Jyoti Arora vs State of Haryana

M.L. Koul, J.

Mrs. Jyoti Arora, former Registrar of Kurukshetra University, Kurukshetra (hereafter to be called as the accused) is seeking the indulgence of this Court within the provisions of Section 482 of the Code of Criminal Procedure for quashing of a criminal complaint Annexure P1 filed by respondent No. 2 ExSubedar Nar Singh (hereinafter to be called as the complainant) against the accused pending disposal in the Court of Shri B.P. Jindal, learned Special Judge, Kurukshetra, who has taken cognizance against the accused for trial within Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be called as the Act).

Mr. Anupam Gupta, learned counsel for the accused argued that the complainant has remained deliberately silent to narrate the date in his complaint when atrocious words were used by the accused against the complainant saying that "Chuhara Chamar Bharti Ho Gai Hain. Thaila Bhar Kar Noton Ka Le Jate Hain. Karte Dharte Kuch Nahin. Tum Jate Ho Ya Dhaka Mar Ke Nikalwaun. Tum Jahan Ke Ho Wahin Rahoge. Aise Hi Tum Ho Aisa He Tumhara General Tha Aur Aisa He Col. Hai."

Rightly so, for his insubordination and dereliction of duty on that date the complainant was placed under suspension and on enquiry punished as well. However, such a date finds mention in the summoning order when allegedly such words were used by the accused against the complainant who went to report the matter to the accused that 50 per cent of the students of LL.B. Final Year had walked out of the examination hall as most of the questions in the question paper were out of the prescribed syllabus. In return the Registrar scolded him and used the said words. It is quite strange that atrocity and harassment was caused to the complainant by the accused on 9.6.1995 but he remained silent about it for 8 months till about the incident an enquiry had taken place against him and he was penalised with stoppage of two increments with cumulative effect and was also ordered not to be paid anything more than subsistence allowance for the period he remained under suspension.

In this regard, I went through the presummoning evidence recorded by the trial Court and on thoughtful consideration it is evidently found that both the eye witnesses Col. K.D.P. Singh and Satish Kumar were not at all present in the office when the so called incident took place. They have heard about it outside and office and, therefore, being the hearsay witnesses could not be said to be the direct witnesses to the occurrence. One is a contractor and the other is a Chief Security Officer in the University. May be they have their own axe to grind against the accused and for that purpose stood witnesses about an incident which never took place in their presence and remained silent for eight months till the complaint was filed in the Court. Even otherwise the allegations are inherently improbable and absurd as the complainant was chargesheeted on that date for dereliction of his duty and on proper enquiry was penalised as well. Therefore, he managed a complaint to be lodged against the accused after he was punished. The law cannot ordinarily be divulged from justice and learned Special Judge ought to have examined the issue with great care and caution before summoning the accused who is an IAS officer and as Registrar of the Institution was supposed to control the affairs of the Institution.

There is inordinate delay in filing such a complaint which appears to be premeditated filed after due thought and consideration to take revenge against the accused and to make her stand in the dock for the complainant on enquiry about the incident was penalised and his two increments were stopped on 15.2.1996 for dereliction of his duty. Soon after he was penalised on 15.2.1996 he arranged to file the present complaint against the accused on 22.2.1996. Although the occurrence is alleged to have taken place on 9.6.1995 but he did not seek the action against the accused for the reasons best known to him. As the delay is of 8 months and the same has not been explained, therefore, the trial Court even if had the jurisdiction to take the cognizance could not take cognizance in a belated matter without substantive evidence to proceed in it under law.

The basic argument advanced by the learned counsel for the accused is with regard to the jurisdiction of the trial Court who has proceeded in the matter directly without the accused being committed to him for trial upon receiving a complaint of facts which constituted such an offence within the ambit of Section 3(1)(x) of the Act or upon a police report of such facts.

No doubt for each district the Court of Session to be a Special Court to try the offences under the Act have been constituted, but the Act nowhere provides that a Special Court can take cognizance of an offence without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.

In this regard, learned counsel for the accused carried me through certain Special Acts like the Essential Commodities Act, 1955 (Section 12AA(1)(e), Terrorist and Disruptive Activities (Prevention) Act, 1987 (Section 14), Prevention of Corruption Act, 1988 (Section 5) and Narcotic Drugs & Psychotropic Substances Act, 1985 (Section 36A(1)(b) & (d), which show that all these Acts have specific provisions enabling the Special or the Designated Court to take cognizance of the matter without the accused having been committed to them for trial as a Sessions Judge. There is no enabling special provision under the Act authorising the Special Judge to take cognizance of an offence as described under the Act directly. In the absence of any direct provision of the identical nature as mentioned above in the Act, the Special Court is to be governed for the trial of an offence under the Act under the provisions of the Criminal Procedure Code. So it is established that within the purview of Section 5 of the Crl.P.C. the Special Judge could not take the cognizance of the matter under Section 3(1)(x) of the Act because there is no enabling special provision laid down under the Act which is contrary to the language of Section 5 of the Cr.P.C. especially empowering the Special Judge who is a Sessions Judge to hold the jurisdiction directly without the accused having been committed to it for trial or upon a police report on such facts.

In this regard the Apex Court in Bhim Sen v. State of U.P., AIR 1955 SC 435 has held that ordinarily the jurisdiction of ordinary criminal Court under Section 5 of the Criminal Procedure Code cannot be held to have been excluded unless exclusion of jurisdiction of a Court of general jurisdiction can be brought about by the setting up of a Court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative.

According to the counsel for the accused, even under Section 2(d) of the Act Special Court has been defined a Court of Session specified as a Special Court in Section 14. In comparison under the TADA Act, 1987 the Designated Court means a Designated Court constituted under Section 9 of the Act. The jurisdiction of that Court has been described under Section 11 of the said Act which reads as under :

"(1) Notwithstanding anything contained in the Code every offence punishable under any provision of this Act or any rule made thereunder shall be triable only by the Designated Court within whose local jurisdiction it was committed or, as the case may be, by the Designated Court constituted for trying such offence under SubSection (1) of Section 9."

Under the TADA Act substantive law and the procedure for the trial of the cases has been provided and such system is not in existence under the Act where only the substantive law has been laid down but no specific procedure for trial of the offences is provided than the one laid down under the Criminal Procedure Code.

Mr. Gupta in this regard referred to clause (d) of Sub Section (1) of Section 36(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 which contains that a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf to take cognizance of that offence without the accused being committed to it for trial.

This clearly indicates that a Special Judge is empowered to take the cognizance over the matter directly upon a police report of the facts constituting an offence under the NDPS Act or upon a complaint made by the officer of the Central Government or a State Government authorised in this behalf by the State Government and the bar created in this regard under Section 5 of the Code of Criminal Procedure is washed away by saying that notwithstanding contained in the Code the Special Court can act as described above.

In the same manner under Section 5 of the Prevention of Corruption Act, 1988, it has been laid down that a Special Court may take cognizance of the offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973(2 of 1974) for the trial of warrant cases by the Magistrates. It indicates that both the substantive law and the procedure for trial of cases has been provided under the Act itself and Special Judge has been empowered to try the cases without it being committed to him.

It is thus established that the trial Court in the instant case had no jurisdiction to try the case without the accused having been committed to it for trial upon receiving a complaint of facts which constitute such an offence or upon a police report of such facts.

The Apex Court in Vishwa Mitter v. O.P. Poddar and others, AIR 1984 SC 5, has observed that "This is specifically indicated by the provision of sub section (2) of Section 4 which provides that all offences under any other law meaning thereby law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It would follow as a necessary corollary that unless in any statute other than the Code of Criminal Procedure which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code of Criminal Procedure shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure."

This authoritative view of the Supreme Court is recognised in Directorate of Enforcement v. Deepak Mahajan and another, AIR 1994 SC 1775 which reads as under :

"To sum up Section 4 is comprehensive and that Section 5 is not derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the Special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact, the second limb of Section 4(2) itself limits the application of the provisions of the Code reading"....... but subject to any enactment for the time being in force regulating the manner or place or investigating, inquiring into, trying or otherwise dealing with such offences."

It is further held that :

"the operation of Section 4(2) of the Code is straightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently S. 167 of the Code can be made applicable during the investigation or inquiry of an offence under the special Acts also inasmuch as there is no specific provision contrary to that excluding the operation of Section 167."

It thus transpires and is fully established that once the special procedure is not provided under the Act that a Special Judge could directly take the cognizance upon any complaint or a matter before him for trial of a case, the trial Court was without jurisdiction to proceed in the matter especially for the reason that actually the complainant was chargesheeted for misbehaviour and dereliction of duty for which an enquiry was held against him by the retired Sessions Judge who found him guilty of misbehaviour and dereliction of duty whereupon he was punished. He did not raise his voice for 8 months but soon after the punishment was awarded to him he manoeuvred a complaint against the accused saying that she had cast atrocities on him within the terminology of Section 3(1)(x) of the Act.

While taking this view I am fortified by a Division Bench ruling of Madhya Pradesh High Court namely Meera Bai v. Bhujbal Singh and others, 1995(3) RCR 125 saying that a Special Court under the Act has no jurisdiction to try the offences described under the Act unless a case is committed to it under Section 193 of the Code of Criminal Procedure. A similar view has been taken by the Single Bench of Allahabad High Court in Mangli Prasad v. Additional Sessions Judge IInd, 1996(3) RCR 768 holding that the Sessions Judge cannot take cognizance of offence as a Court of original jurisdiction unless the case has been committed to him by a Magistrate under Section 193 Cr.P.C. The order of Sessions Judge in sending the complaint to the police under Section 156(3) of the Cr.P.C. was without jurisdiction.

The only contrary view available on the point is that of a Division Bench of Kerala High Court reported in 1993 Crl.L.J. 760 which says that "where a special Court specified in S.14 receives a final report disclosing offences punishable under S. 3 of the Act as well as offence under Section 376 of the Penal Code, the accused can be tried for both in the same proceedings. For that no order of commitment by Magistrate for offences punishable under S.376 Penal Code is called for". As this view is contrary to the view expressed by the Supreme Court as mentioned above, therefore, it cannot be said to be a good law on the point.

From the above discussion it becomes crystal clear that under the Act the Sections 2(1)(d), 14 and 20 have not in any way taken away the procedure laid down under Sections 4 and 5 of the Criminal Procedure Code as no procedure for trial of the offences under the Act is provided or laid down. In such circumstances the general procedure has to be followed by the Special Court by virtue of provisions of Sections 4 and 5 of the Criminal Procedure Code.

The Special Court could not take the cognizance of an offence as a Court of original jurisdiction unless the case was committed to him by a Magistrate under Section 193 of the Cr.P.C. As the Special Judge without jurisdiction has directly proceeded on a complaint filed by the complainant which was belated and misconceived, therefore, all the proceedings taken by the Special Judge upon the complaint filed by the complainant against the accused being illegal and without jurisdiction, are quashed. This petition is allowed accordingly.