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SUPREME COURT OF INDIA
D.A. Desai, R.S. Pathak, O. Chinnappa Reddy,
A.P. Sen and V. Balakrishna Eradi JJ
A.R. Antulay - Appellant
versus
Ramdas Sriniwas Nayak and another - Respondents
Criminal Appeal No. 247 of 1983
Decided on 16.2.1984
Question-
Is the Special Judge barred by the Act of 1952 to take cognizance of an offence under Section 6(1){a) or (b) on the basis of a private complaint? (No)
Held in the absence of any statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In the matter of initiation of proceedings before a special Judge under S. 8(1) the legislature bad three opportunities to unambiguously prohibit a special Judge from taking cognizance of a case on the basis of a private complaint. If the legislature was disinclined to do so, there is no canon of construction which permits the Court to go in search of a hidden or implied limitation on the power of the Special Judge to take cognizance (Para 6)
(ii) Criminal Law Amendment Act Section 5A - Police Officer below certain rank to investigate offence under Act only after permission from Magistrate-and Section 8(i) - Appellant contends that Section 5A is a protection for the accused - Such protection is rendered illusory if Special Judge is allowed to take cognizance on private complaint -Section SA limits power of Special Judge by implication.
Question
Does Section 5A of the Act of 1952 limit the power of the Special Judge to take cognizance of a case on a private complaint? (No)
Held it is necessary to state with clarity and precision that Section 8(1) which confers power on the Special Judge to take cognizance of offences set out in Section 6(1)(a) and (b) does not directly or indirectly expressly or by necessary implication indicate that the only method of taking cognizance is the police report under Section 173(2) of the Criminal Procedure Code submitted by a police officer of the designated rank or permissible rank as set out in Section 5A of the Act of 1952. (Para 14)
Further held Section 8(1) says that the special Judge shall take cognizance of an offence and shall not take it on the commitment of the accused. The legislature provided for both the positive and the negative It is not possible to read S. 8(1) as canvassed by the appellant that cognizance can be only taken upon a police report and any other view will render the safeguard illusory. (Para 18)
(iii) Criminal Amendment Act 1952, Sections 6, 8(1, and (2) -Criminal Procedure Code 1973, Sections 190 and 193 Special Judge enjoys status of Sessions Judge-Sessions Judge cannot take cognizance of case on basis of private complaint in original Jurisdiction - Power granted to Magistrate under Section 190 Criminal Procedure Code-Special Judge cannot take recourse to Section 190 Criminal Procedure Code which grants powers of cognizance to Magistrates.
Question
As the Special Judge enjoys a similar status to a Sessions Judge is he prohibited from taking recourse to Section 190 Criminal Procedure Code? (No)
Held a Court of Special Judge is a Court of original criminal jurisdiction and it is not necessary to treat him either as a Magistrate or a Court of Sessions save and except in respect of specific provisions wherein it is so provided. (Para 34)
Further held the Court of Special Judge was a new Court of original jurisdiction and whenever a question arose as to what are its powers in respect of specific questions brought before it as a Court of original criminal jurisdiction it had to refer to the Code of Criminal Procedure undaunted by any designation claptrap. (Para 27)
Result:
The private complaint filed by the complainant was clearly maintainable- The order of the Special Judge and the High Court are upheld - Appeal is dismissed. (Para 35)
JUDGMENT
Desai, J. - This appeal by special leave is directed against the decision of a Division each of Bombay High Court in Criminal Revision Application NO. 510 of 1982, which was preferred by the appellant against the rejection of his application by the learned special Judge as per his order dated October 20, 1982.
2. The various stages through which Special Case No.24 of 1952 progressed upto and inclusive of October 18, 1982 have been set out in our Judgment rendered today in cognate Criminal Appeal No. 356 of 1983 and they need not be recapitulated here. After the learned special Judge Shri P. S. Bhutta took cognizance of the offences upon a complaint of Ramdas Sriniwas Nayak, the first respondent (Original complainant), the case was adjourned to October 18, 1982 for recording the evidence of the complainant. On that day, learned counsel appearing for the appellant in the trial court moved an application questioning the jurisdiction of the court on two specific counts; (i) that the Court of special Judge set up under Section 6 of the Criminal Law Amendment Act, 1952 ('1952 Act' for short) cannot take cognizance of any of the offences enumerated in Section 6(1)(a) and (b) upon a private complaint of facts constituting the offence and (ii) that where there are more special Judges than one for, any area, in the absence of a specification by the State Government in this behalf, specifying the local area over which each special Judge would have jurisdiction, the special Judge (Mr. Bhutta) had no jurisdiction to take cognizance of the offences and try the case. The learned special Judge rejected both the contentions. The appellant filed Criminal Revision Application No. 510 of 1982 in the Bombay High Court. On a reference made by the learned Single Judge this revision application was heard by a Division Bench of the High Court. The learned Judges by two separate but concurring judgments held that special Judge is competent and is entitled to take cognizance of offences set out in Section 6(1)(a) and (b) upon a private complaint of facts constituting the offence and consequently rejected the first contention. In reaching this conclusion the learned Judges held that a' prior investigation under Section 5A of the Prevention of Corruption Act, 1947 ('1947 Act' for short) by a police officer of the designated rank is not a condition precedent to ' the special Judge taking cognizance of the offences under Section 8(1) of 1952 Act. The learned Judges also held that by the time the matter was heard by them, the Government of Maharashtra had issued a notification dated January 18, 1983 under sub-Section (2) of Section 7 of 1952 Act specifying Shri R.B. Sule, Special Judge for Greater Bombay for trying Special Case No. 24 of 1982. After taking note of this notification und the statement of Shri P. R. Vakil, learned counsel for the respondent, the second contention of the learned counsel for the appellant was also rejected. The learned Judges accordingly rejected the revision petition. Hence this appeal by special leave.
3: On behalf of the appellant, the pivotal point canvassed was that a private complaint cannot be entertained by the special Judge in respect of all or any of the offences enumerated in Section 6(1)(a) and (b) of the 1952 Act. In support of this submission, it was very vehemently urged that the provision contained in Section 5A of the 1952 Act has been repeated by held to be mandatory in character and if its noncompliance is brought to the notice of the superior court at a stage anterior to the conclusion of the trial, the proceeding would be vitiated. It was urged that Section 5A incorporates a safeguard against frivolous, speculative and tendentious prosecutions and therefore, it must not only held to be mandatory but it must be so interpreted as to make an investigation under Section 5A a condition precedent to the taking of the cognizance of an offence or offences committed by a public servant by the special Judge. A
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