ORDER
Shiv Dayal, J.
1. The respondent was put up for trial before the Special Court Bhind constituted under Section 12 of the Madhya Bharat Public Security Act, 1954, hereinafter called the Act. The learned Special Judge after examining the documents filed before him under Section 173 Cri. P.C. refused to frame a charge, Aggrieved by the order of discharge, the State Government has come here in revision.
2. Shri Inamdar's preliminary objection is that under the Act this Court has no jurisdiction to set side an order of discharge, inasmuch as Section 19(2) of the Act limits the powers of this Court to those contained in Sections 423, 426, 427 and 428 of the Code of Criminal Procedure. In my opinion, this objection Is without substance. While dealing with the question whether a Special Judge appointed under the Act is empowered to discharge the accused, I shall discuss the various provisions of the Act relating to the procedure to be followed in a trial before him.
Here it will suffice to mention that the provisions of the Code of Criminal Procedure hereinafter called the Code have been applied to proceedings before a Special Judge in so far as they are not inconsistent with the Act. Section 19 of the Act provides for 'appeals and revisions'' and this section overrides the provisions of any other law. Sub-section (1) enables a person convicted by a Special Judge to file an appeal to the High Court within a period of 15 days from the date of the sentence. Sub-section (3) prohibits transfer of any case from any Special Judge. And Sub-section (2) runs thus:
the High Court may call for the record of the proceedings of any case tried by a Special Judge under this Act and may in respect of such case exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 of the Code.
Provided that where an order for retrial of the case tinder Section 423 of the Code is passed, the trial shall be by a Special Judge appointed under Section 13;
The wording of the Sub-section is in no way different from that of Section 439(1) of the Code. Now it cannot be seriously contended, nor Shri Inamdar does it, that this Court has no revisional jurisdiction in the Code to set aside an order of discharge passed by a Magistrate in an ordinary trial of a warrant case. A reference to Section 423 of the Code in Section 10(2) of the Act is, in my opinion, to avoid a repetition of the powers mentioned in the former section, that is, to maintain, alter, or reverse any finding or sentence or to reduce a sentence or to order a retrial, and so on.
In its revisional jurisdiction under Section 439 Cr. P.C. it is open to this Court to call for the record of any inferior criminal Court for the purpose of satisfying itself as to the correctness, legality, or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior court. I see no provision in the Act which is inconsistent with or which curtails this power. The only restriction is that if a retrial is ordered, such retrial shall be by a special Judge appointed under Section 13 of the Act and by no other Court. There can be no doubt that a Special Court under the Act is a criminal Court and is inferior to this Court.
3. Section 21 of the Act lays down that the provisions of the Code, 'as far as they may be applicable' and 'in so far as they are not inconsistent with the provisions of this Act' shall apply to 'all matters connected with, arising from or consequent upon a trial'' held by a special Judge appointed under this Act. This phrase which I have underlined here into ' ') is wide enough to include the powers under Section 439 of the Code to set aside an order of discharge passed by a Special Judge. The preliminary objection must, therefore, be overruled.
4. It is first contended On behalf of the State that the Judge of a Special Court constituted under Section 12 of the Act is not empowered to discharge an accused because there is no such provision in the Act, which is a self-contained enactment. In my view this contention has no substance. The Act, among other things, provides for the establishment of Special Courts. Section 12 provides that the Government may constitute special courts of criminal jurisdiction for such areas as may be declared to be in a disturbed or dangerous state.
Section 13 empowers the Government to appoint a special Judge to preside over a special Court constituted under Section 12. The person to be api-pointed must have for a period of not less than 2 years exercised the powers of a Sessions Judge or Additional Session Judge. Section 1,4 vests jurisdiction in a Special Judge to try such offences or classes of offences or classes of cases, affecting security of the State, public safety or maintenance of public order of any such area, as the Government may direct.
5. Section 15 lays down the procedure of trial before a Special Judge. Under Sub-section (1) he is empowered to take cognisance of offences without the accused being committed for trial. Sub-section (2) gives a discretion to the Special Judge to record a memorandum of substance of what each witness deposes instead of taking down, the evidence at length. Sub-section (3) empowers him to refuse to summon any witness if he is satisfied that such witness would not be material. Then Sub-section (4) runs thus :
'in matters not coming within the scope of Sub-sections (1), (2) and (3), the provisions of the Code, In so far as they are not inconsistent with this Act, shall apply to the proceedings of a Special Judge, and for the purpose of those provisions the Court of a Special Judge shall be deemed to be a Court of Sessions.'
This Sub-section makes it very clear that the procedure to be followed in a trial by a special Judge shall be the same as laid down in the Code of Criminal Procedure for trial by a Court of Sessions, subject to the condition that if any particular provision of the Act comes in conflict with a provision in the Code, the former shall prevail. And it is also made clear that a Special Judge, although not designated a Sessions Judge, shall be deemed to be a Court of Sessions.
Now, a trial before a Court of Sessions begins with the reading of the charge which is explained to the accused and he is asked whether he pleads guilty or claims to be tried. 'The charge' spoken of in Section 271 of the Cri. P.C. refers to the one which is framed by a Magistrate under Chap. XVIII of the Code. However for a trial under the Act, committal proceedings are dispensed with. Therefore when the Special Judge commences the trial he has got to frame a charge unless it is held that a Special Judge cannot frame a charge and he must proceed with the trial without it.
It is true that the Act does not provide for framing a charge and in the Cri. P.C. also there is no provision for a Sessions Judge to frame a charge, although he may add, alter or amend the charge framed by the inquiry Magistrate. If a trial under the Act is to commence under Section 271 of the Cr. P.C. the Special Judge must be deemed to be empowered, by necessary intendment, to frame a charge.
6. In my opinion the Special Judge cannot fey an accused without framing a charge. It is obvious enough from the scheme of the Code that primarily all offences are divided into two clauses : Summons cases and warrant cases. Out of the warrant cases some have been picked out, because of their gravity, and declared to be triable by a Court of Sessions instead of by a Magistrate. All the same they do not loose their initial category. Now, in every warrant case a charge is to be framed unless' the Magistrate finds that the accused need not be tried, in which case he records an order of discharge.
The object of framing a charge is to inform the accused with precision and accuracy the exact nature of the accusation against him, lest he may be seriously prejudiced in his defence. A summons case, being simple in its nature, may be tried without framing a formal charge, but in a warrant case that is necessary. The Code provides for the particulars which are to be given in a charge. Those particulars inform the accused, with an amount of definiteness, of the case which he has to meet.
I am, therefore, of the opinion that the legislature intends the trial before a Special Judge to commence as provided under Section 271 Cri. P.C. and also intends by necessary implication that the Special Judge must frame a charge which he has to read out and explain to the accused, if he thinks that the case is fit to be tried. On this conclusion, it must follow as a necessary consequence that a Special Judge has also the power to refuse to frame a charge if he considers that no case has been made out against the accused.
7. It is then urged by the learned Dy. Government Advocate that this was not a fit case where the Special Judge should have discharged the accused. I have formed the view that this contention must be accepted.
8. The case for the prosecution was that Ganga Singh's cattle trespassed on Jangisingh's field about which the latter complained to Gangasingh's son Steobaran and his brother Bhujbal. On this a Wordy quarrel ensued. People intervened. But in the meantime Gangasingh came there with a gun-and fired at Jangi Singh. However, Jangisingh escaped by promptly laying himself down on the ground. The learned Special Judge after perusing the papers filed under Section 173 Cri. P.C. discharged the accused on two grounds:
(1) It was 'Physically impossible to save oneself from the gun shot in this way if it was fired from a point blank range of a few feet as was alleged' eight feet).
(2) There was a discrepancy between the statements of the complainant and the eye-witnesses.
According to the complainant he lay on the ground before the gun was fired while according to the statements of the other witnesses, 'the act of falling on the ground was followed by the act of firing the gun.
It seems clear to me that although those things maybe taken into account, for what they are worth, at the conclusion of the trial yet they are not sufficient to hold that there is no case for trial or that the accusation is groundless. It is settled law that although a charge should not be mechanically framed as a ritual just because there is a police report against an accused, yet it is equally true that an accused cannot be discharged merely on conjectures: and surmises.
In a given set of circumstances one person may behave in one particular manner while another may not. Every person has his own degree of presence of mind. The reaction of a person who is made the-target of an attempt to murder depends upon his. alertness and upon the time he gets between his. seeing another bringing the gun and his pointing it towards him. Likewise when a gun is fired by one person and something is seen by another, simultaneously with it, any discrepancies about the reaction of a third person which took place in the twinkling of an eye between the pointing of the gun and firing it) have to be more thoughtfully considered No other ground has been stated by the learned Special Judge for discharging the accused.
9. Where it is difficult to say that even if the forth-coming evidence for the prosecution is believed and goes under butted the accused cannot be convicted, a charge must be framed. In my opinion this was a clear case for framing a charge and the order of discharge is erroneous.
10. This revision is allowed. The order of discharge is set aside. The case shall now go back to the learned Special Judge Bhind for proceeding further according to law.