V. Krishnaswami vs State of Tamil Nadu

Both these revision cases have been heard together and are disposed of by a common order.

Crl.R.C. No. 7 of 1983 is in respect of C.C. No. 6 of 1978 pending before the IV Additional Special Judge, Madras, and Crl R.C. No. 10 of

1983 is in respect of C.C. No. 7 of 1978 pending before the same Judge. In C.C. Nos. 7 and 10 of 1983, the petitioner and the approver were

said to have been involved in acts constituting offence under Ss. 120-B and 163, I.P.C. and S. 5(1)(d) read with S. 5(2) and (3) of the Prevention

of corruption Act, 1947.

The petitioner was the Gazetted P.A. to the Minister for Health in the Government of Tamil Nadu between 23-3-1971 and 31-1-1976. Thiru

Renganathan was employed as the Special B.D.O. and later Administrative officer in Madras Metropolitan Development Authority during March,

1971 to January, 1976. In the course of the investigation, Thiru Renganathan turned into an approver. His statement under S. 164, Cr.P.C. was

recorded by the V Metropolitan Magistrate, Madras. He was tendered pardon on 31-5-1976 by the II Metropolitan Magistrate, Madras. The

first information report was sent to the Special Judge and the final report was filed before the same Judgment on 30-1-1978. The case against the

petitioner/accused, according to that report, was that the petitioner herein had received illegal gratification from public servants for their transfers,

etc., and was in possession of assets to the tune of Rs. 8,00,000/- and odd, highly disproportionate to his known sources of income and for which

the petitioner could not satisfactorily account.

On 4-4-1979, the accused filed a writ petition in W.P. No. 1111 of 1979 before this. Court questioning the jurisdiction of the Special Court to

try these cases and obtained a stay thereof. That writ petition was dismissed on 12-11-1979. Immediately thereafter, on 19-11-1979, the accused

filed W.P. Nos. 5106 and 5107 of 1979 in which he challenged the validity of the provisions of the Prevention of Corruption Act, 1947, and those

of the Criminal Law Amendment Act, 1952, and obtained stay. A Division Bench of this Court dismissed those writ petitions on 13-2-1981 and

the appeal therefrom before the Supreme Court was also dismissed on 29-3-1982.

Before the trial Court, charges have been framed. The trial started and the approver was examined as P.W. 1 on 14-10-1982 and 16-10-

1982. At that stage, the accused filed a petition stating that the IV Additional Special Judge, who has examined the accused, should not proceed

with the trial and should send the cases to another Special Judge and that he had no jurisdiction to proceed further in view of the provisions

contained in S. 306, Cr.P.C. which provides that the Magistrate who examined the accused under S. 306(4), Cr.P.C. should send it to another

judicial authority under S. 306(5), Cr.P.C. The trial Court rejected the plea of the accuse on 21-12-1982; aggrieved by that decision, which is

common to both the cases, the accused has filed these revision cases.

The case of the accused is all follows : As per S. 306, Cr.P.C. once the accused has been tendered pardon and has been made an approver, he

should be first examined in the Court of the Magistrate taking cognizance of the offence and then committed for trial to the Court of the Special

Judge. It was argued that the scheme of the Act is that the person who takes cognizance of the offence cannot himself try the case. The argument

of the learned counsel for the petitioner is that this position would apply even if the Special Judge himself takes cognizance of the offence under S.

8 of the Criminal Law Amendment Act, 1952. He would specifically contend that when he takes cognizance of the offence under S. 8(1) of the

Criminal Law Amendment Act, 1952, he is a ''Magistrate'' within the meaning of S. 306(4), Cr.P.C. and that, therefore, after examining the

approver as a witness, he should commit the case to another Special Judge. In support of this contention, the learned counsel for petitioner relies

on the decision of the Supreme Court in State of Tamil Nadu Vs. V. Krishnaswami Naidu and Another, in which it was held that for the purpose

of S. 167, Cr.P.C. that Special Judge is a Magistrate. The learned counsel for the petitioner then relies on the decision of the Supreme Court in

A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, . It was contended that the Supreme Court has, in that decision in para 27, clearly held

that under the Code the Special Judge will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones

specifically denied. The line of the argument is that as a Court of original criminal jurisdiction, it would take the place of the Magistrate under S.

306(4), Cr.P.C. and therefore, once the Court has examined the approver, under that sub-section it should necessarily commit the case to another

Special Judge. This contention of the learned counsel for the petitioner cannot be accepted, firstly because sub-section 5(a)(ii) of S. 306, Cr.P.C.

contemplates committal for trial by a Magistrate to the Court of the Special Judge. This is in contrast with the provisions of sub-section (5)(b) of S.

306, Cr.P.C. where the case is made over by the Magistrate taking cognizance of the offence to the Chief Judicial Magistrate. As it is well known,

two judicial authorities vested with the same powers may make over the case from one to another. But committal can be made only by a judicial

authority of a lower rank to judicial authority of higher rank, in matter of powers. Therefore, there is no possibility of a committal by a Special

Judge to another Special Judge. Therefore, for the purpose of S. 306, Cr.P.C. the Special Judge cannot be construed to be a Magistrate under

sub-section (4) of S. 306, Cr.P.C. It is, therefore, clear that in the scheme of the Act which has taken into account all the possibilities which may

arise, there is no provision for the committal of a case by one Special Judge to another Special Judge. Secondly, the observation of Supreme

Court in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, relied on by the learned counsel for the petitioner himself would show that the

fact of attributing arbitrarily a qualification to the Special Judge would lead to complication and situations contemplated in law. In this connection,

that following observations of the Supreme Court in the above quoted decision in para 27 deserve to be reproduced :

The net outcome of this petition is that a new court of original jurisdiction was set up and whenever a question arose as to what are its powers in

respect of specific questions brought before it as court of original criminal jurisdiction, it has to refer to the Code of Criminal Procedure undaunted

by any designation claptrap. When taking cognizance, a Court of Special Judge enjoyed the powers under S. 190. When trying cases, it is

obligatory to follow the procedure for trial of warrant cases by a Magistrate though as and by way of status it was equated with a Court of

Session. The entire argument inviting us to specifically decide whether a Court of a Special Judge for a certain purpose is a Court of Magistrate or

a Court of Session revolves round a mistaken belief that a Special Judge has to be one or the other, and must fit in the slot of a Magistrate or a

Court of Session. Such an approach would strangulate the functioning of the Court and must be eschewed."" The scheme of S. 306, Cr.P.C. does

not allows the Special Judge to be treated as a Magistrate its sub-section b. (Sic). This Contention fails.

The second contention of the learned counsel for the revision petitioner is that under the provisions of S. 306(4) and (5), Cr.P.C., the

Legislature has contemplated double examination of the approver as a witness, one by the Magistrate taking cognizance of the offence and another

by a Court to which the case is committed or made over for trial and that the availability of an earlier statement of oath by the approver is a great

advantage to the accused for the purpose of cross-examination at the time of the ultimate trial and that it there was no such double examination, he

would be prejudicial. It was also added that any course leading to the deprivation of the double examination was illegal and therefore, the Court

which was taken cognizance of the offence should not proceed with the trial. In the first instance, under S. 306(4), Cr.P.C. in the phrase, ""Every

person accepting a tender of pardon made under Sub-section (1)(a) shall be examined as a witness in the Court of the Magistrate taking

cognizance of the offence and in the subsequent trial, if any;"" the stress is on the word ''witness''. There is nothing mandatory on the fact that he

should be examined twice. What is mandatory is that he should be examined as a witness and the provision for an examination by the Magistrate

taking cognizance of the offence is not for the purpose of providing an earlier statement on oath for the purpose of cross-examination by the

accused at the ultimate trial, but to have an earliest possible statement on oath by the approver for the purpose of knowing the truth. Another

feature of the provision is that whenever there is an approve, the trial should be by the highest possible Court. As far as this case is concerned, that

last condition is met. Secondly, the double examination which has been prescribed in the interest of justice need not be resorted to in all cases. It is

not the law that whenever there is an approver, there should be necessarily a double examination. The provisions of S. 307, Cr.P.C. as well as

those under S. 8(2) of the Criminal Law Amendment Act, 1952, are there to show that whenever the statements are mead when the witnesses are

examined by the highest possible Court, there is no reason for a double examination. I do not, therefore, find any real force in the contention put

forth by the learned counsel for the petitioner. In fact, the same question was examined from a different angel by the Delhi High Court in Iqbal

Singh Vs. State, etc., and it was contended therein that the fact of filing the charge-sheet directly before the Special Judge would amount to

circumventing the provisions giving the right of double cross-examination of the approver by the accused and, therefore, in order to give effect to

the provisions of the Cr.P.C. entitling the accused to have the double right, no effect should be given to S. 8(1) of the Criminal Law Amendment

Act, 1952 and that the Special Judge should not be allowed to take cognizance of the offence directly. That contention was negatived by the Delhi

High Court which held that the Criminal Law Amendment Act, 1952 was a specific provision which should prevail over a more general provision

of the Cr.P.C. The accused took the matter on appeal to the Supreme Court and urged that there was violation of Art. 14 of the Constitution in

allowing the proceeding to be instituted directly before the Special Judge. It was more particularly argued that in giving the choice to the

prosecution either to institute the proceeding before the magistrate, who would commit it to the Special Judge, or to institute the proceeding

directly before the Special Judge, who is empowered to take cognizance of the offence under S. 8(1) of the Criminal Law Amendment Act, 1952,

the existing legal provision created a situation of inequality. In other words, when the proceeding was instituted before a Magistrate, the accused

has the advantage of the double examination of the approver, but whereas when the case was instituted directly before the Special Judge, he is

denied such a right. The Supreme Court held in that case reported in Sardarmal Lalwani Vs. State of Madhya Pradesh and Others, that to attract

the inhibition of Art. 14 of the Constitution there must be substantial and qualitative difference between the two procedures so that one is really and

substantially more drastic and prejudicial than the other and that there was no such qualitative and drastic difference it the two procedure, whether

a witness was examined once or twice. In that case the accused accepted that the law as it existed did not require the provision for examination of

the approver by a Magistrate and that such a relation was not normal. His contention was only that it created for the prosecution two channels,

which should be prohibited. The Supreme, Court negatived that contention and thereby also gave its approval to the procedure of examining only

once the approver before the Special Judge without any necessity of making over or committing the case. That decision of the Supreme Court was

followed by a decision of this Court in Natarajan v. State, Represented by the Inspector of Police, C.B.I. Madras 1986 MLW (Cri) 116.

Therefore, this contention also is rejected.

The third contention urged by the learned console for the petitioner is that S. 308, Cr.P.C. provides for the prosecution of the approver for the

offence of giving false evidence and for that purpose evidence on oath should have been recorded. This contention has no merit whatsoever. False

evidence can be proved by any other manner than with reference to statement on oath. In fact, the opening words of S. 308, Cr.P.C. itself says

that the Section would apply where a person has accepted the tender of pardon under S. 306 or S. 307, Cr.P.C., S. 307, Cr.P.C. dealing with

the tender of pardon by the Court receiving the case after commitment. Tender of pardon at that stage obviously dose not entail any provision for

examination under S. 306(4), Cr.P.C. It is thus found that the contentions raised the learned counsel for the petitioner in these revision cases are all

without any merit. The criminal revision cases are accordingly dismissed.

Petitions dismissed.