Whether notification can create the power of direct cognizance where the parent statute itself did not expressly confer one?

 The statement means that a notification issued by the government cannot create a new legal power unless the Act itself has already granted that power in clear terms. In other words, if the parent statute does not authorize direct cognizance, an executive notification cannot manufacture that authority by itself because delegated legislation must remain within the limits of the statute from which it derives force.

Core idea

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Delay, Denial, and Direct Cognizance: Why the Bombay High Court Quashed the Prosecution in C.B. Healthcare v. Union of India

 

The Bombay High Court’s decision in Ms. C.B. Healthcare and Ors. v. Union of India is a significant reminder that prosecutions under the Drugs and Cosmetics Act, 1940 must satisfy not only public health objectives but also the statutory safeguards built into the Act and the Rules. In a judgment delivered on 24 March 2026, Justice N.J. Jamadar quashed the criminal prosecution against the manufacturer and its partners, holding that the cumulative procedural lapses had destroyed the accused’s valuable right to challenge the analyst’s report and had rendered the continuation of prosecution an abuse of the process of court.

Facts and procedural history

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Bombay HC : Sessions Court Cannot Take Cognisance Of Offences Under Drugs & Cosmetics Act Without Committal of case By Magistrate

 In regard to the action of the learned Special Judge of taking cognizance of the offence directly, there appears substance in the submission of Mr. Bhasin. {Para 40}

41. Section 32 of the Drugs Act, 1940 provides for cognizance of offences. Sub-Section (2) of Section 32 provides that, save as otherwise provided in that Act, no court inferior to that of a Court of Session shall try an offence punishable under Chapter IV. Section 193 of the Code of Criminal Procedure, 1973, contains an interdict against the Court of Sessions taking cognizance of any offence as Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code, except as otherwise expressly provided by that Code or by any other law for the time being force.

Evidently, though sub-Section (2) of Section 32 begins with an inbuilt saving clause in the form of expression, “save as otherwise provided in this Act” yet, there is no provision in the Drugs Act 1940 which expressly provides for the Court of Session taking the cognizance of the offence punishable under the said Act directly. Nor Section 32(2) contains the usual expression, “notwithstanding anything contained in the Code of Criminal Procedure, 1973”, employed by the legislature where the Court of Session is empowered to take cognizance of the offences under the special enactments, without the case having been committed to it by a Magistrate.

42. What sub-Section (2) of Section 32 essentially provides is that, the trial of an offence under Chapter IV of the Drugs Act 1940 shall be before a Court not inferior to that of the Court of Session. The necessary corollary flowing from Section 4 of the Code, is that the rest of the provisions in the Code in regard to taking of the cognizance of the offence, inclusive of the interdict contained in Section 193 of the Code against the Court of Session taking cognizance of the offence directly, are clearly attracted.

43. Mr. Singh, the learned Special Counsel for the Respondent, attempted to wriggle out of the situation by canvassing a submission that the Administrator of the U.T. of Damand and Diu And Dadra and Nagar Haveli, has published Notification to designate the “Principal District Judge”, Daman and Diu and Dadra and Nagar Haveli at Silvassa as Special Court and empowered him to try the case under the Drugs Act, 1940 and the Code of Criminal Procedure, 1973, for the area of UT of Daman And Diu And Dadra And Nagar Haveli. The said Notification, according to Mr. Singh, constitutes the saving envisaged by the expression, “save as otherwise provided” contained in sub-Section (2) of Section 32.

44. I find it difficult to accede to the aforesaid submission. I have perused the said Notification dated 17th June 2010. It is issued under Section 36AB(1) of the Drugs Act 1940 which came to be inserted by Act No. 26 of 2008, to provide for designation of one or more Special Courts for trial of offence relating to adulterated drugs or spurious drugs and punishable under clauses (a) and (b) of Section 13, sub-Section (3) of Section 22, clauses (a) and (c) of Section 27, Section 28, Section 28A, Section 28B and clause (b) of sub- Section (1) of Section 30 and other offences relating to adulterated drugs or spurious drugs.

45. In the case at hand, the complaint is lodged for the commission of an offence punishable under Section 27(d) of the Drugs Act, 1940. Secondly, the said Notification even if the submission on behalf of the Respondent is taken at par, would not empower the Court of Session to directly take the cognizance of the offence as there is no provision in the Drugs Act, 1940 which provides for taking of cognizance of offence by the Court of Session directly.

46. A useful reference in this context can be made to the judgment of the Supreme Court in the case of Union of India V/s. Ashok Kumar sharma and Ors. (2021) 12 SCC 674, wherein the Supreme Court expounded the law, as under :

“49. Section 32 of the Act undoubtedly provides for taking

cognizance of the offence by the court only at the instance of the

four categories mentioned therein. They are: (a) Inspector under the Act; (b) Any Gazetted Officer empowered by the Central or the State Government; (c) Aggrieved person; and (d) Voluntary Association. It is clear that the Legislature has not included the Police Officer as a person who can move the court. Before the matter reaches the court, under Section 190 of the CrPC, ordinarily starting with the lodging of the first information report leading to the registration of the first information report, investigation is carried out culminating in a report under Section 173. The Police Report, in fact, is the Report submitted under Section 173 of the CrPC to the court. Under Section 190 of the CrPC, the court may take cognizance on the basis of the police report. Such a procedure is alien to Section 32 of the Act. In other words, it is not open to the Police Officer to submit a report under Section 173 of the CrPC in regard to an offence under Chapter IV of the Act under Section 32. In regard to offences contemplated under Section 32(3), the Police Officer may have power as per the concerned provisions. Being a special enactment, the manner of dealing with the offences under the Act, would be governed by the provisions of the Act. It is to be noted that Section 32 declares that no court inferior to the Court of Sessions shall try offence punishable under Chapter IV. We have noticed that under Section 193 of the CrPC, no Court of Sessions can take cognizance of any offence as a Court of Original Jurisdiction unless the case has been committed to it by a Magistrate under the CrPC. This is, undoubtedly, subject to the law providing expressly that that Court of Sessions may take cognizance of any offence as the Court of Original Jurisdiction. There is no provision in the Act which expressly authorises the special court which is the Court of Sessions to take cognizance of the offence under Chapter IV. This means that the provisions of Chapters XV and XVI of the CrPC must be followed in regard to even offences falling under Chapter IV of the Act. Starting with Section 200 of the Act dealing with taking of cognizance by a Magistrate on a complaint, including examination of the witnesses produced by the complainant, the dismissal of an unworthy complaint under Section 203 and following the procedure under Section 202 in the case of postponement of issue of process are all steps to be followed. It is true that when the complaint under Section 32 is filed either by the Inspector or by the Authorised Gazetted Officer being public servants under Section 200, the Magistrate is exempted from examining the complainant and witnesses.”

(emphasis supplied)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.2777 OF 2024

M/s. C.B.Healthcare and Ors. Vs  Union of India 

CORAM: N.J.JAMADAR, J.

PRONOUNCED ON : 24 MARCH 2026

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Supreme Court: Under which circumstances, the high court or Session court should not release the accused on bail only on the ground that offence is triable by JMFC?

 At this stage, we may note that one of the grounds that weighed with the High Court was that the offences against Respondent No. 1 were triable by a Magistrate. However, the High Court overlooked the fact that the offences now alleged against Respondent No. 1 include offences Under Section 409 Indian Penal Code and Section 467 Indian Penal Code also. Significantly, the punishment for offences under these provisions can extend to imprisonment for life or imprisonment for a term up to ten years. Similarly, some of the other offences for which Respondent No. 1 has been hauled up for entail a possible sentence of imprisonment over three years. {Para 12}

13. Under Section 29 of the Code of Criminal Procedure, 19732, a Magistrate of First Class can pass a sentence of imprisonment for a term not exceeding three years, while a Chief Judicial Magistrate may pass a sentence of imprisonment, excepting imprisonment for a term exceeding seven years or a sentence of death or imprisonment for life. A Metropolitan Magistrate has the same powers as a Magistrate of First Class while a Chief Metropolitan Magistrate is equivalent to a Chief Judicial Magistrate.

14. In that view of the matter, it would always be open to a Magistrate, if he is of the opinion that any of the offences in the case are exclusively triable by a Court of Sessions, to commit the case to a Court of Sessions Under Section 209 Code of Criminal Procedure or Section 323 Code of Criminal Procedure. It may be noted that Under Section 323 Code of Criminal Procedure, such power can be exercised by the Magistrate even during the course of the trial. Therefore, the assumption of the High Court that the case on hand is triable by a Magistrate is premature.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 957 of 2026 

Decided On: 17.02.2026

Rakesh Mittal Vs. Ajay Pal Gupta and Ors.

Hon'ble Judges/Coram:

P.V. Sanjay Kumar and K. Vinod Chandran, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: 2026 INSC 161, MANU/SC/0164/2026.

Read full judgment here: Click here.

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Supreme Court: Under which circumstances, Magistrate Can Commit the case to Sessions court during Course Of Trial even if it is not exclusively triable by Session Court?

At this stage, we may note that one of the grounds that weighed with the High Court was that the offences against Respondent No. 1 were triable by a Magistrate. However, the High Court overlooked the fact that the offences now alleged against Respondent No. 1 include offences Under Section 409 Indian Penal Code and Section 467 Indian Penal Code also. Significantly, the punishment for offences under these provisions can extend to imprisonment for life or imprisonment for a term up to ten years. Similarly, some of the other offences for which Respondent No. 1 has been hauled up for entail a possible sentence of imprisonment over three years. {Para 12}

13. Under Section 29 of the Code of Criminal Procedure, 19732, a Magistrate of First Class can pass a sentence of imprisonment for a term not exceeding three years, while a Chief Judicial Magistrate may pass a sentence of imprisonment, excepting imprisonment for a term exceeding seven years or a sentence of death or imprisonment for life. A Metropolitan Magistrate has the same powers as a Magistrate of First Class while a Chief Metropolitan Magistrate is equivalent to a Chief Judicial Magistrate.

14. In that view of the matter, it would always be open to a Magistrate, if he is of the opinion that any of the offences in the case are exclusively triable by a Court of Sessions, to commit the case to a Court of Sessions Under Section 209 Code of Criminal Procedure or Section 323 Code of Criminal Procedure. It may be noted that Under Section 323 Code of Criminal Procedure, such power can be exercised by the Magistrate even during the course of the trial. Therefore, the assumption of the High Court that the case on hand is triable by a Magistrate is premature.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 957 of 2026 

Decided On: 17.02.2026

Rakesh Mittal Vs. Ajay Pal Gupta and Ors.

Hon'ble Judges/Coram:

P.V. Sanjay Kumar and K. Vinod Chandran, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: 2026 INSC 161, MANU/SC/0164/2026

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Short notes on Latest Supreme Court judgments (Part 3)

 1) Magistrate Can Take Cognizance Of Protest Petition After Rejecting Police Final Report

The court added that even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report. Further, a Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of the police report, the court said.

Zunaid v. State of UP.

2) HC Can Act On Section 482 Petition To Quash FIR Even If Chargesheet Has Been Filed During Its Pendency 

Abhishek v. State of Madhya Pradesh.

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At what stage the magistrate can invoke his power to commit the case to Session court?

We find force in the submission made by learned Senior Counsel for the appellant that the procedure adopted by the High Court in the impugned order is not correct. The High Court directed the learned CMM to undertake the exercise of committal in pursuant to a decision to be taken as to whether a charge can be added under Section 307 IPC only after the conclusion of the entire evidence of P.W.1 namely, the appellant before us. For exercising such a power, it is not mandatory for the learned CMM to wait for the completion of the entire evidence of P.W.1, which is inclusive of cross examination. In other words, such a subjective satisfaction would depend upon the materials available before the Court whatever may be its nature. The procedure adopted by the High Court in the impugned order is not mandated under Section 216 or 323 Cr.P.C. Section 323 Cr.P.C. gives a discretion to the Court to exercise its power at any stage of the proceeding before signing judgment. It is, evident from the statute that the power under Section 323

Cr.P.C. may be invoked by the learned Magistrate at any stage of

the proceeding prior to signing of the Judgment. Thus, it is a

settled provision of law that the said power may be invoked even

after the deposition or the examination-in-chief of a witness. The

key requirement for the invocation of the power under the Section 323 is that the learned Magistrate concerned must feel that the case is one which ought to be tried by the Court of Sessions.{Para 5}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.2655 OF 2023

ARCHANA  Vs THE STATE OF WEST BENGAL & ANR. 

AUGUST 28, 2023.

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Can the Session court take cognizance of the offence as per S 32(2) of the Drugs and Cosmetics Act even though the said case is not committed to it?

 In 'The Act of 1940', no where expressly or by necessary implication provides that either the Special Court can take cognizance without the case being committed to it by the competent Magistrate, nor any such provisions is there in 'The Act of 1940' that the Magistrate or for that matter, Chief Judicial Magistrate has no jurisdiction to take cognizance and to pass a committal order. {Para 10}

11. Section 193 of 'The Code', which deals with cognizance of offence by Court of Sessions and is relevant for the present discussions runs as under:

193. Cognizance of offences by Courts of Session.--Except as otherwise expressly provided by this Code or by any other law for the time being in force, 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 this Code."

12. Section 193 (Supra) provides, in no uncertain terms, that a Court of Sessions will not take cognizance of an offence as a Court of original jurisdiction, unless the case has been committed to it, except otherwise expressly provided in that regard.

13. Hon'ble the Apex Court, while considering Section 14 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as it stood prior to amendment of 2015), in the context of taking cognizance by the Special Court constituted under that Act had an occasion to consider the ambit and scope of Section 193 of 'The Code' Relevant observations made in this regard, which are apposite here and cover the controversy at hand, run as under:

"Section 14 of the Act says that "for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Sessions to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a Magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as Special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14", [vide S. 2(1)(d)] Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for 'Trial before a Court of Session'."

"Section 193 of the Code has to be understood in the aforesaid backdrop. The section imposes an interdict on all Courts of Session against taking cognizance of any offence as a court of original jurisdiction. It can take cognizance only if "the case has been committed to it by a Magistrate", as provided in the Code, Two segments have been indicated in Section 193 as exceptions to the aforesaid interdict. One is, when the Code itself has provided differently in express language regarding taking of cognizance, and the second is when any other law has provided differently in express language regarding taking cognizance of offences under such law. The word "expressly" which is employed in Section 193 denoting to those exceptions is indicative of the legislative mandate that a Court of Session can depart from the interdict contained in the section only if it is provided differently in clear and unambiguous terms. In other words, unless it is positively and specifically provided differently no Court of Session can take cognizance of any offence directly, without the case being committed to it by a Magistrate."

14. Here it is noticeable that Section 5 of the Prevention of Corruption Act, 1988 specifically provides that special Judge under the Act can take cognizance of offence(s) without the accused being committed to him for trial.

15. Likewise, under the SC/ST (PA) Act, 1989 (prior to amendment by Amending Act of 2015), a case triable by Special Court constituted under Section 14 of this Act was required to be committed to the Special Court as held by the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra). After the amendment of 2015, a provision has been added in Section 14 of SC/ST (PA) Act, 1989, conferring power on the Special Court to take cognizance of the case without the same being committed to it for trial. A provision identical to one in Sec. 5 of the Prevention of Corruption Act, 1988 or Sec. 14 of the SC/ST (PA) Act, 1989 is not there in 'The Act of 1940', therefore, Special Court, constituted under this Act, which is a Sessions Court, cannot take cognizance without the accused being committed to it for trial.

16. In view of Section 193 of 'The Code' as interpreted by Hon'ble the Apex Court in Gangula Ashok's case (MANU/SC/0047/2000 : AIR 2000 SC 740) (supra), the cases (supra) relied upon by the learned counsel for the petitioner have no application in the present case. The special Court constituted under 'The Act of 1940' cannot take direct cognizance, because no enabling provision is there in 'The Act of 1940' in that regard, hence, no fault can be found with the order passed by the learned Chief Judicial Magistrate, committing the case to the special Court. Therefore, the impugned order of for that matter the order passed by the learned Chief Judicial Magistrate does not suffer from any illegality. In view of the aforesaid, this petition having no force deserves to be and is accordingly dismissed.

 IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

M. Cri. C. No. 11940 of 2016

Decided On: 10.01.2017

 Kalptaru Medicose  Vs.  Food and Drug Administration

Hon'ble Judges/Coram:

Ved Prakash Sharma, J.

Citation: MANU/MP/0133/2017,2017(1)Drugs cases (DC)204

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Whether Magistrate must record evidence of complainant if complaint is filed by public servant in session triable offence?

Code of Criminal Procedure, 1973 - Sections 202 (2), Proviso and 465-Complaint-Enquiry by Magistrate under Section 202 (2)-Scope of proviso to Section 202 (2) when offence complained of exclusively triable by Court of Session-Duty of Magistrate to examine complainant's witnesses-Omission to do so not by itself to vitiate proceedings.

Held :

Per Thomas, J.

(1) The proviso to sub-section (2) of Section 202 of the Code of Criminal Procedure, 1973, is not merely to confer a discretion on the Magistrate, but a compelling duty on him to perform in any such cases. However, the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course, if the complainant requires the help of the Court to summon such witnesses, it is open to the Magistrate to issue such summons, for, there is nothing in the Code which prevents the Magistrate from issuing such summons to the witnesses.

(2) However, if the Magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objection is taken at the earlier stage regarding such omission, the Court can consider how far such omission would have led to miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code.

(3) When the accused have chosen not to raise objection on the premise of omission to examine witnesses of the complainant under the proviso to Section 202 (2) of the Code before process was issued by the Magistrate, it must be taken that they had no grievance that such omission had occasioned failure of justice. Even if they had taken such objection after committal of the case to the Sessions Court, there was no need to turn the switch board backwards as there is no scope for believing that such omission had occasioned failure of justice. This is because no evidence of any witness would be used in the trial court unless such witness was examined in the trial court and the accused is afforded reasonable opportunity to cross-examine him.

Per Shah, J.

(1) Inquiry under Section 202 (2) of the Code is itself discretionary one-giving option to examine or not to examine witnesses on oath. Hence, proviso to the said sub-section is required to be read accordingly though couched in mandatory term by using the word 'shall'. Normally, the procedure prescribed therein should be followed, but non-observance of the said procedure may not vitiate further proceedings in all cases. In a case where a complaint is filed, not by the public servant, and where the offence is exclusively triable by the Court of Sessions, the Magistrate should follow the proviso to sub-section (2) of Section 202 and call upon the complainant to produce all his witnesses and examine them on oath. This would be in consonance with the provision of Section 208 which, inter alia, provides for supply of copy of statements and documents to accused. This would also facilitate the Sessions Court in framing the charge or discharging the accused. In the sessions triable case, under Section 226 the prosecution has to open its case by describing the charge brought against the accused and stating by what evidence it proposes to prove the guilt of the accused. On such submission, the Sessions Court is required to consider the record of the case and the documents submitted therewith and, after hearing the submissions of the accused and prosecution in this behalf, to decide whether there is sufficient ground or not for proceeding against the accused. Upon such consideration, if the Court finds that there is no sufficient ground for proceeding against the accused, he shall be discharged as provided under Section 227. In case, where there is sufficient ground, Court is required to frame the charge as provided under Section 228. Hence, for the purpose of framing the charge also, the recording of such evidence is necessary. It also facilitates the accused to know allegation made against him as well as evidence in support thereof. However, in a case where complaint is filed by a public servant after holding inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance of proviso by the Magistrate in all sessions triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established.

(2) Section 465, Cr. P.C. specifically provides that irregularity in the complaint, summons, warrant, order or other proceedings before or during trial or in any inquiry shall not be a ground for reversing order passed by the competent Court, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Sub-section (2) further provides that in determining whether any irregularity in proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Hence, the statute does not expressly provide for nullification of the order as a consequence of non-compliance of proviso to sub-section (2) of Section 202, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry under Section 202 when Magistrate examines the witnesses on oath, as far as possible proviso is to be complied with but the mandate is not absolute.

(3) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry, he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204 (2) before issuance of the process. The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later. 

IN THE SUPREME COURT OF INDIA

Crl. A. Nos. 18-19 of 2000 

Decided On: 10.01.2000

 Rosy and Ors.  Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

K.T. Thomas and M.B. Shah, JJ.

Authored By : K.T. Thomas, M.B. Shah

Citation: AIR 2000 SC 637,( 2000 ) 2 SCC 230,MANU/SC/0018/2000

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Whether Magistrate should commit cases under Drugs and Cosmetics Act after amendment of said Act effective from 10-8-2009?

  In this case, on 10.8.2009, the sample was taken by the respondent,

who is a Drug Inspector of the State and on 22.3.2005 the case was instituted against the petitioners herein. They appeared on 29.8.2007 and the amendment to Section 32 of the Drugs and Cosmetics Act, 1940 came into effect from 10.8.2009 according to which the offences under the said Act would only be tried by a Court, not inferior to that of a Court of Sessions. However, in ignorance of the said amendment, the learned Court of J.M.F.C. framed charges on 8.12.2009 for offences U/s.18(a)(i) read with Section 17 and 27 of the Drugs and Cosmetic Act, 1940. In this case, the question involved is not the retrospective application of the amendment, but the continuation of the case before the Court of learned Judicial Magistrate First Class after the amendment came into force at which point of time, even the charges were not framed by the Court of the Ld. JMFC. The framing of the charge by the Court of learned J.M.F.C. on 8.12.2009 itself was rendered illegal on account of the amendment having come into force on 10.8.2009 itself. Therefore, all the proceedings before the Ld. JMFC after 10.8.2009, on which date even the charges were not framed by the Court of learned J.M.F.C., were rendered bad in the eyes of law.

Under the circumstances, the impugned order cannot be faulted, as all proceedings from the stage of framing charges onwards had no sanction under the law. Therefore, this petition is disposed of by sustaining the impugned order of committal of the case to the Court of Sessions but as the evidence taken before the Court of learned J.M.F.C. was done much after the amendment came into force and the charges were framed after the coming into force of the amendment, all proceedings before the Court below commencing from the framing of charges are struck down and the trial will commence denovo before the learned Court of Sessions from the stage of framing charges after giving an opportunity to both the petitioners and the prosecution to address the Court on the issue of framing charges.

Madhya Pradesh High Court

M/S Jayram Pharmaceauticals Pvt. ... vs The State Of Madhya Pradesh on 20 July, 2017

                            MCRC-7419-2017
   

         The present petition has been filed invoking the jurisdiction of this

Court under Section 482 of Cr.P.C. by the petitioners being aggrieved by the

impugned order dated 17.1.2017 (Annex.A/3) passed by the learned Judicial

Magistrate First Class, Bhopal in R.T. No.2307/2005 whereby he is stated to

have erroneously committed the case to the learned Court of Sessions on the

basis of a retrospective application of the amendment to Section 32 of the

Drugs and Cosmetics Act, 1940, which was done 12 years after the institution

of the case and also after recording the evidence of all the material

prosecution witnesses who are 4 in number.

         Learned counsel for the petitioners has relied upon the judgment

passed by this Court in Dwarka Prasad Vs. State of M.P., decided on

30.3.2016 in M.Cr.C. No.11246/2014 by which this Court has held in para 24

that the trial of the case may be said to be in advanced stage where a material

witness/ witnesses have been examined on behalf of the prosecution. This

Court further held that it is not so much the number of the witnesses examined

by the prosecution, but the nature of the evidence given by such

witness/witnesses which would have to be seen. It also held that in a given

case where witnesses examined on behalf of the prosecution may not have

deposed to the essential part of the prosecution case or where such evidence

may be formal in character, the case may not be said to be at the advanced

stage of trial. Learned counsel for the petitioners has relied heavily upon this

judgment. This judgment was passed while examining the amendment in the

Cr.P.C. whereby offences U/s.467, 468 inter-alia, which were earlier triable by
 the Court of Magistrate, were made triable after the amendment by the Court

of Sessions. In the case examined in Dwarka Prasad (supra), the Court was

concerned with the stage at which the case was after the amendment came

into force. However, in the instant case, on factual aspects, there is a

difference.

         In this case, on 10.8.2009, the sample was taken by the respondent,

who is a Drug Inspector of the State and on 22.3.2005 the case was instituted against the petitioners herein. They appeared on 29.8.2007 and the amendment to Section 32 of the Drugs and Cosmetics Act, 1940 came into effect from 10.8.2009 according to which the offences under the said Act would only be tried by a Court, not inferior to that of a Court of Sessions. However, in ignorance of the said amendment, the learned Court of J.M.F.C. framed charges on 8.12.2009 for offences U/s.18(a)(i) read with Section 17 and 27 of the Drugs and Cosmetic Act, 1940. In this case, the question involved is not the retrospective application of the amendment, but the continuation of the case before the Court of learned Judicial Magistrate First Class after the amendment came into force at which point of time, even the charges were not framed by the Court of the Ld. JMFC. The framing of the charge by the Court of learned J.M.F.C. on 8.12.2009 itself was rendered illegal on account of the amendment having come into force on 10.8.2009 itself. Therefore, all the proceedings before the Ld. JMFC after 10.8.2009, on which date even the charges were not framed by the Court of learned J.M.F.C., were rendered bad in the eyes of law.

Under the circumstances, the impugned order cannot be faulted, as all proceedings from the stage of framing charges onwards had no sanction under the law. Therefore, this petition is disposed of by sustaining the impugned order of committal of the case to the Court of Sessions but as the evidence taken before the Court of learned J.M.F.C. was done much after the amendment came into force and the charges were framed after the coming into force of the amendment, all proceedings before the Court below commencing from the framing of charges are struck down and the trial will commence denovo before the learned Court of Sessions from the stage of framing charges after giving an opportunity to both the petitioners and the prosecution to address the Court on the issue of framing charges.

With these directions, the petition is disposed of. C.C. as per rules.

(ATUL SREEDHARAN) JUDGE a

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Madras HC: Precaution to be taken by the magistrate before committal of accused of unsound mind to session court

While so, the police completed the investigation and filed a final

report in P.R.C.No.15 of 2017 against Kaliyappan for the offence under

Section 302 IPC before the District Munsif-cum-Judicial Magistrate, Omalur.

Surprisingly, the Magistrate commenced the proceedings under Sections 207

and 209 Cr.P.C. and committed the case to the Court of Session, by order

dated 03.03.2008 in P.R.C. No.15 of 2007. Even during the committal

proceedings, the Magistrate did not take any steps to satisfy himself as to

whether Kaliyappan was in a sound state of mind to understand the proceedings.

20. A close reading of Section 328 Cr.P.C. shows that it deals with

(a) persons of unsound mind and (b) persons suffering from mental retardation at the stage of an inquiry. The expression “inquiry” is defined in Section 2(g) to mean every inquiry, other than a trial, under the Code. These may include proceedings relating to remand, bail, taking of cognizance, issuance of process, furnishing of copies, committal proceedings and framing

of charges. In this case, though there were sufficient materials to indicate that Kaliyappan was suffering from mental illness even at the stage of committal, no steps were taken by the committal Court under Section 328 Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.O.P.No.4993 of 2018 and Crl.M.P.Nos.2485 & 2486 of 2018

Kaliyappan Muniyappan Aanurpatty Vs State 

CORAM:

 Mr. JUSTICE P.N. PRAKASH

PRONOUNCED ON: 04.09.2020

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Whether accused can seek setting aside the conviction if Session Judge has taken cognizance of the offence directly even though the case was not committed to it?

In State of M.P. v. Bhooraji and Ors. MANU/SC/0481/2001 : AIR 2001 SC 3372 wherein, taking aid of Section 465(1) of the Code, it has been opined that when a trial has been conducted by the court of competent jurisdiction and a conviction has been recorded on proper appreciation of evidence, the same cannot be erased or effaced merely on the ground that there had been no committal proceeding and cognizance was taken by the Special Court inasmuch as the same does not give rise to failure of justice.

45. In our considered opinion, because of the restricted role assigned to the Magistrate at the stage of commitment under the new Code, the non-compliance of the same and raising of any objection in that regard after conviction attracts the applicability of the principle of 'failure of justice' and the convict-Appellant becomes obliged in law to satisfy the appellate court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice. The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial.

50. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice.  A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.

51. We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

52. Judged from these spectrums and analyzed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji (supra) lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 223 and 458 of 2008

Decided On: 17.02.2012

 Rattiram  Vs. State of M.P. through Inspector of Police

Hon'ble Judges/Coram:

Dalveer Bhandari, T.S. Thakur and Dipak Misra, JJ.

Dipak Misra, J.

Citation:(2012) 4 SCC 516,MANU/SC/0125/2012

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Whether the Session court should record pre-charge evidence in the complaint case committed to it?

As discussed above, once the case stands committed to the Court of Sessions under Section 209 Cr.P.C., there is no provision to hold any pre-charge evidence. The Sessions Court has to proceed to hear arguments on charge and only when after such consideration and hearing, if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Sessions, he may frame the charge and by order, transfer the case for trial to the CJM/any other Magistrate. 

22. In the present case, a complaint was filed under Section 376 IPC along with other sections, which is exclusively triable by Court of Sessions, the learned M.M. rightly committed the case to the Sessions Court. The procedure adopted thereafter in recording pre-charge evidence was illegal and contrary to provisions of law. Further, the impugned order in remanding the case to the court of CMM with a direction to proceed in accordance with law, being illegal, is equally untenable. In view of the above discussions, the impugned order is set aside and the petition is allowed and disposed of along with the pending application.

IN THE HIGH COURT OF DELHI

Crl. M.C. 4606/2018 and Crl. M.A. 31840/2018

Decided On: 04.06.2020

Rajni Goswami  Vs.  The State (govt. of N.C.T. of Delhi) and Ors.

Hon'ble Judges/Coram:

Manoj Kumar Ohri, J.

Citation: MANU/DE/1151/2020

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Important provisions of National Investigation Agency Act 2008 as amended in the year 2019

1. Short title, extent and application.—(1) This Act may be called the National Investigation Agency Act, 2008.

(2) It extends to the whole of India and it applies also—

(a) to citizens of India outside India;

(b) to persons in the service of the Government wherever they may be; 2[* * *]

2. The word “and” omitted by Act 16 of 2019, S. 2(i) (w.e.f. 2-8-2019).

(c) to persons on ships and aircrafts registered in India wherever they may be 3[and].

3. Ins. by Act 16 of 2019, S. 2(ii) (w.e.f. 2-8-2019).

4[(d) to persons who commit a Scheduled Offences beyond India against the Indian citizens or affecting the interest of India.]

4. Ins. by Act 16 of 2019, S. 2(iii) (w.e.f. 2-8-2019).

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Whether Special Court/ Session court can take direct cognizance of offence under SC & ST Atrocities Act?

Subs. by Act 1 of 2016, S. 8 (w.e.f. 26-1-2016). SC & ST Atrocities amendment Act

[14. Special Court and Exclusive Special Court.—(1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts:

Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act:

Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.

As per recent amendment Session court can take direct cognizance of offence under SC &ST Atrocities Act without case being committed by Magistrate.

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Whether magistrate can commit session triable case in the absence of accused?

Counsel submits that for the purpose of committal, the

presence of the accused is not necessary in the light of the

decision reported in Vikraman v. State of Kerala [ 1986 KLT

1372]. Of course, in exceptional cases, the presence of the

accused is not necessary for committal but, it cannot be taken as

a general rule. As per the normal procedure, committal can be

done in the presence of the accused and the committal court has

to comply with the directions contained in Section 209 of the

Cr.P.C before the committal. Of course, in exceptional cases, in

the absence of the accused the case can be committed. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.M.C.No. 1883 of 2008

Abraham Willy vs State Of Kerala on 13 May, 2008

PRESENT :

 MR. JUSTICE V.K.MOHANAN

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Important provisions of Electricity Act, 2003.

135. Theft of electricity

136. Theft of electric lines and materials

137. Punishment for receiving stolen property.
138. Interference with meters or works of licensee.
139. Negligently breaking or damaging works.
140. Penalty for intentionally injuring works
150. Abetment.—(1) Whoever abets an offence punishable under this Act, shall, notwithstanding anything contained in the Indian Penal Code, be punished with the punishment provided for the offence.

151. Cognizance of offences.—No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:

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Whether accused can be permitted to cross examine approver at pre-committal stage?

The examination which is contemplated under Section 306(4)
of the Code, cannot be equated with the 'examination' of a witness under
Section 138 of the Evidence Act. If what is contended by the learned

counsel for the respondent is to be accepted, and the accused is given a
right to cross examine an approver at the pre-committal stage, the same
would not only be contrary to law, but would lead to hazardous
consequences, as a Magistrate would be required to deal with and decide
the admissibility of any question raised in the examination/cross
examination by the accused, in a case exclusively triable by the Court of
Sessions. Under Section 306 of Code of Criminal Procedure, what cannot
be lost sight of is, that when an approver is being examined by a
Magistrate, he is merely recording his statement, after grant of pardon and
as such, he merely acts as a post office by recording the statement under
Section 306(4) and thereafter, forwards it to the Court of Sessions, which
is the Court competent to try the case. Thus, the term ‘examination’ used
in Section 306(4) of the Code, cannot be construed to mean an examination,
contemplated under Section 138 of the Evidence Act. The accused will get
an opportunity to cross examine the approver, only after the case is
committed to the Court of Sessions, when the approver is examined as a
prosecution witness, after which the accused will have a right to cross
examine the approver and bring out the contradictions or improvements
made by him during his evidence at the trial.

14. In conclusion, we may note that under Section 306 of the
Cr.P.C, the Magistrate is only empowered to examine the approver, as at this
stage, the proceeding before the concerned Magistrate is neither an inquiry
nor a trial, and therefore the accused has no right to cross-examine the
approver. The Magistrate does not have the jurisdiction and discretion to
“appreciate the evidence” which will be adduced before the Sessions Court
and give any findings on the merits of the case. His duty is only to record
the examination under Section 306(4)(a) and forward it to the Court of
Sessions, whilst committing the case. The examination of the approver as
contemplated under Section 306(4)(a) cannot in any circumstance, be
equated with the examination contemplated under Section 138 of the
Evidence Act. Infact, the examination is more or less akin to an examination
contemplated under Section 200 of the Code of Criminal Procedure. Hence,
an accused has no right to cross examine an approver at the pre-committal
stage.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.237 OF 2015

The State of Maharashtra V  Narendra G. Goel

CORAM : V. M. KANADE &
 REVATI MOHITE DERE, JJ.

PRONOUNCED ON : 18th APRIL, 2016
Citation:2016 CRLJ 4227 Bom

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Whether magistrate can commit counter case to session court even though it is not triable by session court?

To sum up the legal issues involved in the case:-
        (i) No Court of Sessions shall take cognizance of any offence unless
the case has been committed to it by the jurisdictional Magistrate.
        (ii) The Court of Sessions has no power to direct a Magistrate to
commit any case to his file nor can a Court of Sessions withdraw a case from
a Magistrate to his file.
        (iii) If any of the offences in a given case is exclusively triable by
a Court of Sessions then, the legal duty of the Magistrate is to commit the
case to the Court of Sessions for trial as provided inSection 209 of Cr.P.C.
        (iv) In cross cases, where one of the cases involves offences
exclusively triable by a Court of Sessions and in the other case none of the
offence is exclusively triable by a Court of Sessions, then, as provided
in Section 323 of Cr.P.C. the jurisdictional Magistrate should commit both
the cases for trial to the Court of Sessions.
        (v) On such committal of cross cases arising out of the same
occurrence, the Sessions Court shall scrupulously follow the procedure laid
down by the Hon'ble Supreme Court in Nathi Lal v. State of U.P., 1990 Supp.
SCC 145. 
        (vi) In any other case involving offences which are not exclusively
triable by a Court of Sessions and if it appears to the jurisdictional
Magistrate that for any of the grounds enumerated underSection 407 (1)
of Cr.P.C. that the case needs to be tried by a Court of Sessions, the
learned Magistrate shall submit a report to the High Court and on such report
the High Court may order for committal of such case to the Court of Sessions
for trial and thereupon on committal, the Sessions Court shall try the same
as per Chapter XVIII of the Code of Criminal Procedure.
        (vii) In any event, the trial court shall not record common evidence or
substitute the evidence recorded in one case as evidence in the other case
and shall not consider the evidence recorded in one case in the other case.
        (viii) In no case, the trial court shall deliver a common judgement in
two or more cases [vide Nathi Lal's case cited supra].
        (ix) In respect of the cases where trial has not already commenced
before the Court of Sessions without the case being committed, the accused
shall be at liberty to raise objection at the earliest opportunity or else,
the court shall follow the dictum laid down in State of Madhya Pradesh v.
Bhooraji and others, 2001 Cri.L.J. 4228 (1).
     (x) In respect of cross cases, for each case there has to be a separate
public prosecutor to conduct the prosecution.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.01.2015
CORAM
 MR.JUSTICE A.SELVAM
and
 MR.JUSTICE T.MATHIVANAN

CRIMINAL APPEAL(MD)Nos.16 OF 2012
and 87 of 2012


R.Velladurai Vs.State 
Citation:2016 CRLJ3985 Madras

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Whether CJM can tender pardon to accused after commitment of case to session court?

In view of the rival submissions, the first question that arises for consideration is whether the approver's evidence can at all be relied upon to bring home the charge against the accused persons? It is no doubt true that the very object of granting pardon to an accused is to unfold the truth in grave offence so that other accused persons involved in the offence could be brought home with the aid of the evidence of the approver. But all the same the legislative mandate as well as the safeguards enshrined in the provisions of the Code for the accused cannot be given a go by merely because of gravity of the offence. With this background in mind it would be necessary to examine the provisions of the Code for testing the correctness of the rival submissions. Coming now to the question as to whether the Chief Judicial Magistrate could have at all granted pardon to the accused even after the committal of the proceedings to the Court of Sessions, the same would depend upon the interpretation of Sections 306 and 307 of the Code. A combined reading of the aforesaid two provisions would indicate that under Section 306 power has been conferred upon the Chief Judicial Magistrate or a Metropolitan Magistrate as well as the Magistrate of the First Class to tender pardon to a person on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence. The only distinction between the two sets of Magistrates for exercise of their power lies at the stage when the power can be exercised. While a Magistrate of the First Class can exercise the power while enquiring into or trying the offence in question, the Chief Judicial Magistrate or a Metropolitan Magistrate can exercise the power at any stage of investigation or enquiry into or trial of the offence which they themselves may not be trying. But under Section 307 the power has been conferred upon the Court to which the commitment is made to grant pardon. In other words once a proceeding is committed to a Court of Sessions then only the said Court can exercise power to tender pardon to an accused. Section 307 of the Code corresponds to Section 338 of Criminal Procedure Code, 1898, If the two provisions are examined in juxtaposition it would be clear that while under Section 338 of the old Code after commitment is made the Court to which the commitment was made could himself tender pardon to an accused or could order the committing Magistrate or the District Magistrate to tender pardon, but under Section 307 of the Code of 1973 the Court to whom commitment is made, no longer retains the power to order the committing Magistrate or the District Magistrate to tender pardon. In other words underSection 307 of the present Code after commitment of a case the only Court which can tender pardon is the Court to which the commitment has been made. It would be appropriate at this stage to extract Section 338 of the old Code and the corresponding provisions of Section 307 of the new Code:

338. Power to direct tender of pardon. - At any time after commitment, but before judgment is passed the Court to which the commitment is made may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy, to any, any such offence, tender, or order the committing Magistrate or the District Magistrate to tender, a pardon on the same condition to such person.

307. Power to direct tender of pardon.- At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.

7. In view of the aforesaid change in the provisions it is difficult for us to accept the contention of the learned Counsel appearing for the State that even under Section 307 after commitment of a case a Chief Judicial Magistrate retains the power to grant pardon. It may not be out of place to notice the recommendations of the Law Commission in its 41st Report in paragraph 24.23;

24.23. Under Section 338, the Court of Session may at any time after commitment of the case, but before passing judgment, either tender pardon itself, or may "order the committing Magistrate or the District Magistrate" to tender pardon. Though this power is rarely resorted to by a Court of Session, it will be useful to retain the Section. But in view of the abolition of the commitment proceedings the Court of Session need not be authorised to direct "the committing Magistrate" or any other Magistrate to tender pardon. The section may be revised to read as follows:

338. At any time after commitment of a case but before judgment is passed, the Court of Session may, with the view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to, any such offence, tender a pardon on the same condition to such person.

8. The aforesaid Section has now taken the place of Section 307 in the new Code. This indicates that in the changed circumstances the legislature thought it necessary to delete the expression "or order the committing Magistrate or the District Magistrate to tender a Pardon" from Section 307 of the present Code which was there in Section 338 of the previous Code. On a plain reading of the provisions contained in Sections 306 and 307 of the Code and on examining the changes that have been brought about by the legislature from the corresponding provisions of the old Code, the conclusion is irresistible that under the new Procedure Code of 1973 once a case is committed to the Court of Sessions then it is only that Court to which the proceedings have been committed can tender pardon to a person and the Chief Judicial Magistrate cannot be said to have concurrent jurisdiction for tendering pardon.

Supreme Court of India

A. Deivendran vs State Of T.N. on 21 October, 1997

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