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Judgment
Janarthanam, J.—M/s. N.V.K. Mohamed Sultan Rowther and Sons Limited, Door No. 95, Market Road, Dindigul-1 represented by one of its Directors Mr. M. Raja Mohamed filed a private complaint arraying the following five persons, namely, (1) M/s. N.V.K.M. Traders, 207, Poonamallee High Road, Madras-29; (2) Mrs. J. Zeenath Bivi, W/o Mr. A. Jafer Sait, Proprietrix of M/s. N.V.K.M. Traders, 207, Poonamallee High Road, Madras-29; (3) Mr. Ganesan, Ponmari Trade Pack, 454, SIDCO Industrial Estate, Ambattur, Madras-98; (4) Mr. M. Diraviyam, M/s. T. Mariappa Nadar and Sons, 229, South Masi Street, Madurai; and (5) Mr. Selvaraj, M/s. Selvaraj Stores, D.No. 22, Mariamman Kovil Complex, West Car Street, Dindigul-1, as accused before Court of Session, Dindigul-Anna Division at Dindigul for alleged offences under Sections 482, 485 and 420 of the Indian Penal Code, (Act 45 of 1860 - for short.''IPC'') read with Sections 2(1)(f), 78 and 79 of the Trade and Merchandise Marks Act, 1958 (Act 43 of 1958-for short ''TMM Act'').
The complaint so filed had been taken cognizance of by learned Sessions Judge, Dindigul Anna Division, Dindigul, obviously on the face of the salient provisions adumbrated under Sub-section (2) of Section 89 of TMM Act, which prescribes that no Court inferior to that of a Sessions Judge, Presidency Magistrate or Magistrate of the First Class shall try an offence under that Act and issued process to the persons arraigned as accused.
On receipt of process, the persons arrayed as accused appeared to have entered appearance.
Aggrieved by the taking of the cognizance of the complaint, the persons arrayed as accused resorted to knock at the doors of this Court by filing the present action-Crl. O.P. No. 5457 of 1996 u/s 482 of the Code of Criminal Procedure, 1973 (Act, 2 of 1974-for short ''the Code''), to quash the criminal proceedings initiated against them.
They also filed Crl. M.P. Nos. 2506 and 2507 of 1996, the former for stay of proceedings in the Court below and the latter to order release of the articles of the Petitioners seized on the foot of an order made in Crl. M.P. No. 1256 of 1996.
Arguments appeared to have been advanced before learned single Judge, before whom the said Crl. O.P. was pending, in rather a bid to quash the criminal proceedings initiated against the persons arrayed as accused. One among the manifold arguments that seems to have been pressed into service before the said learned Judge was that the Code does not contemplate dual jurisdiction and consequently, the jurisidiction contemplated u/s 89(2) of TMM Act stands repealed by implication as being inconsistent or repugnant, in which event, the provisions of the Code has to prevail and not the jurisdiction under the Special Act. The question so posed for consideration, the said learned single Judge felt, is a substantial question of importance and such a question, better it is to be decided by a Division Bench and therefore, he made a Reference for deciding such a question to a Division Bench and that is how, the matter is before us.
Arguments of Mr. U.N.R. Rao, learned Senior Counsel representing M/s. C. Daniel and K. Mahesh, learned Counsel appearing for the Petitioners-accused and Mr. P. Jayaraman, learned Senior Counsel representing M/s. S. Senthilnathan and R. Lakshmanan, learned Counsel appearing for the Respondent-complainant were heard. The services of Mr. R. Shanmughasundaram, learned Public Prosecutor were also availed of, as Amicus Curiae to render assistance to this Court in solving the tangle posed for consideration.
Learned Senior Counsel appearing on either side, besides learned Public Prosecutor, as Amicus Curiae, referred to many a decision emerging from Superior Courts of jurisdiction, in a bid to solve the tangle posed for consideration in the Reference before this Court. But none of the decisions, referred to by them, is directly in point posed for consideration. In that view of the matter, we rather feel better it is to avoid any reference being made to any of those decisions and to decide the question posed for consideration on the first principles, being one of first impression.
We may now refer to certain salient provisions relevant for the purpose of arriving at a just decision in the case, as adumbrated under the Code and certain provisions as available in TMM Act.
Section 4 of the Code deals with trial of offences under IPC and other laws. (a) Sub-section (1) thereof prescribes,
All offences under the I.P.C. (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(b) Sub-section (2) thereof prescribes,
All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, 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.
Thus, Section 4 provides for a procedure to be followed in every investigation, inquiry or trial in regard to offences under IPC as well as under other laws. In the former, the procedure as laid down in the Code is to be followed. But in the latter, this is subject to any enactment in force which regulates the procedure in such cases. In other words, the procedure in the two cases is the same, except to the extent that the special enactment regulates the manner or place of investigating, inquiring, trying or otherwise dealing with such offences.
Section 5 of the Code containing the saving clause prescribes,
Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect, any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.
The terms ''special or local law'', as referred to in Section 5, as extracted above, had not at all been defined in the Code. But, there is an indication in the definition of Section 2(y) of the Code as to the meaning to be ascribed to certain expressions used in this Code, but not defined therein. According to Section 2(y) of the Code, the words and expressions used therein and not defined, but defined in IPC have the meanings respectively assigned to them in that Code (IPC).
(a) Section 41 of IPC deals with ''special law''. A ''special law'', according to that section is a law applicable to a particular subject''.
(b) Section 42 of IPC deals with ''local law''. According to the said Section a local law is a law applicable only to a particular part of India.
The terms and tenor of Section 5 of the Code provide that the Code shall not affect any special or local law for the time being in force, in the absence of a specific provision to the contrary. The principle is that the general Act does not affect the Special Act. This is an application of the maxim ''Generalia Specialibus non derogant'' meaning thereby that general things do not derogate from the special. In short, special Acts are not repealed by general Acts. Though Section 5 of the Code recognises this general principles, yet, such a general principles is restricted in its operation by the incorporation of the expression in the said section namely, ''in the absence of a specific provision to the contrary''. This means a provision which is specific in affecting the special or local law. But it need not be in the Code itself. It may be in the local or special law. These words do not refer to any possible contrariety between a specific provision in the Code and a provision in a special statute. In order that one provision can be said to be a specific provision contrary to another, the former must completely cover the field of operation of the latter and must altogether nullify it. ''Specific provision'' is stronger than ''express provision''. It means a provision clearly expressed. A provision arising by implication cannot be said to be specific. ''A specific provision to the contrary'' means that the particular provision of the Code must, in order to affect the special law, clearly indicate itself and not merely by implication to be drawn generally, that the special law in question is to be affected, without necessarily referring in express terms to that special law or the effect on it intended to be produced.
The saving provisions in Section 5 lay down that ordinarily the Code will not affect (i) any special law (ii) any local law; (iii) any special jurisdiction or power; and (iv) any special form of procedure. But the existence of any specific contrary provision either in the Code itself or in the special or local law will have a contrary effect. In other respect the Code shall be applicable.
Section 26 of the Code dealing with Courts by which offences are triable, reads as under:
Subject to the other provisions of this Code.-
(a) any offence under the Indian Penal Code may be tried by-
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the first Schedule to be triable;
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by-
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.
Section 26 of the Code, as extracted above, starts with a phraseology, "Subject to the other provisions of this Code". The expression, "Subject to the other provisions of this Code" means that the Section and the First Schedule are controlled by the other provisions of the Code.
Section 193 of the Code deals with ''cognizance of offence by Courts of Session.'' The Section prescribes,
Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.
The opening part of the provision, as extracted above, makes it crystal clear that there are plausibilities or possibilities of a Court of Session taking cognizance of any offence as a Court of original jurisdiction, even in the absence of commitment by a Magistrate and that is discernible from the usage of the expression, namely,
Except as otherwise expressly provided by this Code or by any other law for time being in force....
thereby meaning that if there is any specific provision available in this Code, for taking cognizance of any offence by the Court of Session, as a Court of original jurisdiction, even in the absence of a commitment, such a provision has to be given effect to or if there is any other provision in any other law for the time being in force recognising such cognizance to be taken by the Court of Session of any offence, even in the absence of commitment, such a provision alone must be given effect to.
As to a specific provision available in the Code, Sub-section (2) of Section 199 of the Code dealing with ''the prosecution for defamation'' may be cited as an example. The said subsection provides thus:
Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Indian Penal Code is alleged to have been committed against a person who, at the time of such commission, is the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union Territory, or a Minister of the Union or of a State or of a Union Territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.
Thus, Section 193 of the Code requiring commitment by a Magistrate controls Section 26 of the Code in so far as the Court of Session cannot directly take cognizance of an offence.
Under the First Schedule of the Code, classification of offences is made. The first classification is relatable to offences under IPC. The second classification is relatable to offences against other laws. The said Schedule contains six columns. They are:
(1) Section;
(2) Offence;
(3) Punishment;
(4) Cognizable or non-cognizable;
(5) Bailable or non-bailable; and
(6) By what Court triable.
Those six columns are one and the same for the aforesaid two classifications of the offences. We are concerned with the classification of offences against other laws.
(a) If an offence against other laws is punishable with death, imprisonment for life, or imprisonment for more than seven years, it is triable by a Court of Session
(b) If an offence against other laws is punishable with imprisonment for three years and upwards but not more than seven years, the same is triable by a Magistrate of the First Class.
(c) If the offence against other laws is punishable with imprisonment for less than three years or with fine only, the same is triable by any Magistrate.
Section 190 of the Code deals with ''Cognisance of offences by Magistrates''. The said Section reads as under:
190(1). "Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.
The Code also contains machinery provisions relatable to trial of various categories of cases, prescribing different procedure for the trial of those cases, about which, we rather feel no elaborate discussion is necessary.
From the various provisions, as related above, it is rather crystal clear that the Code provides the necessary and requisite procedure for trial of offences, not only under IPC, but also under other laws.
TMM Act can be stated, without any pale of controversy, as a ''special law'', falling within the four corners of Section 41 of IPC. Such a special law creates certain specific offences, such as under Sections 78 and 79 thereof, about which we are concerned, besides other offences. Section 78 provides punishment for violation of clauses (a) to (g) thereof and the punishment provided for is imprisonment for a term, which may extend to two years or with fine or with both. There is a Proviso appended to the said Section, under which an aggravated punishment is provided for, under the circumstances specified in the said Proviso. The aggravated punishment in the said Proviso is an imprisonment for a term, which may extend to three years or with fine or with both.
Likewise, Section 79 thereof provides necessary and requisite punishment for violation of clauses (a) to (c) thereof and the punishment provided therefor is imprisonment for a term, which may extend to two years or with fine or with both.
(a) A Proviso is also appended to Section 79, providing an aggravated form of punishment, in the circumstances mentioned therein and the aggravated form of punishment provided therefor is imprisonment for a term, which may extend to three years or with fine or with both.
The special enactment, namely, TMM Act contains a specific provision, in the shape of Section 89 thereof relatable to cognizance of certain offences. Sub-section (1) thereof prescribes,
No Court shall take cognizance of an offence u/s 81, Section 82 or Section 83 except on complaint in writing made by the Registrar or any officer authorised by him in writing.
The said Section provides a special procedure for taking cognizance of offences under Sections 81 to 83 thereof. The special procedure is such a complaint must be in writing and such a complaint must have to be made either by the Registrar or any other officer authorised by him in writing. The complaint given under those Sections, by adopting any other mode, other than the one, as has been specifically prescribed in Sub-section (1) thereof shall not at all be entertained. This is a deviation made from the provisions of the Code. Under the Code, according to Section 2(d), a complaint may be made orally and also in writing. This apart, a complaint may be preferred by a person aggrieved, in the case of a non cognizable offence or in the case of cognizable offence, by any person coming to know of such cognizable offence having been committed. By way of emphasis, it may be stated that for offences under Sections 81 to 83 of TMM Act, the complaint has to be necessarily given in writing and oral complaint is not feasible and that apart, such a complaint has to be given either by the Registrar or by any person authorised by him in writing.
(b) Sub-section (2) thereof, provides,
No Court inferior to that of a Sessions Judge, Presidency Magistrate or Magistrate of the First Class shall try an offence under this Act.
The apparent tenor and meaning of the said provision is that all offences under TMM Act cannot at all be tried by any Court inferior to that of a Sessions Judge, Presidency Magistrate or Magistrate of the First Class. Apart from this, no other provision is traceable thereto with regard to the procedure to be adopted in the trial of offences under the said Act.
Sub-section (2) of Section 89 of TMM Act is, after all, an enabling provision conferring jurisdiction of some particular categories of Magistrates and Judges. No other provision is traceable to the said Act as to the constitution or creation of a Special Court for exclusive trial of the offences under the said Act, by specifically providing a non-obstante clause in such a provision, that is to say, ''Notwithstanding anything contained in the Code of Criminal Procedure''. If there is a specific provision in the said enactment, creating a Special Court empowering such a Court to exclusively try an offence under the said Act, notwithstanding the provisions contained in the Code, there could have been no problem at all. Admittedly, such a provision is not at all there in the said enactment. The only provision, as available, as already stated, is Sub-section (2) of Section 89, which is after all, an enabling provision conferring jurisdiction for the trial of offences under the said Act on various categories of officers, it is here, we have to construe the effect and operation of Sections 4, 5, 26 and 193 of and the First schedule to the Code on Sub-section (2) of Section 89 of TMM Act.
On a cursory reading of Sub-section (2) of Section 89 of TMM Act, it appears that the jurisdiction in respect of trial of offences under the said Act had been conferred on three categories of officers, namely, Sessions Judge, Presidency Magistrate and Magistrate of the First Class. But, if the provision is carefully read, it is not as if the creating of jurisdiction is on those three categories of Officers in respect of trial of offences under the said Act. But that is after all, an enabling provision to the effect that one of the categories of those officers has to try an offence under the said Act.
Even if it is to be construed that jurisdiction is conferred on all those three categories of Officers, such construction and interpretation cannot at all be made, on the face of the specific provisions such as Sections 4, 5, 26 and 193 of and the First Schedule to the Code. By way of emphasis, we may state that ''Court of Session'' cannot be a ''Court of original jurisdiction'' and such ''Court of Session'' cannot take cognizance of an offence, unless a commitment is made to such Court by a Magistrate empowered to commit or otherwise, there must be express and implicit provisions available in the Code empowering ''Court of Session'' as a ''Court of Original jurisdiction'' enabling it to take cognizance of the offences under the special enactment. If special provisions are there in a special enactment, the said special provisions alone will be applicable and the provisions available in the Code will not at all be applicable. Such a special provision not being made available in TMM Act, the provisions adumbrated under the Code must have to prevail.
As already indicated, the offences under Sections 73 and 79 of TMM Act are punishable, even in the aggravating circumstances, with imprisonment, which may extend to three years or with fine or with both. As already indicated, on the classification of offences under the other laws under the First Schedule to the Code, it has been specifically provided that if the offence under the other laws is punishable with imprisonment for three years and onwards, but not more than seven years, the same is triable by a Magistrate of the First Class. We are again to reiterate that there is no specific provision available under TMM Act constituting the Court of Session as a Special Court to exclusively try offences under the said Act. In the absence of such a provision, a Court of Session cannot at all take cognizance of an offence under TMM Act, inclusive of the offences under Sections 78 and 79 thereof and such an offence, according to the classification of offences against other laws, as prescribed in the First Schedule attached to the Code, can be taken cognizance of only by a Magistrate of First Class and the cognizance of offences under Sections 78 and 79 of the said Act, as taken by learned Sessions Judge in the case on hand is ultra vires and cannot be allowed to stand.
In view of the discussions as above, we are of the view that Section 89(2) of TMM Act cannot at all be stated to have been repealed by implication, as being inconsistent within or repugnant to the provisions of the Code and such a provision, is after all, only an enabling provision, empowering certain categories of officers to try such offences under the said Act and the provisions of the Code, as detailed by us, in our discussion, will hold die field in the trial of offences under TMM Act.
Having thus answered the question referred to us, we remit the matter back to learned single Judge for disposal of Crl. O.P. No. 5457 of 1996 and Crl. M.P. Nos. 2506 and 2507 of 1996 according to law.