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SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND P.S. KAILASAM, JJ.
State of T.N., Appellant
Versus
V. Krishnaswami Naidu and another, Respondents.
Criminal Appeal No. 292 of 1976, D/- 3-5-1979.
Advocates appeared
Mr. V. P. Raman Advocate General (Mr. A. V. Rangam Advocate with him), for Appellant; Mr. Hardev Singh and Mr. R. S. Sodhi, Advocates, for Respondents.
Preventation of Corruption Act, 1947 – Section 5 – Criminal Law (Amendment) Act, 1952 – Sections 161, 162, 163, 164, 165 or 165 – Code of Criminal Procedure, 1973 – Sections 549, 167 – Order of Detention – Question that arises in this appeal is whether the Special Judge under the Criminal Law (Amendment) Act, 1952 can exercise the power conferred on a Magistrate under Section 167 of the Criminal Procedure Code to authorise detention of the accused in the custody of the police – Held, Rule 3 it will be seen provides that the Magistrate shall not proceed to try such person or inquire with a view to his commitment for trial by the Court of Session Judge unless he is of opinion that he should so proceed without being moved thereto by such authority – Sub-section, therefore, contemplates a Magistrate who can try the offence himself or inquire with a view to commitment – This part of the section is not applicable to as Special Judge as he cannot inquire with a view to his commitment – Magistrate referred to under Rule (3) cannot include a Special Judge – Court observed that Section 549 is not one of the sections in Chapter 21 of the Code of Criminal Procedure and that it does not empower the Central Government to modify the warrant procedure and that Rule 3 would not be applicable and further it cannot be said that by reason of the procedure to be followed by a Special Judge he would be a Magistrate empowered to try such a person within the meaning of Rule. 3 – Relying on this decision the learned Judge held that the same ratio would govern the facts of the present case – Judge was in error in applying the decision of this Court relating to Rule 3 which is framed under Section 549 to Section 167 of the Cr. P. C. – Magistrate contemplated under Rule 3 is a Magistrate who is empowered to inquire with a view to committal which cannot apply to a Special Judge – Court have no hesitation in coming to a conclusion that a Special Judge would be a Magistrate empowered to try a case under Section 167 of the Cr. P. C – Special Judge will proceed to exercise the powers that are conferred upon a Magistrate having jurisdiction to try the case – Appeal Allowed
Judgment
P. S. KAILASAM, J.:- The question that arises in this appeal is whether the Special Judge under the Criminal Law (Amendment) Act, 1952 can exercise the power conferred on a Magistrate under Section 167 of the Criminal Procedure Code to authorise detention of the accused in the custody of the police.
2. This appeal by certificate is preferred by the State of Tamil Nadu against an order of the Madras High Court in C. M. Ps. Nos. 1582 and 1605 of 1976 dated 22-4-1976.
3. The first respondent V. Krishnaswami Naidu is the son of the second respondent L. Venkataswami Naidu. The first respondent was the Gazatted Personal Assistant to the former Minister for Health, State of Tamil Nadu. He and the second respondent were arrested by the Vigilance and Anti-corruption unit of the Tamil Nadu Police on April 2, 1976 for alleged offence under the Prevention of Corruption Act. They were produced before the Special Judge on the next day i.e. 3-4-1976. The respondents moved the Special Judge for enlargement of bail. The petition was dismissed. The Inspector of Police (Vigilance) moved the Special Judge for committing the respondents to police custody for a period of 15 days. That application was also rejected. In spite of the rejection of this application the police filed Cr. M.P. No. 617 of 1976 before the Special Judge for directing the respondents to be placed under police custody for a period of 15 days. The respondents moved before the High Court Cr. M. P. No. 1587 of 1976 for a direction that the respondents should be kept in judicial custody pending investigation of the crime. The respondents also filed another Cr. M. P. No. 1605 of 1976 for quashing the application Cr. M. P. No. 617 of 1976 before the Special Judge by the police for committing the respondents to police custody on the ground that the Special Judge is not a Magistrate as defined in the Criminal Procedure Code and as such not empowered to act under Section 167 of the Criminal Procedure Code and to place the accused in police custody.
4. In order to appreciate the contention raised in this appeal it is necessary to examine the relevant provision of the Criminal Law Amendment Act of 1952 and the relevant provisions of the Criminal Procedure Code Act of 1974. The Criminal Law Amendment Act 66 of 1952 was enacted on 28-7-1952 to further amend the Indian Penal Code and the Criminal Procedure Code 1898 and to provide for a more speedy trial of offences. It may be noted that the Act is in the nature of an Amending Act in respect of the Indian Penal Code and the Code of Criminal Procedure, 1898. Section 6 of the Act enables the State Government by notification in the official gazettee to appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try offences punishable under Sections 161, 162, 163, 164, 165 or 165-A of the Indian Penal Code or Section 5 of the Preventation of Corruption Act, 1947, and also in conspiracy to commit or in attempt to commit or in abetment of any of the offences specified. The Special Judge thus appointed to try the offences mentioned shall not be qualified for appointment as a Special Judge under the Act unless he is or has been a Sessions Judge or an Addl. Sessions Judge or an Asstt. Sessions Judge under the Code of Criminal Procedure 1898. Section 7 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law the offences specified in sub-section (1) of Section 6 shall be triable by a Special Judge only. By Section 7 (1) therefore the jurisdiction to try offences mentioned in S. 6 (1) is conferred on the Special Judge only. Sec. 8 is important for the purpose of our discussion and may be extracted in full. The Special Judge is empowered under this section :
(i) to take cognizance of offence without the accused being committed to him for trial; and
(ii) in trying the accused persons he is required to follow the procedure prescribe
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