IMPORTANT POINT
Conviction recorded by Assistant Commandant for offence u/s 10(m) of CRPF Act could not be questioned in appeal or revision on ground that Assistant Commandant had no jurisdiction to exercise power as Judicial Magistrate when he had been conferred power u/s 16(2) of CRPF Act.

Headnote:(i) Central Reserve Police Force Act, 1949-Sections 10(m) and 16(2)-Absence from duty without leave-Respondent, a constable in III Battalion did not join duty after expiry of leave granted to him-Assistant Commandant exercising powers of Judicial Magistrate 1st class after trial found respondent guilty and sentenced him to three months imprisonment-Conviction set aside by Sessions Judge in appeal and upheld in revision by High Court holding that Assistant Commandant could not have exercised power of Judicial Magistrate-Appeal- Non obstante" clause in Section 16(2) of the Act and Section 5 Cr.P.C. protected the authorities empowered to function and exercise powers under the Act-Assistant Commandant passed the order acting as Judicial Magistrate in view of powers conferred on him-While exercising appellate or revisional jurisdiction, it was impermissible for any Court to decide vires of the provisions-Assistant Commandant was clothed with necessary jurisdiction and conviction was liable to be restored.
       Held : Section 16 provides for empowering Competent Authorities in the hierarchy of the force itself with powers or duties conferred or imposed on a police officer of any class or grade by any law for the time being in force and by further enacting a provision with a specific "non obstante" clause stipulates that notwithstanding anything contained in the Code, the Central Government may invest the Commandant or Assistant Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by a member of the force and punishable "under this Act" or any offence committed by a member of the force against the person or property of another member. Consequently, what is purported to be done by these provisions are merely to refer to the nature and extent of powers possessed by such authorities under the other laws being made available to the authorities designated under this Act, for discharging their duties under this Act, without exhaustively enumerating the details of all such powers or without re-enacting all such provisions in detail as part and parcel of this law - the Act, and not to constitute them to be or empower them as Magistrates as such for all or any of the purposes for which Courts of ordinary criminal justice have been constituted under the Code. Section 5 of the Code sufficiently protects the authorities empowered to function and exercise powers under the Act; from any such challenge as are directed against them, in this case. The fallacy in the reasoning of the Courts below lies in their superficial and cursory nature of consideration undertaken therein, without reference to the competence and powers of the Parliament to specifically and specially provide for trial and punishment of offences separately created under a special enactment of Parliament, in a manner distinct and separate from the method of trying other ordinary criminal offences under the general criminal law of the country. (Para 5)
       The Assistant Commandant who passed the order undisputedly acted as a Judicial Magistrate in view of the powers conferred on him under the Act. The conferment of such power has not been distinctly questioned and could not have been questioned in a proceeding, appeal or a revision under the Code. As long as the specific provision in Act exists enabling the competent Authority to pass the order under challenge, the same will have full force and efficacy. It is well settled that creature of any statute cannot consider the vires of a particular provision in that statute or any other statute as well. Exclusive power for such purposes are vested under the Constitution of India, 1950 (in short the Constitution ) only on Courts exercising powers of judicial Review under Articles 32/226 of the Constitution alone. While exercising appellate or revisional jurisdiction under the Code it is impermissible for any Court to decide on the vires of the provision. That is precisely what the Sessions Judge and the High Court have done in the present case. The vires of a provision can only be questioned in a writ proceeding before the Constitutional Court. That being the position, neither the Sessions Judge nor the High Court could have found fault with the exercise of jurisdiction by the Assistant Commandant in exercising magisterial powers. (Para 6)
       (ii) Central Reserve Police Force Act, 1949-Section 10(m)-Offence of unauthorised absence from duty-Sentence-Respondent a constable did not join duty after expiry of leave granted to him-Assistant Commandant held respondent guilty and sentenced three months imprisonment-Act of respondent fell in category of "less heinous offence"-Fine of two months pay would meet ends of justice. (Para 11)
       (iii) Criminal Procedure Code, 1973-Sections 4 and 5-Special law providing special procedure for manner or place of investigation or inquiring into offence-Provisions of such special law must prevail and no provision of code can apply. (Para 8)

JUDGMENT

Arijit Pasayat, J.-Questioning conviction made by the Assistant Commandant of Central Reserve Police Force (in short the CRPF ) made under Section 10(m) of the Central Reserve Police Force Act, 1949 (in short the Act ) and consequential sentences imposed, the respondent filed an appeal before the Sessions Judge, Solan and Sirmaur. The Sessions Judge held that the Assistant Commandant had no jurisdiction to record conviction and impose sentence. The said judgment was questioned before the High Court of Himachal Pradesh by a revision petition filed by the Union of India. The revision was also dismissed. Both the Sessions Judge and the High Court held that the Assistant Commandant, III Battalion, ITBP. Nahan could not have exercised powers of Judicial Magistrate Ist Class and, therefore, the trial and conviction of the accused-respondent were illegal. The High Court held that combined reading of Sections 11, 12 and 13 of the Code of Criminal Procedure, 1973 (in short the Code ) clearly rule out the appointment of any person exercising powers of Judicial Magistrate, Ist Class in the absence of conferment of powers by the High Court. This, according to the Sessions Judge and the High Court stemmed from the fact that there was separation of judiciary from the Executive in 1973 and thereafter the powers of appointment and conferment for functioning as Judicial Magistrate either of First Class or Second Class could only be done by the High Court and the Central Government or the State Government had no power to invest any person with powers of Judicial Magistrate of any class. Reference was also made to Section 5 of the Code, and observed that the expression "in the absence of a specific provision to the contrary" used therein did not render Section 16(2) of the Act redundant.

2. At this juncture, it would be necessary to take note of the factual position.

The respondent while functioning as a Constable (Sweeper) in the III Battalion, ITBP, Nahan did not join duty after expiry of the leave granted to him. Though he was granted leave for the period from 9.4.1987 to 24.5.1987, he did not join after expiry of the period. There was no intimation to the competent authority or request for extension of leave. The respondent accepted that he had stayed beyond the period of leave, but indicated several reasons as to why the same was necessitated. Complaint was lodged by the concerned authorities and the Assistant Commandant exercising powers to Judicial Magistrate, Ist Class in terms of Section 10 (m) of the Act, issued notice in terms of Section 251 of the Code and after trial found him guilty and sentenced him to undergo imprisonment for three months. The said order as noted above was questioned before the Sessions Judge by the respondent and in view of the relief granted to him by the Sessions Judge, the matter was carried in revision by the Union of India. But the same having been rejected, this appeal has been filed.

3. In support of the appeal, learned senior counsel for the appellant submitted that the Sessions Judge and the High Court clearly lost sight of Section 16(2) of the Act and Rule 36 (a), (b), (e) and (f) of the Central Reserve Police Force Rules, 1955 (in short the Rules ) as well as Sections 4 and 5 of the Code. Section 16(2) of the Act clearly indicates that notwithstanding anything contained in the Code, the provisions of the Act could be applied. Section 4(2) of the Code permits action under any law other than the Indian Penal Code, 1860 (for short the IPC ). Section 5 refers to absence of a specific provision to the contrary in any special or local law. The Act was a special law which operated in a specified field. These aspects were not considered in their proper perspective by the Sessions Judge and the High Court.

4. Per contra, learned counsel for the respondent submitted that the Sessions Judge and the High Court were justified in interfering with the order passed by the Assistant Commandant as he had no ju

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2003 Supreme(SC) 454

IMPORTANT POINTConviction recorded by Assistant Commandant for offence u/s 10(m) of CRPF Act could not be questioned in appeal or revision on ground that Assistant Commandant had no jurisdiction to exercise power as Judicial Magistrate when he had been conferred power u/s 16(2) of CRPF Act.

Cases Referred (3)

IMPORTANT POINT
Conviction recorded by Assistant Commandant for offence u/s 10(m) of CRPF Act could not be questioned in appeal or revision on ground that Assistant Commandant had no jurisdiction to exercise power as Judicial Magistrate when he had been conferred power u/s 16(2) of CRPF Act.