SPECIAL JUDGE DACOITY AFFECTED… V/S STATE OF RAJASTHAN
| Citation | 1989 WLN UC 336 |
| Date of Judgment | 6 December 1989 |
| Court | High Court of Rajasthan |
| Case Type | Criminal Reference Petition |
| Appellant | Special Judge Dacoity Affected Area Karauli |
| Bench | Hon’ble Mr. Justice V Dave |
| Referred | Rajasthan Dacoity Affected Areas Act, 1986 – Sections 2, 6, 7, 8(1), 8(2), 8(3)Indian Penal Code, 1860 – Sections 384. 398 Code of Criminal Procedure, 1973 – Sections 82, 83, 156, 164, 167, 169, 173, 190, 200, 207, 307, 308, 395 |
FACTS OF THE CASE
This criminal reference petition has been preferred by Learned Special Judge Dacoity Affected Area to the High Court under Section 395 CrPC impugning the order of the Additional Chief Judicial Magistrate dated 11.05.1988 which caused a question of doubt regarding the trial of the scheduled offences under the Rajasthan Dacoity Affected Area Act, 1986.
Upon a written report submitted by complainant Manohari Mal, a case was registered under Section 384 IPC against three accused Mansingh, Chhutalli and Rati. Whereby Mansingh was arrested and two other warrants were issued however when warrants came unserved proceedings were drawn under Sections 82 and 83 CrPC.
After investigation a charge-sheet was submitted by the police to the Additional Chief Judicial Magistrate against accused Mansingh and absconder Rati for offence under Section 398 IPC which is a scheduled offence as defined under aforementioned act.
But the Learned Magistrate was of the opinion that since the offence is a scheduled offence, the charge-sheet should be submitted in the Court of Special Judge Dacoity Affected Area. And through order dated 11.05.1988 he refused to take cognizance of the case and returned the charge-sheet to the A.P.P for proceeding in competent court.
So, when the accused were produced in the Special Court, the Learned special Judge Dacoity Affected area was not in agreement with the view of Learned Magistrate and referred the matter to High Court.
ISSUES
Whether the Magistrate having jurisdiction over the dacoity affected areas are competent to perform functions related to scheduled offences, prior to the stage of trial before the Special Judge Dacoity Affected Areas?
ANALAYSIS
The procedure discussed by the Learned Magistrate is that, trial of a scheduled offence under Section 8 the aforementioned act has a similar procedure as that in Section 190 CrPC which is for trial of a sessions case. Therefore, if a case is about a scheduled offence, then it should be tried in Sessions Court and so the charge-sheet must be filed directly before the Sessions Judge. The Act of 1986 empowers the Special Courts to perform functions of a Magistrate mentioned in Section 207 CrPC. Under Section 8(1) of the Act of 1986 the Special Judge has been directly empowered to take cognizance. Finally, a composite reading of Section 8 of the Act and Sections 190, 207, 307, 308 CrPC makes it clear that Special Judge has all powers of a Magistrate, all FIRs, private complaints about a scheduled offence must be forwarded to the Special Judge otherwise the purpose of the Act will be frustrated.
But the Learned Special Judge was of the opinion that scheduled offences appended with the Act of 1986 include warrant trials which begin with presentation of the warrant. However, the provision incorporated in Section 8(1) of the same act empowers the Special Court to take cognizance of scheduled offence for all such cases irrespective of warrant or sessions trial. And may where-ever necessary perform the function of Magistrate under Section 207 CrPC and proceed to try the case as if the case have been committed to a Sessions Court. The Learned Special Judge while interpreting the Section 8(3) of Act of 1986 held that it restricts the Magisterial function except for those which have been expressly provided therefore, function of Magistrate up to investigation, enquiry and stage of trial shall be taken up by Magistrate having jurisdiction over that area which would include issuance of warrants of arrest, search proclamation and attachment order under Section 156(3) CrPC. recording of statements of the witnesses under Section 164 CrPC. custody remands under Section 167 CrPC. release of the accused under Section 169 CrPC. police reports under Section 173 CrPC and complaints to the Magistrates under Section 200 CrPC.
The Hon’ble High Court after thorough analysis and discussions has come to conclusion that, in view of appreciating the scheme of the Act of 1986 it is clear that the cases which are triable exclusively by the Special Courts are the scheduled offences. However, Section 7 of act which talks about jurisdiction of Special Court has a blurred area regarding specifying the exclusive jurisdiction of the Special Court.
According to Section 8(1) of the Act of 1986, Special Court has been given the same powers as have been given to a Magistrate under Section 190 CrPC in respect of a scheduled offence.
Section 8(1) reads – a special court may take cognizance of any scheduled offence.
There is difficulty in interpretation of the word ‘may take cognizance’ whether the word ‘may’ would exclude any other court for taking cognizance in respect of the scheduled offence or only enable the Special Court also to take cognizance or both the Special Court as well as other ordinary court may have the jurisdiction to take cognizance in respect of scheduled offence in dacoity affected area or it is only the Special Court which can take cognizance of any scheduled offence.
In connection to this provision the Special Court has been given a discretion to perform the function of a Magistrate under Section 207 CrPC wherever necessary and if the court chooses to perform that function. Hence, in cases where charge-sheet is directly submitted before the learned Judge of the Special Court and he shall perform the function of a Magistrate under Section 207 CrPC and then himself will proceed to try the cases as if the case has been committed to his court for trial. So, functions proceeding to trial have also to be performed by him but it is limited to the cases where his jurisdiction is about scheduled offences defined under the Act.
In any cases the legislature has intended to combine the powers of both a Magistrate proceeding commitment as well as the Sessions Judge to one and the same authority, the Special Judge, so as to avoid unnecessary delay. But at the same time it cannot be held that jurisdiction of a Magistrate is ousted from taking cognizance and committing the case to the court of Special Judge the intention of the legislature would have been that the Special Courts be empowered for taking direct cognizance in all cases, irrespective of the warrant trial or the sessions trial cases, then the word ‘WHEREVER NECESSARY’ and ‘AS IF’ would not have been incorporated under Sub-section 8(1)(2) of the Act of 1986 and similarly Section 207 CrPC would not have been mentioned and all other provisions such as for issuance of warrant of arrest, search warrants custody remands, release of the accused etc. would also have been mentioned.
Finally, the High Court accepting the reference opined that Magistrates having jurisdiction over the dacoity affected area are not barred from functioning up to stage of investigation and enquiry prior to the stage of trial before the Special Judge in the matters of scheduled offences.
CONCLUSION
This reference petition has provided an opportunity to interpret and resolve the ambiguities in the provisions of the Rajasthan Dacoity Affected Areas Act, 1986 to make use of it effectively to curb the commission of scheduled offences and also for speedy trial and punishment thereof for the commission of such offences.
REFERENCES
This Article is written by Abraham Dany Diana, first year student of Dr. B. R Ambedkar Law College, Andhra University, Intern at Legal Vidhiya.
