 1952, is competent to make a reference on a point of law Under Section 395 (2) of the Cr. P. C, is the question which has arisen at the very threshold in this case.

(2.) THE proceedings arise from the registration of a case Under Section 5 (2) of the Prevention of Corruption Act together with the allied offences Under Sections 120-B, 467, 468 and 471 of the I. P. C. against Shri Harbhajan Lal Moudgil Tehsildar, Ramesh Chand Patwari, and Dhian Singh and some others. During the course of investigation the Chief Judicial Magistrate, Gurdaspur, by an order dated the 30th July, 1977, had tendered pardon to one of the accused-persons, namely, Dhian Singh. Thereafter the statement of the said Dhian Singh as approver was recorded by the Chief Judicial Magistrate on the same day and subsequently another statement Under Section 164 of the Code was recorded by the Judicial Magistrate, 1st Class, Pathankot, on the 5th Aug. 1977. Later the challan in the case was presented before the Sub-Divisional Judicial Magistrate, Pathankot, on the 18th Dec. 1978, and H. L. Moudgil aforesaid made his appearance before him on the 23rd of Dec. 1978. but thereafter he absconded. Warrants for his arrest were then issued but before these could be executed he presented a petition Under Section 482 read with Section 397 of the Code in the High Court praying that the proceedings against him pending before the Sub-Divisional Judicial Magistrate should be quashed. On 2nd Feb. 1979. this petition came up before Bains, J. , and was allowed by an order the operative part of which is as follows:. . . offences are triable by a Special Judge in view of the provisions of Section 7 of the Criminal Law (Amendment) Act. In this situation, the Magistrate had no power to take cognizance of the case as there is no commitment needed in these proceedings. I do not know how the learned Magistrate took cognizance of this case and how he dealt with the matter when the same was exclusively triable by a Special Judge. The learned State counsel also could not defend the impugned order of the Magistrate and could not show me any material under which the case could be dealt with by the Magistrate. In this situation, the impugned order is quashed and it is directed that the case, against the petitioner be transferred to the Additional Sessions Judge, Gurdaspur, exercising the powers of the Special Judge under the Act. In accordance with the above the case then went to the Court of the Special Judge, Gurdaspur, and thereafter was transferred to the Court of Special Judge, Jullundur, under a notification issued on the 16th Mar, 1979.

(3.) MEANWHILE the State of Punjab moved a petition for leave to appeal to the Supreme Court and Bains, J, whilst dismissing the same by his order dated the 12th Nov. 1979, made the following further observations: In this case, registered under the Prevention of Corruption Act, only the Special Judge has jurisdiction to try such cases in view of the provisions of Section 7 of the Criminal Law (Amendment) Act, 1952, and Under Section 8 of the said Act the Special Judge can also tender pardon. The prosecution in this case should have approached the Special Judge instead of Judicial Magistrate for tendering pardon to Dhian Singh, one of the accused, but instead it approached the Magistrate for such purpose. In my view, the Magistrate has no power under the Criminal Law Amendment Act to deal with such cases. However, he has got some powers under S, 306, Cr. P. C. to tender pardon. The Magistrate, after tendering pardon to an accused person and examining him as a witness, has to commit the case for trial to the Court of Session if the of fence is triable exclusively by that Court or to a Court of the Special Judge appointed under the Criminal Law Amendment Act, 1952, if the offence is exclusively triable by that Court. It is settled law that where special provision is made under a special enactment for certain offences, then that procedure is to be followed and not the general procedure. Under Section 7 of the Criminal Law (Amendment) Act, the Special Judge is empowered to try cases under the Prevention of Corruption Act, which is a special enactment and Under Section 8 of the Criminal Law Amendment Act, he is also empowered to tender pardon. A the time of hearing of the revision petition, counsel for the State did not oppose the transfer of the proceedings from the Court of the Judicial Magistrate to the Court of the Special Judge. So the whole proceedings, including the tendering of pardon, were transferred to the Special Judge. Subsequently during the course of the trial before the Special Judge when the case was fixed for recording of the prosecution evidence, the Public Prosecutor on the 17th Jan. 1980, raised the objection that in view of the aforesaid observations of Bains, J. , the question, about the admissibility of the evidence of the approver and the validity of the pardon tendered by the Chief Judicial Magistrate would not arise. It was also urged that the Sub-Divisional Judicial Magistrate was required to pass an order of committal Under Section 306 (5) (a) (ii) of the Code before the case could be tried by the Special Judge. The trial Judge then doubted its own powers to send the case back to the Sub-Divisional Judicial Magistrate in view of the specific order of transfer passed by the High Court itself. Faced with a rather difficult legal situation the Special Judge has framed the following three questions of law and referred them Under Section 395 (2) of the Code for decision by the High Court: