Tuesday 18 July 2023

Whether Magistrate should examine approver if special court has directly taken cognizance of an offence under the Special Act?

 But in cases where a Special Court itself is competent to take cognizance and also empowered to grant pardon, the procedure Under Section 306 of the Code gets by-passed, as held by this Court in State through CBI v. V. Arul Kumar MANU/SC/0632/2016 : (2016) 11 SCC 733. An argument was advanced in Arul Kumar (supra) (as seen from paragraph 20 of the Report) that Section 306 of the Code has no application to cases relating to offences under the PC Act. In support of the said argument, the decision in P.C. Mishra v. State (CBI) MANU/SC/0232/2014 : (2014) 14 SCC 629 was also relied upon. While dealing with the said contention, this Court held in Arul Kumar as follows:

21. Sub-section (1) of Section 5, while empowering a Special Judge to take cognizance of offence without the Accused being committed to him for trial, only has the effect of waiving the otherwise mandatory requirement of Section 193 of the Code. Section 193 of the Code stipulates that the Court of Session cannot 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. Thus, embargo of Section 193 of the Code has been lifted. It, however, nowhere provides that the cognizance cannot be taken by the Magistrate at all. There is, thus, an option given to the Special Judge to straightaway take cognizance of the offences and not to have the committal route through a Magistrate. However, normal procedure prescribed Under Section 190 of the Code empowering the Magistrate to take cognizance of such offences, though triable by the Court of Session, is not given a go-by. Both the alternatives are available. In those cases where charge-sheet is filed before the Magistrate, he will have to commit it to the Special Judge. In this situation, the provisions of Section 306 of the Code would be applicable and the Magistrate would be empowered to exercise the power under the said provision. In contrast, in those cases where Special Judge takes cognizance of offence directly, as he is authorised to do so in view of Section 5(2) of the PC Act, 1988, Section 306 of the Code would get bypassed and as the Special Judge has taken cognizance, it is Section 307 of the Code which would become applicable. Sub-section (2) of Section 5 of the PC Act, 1988 makes this position clear by prescribing that it is the Special Judge who would exercise his powers to tender of pardon as can clearly be spelled out by the language employed in that provision. Section 5(2) is to be read in conjunction with Section 5(1) of the PC Act, 1988. The aforesaid legal position would also answer the argument of the learned Counsel for the Respondent based on the judgment of this Court in A. Devendran [A. Devendran v. State of T.N., MANU/SC/1851/1997 : (1997) 11 SCC 720 : 1998 SCC (Cri) 220]. In that case, this Court held that once the proceedings are committed to the Court of Session, it is that court only to which commitment is made which can grant pardon to the approver. The view taken by us is, rather, in tune with the said judgment.{Para 74}

75. In other words, this Court recognised in Arul Kumar two types of cases, namely (i) those which come through the committal route; and (ii) those where cognizance is taken directly by the Special Judge Under Section 5(1) of the PC Act. In the second category of cases, the Court held that Section 306 of the Code would get by-passed.

76. Therefore, it is clear that when the Special Court chooses to take cognizance, the question of the approver being examined as a witness in the Court of the Magistrate as required by Section 306(4)(a) does not arise. Shri Padmesh Mishra, learned Counsel for the Respondent is therefore right in relying upon the decisions of this Court in Sardar Iqbal Singh v. State (Delhi Administration) MANU/SC/0131/1977 : (1977) 4 SCC 536 and Yakub Abdul Razak Memon v. State of Maharashtra MANU/SC/0268/2013 : (2013) 13 SCC 1.

77. In Sardar Iqbal Singh (supra) the offence was triable by the Special Judge who also took cognizance. Therefore, there were no committal proceedings. Though Sardar Iqbal Singh arose under the 1898 Code, Sub-section (2) of Section 337 of the 1898 Code was in pari materia with Section 306(4)(a) of the 1973 Code. Therefore, the ratio laid down in Sardar Iqbal Singh was rightly applied in Yakub Abdul Razak Memon (supra) for coming to the conclusion that where a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once.


Criminal Appeal Nos. 2417 of 2010, 16 of 2011 and 2444 of 2010

Decided On: 15.06.2023

A. Srinivasulu  Vs. The State Rep. by the Inspector of Police

Hon'ble Judges/Coram:

V. Ramasubramanian and Pankaj Mithal, JJ.

Author: V. Ramasubramanian, J.

Citation: MANU/SC/0723/2023.

Read full Judgment here: Click here

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