Rajiv Agarwal and Another vs State of U.P. and Another

C.A. Rahim, J.—This is an application u/s 482 of Code of Criminal Procedure to quash the proceeding against the applicants in Criminal Case No. 78 of 1994 pending in the Court of Special Judge (Dacoity Affected Areas), Jhansi. It has been stated that by an order dated 8.11.1994 the learned Judge summoned the applicants as accused u/s 387/504/506, I.P.C.

On behalf of the State learned A.G.A. is present.

Learned Counsel for the applicants has submitted that the learned Special Judge did not examine all the witnesses as envisaged u/s 202(2), Code of Criminal Procedure as it is necessary to do so before finding out prima facie case and before issuing summons against the accused-applicants. He has referred Section 7(3) of the Dacoity Affected Areas Act. 1983 (in short D.A.A. Act), wherein it has been provided that for the purposes of provisions of the said Code (referred to Code of Criminal Procedure) the Special Court shall be deemed to be the Court of Sessions. Referring the said provisions learned Counsel has submitted that since the Special Court has been designated as Sessions Court the procedure mentioned in Chapter XVIII should be followed, which relates to the trial before the Court of Sessions. In Sub-section (2) of Section 7 of D.A.A. Act it has been provided that the Special Court shall while trying the scheduled offence, so far as may be, follow the procedure, provided by the Code of Criminal Procedure, 1973, for trial of Sessions Cases; provided that the Special Court may, whenever necessary, perform the functions of a Magistrate u/s 207 of the said Code and proceed to try the cases as If the case has been committed to the Court of Sessions. So from Sub-section (2) of Section 7 of D.A.A. Act it appears that the trial of the case before the Special Court, procedure as laid down in Chapter XVIII should be followed.

But in the instant case there is another aspect which needs consideration. It is to be considered whether in all the cases be it Sessions triable case or not, the procedure as mentioned in Section 200(2), Code of Criminal Procedure. would be necessary. In D.A.A. Act provision has been made u/s 7(1) empowering the Special Judge to take cognizance at par with Section 190, Code of Criminal Procedure But nothing has been stated as regards the procedure to be adopted in a complaint case or a police case prior to taking cognizance. Where D.A.A. Act is silent provisions made under Code of Criminal Procedure, 1973 shall come to play in view of Section 7(3) of D.A.A. Act, so far which are not inconsistent with the said Act. So the procedure as laid down in Chapter XV will be applicable in cases where the petition-complaint has been filed before the Special Judge for trial of the scheduled offences, where D.A.A. Act is applicable. Accordingly, all the powers u/s 200 or 203, Code of Criminal Procedure of that chapter will have to be followed when a complaint case is lodged. Accordingly u/s 200, Code of Criminal Procedure the complainant and the witnesses are required to be examined in all other cases which are triable by the Magistrate. Section 202(2), Code of Criminal Procedure has provided a provision that all the witnesses should be examined in a case where the offence complained of is triable executively by the Court of Sessions. So it appears that where offences complained of is triable by the Magistrate it is not necessary for the Special Court to examine all witnesses as required u/s 202(2), Code of Criminal Procedure. In those cases procedure laid down u/s 200, Code of Criminal Procedure is applicable. The submission of the learned Counsel for the applicants is that as because the Special Judge has been designated as Sessions Judge all cases, be it triable by Court of Magistrate or by Sessions Court, the procedure laid down in Section 202(2), Code of Criminal Procedure will have to be observed. But after going through these sections I find that since the special Court is required to take cognizance and a procedure is to be adopted to find out the prima facie case he will proceed according to Chapter XV. Code of Criminal Procedure and in that process he has to examine the complainant and the witnesses in a case triable by a Magistrate as required u/s 200, Code of Criminal Procedure and to follow provision of Section 202(2), Code of Criminal Procedure when the offence is triable by a Court of Sessions. The procedure of Chapter XVIII. Code of Criminal Procedure would be operative only when accused persons appear in response to summons issued u/s 204, Code of Criminal Procedure and after observing the provisions of Section 207. Code of Criminal Procedure as required u/s 7(2) of D.A.A. Act. So there appears some distinction prior to the appearance of the accused and at that stage Special Judge has to act under Chapter XV and XVI. Code of Criminal Procedure and when that stage is over, trial before the special Court would commence under the provisions laid down in Chapter XVIII, Code of Criminal Procedure.

In this respect learned Counsel has referred the case of Mukux Singh and Ors. v. State of U.P. Cr. Misc. Application No. 1973 of 1990 wherein Hon''ble Judge has differed with the view taken by this Court in cases reported in 1986 L.F. 719. 1987 U.P. Criminal Rulings 37 and 1988 C U 72 where it was held that provisions of Sections 200 - 204, Code of Criminal Procedure will not be applicable in a complaint case lodged before the special Judge under the D.A.A. Act. But I agree with the view taken by Hon''ble Judge in Mukut Singh''s case and of the opinion that in view of Section 7(3) of D.A.A. Act. provisions of Code of Criminal Procedure u/s 200 - 204 are applicable when the D.A.A. Act is silent on that point and when it is not inconsistent with the said Act. But I am not in favour of referring the matter to a larger bench since it will Section 7(3) of D.A.A. Act is specific on this point. In the instant case I do not consider that special judge has to follow the procedure laid down in Section 200(2). Code of Criminal Procedure as urged by the learned Counsel for the applicants since the offence complained of is triable by Magistrate. Learned Special Judge has examined the complaint and his two witnesses before summoning the accused-applicants and I do not find any wrong in the procedure which would call for interference at this end by invoking inherent power of this Court.

Since I do not find any merit in this application the same is dismissed.