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Mohd. Hashim Masood v. State .
Structured Summary of the Opinion (M.S.A Siddiqui, J.)
Factual and Procedural Background
On 24.9.1991, Sub-Inspector Magan Singh, acting on secret information, raided a godown of the Jullandhar Delhi Transport Company and recovered two cartons containing gas regulators. On interrogation, an agent (Shri Ashok Kumar) disclosed that the seized regulators had been booked by Pawan Kumar Gupta, owner of M/s. Gupta Agencies. A case was registered against Pawan Kumar Gupta under Section 63 of the Copyright Act, Sections 78/79 of the Trade Mark and Merchandise Act, and Section 420 of the Indian Penal Code (IPC).
During investigation, the house of the petitioner was searched and 4,575 regulator plates and certain articles were recovered. The petitioner and co-accused Pawan Kumar Gupta were charge-sheeted for the aforementioned offences.
At the first instance, the Metropolitan Magistrate, on considering the charges, found the material also disclosed an offence under Sections 3/7 of the Essential Commodities Act, which is exclusively triable by the Special Judge, and committed the case to the Special Judge on 1.11.1994. On 27.5.1996 the Special Judge formulated two questions for reference under Section 395, Cr.P.C.: (1) Whether the Special Court can try this case? and (2) If so, whether search, seizure and entry by the police is illegal and vitiate the proceedings?
On 10.7.1996, the Special Judge reviewed his earlier reference order and directed the prosecuting agency to file a separate challan in the Metropolitan Magistrate's Court in respect of the offences alleged to have been committed by the petitioner under Section 420 IPC, Section 63 of the Copyright Act, and Sections 78/79 of the Trade Mark and Merchandise Act. The petitioner filed the present revision challenging that order.
Legal Issues Presented
- Whether the Special Court (Special Judge) can try this case — i.e., can it try offences under the Indian Penal Code together with offences punishable under Sections 3/7 of the Essential Commodities Act?
- Whether the search, seizure and entry by the police (as raised in the reference) are illegal and vitiate the proceedings?
- Whether a Court (specifically the Special Judge) has the power to review its earlier order or judgment (in light of the Code of Criminal Procedure and authorities cited)?
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nilmani Routray v. Bennett Coleman & Co. Ltd., (1998) 8 SCC 594 | The Code of Criminal Procedure does not confer power on any court to review its earlier order or judgment; Section 362 specifically bars review or revision by the same Court. | The court relied on this authority to hold that the Special Judge's review of his earlier order amounted to a manifest illegality and could not be sustained. |
| Maru Ram v. Union of India, (1981) 1 SCC 107 (AIR 1980 SC 2147) | Interpretation of Section 5 of the Code of Criminal Procedure: (i) the Code generally governs matters covered by it; (ii) if a special or local law exists covering the same area, that law is saved and prevails; (iii) if there is a special provision to the contrary, it will override the special or local law. | Used to explain the saving effect of Section 5 and to support the view that the CrPC governs procedure unless a special law provides otherwise. |
| A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 (AIR 1984 SC 718) | When a Special Judge or Special Court is set up, questions about its powers are to be resolved by reference to the CrPC; a Special Judge takes cognizance under Section 190 and, when trying cases, must follow the procedure for trial of warrant cases by a Magistrate though equated in status with a Court of Sessions. | Cited to demonstrate that the powers and procedures of a Special Court derive from the CrPC and to support the proposition that the Special Court must follow CrPC procedure unless the special statute provides otherwise. |
| State of Andhra Pradesh v. Ganeshwara Rao, 1983 SC 1850 | Interpretation of the phrase "same transaction" — if several acts committed by a person show unity of purpose or design, they constitute part of the same transaction. | Applied to explain when offences under different statutes may be charged and tried together under Section 220 of the CrPC (i.e., where acts form the same transaction). |
Court's Reasoning and Analysis
The court's reasoning proceeds in two main strands: first, the question whether a court may review its own earlier order; and second, whether the Special Judge can try IPC offences together with offences under the Essential Commodities Act.
On the review point, the court observed that the Code of Criminal Procedure does not confer power on any court to review its earlier order or judgment and specifically referred to Section 362 of the CrPC. Relying on Nilmani Routray, the court found that the learned Special Judge committed a manifest illegality by reviewing his earlier order dated 27.5.1996 and directing separate proceedings.
On the main substantive point, the court analysed the relationship between the special statute (the Essential Commodities Act) and the Code of Criminal Procedure. It noted:
- The Special Court is constituted under Section 12A of the Act and Section 12-AC makes the provisions of the CrPC applicable to proceedings before a Special Court, treating the Special Court as a Court of Sessions, except where the Act specifically provides otherwise.
- Sections 4, 5 and 26 of the CrPC collectively provide that offences under the IPC and other laws are to be investigated, inquired into, tried and otherwise dealt with according to the CrPC, subject to any specific provision in the special law regulating manner or place of investigation, inquiry or trial.
- The court relied on Maru Ram to explain the saving effect of Section 5 of the CrPC and on A.R. Antulay to show that procedural powers of Special Judges are derived from the CrPC.
- Section 220(1) and (3) of the CrPC permit a person to be charged and tried in one trial for multiple offences arising out of the same series of acts or same transaction and when acts constitute offences under two or more separate definitions. The court noted that the expression "same transaction" is to be given normal meaning and cited State of Andhra Pradesh v. Ganeshwara Rao to explain that unity of purpose or design is a strong circumstance indicating the same transaction.
Combining these principles, the court concluded that the combined effect of Section 12-AC of the Essential Commodities Act and Section 220 of the CrPC allows a Special Court to try offences under the IPC along with offences under Sections 3/7 of the Essential Commodities Act when the conditions of Section 220(1) or (3) or (4) of the CrPC are satisfied.
Consequently, the court held that the Special Judge's order directing the prosecuting agency to file a separate charge-sheet in the Magistrate's Court in respect of the petitioner's alleged offences under Section 420 IPC and the statutory offences under the Trade Marks and Copyright Acts could not be sustained.
Holding and Implications
Holding: The revision was allowed; the impugned order dated 10.7.1996 (in which the Special Judge reviewed his earlier order and directed separate challan/charge-sheet) was set aside. The Special Judge was directed to proceed with the trial for the offence(s) punishable under Sections 3/7 of the Essential Commodities Act and also for the offences punishable under Section 420 IPC, Sections 78/79 of the Trade Marks Act and Sections 63 & 64 of the Copyrights Act.
Implications:
- The direct practical consequence is that all offences arising out of the events described (both under the Essential Commodities Act and the IPC/Trade Marks/Copyright Acts) are to be tried together by the Special Court where the conditions of Section 220 of the CrPC are satisfied.
- The court emphasised procedural limits on a judge's power to review his own earlier order under the CrPC and applied existing authority to set aside the Special Judge's review; the decision enforces established procedural constraints rather than announcing a new legal principle.
- No broader new precedent or novel rule was created by this opinion; the court applied and reconciled existing statutory provisions and precedents to the facts before it. The effect is a binding outcome in the case: the trial will proceed before the Special Judge including all implicated offences, subject to the conditions described in the opinion.
Revision allowed.
M.S.A Siddiqui, J.— This revision is directed against the order dated 10.7.1996 passed by the Special Judge, Delhi directing separate trial of the petitioner in respect of the offences punishable under Section 420, IPC, under Section 63 of the Copyright Act and under Sections 78/79 of the Trade Mark and Merchandise Act.
2. Briefly stated the facts giving rise to this revision are that Sub-Inspector Magan Singh, on the basis of some secret information, raided the godown of the Jullandhar Delhi Transport Company and recovered two cartons containing certain gas regulators on 24.9.1991 On interrogation, Shri Ashok Kumar, an agent of the said transport company, disclosed that the seized regulators were booked by Pawan Kumar Gupta owner of M/s. Gupta Agencies. Thereupon a case under Section 63 of the Copyright Act and under Sections 78/79 of the Trade Mark and Merchandise Act and Section 420, IPC was registered against the accused Pawan Kumar Gupta. During investigation of the case, house of the petitioner was also searched and 4,575 regulator plates alongwith certain articles were recovered therefrom. On completion of the investigation the petitioner alongwith the co-accused Pawan Kumar Gupta were charge-sheeted for the aforesaid offences.
3. When the matter came up before the Metropolitan Magistrate for consideration on charges he found that the material collected by the Investigating Agency also discloses an offence punishable under Sections 3/7 of the Essential Commodities Act which is exclusively triable by the Special Judge. He, therefore, committed the case to the Court of the Special Judge vide orders dated 1.11.1994 On 27.5.1996, the learned Special Judge formulated the following questions for making reference to this Court under Section 395, Cr.P.C:
1. Whether the Special Court can try this case?
2. If so, whether search, seizure and entry by the police is illegal and vitiate the proceedings?
4. On 10.7.1996, the learned Special Judge reviewed his earlier order of reference and directed the prosecuting agency to file a separate challan in the Court of the Metropolitan Magistrate in respect of the offences alleged to have been committed by the petitioner under Section 420, IPC, under Section 63 of the Copyright Act and under Sections 78/79 of the Trade Mark and Merchandise Act. Aggrieved by the said order, the petitioner has come up in revision before this Court.
5. At the outset, I must make it clear that the Code of Criminal Procedure does not confer power on any Court to review its earlier order or judgment. (Nilmani Routray v. Bennett Coleman & Co. Ltd., (1998) 8 SCC 594). Reference may, in this context, be made to the provision of Section 362 of the Code of Criminal Procedure, which specifically bare review or revision of the judgment or order by the same Court. Thus, the learned Additional Sessions Judge has committed a manifest illegality in reviewing his earlier order dated 27.5.1996
6. Now, the point for consideration is, whether the Special Judge can take cognizance of the offences under the Indian Penal Code alongwith the offences punishable under Sections 3/7 of the Essential Commodities Act (for short “the Act”)?
7. Undisputedly, the Court of a Special Judge has been constituted under Section 12A of the Act to try offences punishable thereunder. Section 4 of the Code of Criminal Procedure enjoins that all offences under the Penal Code and other laws shall be investigated, inquired into, tried or otherwise dealt with according to the provisions contained in the Code. Unless any other law prescribes a special procedure for the trial of an offence, the procedure laid down in the Code of Criminal Procedure must be followed and the existence of a special law by itself cannot be taken to exclude the operation of the Code of Criminal Procedure. Thus the Code of Criminal Procedure is the parent statute which provides for investigation, inquiry, trial or otherwise dealing with the offences. The law of procedure is not different for the trial of cases under the Penal Code and those under other statutes according to the said section except that in the case of offences under other laws the procedure laid down by the Code of Criminal Procedure is subject to any enactment for the time being in force for regulating the manner, or place of investigation, inquiry or trial. Section 5 of the Code of Criminal Procedure saves the effect of operation of a special or local law. In analysing the anatomy of Section 5 ibid, their Lordships of the Supreme Court in Maru Ram v. Union of India, (1981) 1 SCC 107 : AIR 1980 SC 2147, separated the three components thereof as under:
“(i) that the Code generally governs matters covered by it;
(ii) that if a special or local law exists covering the same area, the latter be saved and will prevail;
(iii) that if there is a special provision to the contrary, then that will override the special or local law.”
8. Section 26 of the Code of Criminal Procedure prescribes the Criminal Courts by which the offences under the Penal Code or other laws are triable. The combined effect of the provisions of Sections 4, 5 and 26 of the Code of Criminal Procedure is that all the offences punishable under the Penal Code are to be investigated, inquired into, tried or otherwise dealt with according to the provisions contained in the Code. All offences under any law other than the Indian Penal Code shall also be investigated, inquired into, tried or otherwise dealt with according to the provisions of the Code of Criminal Procedure but subject to any specific provision under the particular law regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Where any special enactment provides special procedure only for some matters, such procedure will govern those matters and in regard to the other matters on which the special enactment is silent, the provisions of the Code of Criminal Procedure will be applied.
9. Section 12A of the Act empowers the State Government to constitute a Special Court for trial of the offences punishable under the Act. Section 12-AA of the Act confers jurisdiction on a Special Court to try offences punishable under the Act. Section 12-AC of the Act lays down that save as otherwise provided in the Act, the provisions of the Code of Criminal Procedure shall apply to the proceedings before a Special Court and for the purpose of said provision the Special Court shall be deemed to be a Court of Sessions. The effect of the provision of Section 12-AC is that the provisions of the Code of Criminal Procedure have been made applicable to the proceedings before a Special Court save and except the ones specially excluded by the Act and a Court of Sessions is transmuted as a Special Court, such transmutation will make the Special Court another Forum in nature and substance. In A.R Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 : AIR 1984 SC 718, the Apex Court had an occasion to consider the question: Whether the Special Judge can-take cognizance of offence on a private complaint filed in respect of an offence punishable under the Prevention of Corruption Act. In dealing with the said question, Their Lordships have held that:
“……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 question brought before it as Court of original criminal jurisdiction, it had to refer to the Criminal Procedure Code, 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 Sessions.”
10. In needs to be highlighted that the Act does not provide for a special procedure to be followed by the. Special Court for trial of cases punishable under the Act. As noticed earlier, by virtue of the provision of Section 12-AC of the Act, provisions of the Code of Criminal Procedure have been made applicable to the proceedings before the Special Judge to the extent they are not repugnant to or inconsistent with any provision of the Act. Sub-section (1) of Section 220 of the Code of Criminal Procedure provides that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. Sub-section (3) of Section 220 further provides that if the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial, for each of such offence. The expression “same transaction” occurring in Section 220(1) of the Code has not been defined in the Code of Criminal Procedure. However, in State of Andhra Pradesh v. Ganeshwara Rao, 1983 SC 1850, it was held that the expression “same transaction” ought to be given the same meaning according to the normal rule of construction. It was also held that if several acts committed by a person show unity of purpose or design, that would be a strong circumstance to indicate that those acts form part of the same transaction. Thus the combined effect of Section 12-AC of the Act and Section 220 of the Code of Criminal Procedure is that the Special Court can try offences under Indian Penal Code alongwith the offences under Sections 3/7 of the Act, when conditions under Section 220(1) or (3) or (4) of the Code of Criminal Procedure are satisfied. Consequently, the impugned order passed by the Special Judge directing the prosecuting agency to file a separate charge-sheet under sections 420, ipc/sections 78/89 of the trade marks act/sections 63 & 64 of the copyrights act cannot be sustained in law.
11. In view of what has been stated above, the impugned order is set aside and the learned Special Judge is directed to proceed with the trial of the case for the offence punishable under Sections 3/7 of the Essential Commodities Act and also for offences punishable under section 420, ipc/sections 78/89 of the trade marks act/sections 63 & 64 of the Copyrights Act.
Revision allowed.
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