T.S. Bajpeyi vs K.K. Gangauly and Others

B.N. Katju, J.—This is an application u/s 482 Code of Criminal Procedure 1973.

According to the facts stated in the application, a charge sheet was filed against the applicant by the Sub-Inspector, Special Police Establishment, Lucknow u/s 409 I.P.C. in the Court of the Special Magistrate, Anti Corruption, Lucknow on 28-6-1963. The trial of the applicant was pending when the Code of Criminal Procedure 1973 came into force on 1-4-1974. The Code of Criminal Procedure 1973 repealed the Code of Criminal Procedure, 1898 and there is no provision in it corresponding to Section 14 of the Code of Criminal Procedure, 1898. It is mentioned in Section 484(2)(b) of the Code of Criminal Procedure, 1973 that all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments not being appointments as Special Magistrates, made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued, conferred, prescribed, defined, passed or made under the corresponding provisions of this Code.

In exercise of the powers conferred by Section 11(1) of the Code of Criminal Procedure 1973, the State Government by its Notification No. 1592/VII-A. N. 208/74 dated April 20, 1974 published in the U.P. Gazette, established a common court of Judicial Magistrate of the First Class for all districts of Uttar Pradesh, with its place of sitting at Lucknow to try or inquire into and commit to the court of Session all such cases arising in any local area within the State of Uttar Pradesh in which investigations are made or charge sheets filed by the Special Police Establishments constituted under the Delhi Special Police Establishment Act 1946 (Act XXV of 1946). By Notification No. 91/Admin. (B) dated Allahabad May 7, 1974 the High Court of Judicature at Allahabad in exercise of the powers conferred by Sub-section (2) of Section 11 of the Code of Criminal Procedure 1973 appointed Sri Rama Kant Roy, Chief Judicial Magistrate, Lucknow with effect from 1st April, 1974 as Judicial Magistrate of the First Class also for all the districts of U.P. with Head Quarters at Lucknow to try or inquire into and commit to the court of Session all such cases arising in any local area within the State of U.P. in which investigations are made or charge sheets filed by the Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (Act No. XXV of 1946).

The trial of the applicant is pending in the court of Sri R.K. Roy, Chief Judicial Magistrate, Lucknow as the Charge Sheet against the applicant was filed by the Special Police Establishment, Lucknow. The charge sheet filed against the applicant clearly indicated that the offence u/s 409 I.P.C. was commuted in the district of Etawah. The trial of the applicant was being held by the Chief Judicial Magistrate, Lucknow prior to the coming into force of the new Code on 1-4-1974 as he had been appointed Special Magistrate, Anti Corruption u/s 14 of the Code of Criminal Procedure, 1898 by a notification of the State Government. As that court of Special Magistrate ceased to exist on 1-4-1974, when the new Code of Criminal Procedure came into force, the Chief Judicial Magistrate, Lucknow could continue with the trial of the applicant if the two notifications mentioned above issued u/s 11(1) and 11(2) of the Code of Criminal Procedure, 1973 were legally issued Under the aforesaid Sections. Section 11(1) and 11(2) of the Code of Criminal Procedure, 1973 run as follows:

11(1). In every district (not being a metropolitan area), there shall be established as many courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may after consultation with the High Court, by notification specify.

11(2). The presiding officers of such court shall be appointed by the High Court.

Section 14(1) and 14(2) of the Code of Criminal Procedure, 1973 run as follows:

14(1). Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrate appointed u/s 11 or u/s 13 may exercise all or any of the powers with which they may respectively be invested under this Code.

14(2). Except as otherwise provided by such definition, the jurisdiction and power of such Magistrate, shall extend throughout the district.

It is clear from a plain reading of the above mentioned sections that in every district separate courts of Judicial Magistrate of the first class or of the second class have to be established within the district and the presiding officer of such courts can exercise powers either within the local limits of the areas of the district defined by the Chief Judicial Magistrate or if such areas are not defined then throughout the district. It is obvious that u/s 11(1) a common court of Judicial Magistrate of first class for all districts of Uttar Pradesh with his place of sitting at Lucknow to try or inquire into or commit to the court of Sessions all such cases arising in any local area within the State of Uttar Pradesh in which investigations are made or charge sheets filed by the Special Police under the Delhi Special Police Establishment Act 1946 (Act XXV of 1946) could not be established by notification of the State Government. u/s 11 Sub-clause (2), the High Court could also not appoint presiding officer of such courts. It was open to the State Government to confer on a person holding a judicial post powers of a Magistrate of the 1st Class present to particular cases or class or classes of cases or in respect to cases generally in the entire State u/s 14 Code of Criminal Procedure, 1898 but it is not possible to do so under the Code of Criminal Procedure, 1973 as there is no similar provision in it. It may be mentioned that Section 13 Code of Criminal Procedure, 1973 is not similar to Section 14 Code of Criminal Procedure. 1898. The notification issued by the State Government u/s 11(1) Code of Criminal Procedure, 1973 and the notification issued by the High Court u/s 11(2) Code of Criminal Procedure, 1973 are therefore clearly illegal.

The question that remains to be considered is whether the Chief Judicial Magistrate, Lucknow could try the case of the applicant in the absence of the above two notifications. As admittedly the offence u/s 409 I.P.C. is alleged to have been committed by the applicant in the district of Etawah his trial could only take place in the court of Judicial Magistrate of Etawah, under Sections 177 Code of Criminal Procedure 1973 and not in the court of the Chief Judicial Magistrate of Lucknow, proceedings against the applicant in the court of the Chief Judicial Magistrate, Lucknow are, therefore, clearly illegal and without jurisdiction and deserve to be quashed.

This application is accordingly allowed. The proceedings against the applicant in Criminal Case No. R.C. 9/62 u/s 409 I.P.C. pending in the court of C.J.M., Lucknow are quashed.