|Case Name||M.R. Melhotra and Another v/s State|
|Case Number||AIR 1958 All 492|
|Court||Allahabad High Court|
|Bench||Justice V Bhargava, Justice A Mulla|
|Author of the judgment||Justice V Bhargava|
|Decided On||30 October 1957|
|Relevant Act/Sections||Code of Criminal Procedure Code – Section 350
Criminal Law Amendment Act No 46 of 1952
|Author of the case brief||Aditya Gor|
The present case is the concurring opinion delivered by Justice V Bhargava of the Allahabad High Court. He agreed with the judgment of Justice Mulla, that Section 350 of the Criminal Procedure Code is not applicable to the case when a special judge is appointed under the Criminal law Amendment Act No 46 of 1952. Justice Bhargava, however, has stated reasons of his own to reach the said conclusion.
According to him, in designating the Court, which is empowered to try cases under the Criminal Law Amendment Act, 1952, as a Court of a Special Judge, the legislature clearly intended to indicate that a Special Judge will neither be a Magistrate nor a Court of Session as constituted under the Code of Criminal Procedure. He observes that had there been any intention that the Special Judge was to be a Magistrate or a court of session, it was easy for the legislature to lay down in the Criminal Law Amendment Act, 1952, itself that the power of trying cases under that law would be exercised by a Magistrate or a Court of Session. Consequently, he observes that, in considering the applicability of the provisions of the Code of Criminal Procedure to a Special Judge, it has to be kept in view that he is neither a Magistrate nor a Court of Session.
The Court of a special judge is a special class of Court constituted under that special law and, consequently, the Code of Criminal Procedure is to be applied in his case only to the extent that the Criminal Law Amendment Act, 1952, itself makes it applicable. Under Sub-section (1) of Section 8 the Special Judge, who is neither a Magistrate nor a Court of session, is empowered to take cognizance of offences without the cases being committed to him for trial and then there is the further direction that, in trying the accused persons, he is to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates. The language of this subsection does not indicate that the Special Judge has been equated with a Magistrate or has been constituted a Magistrate for the purpose of trying cases under that Act. The fact that he is to follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates cannot convert a Special Judge into a Magistrate.
Remaining provisions of the Code of Criminal Procedure have also been applied to proceedings before him to the extent, that those provisions are not inconsistent with the provisions of the Criminal Law Amendment Act, 1952. Sub-section (3) then further proceeds to lay down a fiction of law that, for purposes of those provisions of the Code of Criminal Procedure which become applicable under Sub-section (3) of Section 8, the Court of a Special Judge is to be deemed to be a Court of session trying cases without a jury or without the aid of assessors.
Section 350 of the Code of Criminal Procedure only governs proceedings before a Magistrate and not before a Court of Session. Under Sub-section (3) of Section 8, only those sections are applicable to the proceedings before a Special Judge which are applicable to a trial before a Court of Session and when these provisions of the Code of Criminal Procedure become applicable, they apply exactly as if the Special Judge was a Court of Session.
If the Special Judge can be classed as a Magistrate, these provisions would apply, but if he is to be regarded as a Sessions Judge, they have no application and the Special Judge had no power to grant the relief claimed. There is a specific direction was incorporated in the statute to stress the fact that a departure from the normal rule of procedure was being made and though the Special Judge was not a Magistrate but an officer deemed to be a Sessions Judge, yet for the limited purposes of trial he should follow the procedure laid down in Chapter XXI of the Criminal Procedure Code.
The words ‘shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates’ again indicate that the direction was confined to observe the procedure laid down in Chapter XXI of the Criminal Procedure Code. Sub-section (1) of Section 8 do not warrant the inference that the other provisions of the Code of Criminal Procedure outside Chapter XXI which were applicable to a trial held by a Magistrate also applied to the trial conducted by the Special Judge.
In other words excepting the mode of trial prescribed in Sub-section (1), all the other provisions of the Criminal Procedure Code which apply to the Court of the Sessions Judge shall apply to the Court of the Special Judge.
This implies that the provision of Chapter XXXVIII of the Code of Criminal Procedure will apply to such a person and a court cannot refuse to acknowledge this merely because the person conducting the prosecution before the Special Judge is not a duly appointed public prosecutor under the Criminal Procedure Code. Normally the Sessions Judge hears the appeals filed against the decisions of the Assistant Sessions Judge unless the sentence inflicted is four years or more. This section, therefore, instead of being a surplusage again indicates the intention of the legislature to confer the status of a Sessions Judge upon these Special Judges.
The learned judge thus observed that the Criminal Law Amendment Act (Act XLVI of 1952) has created Special Judges who differ from the Sessions Judges only in this respect that they follow a different mode of trial, but all the other provisions of the Criminal Procedure Code apply to both alike.