Kasarabada Rajeswara Rao and Etc. Vs. State of A.P. - Court Judgment

Excerpt:
criminal - jurisdiction to try suit - sections 7 and 12 aa of essential commodities act, 1955, section 4 of criminal procedure code, 1973 and sections 120-b, 407, 420, 467, 468, 472 and 474 of indian penal code, 1860 - whether special court constituted under provisions of section 12-a can try other offences punishable under indian penal code along with provisions of essential commodities act - section 4 makes it clear that offences complained of should be investigated and tried according to criminal procedure code - special court empowered to try cases in summary way - petitioners charged under sections 120-b, 407, 411, 420, 468 and section 7 - special court cannot try all offences except offence under section 7 - held, charges under indian penal code quashed. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - ' 7. section 4 of the code of criminal procedure makes it clear that the offence complained of should be investigated or inquired into or tried according to the provisions of the code of criminal procedure where a special enactment which creates offence indicates no special procedure, which in the alternative would mean that where a special procedure is created by a special enactment for investigation, inquiry or trial, that enactment will have to be applied and that would exclude the operation of the code of criminal procedure. ' 10. the learned counsel for the petitioners submits that although the supreme court did not decide as to whether a joint trial could be conducted by the special judge for the offences under the essential commodities act and also for offences under indian penal code, but the supreme court was clearly of the view that a sessions judge could not take cognizance of any offence directly and unless the magistrate committed the offences to the sessions judge, the sessions judge has not the jurisdiction. she also contends that the special judge is a judge who could try offences under the essential commodities act as well as under the indian penal code. ramdas sriniwas nayak, 1984crilj647 .in para 27 of this judgment, the supreme court was considering the legal position of special courts and the supreme court was precisely considering, it is, however, necessary to decide with precision and accuracy the position of a special judge and the court over which he presides styled as the court of a special judge. under the code it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied. ' 16. the learned counsel for petitioners has also drawn our attention to section 36a(2) of the narcotic drugs and psychotropic substances act, 1985. he submits that the intention of the legislature was that a special court under the essential commodities act should only try the offences which are triable in a summary way and where the punishment of imprisonment does not exceed two years whereas in some acts where the intention of the legislature was that the special court should be able to try any other offence as well.bilal nazki, j.1. these petitions have been filed by different persons who are accused in different cases for quashing the proceedings in terms of section 482 of the code of criminal procedure. charge-sheets were filed against the accused persons for having committed offences punishable under section 7(1) of the essential commodities act r/w. sections 26 and 28 of the a.p. petroleum products (licensing and regulation of supplies) act, 1980 and section 411 of the indian penal code. they were also accused of having committed offences under sections 120b, 407, 420, 467, 468, 471, 472 and 474 of the indian penal code.2. the contention of the petitioners before the learned single judge of this court appears to have been that a special court constituted under the provisions of section 12a of the essential commodities act cannot try the cases involving offences under indian penal code along with offences under the essential commodities act. after noting down various judgments the learned single judge framed the following question :'whether a special court constituted under the provisions of section 12a of the essential commodities act can try other offences punishable under the indian penal code along with tine provisions of the essential commodities act?'3. we have heard learned counsel forthe petitioners and also learned public prosecutor. in order to appreciate the argumentsmade, it will be necessary to have a glimpseof various provisions of the essential commodities act and also the criminal procedure code.4. under section 12a of the essential commodities act, the state government is authorised to constitute the special courts for the purpose of speedy trial of the offences under the essential commodities act. the qualifications prescribed for the person who could be appointed a judge of the special court include a qualification that he should have been a sessions judge or an additional sessions judge for not less than one year.5. section 12aa of the essential commodities act mentions the offences which are triable by the special courts. section 12aa(2) reads as follows :'when trying an offence under this act.a special court may also try an offence, otherthan an offence under this act, which theaccused may, under the code, be chargedat the same trial:provided that such other offence is, under any other law for the time being in force, triable in a summary way :provided further that in the case of any conviction for such other offence in such trial, it shall not be lawful for the special court to pass a sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such other law.'6. the learned counsel for the petitioners contends that under clause (2) of section 12-aa of the essential commodities act, though special judge is authorised to try the offences other than the offences under the essential commodities act, but he is not empowered to try an offence which is not triable in a summary way. according to him, the offences with which the petitioners were charged are under sections 411, 120b, 407, 420, 467, 468, 471, 472 and 474 of the indian penal code which cannot be tried in a summary way. in this connection he also relied on section 12-aa(f) of the essential commodities act which lays down.'all offences under this act shall be tried in a summary way and the provisions of sections 262 - 265 (both inclusive) of the code shall, as far as may be, apply to such trial:provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the special court to pass a sentence of imprisonment for a term not exceeding two years.'section 4 of the code of criminal procedure lays down,'all offences under the indian penal code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in cr.p.c.'sub-section (2) of section 4 lays down,'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.'section 5 of the code of criminal procedure lays down,'nothing contained in this code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.'7. section 4 of the code of criminal procedure makes it clear that the offence complained of should be investigated or inquired into or tried according to the provisions of the code of criminal procedure where a special enactment which creates offence indicates no special procedure, which in the alternative would mean that where a special procedure is created by a special enactment for investigation, inquiry or trial, that enactment will have to be applied and that would exclude the operation of the code of criminal procedure. this proposition of law is settled by various judgments of the apex court and suffice it to rely on directorate of enforcement v. deepak mahajan, : 1994crilj2269 . in para (f) of the judgment it is held,'criminal procedure code (2 of 1974), ss. 4(2), 167 -- scope and applicability -- operation of section 4(2) is attracted to area of investigation, inquiry and trial of offence under special laws, including foreign exchange regulation act and customs act -- consequently section 167 can also be made applicable during investigation or inquiry of offence under special act.'8. therefore in view of this settled position of law, the only thing that has to be seen is whether the special court created under the essential commodities act can exercise the powers under the code of criminal procedure or he can exercise his powers under both.9. the judgments that have been cited at the bar include jagdish prasad gupta v. state of rajasthan, 1995 scc (cri) 924. before coming to this judgment, it will be pertinent to note that according to the learned public prosecutor, the special court was a sessions court and therefore that special judge has all the powers of a sessions judge. but the learned counsel for petitioners submits that even if it is conceded, though not admitted, that the special court was a sessions court, then that special judge has no jurisdiction to take cognizance of an offence directly except after committal. in the case referred to above, the appellant before the supreme court had been charge-sheeted for an offence punishable under the essential commodities act. the high court of rajasthan transferred his case pending before the court of the judicial magistrate for c.b.i. cases at jaipur to special court constituted under the essential commodities act. the argument made before the supreme court was that an offence punishable under section 406 of the indian penal code could not be tried summarily and the special court constituted under section 12a of the essential commodities act could only try offences under the essential commodities act summarily. the supreme court referred to sub-section (2) of section 12-aa of the essential commodities act and noted the argument that in view of this provisions, a joint trial of an offence under section 406 of the indian penal code r/w section 7(1) of the essential commodities act could not be conducted. unfortunately this submission was not decided by the supreme court because it allowed the appeal on another ground and held.'in the instant case admittedly, the special court is presided by an additional sessions judge and as provided under section 193 of the code of criminal procedure, the court of session cannot take cognizance of any offence directly except as expressly provided by the code of criminal procedure or by any other law for the time being in force. the section further lays down that no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate under the code. that being the legal position, the additional sessions judge who is presiding over the special court cannot get jurisdiction by a mere transfer of a case by the high court. we may also point out that the high court has not referred to any of these provisions before ordering such transfer. in the result, the impugned order is set aside and all the cases which are transferred by virtue of the impugned order dated 30-7-1993 are sent back to the judicial magistrate for c.b.i. cases, jaipur for being tried and disposed of in accordance with law.'10. the learned counsel for the petitioners submits that although the supreme court did not decide as to whether a joint trial could be conducted by the special judge for the offences under the essential commodities act and also for offences under indian penal code, but the supreme court was clearly of the view that a sessions judge could not take cognizance of any offence directly and unless the magistrate committed the offences to the sessions judge, the sessions judge has not the jurisdiction. this view has been reiterated by the supreme court in a recent judgment reported in vidyadharan v. state of kerala, 2003 air scw 6511 : (2004 cri lj 605). in this case, the appellant before the supreme court had faced trial for the offences punishable under sections 354 and 448 of the indian penal code and also under section 3(1)(d) of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989. he was convicted and sentenced to undergo three months and six months custodial sentences for the offences relatable to section 448 of i.p.c. and section 3(1)(ix) of the scheduled castes and scheduled tribes (prevention of atrocities) act. no. separate sentences were imposed for other offences. the conviction was affirmed by the high court. various grounds were taken in the special leave petition before the supreme court and one of the contentions before the supreme court was that the special judge could not take cognizance of the offence punishable under section 3(1)(ix) of the scheduled castes and scheduled tribes (prevention of atrocities) act straightway without the case being committed to him. the sessions court being a court of session, has to follow the procedure contained in section 193 of the code of criminal procedure. in para 25, the supreme court held.'the inevitable conclusion is that the learned sessions judge, as the undisputed factual position goes to show, could not have convicted the appellant for the offence relatable to section 3(1)(ix) of the act in the background of legal position noted supra. that is: accordingly set aside. however, for the offence under sections 354 and 448, i.p.c. custodial sentence for the period already undergone which as the records reveal is about three months, would meet the ends of justice considering the background facts and the special features of the case. the appeal is accordingly disposed of.'11, now the offences with which the petitioners have been charged in addition to the offences under the essential commodities act are not triable by the sessions court, but are triable by the magistrate. therefore, this judgment of supreme court would not be of any benefit to the petitioners. but the learned counsel for petitioners submits that in terms of section 260 of the code of criminal procedure, the magistrates can try the offences in a summary way if the offences are not punishable with death, imprisonment for life or imprisonment for a term exceeding two years and almost all the offences with which the petitioners have been charged carry a sentence of more than two years. section 407 of i.p.c. also carries an imprisonment for seven years and fine. section 420 of i.p.c. also carries an imprisonment for seven years and fine, section 467 of i.p.c. carries a punishment of life imprisonment or imprisonment for ten years and fine, section 468 of i.p.c. also carries imprisonment for seven years. section 471 of i.p.c. is not relevant because it carries the punishment for forgery of such a document. sections 472 and 474 of i.p.c. also carry the sentence of imprisonment above two years. therefore, all the offences with which the petitioners were charged carry sentence of imprisonment of more than two years. therefore, the contention is that these offences cannot be tried summarily and under section 12-aa(2) of the essential commodities act, the special court has to try the offences summarily and there is a restriction also that he cannot give a sentence of more than two years which is prescribed under proviso to section 12-aa(f) of the essential commodities act. it lays down,'provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the special court to pass a sentence of imprisonment for a term not exceeding two years.'12. the learned public prosecutor however submits that the powers of the special judge are not restricted by the essential commodities act and in terms of section 220 of the code of criminal procedure, a series of acts so connected together as to form the same transaction, can be tried together in one trial. she also contends that the special judge is a judge who could try offences under the essential commodities act as well as under the indian penal code. in this connection, she relied on a constitution bench judgment of the supreme court in a.r. antulay v. ramdas sriniwas nayak, : 1984crilj647 . in para 27 of this judgment, the supreme court was considering the legal position of special courts and the supreme court was precisely considering,'it is, however, necessary to decide with precision and accuracy the position of a special judge and the court over which he presides styled as the court of a special judge.'because according to the supreme court, there was unending confusion on this score and some times the special court was found to have trappings of a magistrate and sometimes the trappings of a special court. then, ultimately after considering the various arguments, analyzing different provisions of the code of criminal procedure, the supreme court held,'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 it 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. shorn of all embellishment, the court of a special judge is a court of original criminal jurisdiction. as a court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the court. except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdiction not being hide-bound by the terminological status description of magistrate or a court of session. under the code it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied.'in our view, this judgment also goes against the contentions of the learned public prosecutor when it says that a special court is a court of original criminal jurisdiction with the limitations prescribed under the statute under which it is created.13. the learned public prosecutor also relied on a judgment reported in k. jagadeesh v. deputy superintendent of police, chittoor (1.984) 2 andh lt 272. this is a judgment of this court which was considering the availability of powers of granting anticipatory bail under section 438 of the code of criminal procedure. there is no quarrel with the principles laid down in this judgment that provisions of section 12-aa of the essential commodities act do not displace altogether the provisions of the code of criminal procedure. therefore in our view, this judgment is not relevant for the purpose of deciding the present controversy.14. the learned public prosecutor also relied on a judgment reported in the state of karnataka v. l.n. chakrapani, 1993 cri lj 1316. in that judgment the question before the court was, 'whether a special judge can invoke the provisions of section 167(5) of the criminal procedure code (shortly called 'the code') to release an accused who is alleged to have been committed the offence punishable under section 3 read with section 7(1) of the essential commodities act (shortly called 'the act')?' as this question is not relevant for the purpose of present references, we do not go into the judgment in detail.15. the learned public prosecutor also relied on a decision reported in public prosecutor, high court of a.p., hyderabad v. b. anjaneyulu, 1986 cr lj 1456. this judgment also considered the same question which was considered by the karnataka high court in the judgment referred to above (supra) and the karnataka high court and the high court of andhra pradesh had taken the contrary views, but both the judgments are not relevant for the purpose of present controversy. however, we are tempted to note down the observations made by the division bench in para 9 of the judgment which is reproduced hereunder :'9. the essential commodities act (act x of 1955) was passed by the parliament to regulate and control supply of the essential commodities and was similar to the earlier pre-constitution law viz., the essential supplies (temporary powers) act, 1946. the amending act 47 of 1964 enabled the summary trial of offences under the act. later, by several amending acts provisions for confiscation of the seized goods by the executive authorities i.e., other than the courts were made viz., section 6a. this power of confiscation could be exercised irrespective of the fact whether a prosecution is launched or not viz., section 6d. however, by section 6c when prosecution is launched and it ends in an acquittal the person concerned is entitled to the return of the goods confiscated under section 6a or their value. the amending act 18 of the 1981 has made certain amendments for a temporary period of five years to expedite disposal of cases. the special courts which may be constituted under section 12a of the act are given exclusive jurisdiction to try the cases for offences under the act. at the same time, section 12-aa(1)(f) extracted above directs that all offences shall be tried in a summary way and the provisions of ss. 262 to 265 of the code shall, as far as may be apply to such trial. by the proviso sentence up to two years may be imposed in a summary trial by the special court for the offence under the act. while under section 262 of the code, a sentence up to a period of three months only may be imposed in a summary trial of the offences by the magistrates. in view of sub-section (1)(f) of section 12-aa, the cases shall be tried by the summary procedure and there is no option to apply any either procedure. to this extent the discretion given under section 260(2) of the code to revert back to a warrant procedure is superseded. in view of the scheme of the amending act the imposing of sentence of over two years under section 7(1) is not permissible where special courts are established, as they have to follow summary procedure for the period of the temporary amendment. for both reasons viz., because under section 262 of the code, a summary trial is to be by a summons case procedure, and also because the temporary act provides for a maximum period of two years sentence only where cases are tried by the special courts, the procedure for warrant cases will not apply.'16. the learned counsel for petitioners has also drawn our attention to section 36a(2) of the narcotic drugs and psychotropic substances act, 1985. he submits that the intention of the legislature was that a special court under the essential commodities act should only try the offences which are triable in a summary way and where the punishment of imprisonment does not exceed two years whereas in some acts where the intention of the legislature was that the special court should be able to try any other offence as well. in this context reference is given to sub-section (2) of section 36a of the narcotic drugs and psychotropic substances act lays down:'when trying an offence under this act, a special court may also try an offence other than an offence under this act, with which the accused may, under the code of criminal procedure, 1973 (2 of 1974), be charged at the same trial.'there are no limitations placed on the power of the special judge under the narcotic drugs and psychotropic substances act, whereas limitations are placed on the powers of the special judge created under the essential commodities act and those limitations are that he cannot try an accused for the offence which is not triable in a summary way. he cannot also sentence an accused for a term exceeding two years.17. the learned counsel for petitioners has also relied on a judgment of punjab and haryana high court reported in section c. sharma v. state of haryana, (2003) 2 all cri lr 609.in a similar controversy the punjab and haryana high court laid down,'...... .so far as other offences are concerned, as referred to above, under section 12-aa(2) of the essential commodities act, 1955, as applicable at the relevant time, the special court was competent to try other offences along with an offence under the essential commodities act only if those offences were triable in a summary way. in this view of the matter, the substantive offences under sections 420 and 161, ipc could not be tried by the special court along with the offence under section 7 of the essential commodities act.'18. for the reasons given hereinabove, we agree with the view of the punjab and haryana high court and hold that the special judge cannot try other offences along with offences under essential commodities act which are not to be tried in a summary way. since all the offences other than offences under essential commodities act are not to be tried in a summary way, therefore, the special judge has no jurisdiction to take cognizance of the offences mentioned herein. the reference is answered accordingly. we do not think it will serve any purpose if we send the matter back to the learned single judge and therefore, we quash the proceedings as far as they relate to offences under sections 120b, 407, 411, 420, 467, 468, 471, 472 and 474 of the indian penal code.19. the learned counsel for petitioners also submitted that the offence under section 7 of the essential commodities act should also have not been taken cognizance of because the charge sheets had been filed beyond one year and hence time-barred. since we do not have the relevant records before us, therefore, we direct that the special judge shall look into this aspect and pass appropriate orders on the contention of the petitioners that in view of the bar under section 468 of the code of criminal procedure, the charge sheets filed for the offence under section 7 of essential commodities act was time barred and should have not been taken cognizance of.20. these criminal petitions are disposed of accordingly.