Sukhram vs State

Dixit, Actg. C.J.

The applicants along with five other persons were put on trial before the Special Court constituted under the Madhya Bharat Public Security Act, 1953 on charges under sections 302, 307, 395, 397 and 149 I.P.C. The learned Special Judge returned the Chalan to the police for presentation before the competent Court holding that an offence u/s 149 was not one of those offences which he was authorised to try under a notification issued u/s 14 of the Act. It is against this order that the present revision petition is directed.

In my opinion this petition must be rejected. u/s 14 of the Madhya Bharat Public Security Act 1953, the Special Judge is competent to try only "such offences or classes of offences or classes of cases affecting, in the opinion of the Government, the security of the State, the public safety or the maintenance of public order in such area as the Government may by general or special order in writing direct". On 22nd April 1954, the Government issued a notification u/s 14 specifying the offences which the Special Court constituted for the disturbed area of the revenue district of Morena could try. In those enumerated offences, the offence u/s 149 I.P.C. has not been included. Now as held by the Supreme Court in Nanakch and vs. The State of Punjab (1955 Supreme Court 274) and Pandurang vs. State of Hyderabad 1955 S.C. 216 section 149 I.P.C. creates a specific offence but the punishment depends on the offence of which the offender is by that section made guilty and a charge for the substantive off case say u/s 302 or section 325 I.P.C. is for a distinct and separate offence from that u/s 302 read with section 149 Or section 325 read with section 149, On a plain reading of section 14 of the M.B. Public Security Act and the notification issued there under, and in view of the authoritative pronouncement of the Supreme Court as regards section 1401. P.C. creating a distinct offence, there can be no doubt that if the notification u/s 14 does not empower the Special Judge specifically to try an offence u/s 149, then the Special Judge is not competent to try any person charged with any of the enumerated substantive offences read with section 149 I.P.C. The matter seems to me to be too plain for argument. But it was contended by Mr. Prabhudayal Gupta learned counsel for the applicants that u/s 29 (2) of the Code of Criminal Procedure read with the second Schedule, an offence u/s 149 I.P.C is triable by the very court by which the offence for which the accused person is sought to be made guilty and that, therefore, the Special Judge was competent to try the accused persons for offences under Sections 302, 307, 395, & 397 specified in the notification u/s 14 of the M.B. Public Security Act read with section 149 I.P.C. The argument must be rejected on the short ground that section 29 (2) refers to any court constituted under the Code by which an offence shown in the 8th column of the Second Schedule is triable. The Special Court constituted under the M.B. Public Security Act, 1953 is not a court constituted under the Code. Mr. Mungre learned Government Advocate, however, relied on section 28 (c) of the Code in support of the contention that the Special Court could try the applicants for an offence u/s 149 I.P.C. though it was not specified in the notification issued u/s 14 of the M.B. Public Security Act, 1953. This argument also ignores the fact that "any other court'', stated in section 28 (c) means a court which is neither the High Court nor the court of sessions but is a court re-furred to in Section 6 of the Code. In other words" any other court" means a magisterial court constituted under the Code and not a special Court constituted under the M.B. Public Security Act, 1953.

In my judgment, the learned Special Judge was right in holding that he could not try the applicants for offences under Sections 302, 307, 395 and 397 read with section 149 I.P.C. This petition is, therefore, rejected.