P.S. Sadagopachari and Another vs State

(1) Petition by Sadagopachari and Raghupathi, accused 4 and 6 in C. C. 14 of 1964 on the file of the Special Judge, Madras, to revise the order

of the Special Judge in Crl. M. P. No. 32 of 1965 in the said case overruling their preliminary objections with regard to the competency of the

Collector of Customs to file the complaint in this case and the jurisdiction of the court to entertain the same.

(2) The difficulty that has arisen in this case is not likely to occur in future after the enactment of the new Customs Act 52 of 1962. The Collector

of Customs has preferred a complaint against the petitioners and others under S. 120B read with Ss. 161, 165, 165-A I.P.C. Sec. 5(2) read with

Sec. 5(1)(d) of the Prevention of Corruption Act II of 1947; Sec. 5(2) of the said Act read with S. 109 I.P.C. And S. 167 clauses 75, 76 and 81

of the Customs Act read with Ss. 19 and 5 of the Imports and Exports (Control) Act apart from other specific offences against the individual

accused. The Prevention of Corruption Act (Act II of 1947) provides for special investigation by senior police officers for offences under the said

Act and specific offences such as bribery under the Indian Penal Code subject to the prosecution obtaining previous sanction. Sec. 3 of the Delhi

Special Police Establishment Act (Act XIV of 1946) provides that the Central Government may, by notification in the official Gazette, specify the

offences or classes of offences committed in connection with matters concerning Departments of the Central Government which are to be

investigated by the Delhi Special Police Establishment.

Such investigation was done in this case and normally, one would expect the special police to file the charge sheet in this case. But under Sec. 187-

A of the Sea Customs Act (Act VIII of 1878), no Court shall take cognisance of any offence relating to smuggling of goods punishable under item

81 of the Schedule to S. 167 of the said Act expect upon complaint in writing, made by the Chief Customs officer or any other officer of Customs

not lower in rank than an Assistant Collector of Customs. Thus in respect of the main acts of smuggling punishable under S 167(81) of the Sea

Customs Act, the Collector of Customs had to prefer the complaint and for the offences punishable under the Prevention of Corruption Act, the

Special Police who investigated the case had to file charge sheet. Under s. 137 of the Customs Act (Act 52 of 1962) dealing with cognisance of

offences, the Collector of Customs need only give sanction for the prosecution relating to certain offences under the Customs Act. Hence, the

Special Police could file charge sheet in future for offences under Prevention of Corruption Act and other Acts after obtaining the sanction of the

Collector in respect of offences under Customs Act requiring such sanction.

(3) The only question to be considered in this case as regards the first objection raised by the learned Advocate for the petitioner is whether the

Special Judge can take cognisance of all the offences charged against the petitioners and others as private complaint of the Collector of Customs.

Under S 8(1) of the Criminal Law Amendment Act a special Judge may take cognisance of offences without the accused being committed to him

for trial, and in trying the accused persons he shall follow the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases

by Magistrates. Thus the powers of the special Judge to take cognisance of the offences are wide and they are not confined to the taking of

cognisance on police charge sheet. The cognisance of offences can be taken by the Special Judge even on private complaint.

(4) In Parasnath Pande and Another Vs. State, it has been held that Sec. 8(1) of the Criminal Law Amendment Act gives clear authority to the

special Judge to take cognisance of an offence and no limitation has been placed as to how he should do it. It was held in that decision that even if

the investigation of the case had been made by the ordinary police and not by the special police as contemplated by the Prevention of Corruption

Act, it would not take away the jurisdiction of the Special Judge to try the accused. The learned Judges in that case went to the extent of stating

that the Special Judge had powers to order an enquiry even under S. 202 Cr.P.C. But it is doubtful whether the Special Judge would have any

such power having regard to the wording of cl. (3) of S. 8 of the Criminal Law Amendment Act which extends only such of the provisions of the

Criminal Procedure Code, not covered by the previous clauses 1 and 2 of Sec. 8 of the Criminal Law Amendment Act. The said first part of

clause (3) of S. 8 of the Criminal Law Amendment Act is governed by the latter part of the said clause which states that for the purpose of the said

provisions, the Court of the special Judge shall be deemed to be Court of Session trying cases without a jury or without the aid of assessors and

the person conducting a prosecution before a special Judge shall be deemed to be a public prosecutor.

It should be noted that the ordering of an enquiry under S. 202 Crl. P. C. Is the power of a magistrate and not the power of a Court of Session.

But this does not affect the Question of jurisdiction of the special Judge under S. 8(1) of the Criminal Law Amendment Act to take cognisance of

offences either on police charge sheet or private complaint or otherwise. The learned advocate for the petitioners referred to S. 193 Crl. P. C.

Regarding the cognisance offences by Court of Session only as committal and urged that the said section could not be invoked to prevent a special

Judge, from taking cognisance on police charge sheet and that on a parity of reasoning S. 190 Crl. P. C. could not be invoked by the special Judge

to take cognisance of offences on private complaint unlike as in the case of magistrates. But I fail to see how S 193 Crl. P. C. cannot be invoked

by a special Judge. Even though the special Judge is a court of Session as stated in clause 8(3) of the Criminal Law amendment Act, he can take

cognisance otherwise than on committal by virtue of clause 8(1) of the said Act.

Sec. 193(1) Crl. P. C. Provides that 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 cognisance of any offence as a court of original jurisdiction unless the accused has been committed to it by a magistrate duly

empowered in that behalf. Thus clause 8(1) of the Criminal Law Amendment Act is ""the other law"" contemplated in S. 193(1) Crl. P. C. and it

operates as an exception to the general rule that Court of Session should normally try cases only on commitment. There can be no objection to the

Collector of Customs preferring of complaint in respect of even offences falling under the Prevention of Corruption Act. The first preliminary

objection has, therefore been rightly overruled by the learned Special Judge, Madras.

(5) The only other objection raised by the learned advocate for the petitioner is the plea of limitation based on S. 198 of the Sea Customs Act. The

learned advocate for the petitioner stated that as the plea of limitation can be sustained only on additional facts which have to be established at the

trial of the case, it may be left open and I see no objection to the said course. I accordingly leave open the question of limitation to be argued after

the trial of the case.

(6) Subject to the observations regarding the plea of limitation, this criminal revision case is dismissed.

(7) Revision dismissed.