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CASE NO.:

Appeal (crl.) 319-320 of 1996

PETITIONER:

HARSHAD S. MEHTA & ORS.

Vs.

RESPONDENT:

THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 06/09/2001

BENCH:

S.P. Bharucha, Y.K. Sabharwal & Brijesh Kumar

JUDGMENT:

Y.K.SABHARWAL, J.

CRIMINAL COURTS ARE NORMALLY CONSTITUTED UNDER THE

PROVISIONS OF THE CRIMINAL PROCEDURE CODE. SECTION 6 OF THE

CODE OF CRIMINAL PROCEDURE, 1973 (FOR SHORT, `THE CODE')

PROVIDES FOR THE CLASSES OF CRIMINAL COURTS. IN ADDITION TO

THE PROVISIONS CONTAINED IN THE CODE OR THE OLD CODE OF

1898, FROM TIME TO TIME, ENACTMENTS HAVE BEEN PASSED

PROVIDING THAT IN RESPECT OF CERTAIN OFFENCES, THERE WILL BE

A SPECIAL COURT MANNED BY PERSONS HAVING SPECIFIED

QUALIFICATIONS. IN THE PRESENT APPEALS, WE ARE CONCERNED

WITH SUCH AN ENACTMENT, NAMELY, THE SPECIAL COURT (TRIAL OF

OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT, 1992

(`THE ACT' FOR SHORT). THE PASSING OF THE ACT WAS PRECEDED

BY AN ORDINANCE WHICH WAS PROMULGATED ON 6TH JUNE, 1992.

IT IS AN ACT TO PROVIDE FOR THE ESTABLISHMENT OF A

SPECIAL COURT FOR THE TRIAL OF OFFENCES RELATING TO

TRANSACTIONS IN SECURITIES AND FOR MATTERS CONNECTED

THEREWITH OR INCIDENTAL THERETO. IN THE YEAR 1992, LARGE

SCALE IRREGULARITIES AND MALPRACTICES WERE NOTICED BY THE

RESERVE BANK OF INDIA IN RELATION TO TRANSACTIONS IN BOTH

THE GOVERNMENT AND OTHER SECURITIES, INDULGED IN BY SOME

BROKERS IN COLLUSION WITH THE BANKS AND FINANCIAL

INSTITUTIONS. THE SAID IRREGULARITIES AND MALPRACTICES LED

TO THE DIVERSION OF FUNDS FROM BANKS AND FINANCIAL

INSTITUTIONS TO THE INDIVIDUAL ACCOUNTS OF CERTAIN BROKERS.

THE ACT DEALS WITH THE SITUATION AND IN PARTICULAR TO ENSURE

SPEEDY RECOVERY OF THE HUGE AMOUNT INVOLVED, TO PUNISH THE

GUILTY AND RESTORE CONFIDENCE IN AND MAINTAIN THE BASIC

INTEGRITY AND CREDIBILITY OF THE BANKS AND FINANCIAL

INSTITUTIONS.

The Act provides for establishment of Special Court to

consist of one or more sitting Judges of the High Court

nominated by the Chief Justice of the High Court within the

local limits of whose jurisdiction the Special Court is

situated, with the concurrence of the Chief Justice of

India. Section 6 of the Act provides that the Special Court

shall take cognizance of or try cases as are instituted

before it or transferred to it. Section 3 provides for

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appointment and functions of custodian. Sub-section (2) of

Section 3 provides that the custodian may, on being

satisfied on information received that any person has been

involved in any offence relating to transactions in

securities after the first day of April, 1991 and on or

before 6th June, 1992, notify the name of such person in

the Official Gazette. `Securities' includes :

(i) shares, scrips, stocks, bonds,

debentures, debenture stock, units of the

Unit Trust of India or any other mutual fund

or other marketable securities of a like

nature in or of any incorporated company or

other body corporate:

(ii) Government securities; and

(iii)Rights or interests in securities.

Section 7 provides for the exclusive jurisdiction of

Special Court and stipulates that notwithstanding anything

contained in any other law, any prosecution in respect of

any offence referred to in sub-section (2) of Section 3

shall be instituted only in the Special Court and any

prosecution in respect of such offence pending in any court

shall stand transferred to the Special Court. The Special

Court, therefore, is a court of exclusive jurisdiction in

respect of offences referred to in sub-section (2) of

Section 3.

Section 9 of the Act lays down the procedure and

powers of Special Court and stipulates the following of the

procedure prescribed by the Code for the trial of warrant

cases before a Magistrate. Section 9(2), inter alia,

provides for the applicability of the provisions of the

Code to the proceedings before the Special Court insofar as

they are not inconsistent with the provisions of the Act.

As provided in this provision, the Special Court is deemed

to be a Court of Session. The main bone of contention is

the interpretation of Section 9 which reads as under :

"9. Procedure and powers of Special Court.-

(1) The Special Court shall, in the trial

of such cases, follow the procedure

prescribed by the Court for the trial of

warrant cases before a magistrate.

(2) Save as expressly provided in this Act,

the provisions of the Code shall, insofar as

they are not inconsistent with the

provisions of this Act, apply to the

proceedings before the Special Court and for

the purposes of the said provisions of the

Code, the Special Court shall be deemed to

be a Court of Session and shall have all the

powers of a Court of Session, and the person

conducting a prosecution before the Special

Court shall be deemed to be a Public

Prosecutor.

(3) The Special Court may pass upon any

person convicted by it any sentence

authorized by law for the punishment of the

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offence of which such person is convicted.

(4) While dealing with any other matter

brought before it, the Special Court may

adopt such procedure as it may deem fit

consistent with the principles of natural

justice."

The Act has an overriding effect as provided in

Section 13 which, inter alia, stipulates that the

provisions of the Act shall have effect notwithstanding

anything inconsistent therewith contained in any other law

for the time being in force. Section 14 is the rule making

power of the Central Government. Section 15 repeals the

Ordinance.

The circumstances under which these appeals have come

up in brief are that on 21st June, 1993 two separate

applications were filed before the Special Court under the

provisions of the Code, one by Sarvotham Vishwanath Prabhu

and the other by Bhaskar Roy Choudhury praying for grant of

pardon. These applications were supported by the Central

Bureau of Investigation. Prabhu and Choudhury had earlier

made statements under Section 164 of the Code before the

Magistrate. It is claimed that in those statements they

voluntarily and willingly made full disclosure of their

participation in the offences and also participation of

other accused in commission of the offences. The

investigating officer supporting the application for grant

of pardon stated before the Special Court that with a view

to obtain the evidence of these two accused who are

directly or indirectly concerned in or privy to offences

which were under investigation, it is necessary and

desirable, as well as in the interests of justice, that

there applications praying for tender of pardon to them be

supported so that all the facts and circumstances relating

to the commission of offences and also the manner of

participation by other accused may come on record during

the trial. The Special Court, by order dated 22nd June,

1993, granted the application of both the accused on the

condition that they will give evidence during the trial and

make a full and true disclosure of the whole of the

circumstances within their knowledge relating to the

offence and to other problems. The conditional tender of

pardon was accepted by Prabhu and Chaudhury.

The appellants by applications dated 9th January,

1996 filed before the Special Court sought revocation of

the pardon. It was pleaded in the applications that the

pardon granted to Prabhu and Chaudhury was void and non-est

in the eyes of law mainly on the ground of lack of

jurisdiction of the Special Court to grant pardon. It was

urged that the power to grant pardon had to be expressly

conferred; there is no inherent power in any court to grant

pardon and that no such power had been conferred on the

Special Court.

The applications seeking revocation were dismissed by

the Special Court by order dated 6th February, 1996

holding that the Special Court has the power to tender

pardon. The Special Court rejected the contention that the

orders dated 22nd June, 1993 were without jurisdiction.

The legality of the order dated 6th February, 1996 is in

issue in before us.

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Chapter XXIV of the Code deals with the general

provisions as to inquiries and trials. Sections 300 to 327

are in this Chapter. Sections 306 and 307 deal with tender

of the pardon to accomplice. Section 306 confers power on

Magistrates and Section 307 on the court to which the

commitment is made. Section 308 provides for the

consequences of not complying with the conditions of pardon

by a person who has accepted tender of pardon made under

Section 306 or Section 307. These three sections read as

under :

"306. Tender of pardon to accomplice.-(1)

With a view to obtaining the evidence of any

person supposed to have been directly or

indirectly concerned in or privy to an

offence to which this section applies, the

Chief Judicial Magistrate or a Metropolitan

Magistrate at any stage of the investigation

or inquiry into, or the trial of, the

offence, and the Magistrate of the first

class inquiring into or trying the offence,

at any stage of the inquiry or trial, may

tender a pardon to such person on condition

of his making a full and true disclosure of

the whole of the circumstances within his

knowledge relative to the offence and to

every other person concerned, whether as

principal or abettor, in the commission

thereof.

(2) This section applies to--

(a) any offence triable exclusively by the

Court of Session or by the Court of a

Special Judge appointed under the

Criminal Law Amendment Act, 1952 (46

of 1952)

(b) any offence punishable with

imprisonment which may extend to seven

years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon

under sub-section (1) shall record-

(a) his reasons for so doing;

(b) whether the tender was or was not

accepted by the person to whom it was

made, and shall, on application made

by the accused, furnish him with a

copy of such record free of cost.

(4) Every person accepting a tender of

pardon made under sub-section (1)-

(a) shall be examined as a witness in the

Court of the Magistrate taking

cognizance of the offence and in the

subsequent trial, if any;

(b) shall, unless he is already on bail,

be detained in custody until the

termination of the trial.

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(5) Where a person has accepted a tender of

pardon made under sub-section (1) and has

been examined under sub-section (4), the

Magistrate taking cognizance of the offence

shall, without making any further inquiry in

the case,-

(a) commit it for trial--

(i) to the Court of Session if the

offence is triable exclusively by

that Court or if the Magistrate

taking cognizance is the Chief

Judicial Magistrate;

(ii) to a Court of Special Judge

appointed under the Criminal Law

Amendment Act 1952 (46 of 1952), if

the offence is triable exclusively

by that Court;

(b) in any other case, make over the case

to the Chief Judicial Magistrate who

shall try the case himself.

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.

308. Trial of person not complying with

conditions of pardon.-(1) Where, in regard

to a person who has accepted a tender of

pardon made under Section 306 or section

307, the Public Prosecutor certifies that in

his opinion such person has, either by

wilfully concealing anything essential or by

giving false evidence, not complied with the

condition on which the tender was made, such

person may be tried for the offence in

respect of which the pardon was so tendered

or for any other offence of which he appears

to have been guilty in connection with the

same matter, and also for the offence of

giving false evidence :

Provided that such person shall not be

tried jointly with any of the other accused:

Provided further that such person shall

not be tried for the offence of giving false

evidence except with the sanction of the

High Court, and nothing contained in section

195 or section 340 shall apply to that

offence.

(2) Any statement made by such person

accepting the tender of pardon and recorded

by a Magistrate under section 164 or by a

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Court under sub-section (4) of section 306

may be given in evidence against him at such

trial.

(3) At such trial, the accused shall be

entitled to plead that he has complied with

the condition upon which such tender was

made, in which case it shall be for the

prosecution to prove that the condition has

not been complied with.

(4) At such trial the Court shall-

(a) If it is a Court of Session, before

the charge is read out and explained

to the accused;

(b) if it is the Court of a Magistrate

before the evidence of the witnesses

for the prosecution is taken, ask the

accused whether he pleads that he has

complied with the conditions on which

the tender of pardon was made.

(5) If the accused does so plead, the Court

shall record the plea and proceed with the

trial and it shall, before passing judgment

in the case, find whether or not the accused

has complied with the conditions of the

pardon, and, if it finds that he has so

complied, it shall notwithstanding anything

contained in this Code, pass judgment of

acquittal."

The question for determination is whether the pardon

provision as contained in Sections 306 and 307 of the Code

apply or not to the proceedings before the Special Court

under the Act. We were also told that in Criminal Appeal

No.1097 of 1999 (Ram Narain Poply v. Central Bureau of

Investigation) one of the questions is as to the power of a

Magistrate to grant pardon to a person accused of an

offence that falls within the purview of the Act. Counsel

were given the opportunity to address arguments on this

question as well.

To answer the question, it is necessary to closely

scrutinise and consider the provisions of the Act, the Code

and other enactments relied upon by Mr.Jethmalani and the

effect of the said enactments on the interpretation of the

provisions of the Act.

Penal laws require that the punishment shall be

inflicted on every person found guilty of an offence under

those laws. The grant of pardon results in the grantee

escaping the punishment for the offence. The nature of

power of pardon under Sections 306 and 307 is essentially

different than the nature of such power under the

Constitution of India whereby the President and/or Governor

are empowered to grant pardon. Those powers are exercised

after a person is found guilty. That is not so here.

Under Sections 306 and 307, the pardon is tendered during

the investigation, enquiry or trial, as the case may be.

The object is to obtain evidence of an accomplice so as to

facilitate conviction of others. Undoubtedly, as contended

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by Mr.Jethmalani, such a power has to be conferred

specifically. It is a substantive power. The power has to

be derived from the statutory provisions. Section 306

confers the power to grant pardon in respect of serious

offences and on certain class of Magistrate. From the

scheme of the section and having regard to the nature of

the power, we find that Mr. Jethmalani is right in

contending that the power to grant pardon is not an

inherent power of a criminal court and is a substantive

power to be specifically conferred. It, therefore, follows

that such a substantive power does not flow from Section

9(4) of the Act and to this extent the learned Special

Court was not right in concluding that Section 9(4), on

account of the wide powers it confers, would include

amongst others a right on the Special Court to grant

pardon. Section 9(4) of the Act does not confer on the

Special Court any such power. Section 9(4) is in the

nature of a general provision. It confers inherent powers

on the Special Court to deal with any matter that may be

brought before it providing that for dealing with such a

matter the Special Court may adopt its own procedure

consistent with the principles of natural justice.

Sections 3 and 4 of the Act show that variety of matters

could come up before the Special Court for its

consideration and for dealing with those matters, the

Special Court was empowered to regulate its own procedure

consistent with the principles of natural justice. The

conferment of that inherent power does not include the

power to grant pardon, which cannot be said to be a matter

of procedure.

Our view in respect of Section 9(4), however, does

not conclude the matter for that the main question is about

the interpretation of Section 9(2) of the Act. Does it

exclude the applicability of Sections 306 and 307 while

making applicable the provisions of the Code to the

proceedings before the Special Court, is the real question.

The Act contains fifteen sections. Most of these have

already been noticed by us hereinbefore. It is evident

therefrom that the Act does not contain any independent

machinery or provision for the purpose of investigation,

enquiry or trial. For these matters it has no legs of its

own to stand. It has borrowed the legs from the Code. The

legislative device of incorporation by reference is well

known and duly recognised device. This device is adopted

for the purpose of convenience. It obviates the need to

reproduce the provisions of an existing statute sought to

be adopted in a later statute. This is what has been done

while enacting the Act. Instead of reproducing the

provisions of the Code, it has incorporated those

provisions in the Act by so providing in Section 9(2) but

at the same time, the Act maintaining its own superiority

as stated therein and also in Section 13.

Neither Section 9(2) nor Section 13 nor any other

provision in the Act expressly exclude the applicability of

Sections 306 and 307 to the proceedings before the Special

Court. Whether it is so excluded by necessary implication

is an aspect which needs serious consideration.

Mr. Jethmalani, learned counsel appearing for the

appellant, contends that Sections 306 and 307 have not been

extended to the Special Court under the Act. It is

contended that the Special Court is not a class of a court

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enumerated in sub-section (1) of Section 306 or a court as

contemplated by Section 307 to which commitment is made.

Therefore, the contention is that neither Section 306 nor

Section 307 is applicable to the proceedings before the

Special Court under the Act and hence that court has no

power or jurisdiction to tender pardon. Learned counsel

further contends that it was a matter of policy for the law

makers to confer or not upon the Special Court such a power

and in their wisdom, probably considering the gravity of

the offence and situation with which the country was

confronted, it took a policy decision not to confer power

of pardon so that no one should escape punishment and every

accused is equally treated. Learned counsel contends that

this course was adopted by the legislature despite the fact

that law makers were fully conscious that in all similar

earlier enactments power to grant pardon was specifically

conferred by insertion of specific provision to that effect

while passing law establishing Special Court. While

enacting the Act the provision conferring power to grant

pardon was deliberately omitted and this almost

conclusively shows that such power was not intended to be

conferred, is the submission of Mr.Jethmalani.

Reference has been made by learned counsel, in

particular, to Section 8 of the Criminal Law (Amendment)

Act, 1952 (for short, `the 1952 Act'). That Act has since

been repealed by the Prevention of Corruption Act, 1988.

It would be convenient to reproduce Section 8. It reads as

under:

"8. Procedure and Powers of Special Judges.-

(1) A Special Judge may take cognizances of

offence without the accused being committed

to him for trial, and in trying the accused

persons, shall follow the procedure

prescribed by the Code of Criminal

Procedure, 1898 (5 of 1898) for the trial of

warrant cases by Magistrate

(2) A Special Judge may, with a view to

obtaining the evidence of any person

supposed to have been directly or indirectly

concerned in, or privy to, an offence,

tender a pardon to such person on condition

of his making a full and true disclosure of

the whole circumstances within his knowledge

relating to the offence and to every other

person concerned whether as principal or

abettor, in the commission thereof; and any

person so tendered shall, for the purposes

of Secs. 339 and 339-A of the Code of

Criminal Procedure 1898 (5 of 1898) be

deemed to have been tendered under Section

338 of that Code.

(3) Save as provided in sub-section (1) or

sub-section (2), the provisions of the Code

of Criminal Procedure, 1898 (5 of 1898)

shall, so far as they are not inconsistent

with this Act, apply to the proceedings

before a Special Judge; and for the purposes

of the said provisions, the Court of the

Special Judge shall be deemed to be a Court

of Session trying cases without a jury or

without the aid of assessors and the person

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conducting a prosecution before a Special

Judge shall be deemed to be a public

prosecutor.

(3-A) In particular, and without

prejudice to the generality of the

provisions contained in sub-section (3), the

provisions of Sections 350 and 549 of the

Code of Criminal Procedure, 1898, (5 of

1898), shall, so far as may be, apply to the

proceedings before a special Judge, and for

the purposes of the said provisions of

Special Judge shall be deemed to be a

Magistrate.

(4) A special Judge may pass upon any

person convicted by him any sentence

authorized by law for the punishment of the

offence of which such person is convicted."

Mr. Jethmalani contends that for all intents and

purposes, the aforesaid provisions have been repeated while

enacting Section 9 of the Act but by not providing in

Section 9 a provision similar to abovesaid Section 8(2)

conferring on the Special Court under the Act power to

grant pardon almost conclusively shows the legislative

intendment of not conferring power of pardon on the Special

Court. This omission, according to learned counsel, provide

a complete answer to the question. Our attention has also

been drawn to the Special Courts Act, 1979. Section 9

thereof provides for procedure and powers of the Special

Courts established under the said Act. It confers on the

Special Court power to tender pardon as stipulated in sub-

section (2) of Section 9 of that Act which is similar to

Section 8(2) of the 1952 Act.

Mr. Jethmalani contends that a plain reading of the

provisions of Sections 306 and 307 shows that these

provisions do not fit in the scheme of the Act and thus

cannot apply to the Special Court under the Act. The

Special Court, consisting of a Judge of the High Court, is

not a Magistrate falling in any of the category of the

Magistrates enumerated by sub-section (1) of Section 306,

is the contention of the learned counsel. Further the

contention is that Section 307 is also not applicable since

the case is not committed to the Special Court and Section

307 can apply where commitment of a case is made and is

available only to a court to which the commitment is made.

The submission is that the Act does not postulate any

commitment to be made to the Special Court for it provides

for the institution of or transfer of a case before the

Special Court and institution of any prosecution in respect

of any offence referred to in Section 3(2) only in the

Special Court (Sections 6 and 7).

We have no difficulty in accepting the contention that

the Special Court, per se, is not a Magistrate falling in

any of the categories of Magistrates as enumerated in

Section 306(1) and also that it is not a court to which the

commitment of a case is made. But, it does not necessarily

follow therefrom that the power to tender pardon under

Sections 306 and 307 has not been conferred on the Special

Court.

The Special Court may not be a criminal court as

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postulated by Section 6 of the Code. All the same, it is a

criminal court of original jurisdiction. On this count the

doubt, if any, stands resolved by the decision of

Constitution Bench of this Court in A.R. Antulay v. Ramdas

Sriniwas Nayak & Anr. ([1984] 2 SCC 500). In Antulay's

case the Constitution Bench said that shorn of all

embellishment, the Special Court is a court of original

criminal jurisdiction and to make it functionally oriented

some powers were conferred by the statute setting it up and

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 Magistrates 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.

Therefore, let us see whether the power to grant

pardon has been specifically denied to the Special Court

established by the Act.

In support of the contention that the Special Court

has no power to tender pardon in the absence of specific

provision to that effect in the Act, strong reliance has

been placed by Mr. Jethmalani on the decision of this Court

in Lt. Commander Pascal Fernandes v. The State of

Maharashtra & Ors. [(1968) 1 SCR 695]. The relevant passage

reads thus:

"Before we discuss the validity or propriety

of the tender of pardon to Jagasia we shall

refer briefly to the statutory provisions on

the subject of the tender of pardon. The

topic of tender of pardon to an accomplice

is treated in the twenty-fourth chapter of

the Code as part of the general provisions

as to inquiries and trials. Sections 337 to

339 and 339-A contain all the provisions

which refer to courts of criminal

jurisdiction established under the Code.

The Special Judge created under the Criminal

Law Amendment Act, 1952 (Act 46 of 1952) is

not one of them. For the cases triable by

Special Judges under the Criminal Law

Amendment Act a special provision is to be

found in s.8(2) of that Act, for tender of

pardon to an accomplice, as part of the

procedure and powers of Special Judges. The

section is set out below. The second sub-

section necessarily differs in some respects

from the provisions of the Code because the

procedure of trial before the Special Judge

is different, but on the tender of pardon by

the Special Judge the provisions of ss. 339

and 339A of the Code apply. The tender of

pardon by the Special Judge is deemed by

fiction to be one tendered under s.338 of

the Code for purposes of sections 339 and

339A."

Reliance has also been placed by Mr. Jethmalani on

State of Tamil Nadu v. V. Krishnnaswami Naidu & Anr.

[(1979) 3 SCR 928]. The passage relied upon by the learned

counsel reads thus:

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"It may be noted that the Special Judge is

not a Sessions Judge, Additional Sessions

Judge or an Assistant Sessions Judge under

the Code of Criminal Procedure though no

person can be appointed as a Special Judge

unless he is or has been either a Sessions

Judge or an Additional Sessions Judge or an

Assistant Sessions Judge. The Special Judge

is empowered to take cognizances of the

offences without the accused being committed

to him for trial. The jurisdiction to try

the offence by a Sessions Judge is only

after committal to him. Further the

Sessions Judge does not follow the procedure

for the trial of warrant cases by

Magistrates. The Special Judge is deemed to

be a Court of Sessions only for certain

purposes as mentioned in Section 8(3) of the

Act while the first part of sub-section (3)

provides that except as provided in sub-

sections (1) and (2) of Section 8 the

provisions of the Code of Criminal

Procedure, 1898 shall so far as they are not

inconsistent with this Act, apply to the

proceedings before the Special Judge. The

sub-section further provides that `for the

purpose of the said provisions, the Court of

the Special Judge shall be deemed to be a

Court of session trying cases without a jury

or without the aid of assessors and the

person conducting a prosecution before a

special judge shall be deemed to be a public

prosecutor'. The deemed provisions has to

be confined for the purposes mentioned in

the sub-section. Section 8(2) enables the

Special Judge to tender a pardon to a person

with a view to obtaining evidence supposed

to have been concerned for the commission of

an offence and the pardon so tendered was

for the purposes of Section 339 and 339(a)

of the Code of Criminal Procedure, 1898.

This sub-section was enacted because Special

Judge not being a Court to which a

commitment has been made cannot tender

pardon under the provisions of Section 338

and so this section is introduced to enable

the Special Judge to tender a pardon. Sub-

section 3(a) has made the provisions of

section 350 and 549 applicable to

proceedings before a Special Judge and for

the purposes of the said provisions a

Special Judge shall be deemed to be a

Magistrate. Section 350 of the Code of

Criminal Procedure enables a succeeding

Special Judge to act on the evidence

recorded by his predecessor or partly

recorded by his predecessor and partly

recorded by himself. Section 549 empowers a

Magistrate when any person is brought before

him charged with an offence for which he is

liable to be tried by a Court to which this

Court applies or by a Court-martial, the

Magistrate shall deliver him to the

Commanding Officer of the Regiment for the

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purpose of being tried by the Court-martial.

This provision also is made specifically

applicable to the Special Judge. Section

8(A) empowers the Special Judge to try

certain offences in a summary way and the

provisions of section 262 to 265 of the

Criminal Procedure Code is made applicable

so far as they may apply."

The contention of learned counsel is that in the case

in hand the Act does not postulate commitment of the case

being made to the Special Court and no provision having

been inserted in the Act to empower Special Court to tender

pardon, the impugned order granting pardon is without

jurisdiction.

Mr.Jethmalani further contends that simply to confer on

the Special Court the power to tender pardon by itself is

not enough without conferring on it the power to punish the

person who accepts tender of pardon in case of violation by

him of terms and conditions on which the pardon is tendered.

The submission is that a reading of the provisions of the

Act clearly shows that the power as contained in Section 308

of the Code to punish the accomplice for violation of the

terms and conditions of the pardon has not been conferred on

the Special Court and, therefore, it is evident that the

power to tender pardon has also not been conferred on that

court.

Counsel submits that for deciding these matters the

paramount question one is required to ask himself is why

provisions similar to the one in 1952 Act and other such

enactments conferring specific power to grant pardon and to

inflict punishment in the event of violation of the terms

and conditions of the pardon were omitted from the Act. The

obvious and the only answer of the question, according to

learned counsel, is that the intention of the legislature

was not to confer the power of pardon on the Special Court

and any other interpretation will defeat that intention of

the legislature.

Mr.Jethmalani also sought to invoke the doctrine of

implied repeal. Pointing out that the Code is a general law

and the Act - a special later enactment, Section 13 whereof

shows its predominance and superiority, this Court should

not have any reluctance to accept the applicability of

doctrine of implied repeal in these matters, was the

submission of learned counsel though he, very fairly and

rightly, conceded that there is a presumption against a

repeal by implication.

The reason for the presumption as aforesaid is that the

legislature while enacting a law has a complete knowledge of

the existing laws on the subject matter and, therefore, when

it does not provide a repealing provision, it gives out an

intention not to repeal the existing legislation. The

burden to show that there has been a repeal by implication

lies on the party asserting it. Relying upon statutory

interpretation by Francis Bennion (1984 Edition), counsel

contends that where, as in the present case, the provisions

of the later enactment (the Act) are contrary to those of

the earlier (the Code), the later by implication repeals the

earlier in accordance with the maxim leges posteriores

priores contrerios abrogant (later laws abrogate earlier

contrary laws). This is, however, subject to the exception

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embodied in the maxim generatia specialitous non derogant (a

general provision does not derogate from a special one).

One of the important test to determine the issue of

implied repeal would be whether the provisions of the Act

are irreconcilably inconsistent with those of the Code that

the two cannot stand together or the intention of the

legislature was only to supplement the provisions of the

Code. This intention is to be ascertained from the

provisions of the Act. Courts lean against implied repeal.

If by any fair interpretation both the statutes can stand

together, there will be no implied repeal. If possible

implied repeal shall be avoided. It is, however, correct

that the presumption against the intent to repeal by

implication is overthrown if the new law is inconsistent

with or repugnant to the old law, for the inconsistency or

repugnancy reveals an intent to repeal the existing laws.

Repugnancy must be such that the two statutes cannot be

reconciled on reasonable construction or hypothesis. They

ought to be clearly and manifestly irreconcilable. It is

possible, as contended by Mr.Jethmalani, that the

inconsistency may operate on a part of a statute. Learned

counsel submits that in the present case the presumption

against implied repeal stands rebutted as the provisions of

the Act are so inconsistent with or repugnant to the

provisions of the earlier Acts that the two cannot stand

together. The contention is that the provisions of Sections

306 and 307 cannot be complied with by the Special Court and

thus the legislature while enacting the Act clearly intended

that the said existing provisions of the Code would not

apply the proceedings under the Act. Learned counsel

contends that this court will not construe the Act in a

manner which will make Sections 306 and 307 or at least part

of the said sections otiose and thereby defeat the

legislative intendment whatever be the consequences of such

an interpretation.

THE CONTENTION FURTHER IS THAT THE DEFICIENCY IN THE

ACT, IF ANY, CANNOT BE PROVIDED BY THE COURT PARTICULARLY

WHEN THE LANGUAGE IS PLAIN AND SIMPLE AND THE ASSUMED GAPS

CANNOT BE FILLED BY THE COURT AND THAT THE WILFUL OMISSION

MADE BY THE LEGISLATURE HAS TO BE RESPECTED BY THE COURT.

ON THE LEGISLATURE WILFULLY OMITTING TO INCORPORATE

SOMETHING OF AN ANALOGOUS LAW IN A SUBSEQUENT STATUTE, OR

EVEN IF THERE IS A CASUS OMISSUS IN A STATUTE, THE LANGUAGE

OF WHICH IS OTHERWISE PLAIN AND UNAMBIGUOUS, THE COURT IS

NOT COMPETENT TO SUPPLY THE OMISSION UNDER THE GUISE OF

INTERPRETATION BY ANALOGY OR IMPLICATION, SOMETHING WHAT IT

THINKS TO BE A GENERAL PRINCIPLE OF JUSTICE AND EQUITY,

RELIANCE HAS BEEN PLACED UPON THE COMMISSIONER OF SALES

TAX, U.P., LUCKNOW V. M/S. PARSON TOOLS AND PLANTS, KANPUR

([1975] 4 SCC 22), LORD HOWARD DE WALDEN V. INLAND REVENUE

COMMISSIONERS (1948 (2) ALL E.R 825), JOHNSON & ANR. V.

MORETON (1978 (3) ALL E.R. 37) AND HARCHARAN SINGH V.

SMT.SHIVRANI & ORS. ([1981] 2 SCC 535). THE CONTENTION IS

THAT ANY INTERPRETATION BY THIS COURT OTHER THAN THE ONE

PROPOUNDED WOULD BE ENTRENCHING UPON THE POWER OF

LEGISLATURE. ON THE PRINCIPLES OF INTERPRETATION ON DETAIL

CONSIDERATION OF VARIOUS DECISIONS OF THIS COURT AND COURTS

OF OTHER COUNTRIES, IN S.P.GUPTA & ORS. ETC. ETC. V. UNION

OF INDIA & ORS. ETC.ETC. (AIR 1982 SC 149), A BENCH OF SEVEN

JUDGES SAID:

"But there is one principle on which

there is complete unanimity of all the

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courts in the world and this is that

where the words or the language used in

a statute are clear and cloudless,

plain, simple and explicit unclouded

and unobscured, intelligible and

pointed so as to admit of no ambiguity,

vagueness, uncertainty or equivocation,

there is absolutely no room for

deriving support from external aids.

In such cases, the statute should be

interpreted on the face of the language

itself without adding, subtracting or

omitting words therefrom (para 197).

WHERE, HOWEVER, THE WORDS OR

EXPRESSIONS USED IN THE CONSTITUTIONAL

OR STATUTORY PROVISIONS ARE SHROUDED IN

MYSTERY, CLOUDED WITH AMBIGUITY AND ARE

UNCLEAR AND UNINTELLIGIBLE SO THAT THE

DOMINANT OBJECT AND SPIRIT OF THE

LEGISLATURE CANNOT BE SPELT OUT FROM

THE LANGUAGE, EXTERNAL AIDS IN THE

NATURE OF PARLIAMENTARY DEBATES,

IMMEDIATELY PRECEDING THE PASSING OF

THE STATUTE, THE REPORT OF THE SELECT

COMMITTEES OR ITS CHAIRMAN, THE

STATEMENT OF OBJECTS AND REASONS OF THE

STATUTE, IF ANY, OR ANY STATEMENT MADE

BY THE SPONSOR OF THE STATUTE WHICH IS

IN CLOSE PROXIMITY TO THE ACTUAL

INTRODUCTION OR INSERTION OF THE

STATUTORY PROVISION SO AS TO BECOME, AS

IT WERE, A RESULT OF THE STATEMENT

MADE, CAN BE PRESSED INTO SERVICE IN

ORDER TO ASCERTAIN THE REAL PURPORT,

INTENT AND WILL OF THE LEGISLATURE TO

MAKE THE CONSTITUTIONAL PROVISION

WORKABLE. WE MIGHT MAKE IT CLEAR THAT

SUCH AIDS MAY NEITHER BE DECISIVE NOR

CONCLUSIVE BUT THEY WOULD CERTAINLY

ASSIST THE COURTS IN INTERPRETING THE

STATUTE IN ORDER TO DETERMINE THE

AVOWED OBJECT OF THE ACT OR THE

CONSTITUTION AS THE CASE MAY BE.(PARA

271(2)."

ON THE PRINCIPLES OF INTERPRETATION, WE HAVE NO

DIFFICULTY IN ACCEPTING THE CONTENTIONS OF MR. JETHMALANI

BUT THE QUESTION IS ABOUT THE APPLICABILITY THEREOF.

There is no doubt that if the words are plain and

simple and call for only one construction that construction

is to be adopted whatever be its effect. The question in

the present case, however, is can it be said from the plain

language of the Act that the power to grant pardon has been

excluded from the purview of the Special Court, either

expressly or by necessary implication by not incorporating

in Section 9 of the Act a provision similar to Section 8(2)

of the 1952 Act.

There cannot be any controversy that there is no

express provision in the Act excluding therefrom the

applicability of Sections 306 and 307 of the Code. Can it

be said to be so, by necessary implication is what we have

to determine.

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THE CASES (FERNANDES AND KRISHNNASWAMI NAIDU) RELIED

UPON BY MR.JETHMALANI, IT HAS TO BE BORNE IN MIND, RELATE TO

THE INTERPRETATION OF THE PROVISION RELATING TO GRANT OF

PARDON AS THEY EXISTED IN THE CODE OF 1898. THIS COURT,

HOWEVER, IS CONCERNED WITH THE PROVISIONS IN 1973 CODE.

THERE IS A DEPARTURE IN THE LANGUAGE OF THE PROVISIONS OF

SECTIONS 306 TO 308 OF THE CODE ON ONE HAND AND SECTIONS 337

TO 339A OF 1898 CODE ON THE OTHER. FURTHER THE LEGAL

POSITION HAS UNDERGONE A SUBSTANTIAL CHANGE AFTER THE

DECISION IN THE CASE OF A.R.ANTULAY WHICH ASPECT WE WILL

ADVERT TO LITTLE LATER.

Let us first examine the Fernandes's case. At this

stage we may note some of the significant departure in the

relevant provisions of old Code and the Code. Under the

old Code (Section 338), after commitment, the court to

which commitment is made could either tender pardon itself

or order the committing Magistrate or the District

Magistrate to so do. Now under Section 307, there is no

power to so order the committing Magistrate. In the old

Code, the Court of Session and that of the Magistrate had

concurrent jurisdiction to grant pardon seems evident. In

State of U.P. v. Kailash Nath Agarwal & Ors. [(1973) 1 SCC

751] the question for consideration was whether a District

Magistrate is competent under Section 337 of the old Code

to exercise power of pardon even after commitment and the

conferment of the power to grant pardon on the Special

Judge under Section 338. It was held that Section 338 does

not deprive the District Magistrate of his power to grant

pardon under Section 337 of the old Code. This Court said

that even after commitment, a District Magistrate will have

power to grant pardon, though it was necessary to bear in

mind that the authorities under Sections 337 and 338 have

to exercise jurisdiction in harmony in order to further the

interest of justice and avoid conflicting orders being

passed. This decision also takes note of other provision

of the old Code which provide for exercise of conferment of

concurrent powers and when the Legislature intended that

the two authorities should not exercise concurrent

jurisdiction on an identical matter, it used appropriate

language to that effect. Now, the facts in brief of

Fernandes's case are that grant of pardon to one Jagasia

was opposed by his co-accused, the objection besides others

being that powers of the Special Judge in tendering

conditional pardon under Section 8(2) of 1952 Act, are

limited to application by the prosecution in that behalf

and the Special Judge cannot act suo motu without being

invited by the prosecution to consider the tender of pardon

to one of the accused before him. This Court upholding the

order of the High Court dismissing the revision petition of

the co-accused challenging the order granting pardon to

Jagasia, noticed that before the High Court the prosecution

had supported grant of pardon to him. That decision brings

out the width of power under Section 8(2) of the 1952 Act

and the width of the power to direct tender of pardon under

Section 338 of the 1898 Code. It was held that the fiction

in latter part of Section 8(2) providing that pardon sought

under law for the purposes of Sections 339 and 339A of the

1898 Code be deemed to have been tendered under Section 338

of that Code is only that the tender of pardon is deemed to

be one under Section 338 for purposes of applying Sections

339 and 339A. The whole of Section 338 is not applicable.

The power to order the committing Magistrate or the

District Magistrate to tender pardon is not available to

the Special Judge because the fiction does not cover that

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part of Section 338. After noticing the distinction

between the powers granted under the Code and the powers

under the 1952 Act to tender pardon, it was held that the

conditions for exercise of the power by the Courts under

the 1898 Code are not applicable when the Special Judge

exercises that power whose powers are not circumscribed by

any condition except one, namely, that action must be with

a view to obtaining the evidence of any person supposed to

have been directly or indirectly concerned in or privy to

an offence. The powers under the 1952 Act were held to be

enabling and wide enough to enable the Special Judge to

tender a pardon to any person who is supposed to have been

directly or indirectly concerned in or privy to an offence

even when such a person is not arraigned before the Special

Court. There was distinction in exercise of the power

under the two provisions which were under consideration

before the Special Court which is evident from the

following :

"It follows that the powers of the Special

Judge are not circumscribed by any condition

except one, namely, that the action must be

with a view to obtaining the evidence of any

person supposed to have been directly or

indirectly concerned in, or privy to an

offence. The pardon so tendered is also on

condition of his making a full and true

disclosure of the whole circumstances within

his knowledge relating to the offence and to

every other person concerned, whether as

principal or abettor. The disclosure must

be complete as to himself and as to any

other person concerned as principal or

abettor. There is no provision for the

recording of reasons for so doing, nor is

the Special Judge required to furnish a copy

to the accused. There is no provision for

recording a preliminary statement of the

person.

There can be no doubt that the section

is enabling and its terms are wide enough to

enable the Special Judge to tender a pardon

to any person who is supposed to have been

directly or indirectly concerned in, or

privy to an offence. This must necessarily

include a person arraigned before him. But

it may be possible to tender pardon to a

person not so arraigned. The power so

conferred can also be exercised at any time

after the case is received for trial and

before its conclusion. There is nothing in

the language of the section to show that the

Special Judge must be moved by the

prosecution. He may consider an offer by an

accused as in this case. The action,

therefore, was not outside the jurisdiction

of the Special Judge in this case."

It is understandable that if powers wider than the one

contemplated by the Code are intended to be conferred, a

provision to that effect will have to be made. It does not

follow therefrom that in an altogether different statute,

if no special provision is made, an inference can be drawn

that even where the powers under the Code and not wide

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powers were intended to be conferred, save and except where

it is so stated specifically, the effect of omission would

be that the Special Court will not have even similar power

as are exercised by the ordinary criminal courts under the

Code.

Similarly, the observations made in the earlier

reproduced passage in Krishnnaswami Naidu's case have also

to be appreciated in the context of what we have said above

regarding the conferment of wider power than the Code under

the 1952 Act. It is in this context that the observations

were made in that case to the effect that "This sub-section

was enacted because the Special Judge not being a court to

which a commitment has been made cannot tender pardon under

the provisions of Section 338 and so this sub-section is

introduced to enable the Special Judge to tender a pardon".

These observations do not mean that if same powers as are

in Code are intended to be conferred, that cannot be

achieved by sub-section (2) of Section 9 of the Act.

Legislature inserted Section 8(2) since wider powers were

to be conferred on the Special Judge under 1952 Act.

THERE IS ALSO ANOTHER ASPECT OF KRISHNNASWAMI NAIDU'S

CASE AND THAT IS IN RELATION TO SECTION 167 OF THE CODE. IN

THAT CASE WHILE NOTICING THAT SECTION 167 OF THE CODE

REQUIRES THAT WHENEVER ANY PERSON IS ARRESTED AND DETAINED

IN CUSTODY AND WHEN IT APPEARS THAT THE INVESTIGATION CANNOT

BE COMPLETED WITHIN A PERIOD OF 24 HOURS, THE POLICE OFFICER

IS REQUIRED TO FORWARD THE ACCUSED TO THE MAGISTRATE AND IF

THE MAGISTRATE TO WHOM THE ACCUSED IS FORWARDED IS NOT THE

MAGISTRATE HAVING JURISDICTION TO TRY THE CASE, HE MAY

AUTHORIZE THE DETENTION OF THE ACCUSED IN SUCH CUSTODY AS HE

THINKS FIT FOR A TERM NOT EXCEEDING 15 DAYS ON THE WHOLE.

IF HE HAS NO JURISDICTION TO TRY THE CASE AND IF HE

CONSIDERS THAT THE FURTHER DETENTION IS NECESSARY, HE MAY

ORDER THE ACCUSED TO BE FORWARDED TO ANY MAGISTRATE HAVING

JURISDICTION WHO MAY AUTHORIZE DETENTION OF THE KIND

PROVIDED BEYOND PERIOD OF 15 DAYS BUT FOR A TOTAL PERIOD NOT

EXCEEDING 60 DAYS. THE ACCUSED IN THAT CASE WERE PRODUCED

BEFORE THE SPECIAL JUDGE WHO HAD THE JURISDICTION TO TRY THE

CASE. THE CONTENTION WHICH FOUND FAVOUR WITH THE HIGH COURT

WAS THAT THE WORDS `MAGISTRATE HAVING JURISDICTION' CANNOT

APPLY TO A SPECIAL JUDGE HAVING JURISDICTION TO TRY THE

CASE. IT WAS HELD IN THIS CASE THAT NO DOUBT THE WORD

`SPECIAL JUDGE' IS NOT MENTIONED IN SECTION 167 BUT THE

QUESTION IS WHETHER THAT WOULD EXCLUDE THE SPECIAL JUDGE

FROM BEING A MAGISTRATE HAVING JURISDICTION TO TRY THE CASE.

ON EXAMINING VARIOUS PROVISIONS OF THE CODE INCLUDING

SECTION 193 THEREOF, IT WAS HELD THAT IN TAKING COGNIZANCE

OF AN OFFENCE WITHOUT THE ACCUSED BEING COMMITTED TO HIM, HE

IS NOT A SESSIONS JUDGE FOR SECTION 193 OF THE CODE PROVIDES

THAT NO COURT OF SESSIONS JUDGE SHALL TAKE COGNIZANCE FOR

ANY OFFENCE AS A COURT OF ORIGINAL JURISDICTION UNLESS THE

CASE HAS BEEN COMMITTED TO IT BY A MAGISTRATE UNDER THE CODE

AND STRICTLY HE IS NOT A SESSIONS JUDGE FOR NO SESSIONS

JUDGE CAN TAKE A COGNIZANCE AS A COURT OF SESSION WITHOUT

COMMITTAL. REFERRING TO THE CRIMINAL LAW (AMENDMENT) ACT,

IT WAS HELD THAT THE PROVISIONS OF THE CODE ARE NOT EXCLUDED

UNLESS THEY ARE INCONSISTENT WITH THE CRIMINAL LAW

(AMENDMENT) ACT AND, THUS, READ THERE COULD BE NO DIFFICULTY

IN COMING TO THE CONCLUSION THAT THE CODE IS APPLICABLE WHEN

THERE IS NO CONFLICT WITH THE PROVISIONS OF CRIMINAL LAW

(AMENDMENT) ACT. THE COURT SAID THAT "IF A SPECIAL JUDGE

WHO IS EMPOWERED TO TAKE COGNIZANCE WITHOUT COMMITTAL IS NOT

EMPOWERED TO EXERCISE POWERS OF REMANDING AN ACCUSED PERSON

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PRODUCED BEFORE HIM OR RELEASE HIM ON BAIL IT WILL LEAD TO

AN ANOMALOUS SITUATION" (EMPHASIS SUPPLIED). THE CONTENTION

URGED BY MR.JETHMALANI THAT AT PRE-COGNIZANCE STAGE SPECIAL

COURT UNDER THE ACT HAS NO JURISDICTION CLEARLY RUNS

CONTRARY TO THE AFORESAID DICTUM. THE COURT IN THAT CASE

FURTHER WENT ON TO EXPLAIN THE ANOMALY. IT WAS SAID THAT TO

HOLD THAT A MAGISTRATE OTHER THAN A MAGISTRATE HAVING

JURISDICTION CANNOT KEEP HIM IN CUSTODY FOR MORE THAN 15

DAYS AND AFTER THE EXPIRY OF THE PERIOD IF THE MAGISTRATE

HAVING JURISDICTION TO TRY THE CASE DOES NOT INCLUDE THE

SPECIAL JUDGE, IT WOULD MEAN THAT HE WOULD HAVE NO AUTHORITY

TO EXTEND THE PERIOD OF REMAND OR TO RELEASE HIM ON BAIL.

FURTHER IF THE SPECIAL JUDGE IS NOT HELD TO BE A MAGISTRATE

HAVING JURISDICTION, A CHARGE SHEET UNDER SECTION 173 CANNOT

BE SUBMITTED TO HIM. REFERRING TO CLAUSE (32) OF SECTION 3

OF THE GENERAL CLAUSES ACT AND SECTION 3 OF THE CODE, IT WAS

HELD THAT THERE CAN BE NO DIFFICULTY IN CONSTRUING THE

SPECIAL JUDGE AS A MAGISTRATE FOR THE PURPOSE OF SECTION 167

AND, THUS, REJECTING THE CONTENTION AND REVERSING THE

ARGUMENTS WHICH WEIGHED WITH THE HIGH COURT THAT THE WORDS

"MAGISTRATE HAVING JURISDICTION" CANNOT APPLY TO A SPECIAL

JUDGE HAVING JURISDICTION TO TRY THE CASE, THIS COURT HELD :

"It is relevant to note that the

General Clauses Act Section 3(32)

defines a Magistrate as including every

person exercising all or any of the

powers of a Magistrate under the Code

of Criminal Procedure for the time

being in force. Section 3 of the

Criminal Procedure Code provides that

any reference without any qualifying

words, to a Magistrate, shall be

construed, unless the context otherwise

requires in the manner stated in the

sub-sections. If the context otherwise

requires the word `Magistrate' may

include Magistrates who are not

specified in the Section. Read along

with the definition of the Magistrate

in the General Clauses Act there can be

no difficulty in construing the Special

Judge as a Magistrate for the purposes

of Section 167."

MR.JETHMALANI, OF COURSE, CONTENDS THAT TO THE

AFORESAID EXTENT, KRISHNNASWAMI NAIDU'S CASE IS NOT

CORRECTLY DECIDED. WE ARE UNABLE TO ACCEPT THE CONTENTION.

Mr.Jethmalani also contends that at pre-cognizance

stage no power of any nature has been conferred on the

Special Court under the Act and this, counsel says is clear

from the language of Sections 6 and 7 of the Act. It,

however, needs to be noticed that while Section 6 uses the

expression `case' in the context of Special Court taking

cognizance or trying `such cases' as instituted before it or

transferred to it as provided therein, on the other hand,

Section 7 uses the expression `prosecution' in the context

of institution thereof in respect of any offence referred to

in sub-section (2) of Section 3 of the Act or transfer of

any pending `prosecution'. In the present context, the

institution of the prosecution as envisaged by Section 7, is

wider than the taking cognizance of or trying of such cases

as provided in Section 6. It does not appear from the

language of Sections 6 and 7 read with Sections 3 and 9 that

at pre-cognizance stage all steps including those of remand,

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bail are required to be taken before the normal criminal

courts constituted under Section 6 of the Code. It does not

seem that after the enforcement of the Act, the legislature

intended that in relation to the offences under the Act, the

normal criminal courts should continue to have power at the

stage earlier to taking of cognizance by the Special Court.

Further, admittedly in practice, all such proceedings

including those of remand, bail, production of the accused

at pre-cognizance stage have always been taken before the

Special Court and not before criminal courts constituted

under the Code. It also does not appear that a Magistrate

has a power to grant pardon under Section 306 to alleged

offenders under the Act at any stage of the proceedings.

MR. JETHMALANI DOES NOT DISPUTE THAT SPECIAL COURT

CONSTITUTED UNDER THE ACT IS A COURT OF ORIGINAL CRIMINAL

JURISDICTION (ANTULAY'S CASE). MR.JETHMALANI, HOWEVER,

SUBMITS THAT IT IS ONLY THAT COURT OF ORIGINAL CRIMINAL

JURISDICTION ON WHICH SPECIAL POWER OF PARDON IS CONFERRED

THAT CAN EXERCISE SUCH A POWER OR IT CAN BE EXERCISED BY THE

NORMAL CRIMINAL COURTS CONSTITUTED UNDER SECTION 6 OF THE

CODE AND NO OTHER COURT OF ORIGINAL CRIMINAL JURISDICTION.

SUCH A POWER WAS CONFERRED ON COURT OF ORIGINAL CRIMINAL

JURISDICTION WITH WHICH THIS COURT WAS CONCERNED IN

ANTULAY'S CASE AND HAS NOT BEEN CONFERRED ON THE COURT OF

ORIGINAL CRIMINAL JURISDICTION WITH WHICH WE ARE CONCERNED,

IS THE CONTENTION OF MR.JETHMALANI. IT IS POINTED OUT THAT

ANTULAY'S CASE DID NOT HOLD THAT THE SPECIAL COURT WAS A

COURT OF ORIGINAL CRIMINAL JURISDICTION AS POSTULATED BY THE

CODE. SINCE THE POWER OF PARDON IS NOT INHERENT IN EVERY

COURT OF CRIMINAL JURISDICTION, THE OBSERVATION THAT THE

SPECIAL COURT IS A COURT OF ORIGINAL CRIMINAL JURISDICTION

DOES NOT CARRY THE CASE OF THE PROSECUTION ANY FURTHER IS

THE SUBMISSION OF MR.JETHMALANI. REGARDING SECTION 307

PRESCRIBING THE POWER OF THE COURT, THREE REASONS ARE GIVEN

BY THE LEARNED COUNSEL IN SUPPORT OF THE SUBMISSION THAT THE

SAID PROVISION HAS NOT BEEN EXTENDED TO THE SPECIAL COURT,

NAMELY, (1) NO COMMITMENT IS MADE TO THE SPECIAL COURT, (2)

IT OPERATES `AFTER COMMITMENT' AND ONLY THEREAFTER THE COURT

WILL HAVE POWER TO GRANT PARDON AND (3) IT DOES NOT CONFER

POWER TO GRANT PARDON DURING INVESTIGATION OF THE OFFENCE.

IT WAS SUBMITTED THAT IN THESE APPEALS THE PARDON WAS

GRANTED DURING INVESTIGATION AS THE ORDER WAS PASSED BY

SPECIAL COURT GRANTING PARDON ON 22ND JUNE, 1993 WHEREAS

THE CHARGE SHEET WAS FILED LATER I.E. ON 24TH JUNE, 1993.

Section 306(4)(a) postulates that every person

accepting a tender of pardon made under sub-section (1) of

Section 306, shall be examined as a witness in the court of

the Magistrate taking cognizance of the offence and in the

subsequent trial, if any. Here, it is pointed out, the

cognizance cannot be taken by the Magistrate in view of

Sections 6 and 7 of the Act and it can be exclusively taken

by the Special Court and, therefore, this section becomes

redundant, is the contention. Likewise, Section 306(5) is

also inapplicable since there can be neither any committal

nor is the Special Court one of the court enumerated in this

sub-section and the effect, according to learned counsel, is

that Section 306(4) and (5) cannot be complied by Special

Court and they stand excluded with a consequence that the

entire Section 306 of the Code would stand excluded from its

applicability to the Act.

Mr.Jethmalani, however, does not dispute the

applicability of Section 4(2) subject to superiority of the

Act as postulated in Section 13 of the Act but submits that

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the effect of it only is that at pre-cognizance stage it is

the normal court of criminal jurisdiction as constituted

under Section 6 which would have power and jurisdiction to

deal with matters at pre-cognizance stage and not the

Special Court. To a query from this Court that if it is so,

would not such normal court have power under Section 306 of

the Code, to grant pardon, the answer of Mr.Jethmalani is

that those courts will not have the said powers since the

legislature intended to exclude that power from the Special

Court, it would be evident that it also intended to so

exclude normal courts as well. Alternatively, it was

contended that assuming such powers at pre-cognizance stage

vest with normal courts, it does not mean that Special Court

would also have the power of pardon. There is no anomaly in

grant of power of pardon at the stage of investigation and

enquiry and denial of such power at the stage of trial to

the Special Court as it is a question of policy, according

to Mr.Jethmalani.

It is not possible to accept that the legislature could

ever intend to create such a anomalous position where a

Magistrate will have power to grant pardon at pre-cognizance

stage but after cognizance the Special Court will not have

that power. It makes no sense. It is not possible to

attribute such an absurdity to the legislature. It does not

flow from the provisions of the Act. For this purpose we

are assuming that at pre-cognizance stage, all aspects are

required to be dealt with by normal courts although as dealt

with later, in our view, at that stage too power vests in

Special Court.

IN ANY CASE LEARNED COUNSEL CONTENDS, THAT THE COURT

WILL NOT CONSTRUE THE PROVISIONS OF THE ACT IN A MANNER

WHICH WILL MAKE SUB-SECTIONS (4) AND (5) OF THE CODE

REDUNDANT IN ITS APPLICABILITY TO THE PROVISIONS OF THE

SPECIAL LAW, NAMELY, THE ACT. RELYING UPON J.K.COTTON

SPINNING AND WEAVING MILLS CO.LTD. V. STATE OF U.P. & ORS.

(AIR 1961 SC 1170), IT WAS CONTENDED THAT THERE IS A

PRESUMPTION THAT THE LEGISLATURE INSERTS EVERY PART OF A

STATUTE FOR A PURPOSE AND THAT EVERY PART SHOULD HAVE EFFECT

AND SINCE SUB-SECTIONS (4) AND (5) OF SECTION 306 WOULD NOT

HAVE EFFECT AS THOSE SUB-SECTIONS CANNOT BE COMPLIED, IT IS

EVIDENT THAT THE POWER OF SECTION 306 WAS NOT INTENDED TO BE

CONFERRED ON THE SPECIAL COURT BY THE LEGISLATURE WHEN THAT

COURT WITH EXCLUSIVE POWER OF COGNIZANCE CANNOT COMPLY WITH

SECTION 306 OF THE CODE. THE LATER PART OF SUBMISSION DOES

NOT FOLLOW FROM J.K.COTTON SPINNING AND WEAVING MILLS' CASE.

EVEN THE EARLIER PART OF THE SUBMISSION DOES NOT LEAD TO THE

CONCLUSION THAT POWER OF PARDON WAS INTENDED TO BE EXCLUDED.

THE RELIANCE UPON THE DECISION IN THE CELEBRATED CASE OF

WILLIE (WILLIAM) SLANEY V. STATE OF MADHYA PRADESH (AIR 1956

SC 116) (PARA 100) LAYING DOWN THAT EVERY PROVISION OF THE

CODE OF CRIMINAL PROCEDURE IS MEANT TO BE OBEYED IS ALSO OF

NO HELP FOR RESOLVING THE ISSUE IN THESE APPEALS.

To our mind, the Special Court has all the powers of a

Court of Session and/or Magistrate, as the case may be,

after the prosecution is instituted or transferred before

that Court. The width of the power of the Special Court

will be same whether trying such cases as are instituted

before it or transferred to it. The use of different words

in Sections 6 and 7 of the Act as already noticed earlier

also show that the words in Section 7 that the prosecution

for any offence shall be instituted only in Special Court

deserve a liberal and wider construction. They confer on

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the Special Court all powers of the Magistrate including the

one at the stage of investigation or enquiry. Here, the

institution of the prosecution means taking any steps in

respect thereof before the Special Court. The scheme of the

Act nowhere contemplates that it was intended that steps at

pre-cognizance stage shall be taken before a court other

than a Special Court. We may note an illustration given by

Mr. Salve referring to Section 157 of the Code. Learned

counsel submitted that the report under that Section is

required to be sent to a Magistrate empowered to take

cognizance of offence. In relation to offence under the

Act, the Magistrate has no power to take cognizance. That

power is exclusively with the Special Court and thus report

under Section 157 of the Code will have to be sent to the

Special Court though section requires it to be sent to the

Magistrate. It is clear that for the expression

`Magistrate' in Section 157, so far as the Act is concerned,

it is required to be read as `Special Court' and likewise in

respect of other provisions of the Code. If the expression

`Special Court' is read for the expression `Magistrate',

everything will fall in line. This harmonious construction

of the provisions of the Act and the Code makes the Act

work. That is what is required by principles of statutory

interpretation. Section 9(1) of the Act provides that the

Special Court in the trial of such cases follow the

procedure prescribed by the Code for the trial of warrant

cases before the Magistrate. The expression `trial' is not

defined in the Act or the Code. For the purpose of the Act,

it has a wider connotation and also includes in it the pre-

trial stage as well. Section 9(2) makes the Special Court,

a Court of Session by a fiction by providing that the

Special Court shall be deemed to be a Court of Session and

shall have all the powers of a Court of Session. In case,

the Special Court is held not to have the dual capacity and

powers both of the Magistrate and the Court of Session,

depending upon the stage of the case, there will be a

complete hiatus. It is also to be kept in view that the

Special Court under the Act comprises of a High Court Judge

and it is a court of exclusive jurisdiction in respect of

any offence as provided in Section 3(2) which will include

offences under Indian Penal Code, Prevention of Corruption

Act and other penal laws. It is only in the event of

inconsistency that the provisions of the Act would prevail

as provided in Section 13 thereof. Any other interpretation

will make the provision of the Act unworkable which could

not be the intention of the Legislature. Section 9(2) does

not exclude Sections 306 to 308 of the Code from the purview

of the Act. This section rather provides that the

provisions of the Code shall apply to the proceedings before

the Special Court. The inconsistency seems to be only

imaginary. There is nothing in the Act to show that

Sections 306 to 308 were intended to be excluded from the

purview of the Act.

Reliance has been placed by the learned Solicitor

General on A.R. Antulay's case. That case holds that in

contra-distinction to the Sessions Court, the Court of

Special Judge to be a court of original criminal

jurisdiction and wherever the expression `Magistrate'

occurs, the expression `Special Judge' is required to be

read and the provisions of Sections 238 to 250 of the Code

stood incorporated in 1952 Act by application of the

doctrine of `Legislation by incorporation'.

After the pronouncement of a Constitution Bench

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decision in Antulay's case, there can now be no doubt that

the Special Court under the Act will enjoy all powers which

a court of original criminal jurisdiction enjoys whether of

a Magistrate or a Court of Session, save and except the one

specifically denied. The passage from Antulay's case

relevant for the present purposes reads thus :

"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 unending confusions have

arisen by either assimilating him with a

Magistrate or with a Sessions Court. The

Prevention of Corruption Act, 1947 was

enacted for more effective prevention of

bribery and corruption. Years rolled by and

experience gathered showed that unless a

special forum for the trial of such offences

as enumerated in the 1947 Act is created,

the object underlying the 1947 Act would

remain a distant dream. This led to the

enactment of the Criminal Law accompanying

the Bill refers to the recommendations of

the Committee chaired by Dr. Bakshi Tek

Chand appointed to review the working of the

Special Police Establishment and to make

recommendations for improvement of laws

relating to bribery and corruption. To take

the cases of corruption out of the maze of

cases handled by Magistrates, it was decided

to set up special courts. Section 6

conferred power on the State Government to

appoint as many Special Judges as may be

necessary with power to try the offences set

out in clauses (a) and (b). Now if at this

state a reference is made to Section 6 of

the Code of Criminal Procedure which

provides for constitution of criminal

courts, it would become clear that a new

court with a new designation was being set

up and that it has to be under the

administrative and judicial superintendence

of the High Court. As already pointed out,

there were four types of criminal courts

functioning under the High Court. To this

list was added the court of a Special Judge.

Now when a new court which is indisputably a

criminal court because it was not even

whispered that the Court of Special Judge is

not a criminal court, is set up, to make it

effective and functionally oriented, it

becomes necessary to prescribe its powers,

procedure, status and all ancillary

provisions. While setting up a court of a

Special Judge keeping in view the fact that

the high dignitaries in public life are

likely to be tried by such a court, the

qualification prescribed was that the person

to be appointed as a Special Judge has to be

either a Sessions Judge, Additional Sessions

Judge or Assistant Sessions Judge. These

three dignitaries are above the level of a

Magistrate. After prescribing the

qualification, the Legislature proceeded to

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confer power upon a Special Judge to take

cognizance of offences for the trial of

which a Special court with exclusive

jurisdiction was being set up. If a Special

Judge has to take cognizance of offences,

ipso facto the procedure for trial of such

offences has to be prescribed. Now the Code

prescribes different procedures for trial of

cases by different courts. Procedure for

trial of a case before a Court of Sessions

is set out in Chapter XVIII; trial of

warrant cases by Magistrates is set out in

Chapter XIX and the provisions therein

included catered to both the types of cases

coming before the Magistrate, namely, upon

police report or otherwise than on a police

report. Chapter XX prescribes the procedure

for trial of summons cases by Magistrates

and Chapter XXI prescribes the procedure for

summary trial. Now that a new criminal

court was being set up, the Legislature took

the first step of providing its comparative

position in the hierarchy of courts under

Section 6 Cr.P.C. by bringing it on level

more or less comparable to the Court of

Sessions, but in order to avoid any

confusion arising out of comparison by

level, it was made explicit in Section 8(1)

itself that it is not a Court of Sessions

because it can take cognizance of offences

without commitment as contemplated by

Section 193 Cr.P.C. Undoubtedly in Section

8(3) it was clearly laid down that subject

to the provisions of sub-sections (1) and

(2) of Section 8, the Court of Special Judge

shall be deemed to be a Court of Session

trying cases without jury or without the aid

of assessors. In contra-distinction to the

Sessions Court this new court was to be a

court of original jurisdiction. The

Legislature then proceeded to specify which

out of the various procedures set out in the

Code, this new court shall follow for trial

of offences before it. Section 8(1)

specifically says that a Special Judge in

trial of offences before him shall follow

the procedure prescribed in the Code of

Criminal Procedure for trial of warrant

cases by Magistrates. The provisions for

trial of warrant cases by the Magistrate are

to be found in Chapter XXI of 1898 Code. A

glance through the provisions will show that

the provisions therein included catered to

both the situations, namely, trial of a case

initiated upon police report (Sec.251A) and

trial of cases instituted otherwise than on

police report (Sec. 252 to 257). If a

Special Judge is enjoined with a duty to try

cases according to the procedure prescribed

in foregoing provisions he will have to

first decide whether the case was instituted

upon a police report or otherwise than on

police report and follow the procedure in

the relevant group of sections. Each of the

Secs. 251A to 257 of 1898 Code which are in

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pari materia with Secs. 238 to 250 of 1973

Code refers to what the Magistrate should

do. Does the Special Judge, therefore,

become a Magistrate? This is the fallacy of

the whole approach. In fact, in order to

give full effect to Section 8(1), the only

thing to do is to read Special Judge in

Sections 238 to 250 wherever the expression

`Magistrate' occurs. This is what is called

legislation by incorporation. Similarly,

where the question of taking cognizance

arises, it is futile to go in search of the

fact whether for purposes of Section 190

which conferred power on the Magistrate to

take cognizance of the offence, Special

Judge is a Magistrate? What is to be done

is that one has to read the expression

`Special Judge' in place of Magistrate, and

the whole thing becomes crystal clear. The

Legislature wherever it found the grey area

clarified it by making specific provision

such as the one in sub-section (2) of

Section 8 and to leave no one in doubt

further provided in sub-section (3) that all

the provisions of the Code of Criminal

Procedure shall so far as they are not

inconsistent with the Act apply to the

proceedings before a Special Judge. At the

time when the 1952 Act was enacted what was

in operation was the Code of Criminal

Procedure, 1898. It did not envisage any

Court of a Special Judge and the Legislature

never wanted to draw up an exhaustive Code

of Procedure for this new criminal court

which was being set up. Therefore, it

conferred power (taking cognizance of

offences), prescribed procedure (trial of

warrant cases by a Magistrate), indicated

authority to tender pardon (Section 338) and

then after declaring its status as

comparable to a Court of Session proceeded

to prescribe that all provisions of the Code

of Criminal Procedure will apply in so far

as they are not inconsistent with the

provisions of the 1952 Act. The net outcome

of this position is that a new court of

original jurisdiction was set up and

whenever a question arose as to what are its

powers in respect of specific questions

brought before it as court of original

criminal jurisdiction, it had to refer to

the Code of Criminal Procedure undaunted by

any designation claptrap. When taking

cognizance, a Court of Special Judge enjoyed

the powers under Section 190. When trying

cases, it is obligatory to follow the

procedure for trial of warrant cases by a

Magistrate though as and by way of status it

was equated with a Court of Session. 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 in

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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."

The Code has been incorporated in the Act by

application of the doctrine of legislation by

incorporation. The power to grant pardon has not been

denied expressly or by necessary implication. As earlier

stated after decision in the case of A.R.Antulay, it was

not necessary to make specific provision in the Act

conferring power on the Special Court to grant pardon at

trial or pre-trial stage. The Special Court is a court of

original criminal jurisdiction and has all the powers of

such a court under the Code including those of Sections 306

to 308 of the Code, the same not having been excluded

specifically or otherwise.

There is no provision in the Act which negates the

power of the Special Court to grant pardon. The Special

Court has power to grant pardon at any stage of the

proceedings. The power under Section 307 cannot be denied

merely because no commitment of the case is made to the

Special Court. Learned Solicitor General, in our view,

rightly contends that the other statutes are only an

external aid to the interpretation and to rely upon the

omission of a provision which is contained in another

different enactment, it has to be shown that two acts are

similar which is not the position here. The scheme of two

acts is substantially different as has been earlier noticed

by us. It is also evident from Fernandes's case as well.

As noticed, the provisions of Sections 6 and 7 of the

Special Courts Act confer much wider power. Everything

after institution of the prosecution is required to be done

by the Special Court. There is nothing in those provisions

or in Section 9 to warrant exclusion of Sections 306 to 308

of the Code from the purview of the Act. Reference may

also be made to Section 4(2) of the Code which stipulates

that the investigation, inquiry and trial of all offences

under any other law than the Indian Penal Code shall also

be dealt with according to the provisions of the Code but

subject to any enactment for the time being in force

regulating the manner or place of investigating, enquiring

into, trying or otherwise dealing with such offences.

Mr. Salve also relies upon the decision in the case of

Directorate of Enforcement v. Deepak Mahajan & Anr.[(1994)

1 SCR 445]. In that case, one of the question that came up

for consideration was whether the jurisdiction of the

Magistrate to authorize detention of an arrestee produced

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before him either in judicial custody or otherwise under

Section 167(2) of the Code is completely excluded or ousted

by the absence of any specific provision in the FERA or the

Customs Act empowering the Magistrate to `authorise the

detention' of the arrestee under the Code. After surveying

the relevant statutory provisions and various judgments

including that of Antulay's case this Court summed up that

Section (4) of the Code is comprehensive and Section 5 is

not in derogation of Section 4(2) and it only relates to

the extent of application of the Code in the matter of

territorial and other jurisdiction but does not nullify the

effect of Section 4(2). It was held that the provisions of

the Code would be applicable to the extent in the absence

of any contrary provision in the Special Act or any special

provision excluding the jurisdiction or applicability of

the Code.

In the present case, we are unable to find either any

inconsistency or any provision which may indicate expressly

or by necessary implication the exclusion of the provision

of the Code empowering grant of pardon.

The fact that there is no commitment to the Special

Court only shows that section will apply to the extent

applicable but that does not lead to exclusion of the power

of the Special Court to grant pardon. Section 6 does away

with the procedure of commitment of a case to the Sessions

Court. It is the Special Court which is to take cognizance

of the cases instituted before it or transferred to it.

Another deviation is provided in Section 7 which stipulates

that any prosecution of any offence relating to

transactions in securities shall be instituted only in

Special Court. Provisions of the Code not inconsistent

with the Act shall apply to the proceedings before the

Special Court (Section 9{2}).

The power to tender pardon is not controlled by sub-

sections (4) or (5) of Section 306. These sub-sections

deal with the matters pertaining to post-pardon stage.

These provisions only show that where there is no

commitment, sub-section (5) of Section 306 will not apply.

But this does not take away the power of pardon as provided

in sub-section (1) of Section 306. It only means that

these provisions will apply to the extent applicable.

Reference may also be made to a decision of Calcutta

High Court strenuously relied upon by Mr. Salve. In

Harihar Sinha & Ors. v. Emperor [AIR 1936 Calcutta 356] a

Full Bench of Calcutta High Court was faced with a question

whether a Special Magistrate appointed under Section 24 of

the Bengal Suppression of Terrorist Outrages Act, XII of

1932 had power to tender a pardon under Section 337 of 1898

Code or otherwise. The facts of the said case relevant for

the present purposes were that the Special Magistrate

therein tendered a conditional pardon to one of the accused

under Section 337; that accused was taken out of the dock,

put into the witness box and he gave evidence in the trial

before the Special Magistrate. The contention urged on

behalf of the appellants before the High Court was that the

Special Magistrate on grant of pardon by virtue of sub-

section 2(a) which provided that in every case, where a

person has accepted a tender of pardon and has been

examined under sub-section (2), the Magistrate before whom

the proceedings are pending shall, if he is satisfied that

there are reasonable grounds for believing that the accused

is guilty of an offence, commit him for trial to the Court

of Session or High Court, as the case may be. In the Code,

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similar provisions are in sub-section (5) of Section 306.

Before Full Bench, the contentions that are relevant for

our purposes which were urged were two. One - that the

Special Magistrate had no power to tender a conditional

pardon under Section 337 to Gouranga because the duty of

the Special Magistrate was to try Gouranga and not to

pardon him. The contention was not accepted. It was

observed that the Special Magistrate was charged with the

duty of trying the appellants with Nalini and Gouranga.

Nalini had been earlier discharged under sub-section (a) of

Section 494 but thereupon he went into box and gave

evidence; the public prosecutor was of the opinion that

Nalini had not told all he knew and was hostile to the

prosecution and, thus, applied to the District Magistrate

to have him recommitted to take his trial along with the

accused which was ordered and thereafter Gouranga was

tendered conditional pardon and examined as a witness. The

Court held that it is not infrequently happens in a trial

that the only way in which justice can be done is through

one of the accused giving evidence on behalf of the Crown,

and if this evidence is given according to law, there is

nothing wrong in it though as the evidence of an accomplice

it is open to suspicion and that Section 337 provides the

terms on and the machinery by which the pardon, for the

purpose of giving evidence, can be granted by the

Magistrate, and the Magistrate was acting within his powers

in granting the conditional pardon.

The second contention which in fact is more relevant

for the present purpose was that the Special Magistrate

having tendered a conditional pardon to Gouranga was bound,

under sub-section (2-A), to commit the other accused for

trial to the Court of Session or the High Court but as he

was directed to try the accused himself and, therefore,

could not commit them to the Sessions or the High Court,

the whole of the provisions of Section 337 are nugatory in

this case, from which it follows that if he is to try the

accused, he cannot pardon any one of them under Section

337. The contention was held not to be sound and for that

basis, the provision of Section 26(2) of the aforesaid 1932

Act in question was referred to. The said provision

provided that the provisions of the Code so far as they are

not inconsistent with the Chapter (i.e. Chapter 2), shall

apply to the proceedings of a Special Magistrate and

Section 34 of the said Act provided that the provisions of

the Criminal Procedure Code in so far as they may be

applicable and insofar as they are not inconsistent with

the provisions of this Chapter (i.e. Chapter 2), shall

apply to all matters connected with, arising from or

consequent upon a trial by Special Magistrates. It was

concluded from these provisions that a Magistrate may,

acting under Section 337(1) tender a conditional pardon and

under Section 337(2) examine the pardoned man as a witness

in his court, but must, acting under the Bengal Suppression

of Terrorist Outrages Act, 1932, try the accused himself

instead of committing him for trial to the Court of Session

or the High Court as Section 337(2-A) of the Code provides.

Reference was made by the Full Bench to an earlier decision

of the Calcutta High Court reported in Abdul Majid v.

Emperor [60 Cal. 652] wherein a Special Magistrate tried

certain prisoners under the provisions of Ordinance 2 of

1932. Sections 37(1), 37(2) and 52 of the Ordinance as

reproduced in that decision read as under :

"37(1) In the trial of any case under this

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Ordinance a Special Magistrate shall follow

the procedure laid down in sub-section (1)

of Section 32 for the trial of cases by a

Special Judge.

37(2) In matters not coming within the scope

of sub-section (1), the provisions of the

Code in so far as they are not inconsistent

with this Ordinance shall apply to the

proceedings of a Special Magistrate; and for

the purposes of the said provisions, the

Special Magistrate shall be deemed to be a

Magistrate of the first class.

52. The provisions of the Code and of any

other law for the time being in force, in so

far as they may be applicable and in so far

as they are not inconsistent with the

provisions of this Ordinance, shall apply to

all matters connected with, arising from or

consequent upon a trial by special criminal

Courts constituted under this Ordinance."

The Full Bench noticed that the afterquoted provisions

are respectively essentially the same as Sections 26 and 34

of the Bengal Suppression of Terrorist Outrages Act, 1932.

In Abdul Majid's case one of the accused who was granted

conditional pardon under Section 337 by the Special

Magistrate proceeded to give evidence against his co-

accused before the Special Magistrate who dealt with the

case and sentenced the prisoners. It was objected on appeal

that the Special Magistrate had no power to tender a

conditional pardon and afterwards dispose of the case

himself, instead of sending it to the Sessions Court or the

High Court. The appeal from the conviction was dismissed.

The observations of the Chief Justice Rankin from that

decision which was cited with approval by the Full Bench

are to the following effect :

"It is right to notice the contention that

was put forward to the effect that the

proceedings before the Special Magistrate

were bad. It is said that his having

tendered pardon to the approver, sub-section

2-A, S.337, Criminal P.C., made it

obligatory upon him to commit the accused

for trial to the Court of Session. It is

not disputed that, under the Ordinance (2 of

1932), he certainly could not commit the

accused for trial to any Court of Session.

When we look at the Ordinance, we find that

there is an express provision that the

provisions of the Code are to apply in the

case of Special Magistrates so far as they

are not inconsistent with the Ordinance, and

similar phrasing is used more elaborately in

S.52 and also in connection with Sessions

Judges in S.32. It makes no difference

whatever, so far as I can see, whether the

Magistrate tendering the pardon had been the

District Magistrate and not the Magistrates

trying the case. The provisions of sub-

s.(2-A) would apply equally, whoever had

been the Magistrate tendering the pardon,

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and it is quite clear that the Special

Magistrate is the Magistrate who, under the

Ordinance, is to try the case. Unless,

therefore, we were to hold that no approver

could ever give evidence before a Special

Magistrate, the appellants would not succeed

in making the argument logical. But it is

quite clear that, in so far as the Ordinance

is inconsistent with sub-s.(2-A), the

Ordinance prevails and there is no ground

for supposing that it is impossible for the

Special Magistrate to hear the evidence."

The Full Bench accordingly held that the Special

Magistrate could try the case himself even after grant of

pardon and it does not follow that the absence of power to

commit the accused to the Court of Session or the High

Court would show that the Special Magistrate has no power

to tender pardon. The position here also is almost

identical. To the extent the provisions of sub-sections

(4) and (5) of Section 306 cannot be followed by the

Special Court, they are not required to be followed. As

already held these sub-sections do not control the power to

grant pardon. Under these circumstances, Mr. Jethmalani

contended that the minority opinion expressed by Mukherji,

J. in the Full Bench decision lays down the law correctly.

For the reasons already indicated, we do not agree. The

majority decision of the Full Bench, with which we are in

agreement, is almost a complete answer to the submissions

of Mr. Jethmalani. It has held the field for more than

half a century. It seems evident that the power to tender

pardon stands alone and others are matter of procedure. If

in such situation, the matters of procedure are not

applicable, it would not negate the power to grant pardon.

Insofar as procedural matters are concerned, it would only

mean that the same apply to the extent applicable. We are,

therefore, unable to accept the contention that there was

any implied repeal. It is also not possible to accept that

it was intended by necessary implication that the Special

Court under the Act shall not have the power to grant

pardon. All powers of Sections 306 to 308 to the extent

applicable and can be complied are available to the Special

Court under the Act. The provision of the Act and the Code

can stand together. There is no inconsistency. The two

statutory provisions can harmoniously operate without

causing any confusion or resulting in absurd consequences

and the scheme of Code can, without any difficulty, fit in

the scheme of the Act. In the end, we may also note that

jurisdiction to try a case is conferred on the Special

Court not by committal but by the statute which has

established that court.

Our conclusion, therefore, is that the Special

Court established under the Act is a court of

exclusive jurisdiction. Sections 6 and 7 confer on

that court wide powers. It is a court of original

criminal jurisdiction and has all the powers of such

a court under the Code including those of Sections 306 to

308.

For the foregoing reasons, we are of the

opinion that the learned Special Court rightly

rejected the application of the appellants for

revocation of the order of pardon. The appeals are

accordingly dismissed. The intervention applications are

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also dismissed.

................................................J.

[S.P. Bharucha]

................................................J.

[Y.K.Sabharwal]

................................................J.

[Brijesh Kumar]

September 6, 2001