Ram Dular and Others vs State of U.P.

Gopi Nath, J.—By this petition, the Petitioner has challenged the jurisdiction of Sri. G.D. Dubey who earlier was the I Additional Sessions Judge, Jaunpur, and has now been designated as Special Judge u/s 12-A of the Essential Commodities (Special Provisions) Act, 1981 (U.P. Act No. 18 of 1981, here-in-after referred to as the Act), to continue the trial of S.T. No. 9 of 1981, State v. Ram Dular and Ors. u/s 302/307 Indian Penal Code pending before him. Sri. G.D. Dubey had framed the charges and recorded the evidence in the case as I Additional Sessions Judge and it was fixed for arguments before him on 18-1-1983. In the meantime, Sri. G.D. Dubey was appointed a Special Judge under the Act. Notification No. 558/VIIF-229/Admnistration (A)/1982, dated 12-10-1982 under which he was appointed a Special Judge read as follows:

In exercise of the powers conferred under Sub-section (2) of Section 12-A of the Essential Commodities (Special Provisions) Act, 1981, the High Court is pleased to appoint with immediate effect the officers mentioned in column No. 2, in the district, specified in Column No. 3, against each of them in the chart appended below, as Special Judges, in addition to their own duties, in the Special Courts constituted by the Government Notification No. 1255/VII-A-Nyay-201/82, dated February -27, 1982 under Sub-section (1) of Section 12-A of the Essential Commodities (Special Provisions) Act, 1981 in each district of U.P. for the purpose of providing speedy trial of the offences under the Essential Commodities Act, 1955 (Act No. 10 of 1955):

* * * It is clear from the Notification that Sri. Dubey was appointed a Special Judge in addition to his own duties. By Circular Letter No. 70/VII-F 229/Admn (A) dated November 4, 1982, this Court clarified the position that the Special Judge appointed under the aforesaid Notification continued to be Additional District & Sessions Judges or Additional Sessions Judge, and were to take up their normal work as and when necessary. The aforementioned Circular Letter reads:

�From, Sri S. K. Bbargava, H. J. S. Registrar, High Court of Judicature at Allahabad.

To, All the District Judges in U. P. Subordinate to the High Court of Judicature at Ailahabad. C. L. No. 70/VI1-F-229jAdmn (A) Dated Allahabad t November 4, 1982.

Sir,

It has come to the notice of the Court that in some judgeships there seems to have arisen some confusion in following the directions made In Court S Notification No. 553/VII-F-229/Admn (A) 1982, dated 12th October, 1982, in as much as they have sought clarification from the Court whether the Special Judges appointed under the said Notification for trying cases relating to offences under the Essential Commodities Act, will do other work also. It has been made clear in the Notification that they will be working as Special Judges in addition to their duties I. e. the duties of Additional District and Sessions Judges/Additional Sessions Judges. This was done with a view that if the cases under the Essential Commodities Act are not sufficient to keep them fully engaged throughout the day, they may not sit Idle and take up other normal work, as has been done by them before taking over as Special Judges.

I am, therefore, directed to request you to please act accordingly.

I am also directed to say that orders of the Court may be sought for transfer of part heard Sessions trials pending in the courts formerly held by the Special Judges to Courts of such Special Judges Sessions Trials and other work may, as usual, be transferred to the courts of Special Judges, if and when necessary, to keep them fully engaged.

Yours faithfully, Sd.S. K. Bhargava, REGISTRAR.�

Since the sessions trial No. 9 of l981 was part-heard by Sri. G.D. Dubey, the file was sent to his Court by the Sessions Judge. It may be mentioned that no Judge has succeeded Sri. G.D. Dubey as I Additional District & Sessions Judge, Jaunpur so far.

The Petitioners have challenged the continuance of the sessions trial by Sri. G.D. Dubey on the ground that since he was appointed a Special Judge u/s 12-A of the Essential Commodities (Special Provisions) Act, 1981, he ceased to be an Additional Sessions Judge in the Sessions Division, and hence could not continue the sessions trial. This contention has been raised on the basis of the language used in Sub-section (3) of Section 12-A and the provisions of Sub-section (2) of Section 12-A A of the Act. Section 12-A, so far as material reads:

l2-A. Constitution of Special Courts.- (1) The State Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification.

(2) A Special Court shall consist of a single judge who shall be appointed by the High Court upon a request made by the State Government.

Explanation- In this Sub-section, the word "appoint" shall have the meaning given to it in the Explanation to Section 9 of the Code.

(3) A person shall not be qualified for appointment as a judge of a Special Court unless-

(a) he is qualified for appointment as a judge of a High Court, or

(b) he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge.

Section 12-AA provides for offences triable by the special Courts and so far as material states:

12-AA. Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code,-

(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court:

(b) ...

(c) ...

(d) ...

(e) ...

(f) all offences under this Act shall be tried in a summary way and the provisions of Sections 262 - 263 (both inclusive) of the Code shall, as far as may be, apply to such trial;

* * * (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial;

Provided that such other offence is, under any other law for the time being in force, triable in a summary way;

...

Learned Counsel for the Petitioners submitted that since Clause (b) of Sub-section (3) of Section 12-A, which provides for the qualification of a Judge to be appointed as a Special Judge states that unless he has been a Sessions Judge or an Additional Sessions Judge for a period of not less than one year, be shall not be eligible to be appointed a Special Judge, it follows that as soon as an Additional Sessions Judge is appointed a Special Judge, he ceases to be an Additional Sessions Judge. The emphasis is on the words "be has been a Sessions Judge or an Additional Sessions Judge." The contention has no merit. The words "he has been a Sessions Judge or an Additional Sessions Judge" have to be read along with the words "for a period of not less than one year" I.e. it is concerned with the length of his tenure as Sessions Judge or Additional Sessions Judge. If a Sessions Judge or an Additional Sessions Judge has been a Sessions Judge or an Additional Sessions Judge for a period of less than one year, be shall not be qualified to be appointed a Special Judge. Clause (b) of Sub-section (3) of Section 12-A requires two conditions to be fulfilled for the appointment of a Judge as a Special Judge-(1) that he has been a Sessions Judge or an Additional Sessions Judge, and (ii) that he has been a Sessions Judge or an Additional Sessions Judge for a period of not less than one year. To say that a Sessions Judge has been a Sessions Judge at the time of his appointment as a Special Judge is not to say that as soon as he is appointed a Special Judge, he ceases to be a Sessions Judge. learned Counsel submitted that the words used are not "is or has been "but only" has been ", as such the continuity of office as a Sessions Judge is not contemplated. The Section does not deal with continuity of office of the Sessions Judge or the Additional Sessions Judge but with the qualification of a Judge to be appointed a Special Judge. Neither by the fact of appointment as a Special Judge nor by the prescription of the condition for such an appointment the Sessions Judge or the Additional Sessions Judge ceases to be a Sessions Judge or an Additional Sessions Judge. In Alok Kumar Roy Vs. Dr. S.N. Sarma and Another, it was held that appointment of a High Court Judge as Commission of Enquiry under the Commissions of Enquiry Act, 1952, does not result in the ceasing of the Judge as a High Court Judge. A Judge of the High Court when he is appointed to head a Commission of Enquiry, does not demit his office as a Judge and he remains a part of the High Court and is entitled to sit and act as a Judge of the High Court whenever he is free. It was observed that the appointment of a Judge as Commission of Enquiry does not deprive him of the rights and privileges of a Judge of the High Court. learned Counsel for the applicants suggested that so long as the cases under the Essential Commodities Act continued, Sri. G.D. Dubey could not exercise the powers of an Additional Sessions Judge. He relied upon ''the following observations in Alok Kumar Roy''s case (supra):

...It is only where a Judge of the High Court is appointed to another post, which Is a whole time post that it may be said that on such appointment he can no longer work as a Judge of the High Court for the time being, though even in such a case, when the work is over, he reverts as a Judge of the High Court without fresh appointment.

The appointment of Sri. G.D. Dubey, Additional Sessions Judge, Jaunpur, to the post of Special Judge under the Act was for the purposes of disposing of the cases under the Act. The Notification and the Circular Letter issued clearly stated that he continued to be an Additional Sessions Judge, and when he was not engaged in disposing of the cases under the Act, he could dispose of the cases as an Additional Sessions Judge. Sri. Dubey would, of course, take up his normal work as an Additional Sessions Judge when he is free from the cases under the Act. The above-cited observations of the Supreme Court do not help the Petitioners. In Alok Kumar Roy''s case (supra) their Lordships clearly observed that the learned Judge who had been appointed to work as a Commission of Enquiry continued to be a High Court Judge, and he could act as a High Court Judge when he was free from the Commission of Enquiry. The observations to this effect were as follows:

We are of opinion that the learned Chief Justice was not right when he held that Dutta, J. could not act as a Judge of the High Court while he was working as a Commission of Enquiry. Learned Attorney-General appearing for the State of Assam did not support that view. It also appears that Goswami, J. has said nothing on this aspect of the matter; presumably he did not agree with the view of the learned Chief Justice. Often times, Judges of High Courts are appointed under the Commission of Enquiry Act to head Commissions for various purposes. These Commissions are temporary affairs and many a time their sittings are not continuous. A Judge of the High Court when he is appointed to head a Commission of this kind does not demit his office as a Judge and when the Commission is not actually sitting he is entitled to sit as a Judge of the High Court.

These observations clearly support the view that when the Special Judge is not engaged in disposing of the cases under the Act, he can act as an Additional Sessions Judge and take up his normal work as an Additional Sessions Judge.

Learned Counsel for the Petitioners invited my attention to the provisions of various statutes where expressions "is" or "has been" had been used in regard to the qualification for an appointment. He referred to Article 217 of the Constitution which deals with the appointment of a High Court Judge, and Clause (2) whereof reads:

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and-

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.

Sub-section (3) of Section 110 of the Motor Vehicles Act, 1939, which deals with the appointment of a Member of Tribunal, reads:

(3) A person shall not be qualified for appointment as a member of a Claims Tribunal unless he-

(a) is or has been, a Judge of a High Court, or

(b) is, or has been, a District Judge, or

(c) is qualified for appointment as a Judge of the High Court.

My attention was further invited to the provisions of Section 3 of the National Security Act, 1980 (Act No. 65 of 1980) which provides for constitution of advisory boards and states that every such Board shall consist of three persons who are or ''have been'' or are qualified to be appointed as Judges of a High Court. Section 5 of the Uttar Pradesh Dacoity Affected Areas (Second) Ordinance, 1982 (Ordinance No. 16 of 1982) states that a Special Court shall consist of a single Judge, who shall be appointed by the High Court from amongst the serving Sessions Judges or Additional Sessions Judges. learned Counsel submitted that whenever the legislature intended that the substantive office of the special appointment shall continue with the special post, it indicated it by the use of the words ''is'' or ''has been''. The language used prescribing a condition for appointment is only for purposes of eligibility to an appointment. Sub-section (3) of Section 12-A of the Act, as observed earlier, provides only for the qualification of a Judge to be appointed as a Special Judge under the Act, and does not refer to ordeal with the continuity or otherwise of his status as a Judge. The High Court in its Notification referred to above clearly indicated that the appointment of Sri. G.D. Dubey as a Special Judge was in addition to his own dude6, and I see no infirmity in the continuance of Sri. Dubey as an Additional Sessions Judge on his appointment as a Special Judge under the Act. The Circular Letter referred to above has also made the position clear.

The next contention of the learned Counsel was that because under Sub-section (2) of Section 12-AA of the Act the Special Court was empowered to try an offence other than an offence under the Act, with which the accused may, under the Code, be charged at the same trial, it suggested that offences with which the accused was not charged at the trial under the Act could not be tried by him as a Special Judge. If the Special Judge continued to be an Additional Sessions Judge, then the trial of offences other than those under the Act would be done by him as an Additional Sessions Judge, and not as a Special Judge. Once a Sessions Judge or an Additional Sessions Judge continued to be a Sessions Judge or an Additional Sessions Judge, he could try cases triable by him as a Sessions Judge notwithstanding his appointment as a Special Judge. He could further conclude trials commenced by him. In Government Revision No. 1403 of 1982, State of Uttar Pradesh v. Bhawani Shankar Sharmadecided on 2-8-1982, it was held that by the appointment of an Additional Sessions Judge as a Special Judge under the provisions of Sub-section (2) of Section 7 of the Prevention of Corruption Act (Act No. 40 of 1952), he did not cease to be an Additional Sessions Judge.

A part-heard trial, as far as possible, has to be concluded by the Judge who had commenced it (see the Division Bench decision in Punjab Singh v. State of Uttar Pradesh Criminal Transfer Petition No. 2015 of 1982, decided on 22-10-82, wherein it was held that true rule to apply is not whether there was an express provision permitting continuance of a pending proceeding, but whether there was any clear indication to the contrary in regard to the continuance of a pending proceeding to its normal termination. Sri. G.D. Dubey is accordingly competent to continue the sessions trial as an Additional Sessions Judge notwithstanding his appointment as a Special Judge under the Act. The trial shall be continued in accordance with the provisions of the Code of Criminal Procedure.

The petition has no force, and is accordingly dismissed.