Bar Association vs State of Madhya Pradesh

U.L. Bhat, C.J.

By letter dated 11-10-1991, Bar Association, Sheopurkala requested the High Court to establish Court of Additional Sessions Judge at Sheopurkala or alternatively to establish a link Court at that place to deal with the cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ''the 1989 Act''). Subsequently, a telegram was received from the Bar Association, Jhabua praying that in the absence of or during long leave of a Special Judge, the Additional Sessions Judge may hear urgent bail petitions under the 1989 Act. On the direction of the Chief Justice, the letter and the telegram have been treated as Writ Petition. Notices have been issued to the learned Advocate General, President, High Court Bar Association, President of the Local District Bar Association and President of the Jhabua Bar Association. Except the learned Deputy Advocate General representing the learned Advocate General, none of the other persons to whom notices have been issued, are present.

Difficulties have arisen in dealing with cases not only under the 1989 Act but also under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the 1985 Act'') both of which contemplate establishment of Special Courts. While special Courts have been established in each district in the State u/s 14 of the 1989 Act, Special Courts have not been established in any district u/s 36 of the 1985 Act. The transitional provision in Section 36D of the 1985 Act enables offences committed thereunder to be tried by "Court of Session" in the absence of Special Court established under the Act. u/s 14 of the 1989 Act, the State Government is required, with the concurrence of the Chief Justice of the High Court, to specify in each district a "Court of Session" to be a Special Court to try offences under that Act. Difficulties have arisen in view of the conflicting appreciation of these provisions by Sessions Judges in the State. Reference may be made to a recent decision of a learned Single Judge of this Court in Criminal Appeal No. 645 of 1990 reported in Ghudan v. State of M.P. 1994 (2) M.P.W.N 20. The case related to conviction under the provisions of the 1935 Act by the third Additional Sessions Judge, Chhindwara. The learned Single Judge took the view that since third Additional Sessions Judge was not Presiding Officer of a Special Court constituted u/s 36 of the Act of 1985, he had no jurisdiction to try the case. On this ground as also on certain other grounds, the conviction and sentence entered against the accused were set aside.

Section 14 of the 1989 Act reads as follows :

"For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act."

Section 20 states, inter alia, that the provisions of the Act shall have overriding effect over other laws. The effect of Section 14 of the Act is that an offence punishable under the provisions of the Act can be tried only by a "Court of Session" specified to be a ''special Court'' by the State Government with the concurrence of the Chief Justice. No other Court has jurisdiction to try such offences. The State Government has, with the concurrence of the Chief Justice of the High Court, specified for each district the Court of Session to be special Court to try offences under the Act as seen in notification dated 30-14990.

We may now notice the parallel provisions of the 1985 Act. Section 36 requires the Government to constitute Special Courts to try offences under that Act. A Special Court shall consist of a single Judge who. shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. Section 36D was incorporated in the Act by Amendment Act No. 2 of 1989 providing for transitional period till the constitution of the Special Court. Sub-section (1) of Section 36D states that offences committed after the coming into force of" the Amendment Act shall be tried by a "Court of Session" until a Special Court is constituted u/s 36, notwithstanding anything contained in the Code of Criminal Procedure.

The expression ''Court of Session'' has not been defined in the respective Acts. For an understanding of the expression, we have to seek the assistance of the provision of the Code of Criminal Procedure. Section 9 of the Code deals with Court of Session. Sub-sections (i), (ii) and (in) read as under :-

"(i) The State Government shall establish a Court of Session for every Sessions Division.

(ii) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court. .

(iii) The High Court may also appoint Additional Sessions Judges and . Assistant Sessions Judges to exercise jurisdiction in a Court of Session."

The Scheme of the provision is that every Sessions Division shall have a Court of Session presided over by a Judge to be appointed by the High Court and it may also have Additional Sessions Judges and Assistant Sessions Judges appointed by the High Court to exercise the jurisdiction in the Court of Session. Sub-section (5) deals with the power of the High Court to make arrangements for the disposal of any urgent application pending before a Court of Session by an Additional or Assistant Sessions Judge or in their absence by a Chief Judicial Magistrate.

"Court of Session" as contemplated in Section 9 is to be presided over by a Sessions Judge, but the Court of Session may also have Additional and Assistant Sessions Judges. The word ''Court'' in the expression ''Court of Session'' in a Sessions Division may appear to mean a single Court presided over by an officer; but in the context of Section 9 of the Code, it means a Court of Session of the Sessions Division consisting of a Sessions Judge and Additional and Assistant Sessions Judges. The Additional Sessions Judge will deal with cases made over to him by the Sessions Judge under the general directions of the High Court as contemplated in Section 9(4) or Section 10(2) of the Code.

A Division Bench of this Court in Sesh Narayan Bajpai v. State of M. P. 1990 MPLJ 161, while sustaining an administrative order passed by a Sessions Judge directing bail applications arising out of certain cases shall be filed before a particular Additional Sessions Judge u/s 10(3) of the Code noticed that Chapter XXXII makes no express provision relating to powers of Additional Sessions Judge. or Assistant Sessions Judge and observed :

"Therefore, the expression ''Court of Session'' appearing in Section 437, 438 and .439 shall mean the Court of Session presided over by Sessions Judge..... The Additional Sessions Judges and Assistant Sessions Judges will thus be no court of Session but will exercise limited jurisdiction conferred on them by various provisions."

We may in this connection refer to the following observations of the Supreme Court in Gokaraju Rangaraju Vs. State of Andhra Pradesh,

"A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session."

The observations in Sesh Narayan Bajpai v. State of M.P. 1990 MPLJ 161, case have to be understood in the light of the above observations. It must follow that though Additional Sessions Judges are to deal with cases made over to them by the Sessions Judge, they are Judges who function as Judges in the Court of Session. Therefore, the expression ''Court of Session'' used in Section 14 of the 1989 Act and Section 36D in the 1985 Act comprehends within its scope Court of Session in which the Sessions Judge and Additional Sessions Judges are functioning.

We will now refer to the decision in Ghudan v. State of M. P. 1994 (2) MPWN 20, which arose under the provisions of the 1985 Act. There is no dispute that Special Courts have not been constituted in this State u/s 36 of the 1985 Act. The offence in that case was committed on 5-1-1990 i.e. after the incorporation of Section 36D in the Act. That being so, the offence was required to be tried by Court of Session. The Court of Session, as we have already indicated, is a Court which consists of the Sessions Judge, Additional Sessions Judges and Assistant Sessions Judges. We are exercising jurisdiction subject to the provisions of the Code. The learned Single Judge adverted only to Section 36(1), [erroneously referred to as 36A(1)] of the 1985 Act and did not advert to the transitional provisions in Section 36D of that Act. In the absence of Section 36D of the Act, if an Additional Sessions Judge is to have jurisdiction to try an offence under the 1985 Act, his Court should have been specified as Special Court. Until the constitution of the Special Court u/s 36 of the 1985 Act, the Court of Session i.e. Sessions Judge, Additional Sessions Judge have jurisdiction to try offences under the Act by virtue of Section 36D. With respect, Ghudan''s case (supra) does not lay down the correct law. In the view we have taken regarding the amplitude of the expression ''Court of Session'' occurring in Section 36D of 1985 Act, it must follow that Additional Sessions Judges also have jurisdiction to deal with the offence under the 1985 Act.

''Court of Session'' referred to in Section 14 of the 1989 Act comprehends Sessions Judge and Additional Sessions Judges, if any. However, Additional Sessions Judge has jurisdiction to try an offence under the 1989 Act, if it is made over to him or her by the Sessions Judge.

However, it is not for us on the judicial side to issue directions as to whether any category of cases are to be heard by a Sessions Judge or the Additional Sessions Judge. That is a matter for the Sessions Judges on the administrative side to decide as part of the process of distribution of work, in the light of such general directions or guidelines, that may be issued by the High Court on the administrative side.

There are Additional Sessions Judges at Jhabua and Sheopurkala. The respective Sessions Judges have to consider what cases are to be made over to Additional Sessions Judges and which bail applications or category of bail applications are to be considered by Additional Sessions Judges on the basis of such directions or instructions as may be issued by the High Court. Writ petition is disposed of accordingly.