State of H.P. vs Ram Lal and Others

T.R. Handa, J.—''Whether with the constitution of Special Courts and appointment of Special Judges for such Courts u/s 12-A of the Essential Commodities Act, 1955 (hereinafter referred to as ''the 1955 Act'') as amended by the Essential Commodities (Special Provisions) Act, 1981 (hereinafter referred to as ''the 1981 Act'') the Judicial Magistrates have been deprived of their jurisdiction to proceed with the trial of criminal cases instituted in their Courts under the provisions of the 1955 Act and which were still pending before them as on the date of constitution of the Special Courts'', is the short and common question which forms the subject matter of reference in all the five criminal references entitled above.

The question has arisen in the following circumstances.

In the absence of any provision providing for the Constitution of Special Courts for the trial of offences under the 1955 Act, the offences under this Act prior to the enactment of the 1981 Act, were being tried by the ordinary criminal courts, that is, Judicial Magistrates. This was being done under the provisions of Section 4(2) of the Code of Criminal Procedure, 1973, which reads:

"4(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

The 1981 Act was enacted to make certain special provisions by way of amendments to the 1955 Act for a temporary period of five years with a view to deal more effectively with persons indulging in hoarding and black-marketing of, and profiteering in, essential commodities and with the evil of vicious inflationary prices and for matters connected there-with or incidental thereto. Section 11 of the 1981 Act provided for the substitution of Section 12-A of the 1955 Act as it existed prior to the 1981 Act, by a new Section 12-A reading:

"12A. 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.

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It was in exercise of the powers conferred by Sub-section (1) of Section 12-A reproduced above that the State of Himachal Pradesh vide its notification dated 15-9-1982 constituted two Special Courts in the State. The areas of jurisdiction of these two Courts were defined. After the constitution of these Courts, the High Court appointed Judges for these Courts in exercise of the powers conferred on it under Sub-section (2) of Section 12-A.

After the issue of these notifications, the Judicial Magistrate Kandaghat was of the opinion that in as much as the powers for the trial of offences under the Essential Commodities Act had been vested in the Special Courts, the Judicial Magistrates were deprived of their jurisdiction to try the said offences. Taking this view of the legal position the learned Judicial Magistrate transferred five criminal cases which were pending before him u/s 3 read with Section 7 of the 1955 Act to the Special Judge and directed the accused therein to appear before the Special Judge on a given date.

The learned Special Judge was, however, of the view that the notifications issued by the State Government and the High Court constituting Special Courts and appointing Special Judges for such Courts did not deprive the Judicial Magistrates of their jurisdiction to continue with the trial of pending cases under the 1955 Act as the Special Courts had jurisdiction to try only such offences under the Essential Commodities Act which had been committed or challaned subsequent to the date of notification appointing Judges for the Special Courts. Since the Special Judge was of the view that he had no jurisdiction to quash the order passed by the Judicial Magistrate transferring the pending cases to the Special Judge, he has made a separate reference in each of the five cases transferred to him by the Judicial Magistrate with the recommendations that this Court may quash the orders of the Judicial Magistrate directing transfer of the cases and asking the accused persons to appear before the Special Judge and further direct the Judicial Magistrate to complete the trial of the pending cases.

The orders of the learned Judicial Magistrate which have been recommended to this Court for quashing are all identical. One of them may be quoted in extenso.

"The offence alleged to be committed by the accused falls u/s 3/7 of the Essential Commodities Act. The powers for the trial of the offences under this Act have been vested with the special courts (Sessions Judge Shimla and Dharamsala) as per notification No. HHG/Admn. 6 (22)/75, dated 21st October, 1982 of the Hon''ble High Court of Himachal Pradesh. The notification debars this Court to try the case under the said Act. Hence the accused is directed to appear before the Ld. Sessions Judge, Shimla on 18-6-1983. The file be sent immediately to the said Court for necessary action."

Prima facie it appears that the learned Judicial Magistrate acted in undue and indiscreet haste in passing these orders. He never cared to apply his judicial mind to the relevant provisions before coming to his conclusion that his jurisdiction to continue with the trial of the cases u/s 3/7 of the Essential Commodities Act which were pending in his Court had been ousted with the appointment of Judges for the Special Courts constituted u/s 12-A. He simply ignored the well recognized cardinal rule of construction of statutes that the Courts vested with general jurisdiction to try all offences cannot treat their jurisdiction ousted or excluded unless it is so done in unequivocal terms by clear and unambiguous language or by necessary implication.

Sub-section (2) of Section 4 of the Code of Criminal Procedure extracted above indubitably confers a plenary and comprehensive jurisdiction on the ordinary criminal courts in the matter of trial of offences against special Act, that is, other than the Indian Penal Code. This jurisdiction lawfully conferred as it is, its ouster is not too readily to be inferred. It has to be specifically ousted by clear words or necessary implication. A bare look at the language of the notifications issued u/s 12-A(1) by the State Government constituting the Special Courts and u/s 12-A(2) by the High Court appointing Judges for the Special Courts would show that both these notifications are conspicuously silent with respect to the jurisdiction of the ordinary Courts to continue with the trial of the pending cases. Neither of these notifications would, therefore, by itself have the effect of ousting the jurisdiction of the ordinary Courts in the matter of continuing with the trial of pending cases. In case there was still any scope for doubt with respect to the jurisdiction of the. ordinary criminal courts to continue with the trial of the, pending cases, it was desirable to refer to the relevant provisions of the Act under which the above-mentioned notifications had been issued. As earlier stated these notifications had been issued u/s 12-A which was incorporated in the Essential Commodities Act in place of the previous Section 12-A by Section 11 of the 1981 Act. Section 12-A by itself does not speak whether its operation is retrospective or prospective. Section 2 of the 1981 Act, however, is very clear on this point. Section 2 reads thus:

"2. Act 10 of 1955 to have effect subject to certain special provisions for a temporary period.-During the continuance in force of this Act, the Essential Commodities Act, 1955 (hereinafter referred to as the principal Act) shall have effect subject to the amendments specified in Sections 3 - 11:

Provided that the amendments specified in Sections 7 - 11 shall not apply to, or in relation to, any offence under the principal Act committed before the commencement of this Act and the provisions of the principal Act shall apply to, and in relation to, such offence as if those amendments had not been made.

The proviso to Section 2 extracted above clearly shows that Section 12A as now substituted by the 1981 Act and which provides for the constitution of the Special Courts is not to apply to, or in relation to, any offence under the Essential Commodities Act committed before the commencement of the 1981 Act. It further shows that in relation to such offences committed before the commencement of the 1981 Act the provisions of the 1955 Act would continue to apply as if the amendments made by the 1981 Act had not been made. In other words for the purposes of trial of the offences committed before the commencement of the 1981 Act, it has to be assumed that there exist no Special Courts since there was no provision for the constitution of such Special Courts in the Act before its amendments made by the 1981 Act. The obvious conclusion, therefore, is that the constitution of the Special Courts u/s 12A of the Essential Commodities Act as amended by the 1981 Act had no effect on the jurisdiction of the Courts of Judicial Magistrates to continue with the trial of the cases instituted in their Courts under the 1955 Act and which were pending before the issue of the notifications referred to above.

In view of what has been stated above, I would in exercise of my jurisdiction vested u/s 397/401 Code of Crimimnal Procedure, quash the orders passed by the Judicial Magistrate Kandaghat transferring the cases noted above from his Court to that of the Special Judge and direct that the records of all such cases be sent back to the Judicial Magistrate for completion of the trial in accordance with law.