# A.R. ANTULAY v. RAMDAS SRINIWAS NAY AK AND ANOTHER

- **Citation:** [1984] 2 S.C.R. 914
- **Court:** Supreme Court of India
- **Decided:** 1984-02-16
- **Case number:** Criminal Revision Application No. SlO of 1982
- **Bench:** D. A. Desai, R. S. Pathak, 0. Ch!Nnappa Reddy, A. P. Sbn, V. Balakrishna Eradi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-r-antulay-v-ramdas-sriniwas-nay-ak-and-another-8740
- **Pages:** 41

## Headnote

Interpretation of Sttttutes-Construction of Penal Laws-Rules for.
Criminal Procedure Code, 1973 (Act II of 1974) Sections 4, 6, 190, 200,
202, 238 to 250-Specfal Judge, taking cognizance of offence under the Prevention of Corruption Act, 1947 (Act 2 of 1947) on a private complaint fn respect
of the said offences committed by Public ServantS, legality of-Criminal Law
Amendment Act (XLVJ of 1952) ·section 6 to 8, Scope of-Court of Special
Judge Is a Court of.Original Criminal Jurisdiction and shall have llll powers
except those specifically excluded.
Legislation by In corporatiort, doctrine
applied.
Respondent Nayat filed a pdvate complaint aeainst the appellant,
alleging thit the appellant ha!, asa p•blic servant aommitted certain oft'ences
under ss. 5, 5A and 7A of the Prevention of Corruption Act (Act II of
1947), and section 161-165 of the Indian Penal Code before the learned
Special Judge, Sbri P. S. Bhutta.
The Special Judge toot cognizance of the
said offences and adjourned the case to October 12, 1982 on which date, the
appellants' counsel moved an app1icatioD questioning the jurisdiction of the
court OD two specific counts : (i) that the Court of special Judge act up
under s. 6 of the Criminal Law Amendment Act, 1952 ('1952 Act' for
short) cannot take coa:nizance of any of the offences enumerated ins, G' (1)
(a) & (b) upon a private compl.aint of facts constituting the offenpe and
(ii) that where there are m-ore special Judges than o'ne for any area, in the
absence of a specification by the State Government in this behalf, spccif)'iQg
the local area over which each special Judge would have jurisdiction, the
speci_al Judge (Mr. Bhutta) had DD jurisdiction to take cognizance of the
offences and try the case.
The learned special Judge rejected both tho con·
1 tentions.
The appellant filed Criminal Revision Application No. SlO of
1982 in the Bombay High Court.
On a reference made by the learned
Single Judge, this roviaion apPlication was board by a Division Bench of the
High' Court.
Tho learned Judges by two separate but concurring judgments
held that 1pccial Judge is competent and is entitled to take cognizance of
offences set out in s. 6 (1) (a) & (b) upon a private complaint of facts
constituting the offence and consequently rejected the first contention.
In
reaching this conclusion the learned Judges held that a prior investigation
under s. SA of the Prevention of Corruption Act, 194 7 ('I 947 Act' for shon)
by a police officer of tl~e designated ran~ is n.ot a c;:ondition precedent to
A. R. ANTULAY v. R. S. NAYAK
915
the special Judge takiag cognizance of t~e offences under s. 8 (ll of 1952
Act, and taking notice of the Notification dated January 15, 1983 issued by
the Maharashtra State under sub's. (2) of s. 7 of 1952 Act, specifying
Shri· R B. Sule, Special Jtidge for Ort?atcr Bomaby for trying the Special
Case No. 24 of 1982 rejected the second contention and therefore, the re ..
vision petition as wel_I:
Hence this appeal by special leave.
Dismissing the appeal, the Court_,
HELD : I. It is a well established cannon of construction that the
court should read the section as it is and cannot rewrite it to suit its convenience; nor does any cannon of construction permit the court to read the
section in such manner as to render it to some extent otiose. [936D·B]
2:1. 'A private complaint filed in· respect of the offences committe~ by
public 1ervaots as. enunierated io_s. 6 (1) and_(b)_of the Criminal Law
(Amendment) Act, 1952 can be entertained by, the special Judge and taken
c<igaizaace of.
The same is perfectly legal. [9368)
State of Tamil Nadu v. V. Krlshnaswaml Naidu & Anr. [1979] 3 SC.R.
928; Parasnath Pande & Anr. v. State, A.I.R. 1962 Bom. 205; Jagdish
Prasad Verma 11. The State, A.J.R. "i966 PatD!I 15; referred to •.
2'.2. It is a well recognised prineiple of criminal .jurisprudence that
anyone can set or put the cril}1inal Jaw into motion eacept wherC the statute
enacting or creating an offence indicates to th

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914
A.R. ANTULAY
v.
RAMDAS SRINIWAS NAY AK AND ANOTHER
February 16, 1984
[D. A. DESAI, R. S. PATHAK, 0. CH!NNAPPA REDDY, A. P. SBN
AND V. BALAKRISHNA ERADI, JJ.)
Interpretation of Sttttutes-Construction of Penal Laws-Rules for.
Criminal Procedure Code, 1973 (Act II of 1974) Sections 4, 6, 190, 200,
202, 238 to 250-Specfal Judge, taking cognizance of offence under the Prevention of Corruption Act, 1947 (Act 2 of 1947) on a private complaint fn respect
of the said offences committed by Public ServantS, legality of-Criminal Law
Amendment Act (XLVJ of 1952) ·section 6 to 8, Scope of-Court of Special
Judge Is a Court of.Original Criminal Jurisdiction and shall have llll powers
except those specifically excluded.
Legislation by In corporatiort, doctrine
applied.
Respondent Nayat filed a pdvate complaint aeainst the appellant,
alleging thit the appellant ha!, asa p•blic servant aommitted certain oft'ences
under ss. 5, 5A and 7A of the Prevention of Corruption Act (Act II of
1947), and section 161-165 of the Indian Penal Code before the learned
Special Judge, Sbri P. S. Bhutta.
The Special Judge toot cognizance of the
said offences and adjourned the case to October 12, 1982 on which date, the
appellants' counsel moved an app1icatioD questioning the jurisdiction of the
court OD two specific counts : (i) that the Court of special Judge act up
under s. 6 of the Criminal Law Amendment Act, 1952 ('1952 Act' for
short) cannot take coa:nizance of any of the offences enumerated ins, G' (1)
(a) & (b) upon a private compl.aint of facts constituting the offenpe and
(ii) that where there are m-ore special Judges than o'ne for any area, in the
absence of a specification by the State Government in this behalf, spccif)'iQg
the local area over which each special Judge would have jurisdiction, the
speci_al Judge (Mr. Bhutta) had DD jurisdiction to take cognizance of the
offences and try the case.
The learned special Judge rejected both tho con·
1 tentions.
The appellant filed Criminal Revision Application No. SlO of
1982 in the Bombay High Court.
On a reference made by the learned
Single Judge, this roviaion apPlication was board by a Division Bench of the
High' Court.
Tho learned Judges by two separate but concurring judgments
held that 1pccial Judge is competent and is entitled to take cognizance of
offences set out in s. 6 (1) (a) & (b) upon a private complaint of facts
constituting the offence and consequently rejected the first contention.
In
reaching this conclusion the learned Judges held that a prior investigation
under s. SA of the Prevention of Corruption Act, 194 7 ('I 947 Act' for shon)
by a police officer of tl~e designated ran~ is n.ot a c;:ondition precedent to
A. R. ANTULAY v. R. S. NAYAK
915
the special Judge takiag cognizance of t~e offences under s. 8 (ll of 1952
Act, and taking notice of the Notification dated January 15, 1983 issued by
the Maharashtra State under sub's. (2) of s. 7 of 1952 Act, specifying
Shri· R B. Sule, Special Jtidge for Ort?atcr Bomaby for trying the Special
Case No. 24 of 1982 rejected the second contention and therefore, the re ..
vision petition as wel_I:
Hence this appeal by special leave.
Dismissing the appeal, the Court_,
HELD : I. It is a well established cannon of construction that the
court should read the section as it is and cannot rewrite it to suit its convenience; nor does any cannon of construction permit the court to read the
section in such manner as to render it to some extent otiose. [936D·B]
2:1. 'A private complaint filed in· respect of the offences committe~ by
public 1ervaots as. enunierated io_s. 6 (1) and_(b)_of the Criminal Law
(Amendment) Act, 1952 can be entertained by, the special Judge and taken
c<igaizaace of.
The same is perfectly legal. [9368)
State of Tamil Nadu v. V. Krlshnaswaml Naidu & Anr. [1979] 3 SC.R.
928; Parasnath Pande & Anr. v. State, A.I.R. 1962 Bom. 205; Jagdish
Prasad Verma 11. The State, A.J.R. "i966 PatD!I 15; referred to •.
2'.2. It is a well recognised prineiple of criminal .jurisprudence that
anyone can set or put the cril}1inal Jaw into motion eacept wherC the statute
enacting or creating an offence indicates to the contrary.
The Scheme of
the Code of Criminal Procedure enviasges two parallel and independent
agencies for taking criminal offences to Court.
Even for the most· serious
offence of murder, it was not ~isputed that a private complaint can, not only
be filed but can be entertained and proceeded with according to law. Locus
Standi of the complaint is a concept foreign to criminal jurisprudence save
and except that where the statute Creating an offence provides for the eligibility of the complaint, by necessary implication .the general principle gets
eJicluded by such statutory provision. [9230-F]
While s. 190 of the Code of Criminal Procedure permjts anyone to
approach the Magistrate with complaint, it does not prescribe any qualification the camplaint is required to fulfil to be eligible to file a complaint.
But where an eligibility criterion for a complaint is contemplated specific
provisions have been made such as to be found in ss. 195 · & J99 of the
Cr. P. C.
These specific provisions clear'Jy indicate ·that in the absence of
a11y such.statutorY provisions, a locus standi of a complaint is a concept
foreign tO criminal jurisprudence.
In other words the principle that anyone
can set or put the criminal law in motion remains intact unless contraindicated by a statutory provi•ion. [923G-H; 924A]
This general .principle of nearly uμiversal application is founded on a
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policy that an offence i.e. an act or omission made punishable by any law
for the time being in force (Sees. 2 (n) Cr. P. C.) is not niei:ely an offence
c;;c>mmitted iq relati9n to the perso~ w~o s'1ffers harm bq~ i~ also an o~ence .
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.S8PllBME COURT RIU'ORTS
(1984] 2 s.c.a.
against society.
The society for its or~trly and peaceful
de~elopment is
interested in the punishment of the offender.
Therefore, prosecution for
serious offencCs is undertaken in the name of the state representing. the
people which would exclude any element of private vendatta 'or vengeance.
If such is the public policy underlying penal statutes, who brings an· act or
omimission made punishable by law to the notice of the authority competent
to deal wit.hit, is immaterial and irrelevant unless the statute indicates to
the contrary.
Punishment of the offender in the interest of the society
being one of the objects behind penal statutes enacted for larger good of the
society, right to iniliate ·proceedings cannot be whittled down, circumscribed
or fettere.d by putting it into a straight jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception.
To hold that such an exception exists that a private complaint for offences
of corruption committed bY public servant is not maintainableJ the court
would require an unambiguous statutory provision and a teogled web of
argument for-drawing a far fetched implicationJ cannot be a· substitute for
an express statutory provision. [924A·B]
It is no answer to this fairly well·establisbed legal position that for the
last 32 years no case has come to the notice of the court in which cognizance was taken by a special Judge in a private complaint for offences punish·
able under the 1947 Act.
If ~ometbing that did not happen in the past is
to be the sole reliable guide so- as to deny any such thing happening in the
future, law would be rendered static and slowly whither away, [925C]
The Scheme underlying Code of -0-imioal Procedure clearly reveals
that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Poli~e St"ation.
If the
offence complained of is a non-cognizable one, the Police Officer. <:an either
direct the complaint to approach the Magistrate or he may obtain permiSsioo of the Magistrate and investigate the offence.
Similarly any one can
approach" the Magistrate with a complaint and. even if the offence disclosed
is a serious one, the Magist.rate is competent to ta:ke cognizance of the
offence and initiate proceedings.
It is open to the Magistrate but not
obligiltory uPon him to direct investigation by police.
Thus two agencies
have been set up for taking offences to court. One would therefore, require
a cogent and expHcit provision to hold thats. SA displaces this scheme.
[925D·F)
:.r.:3. Section 8(1) of the 195,z Act which confers power on the special
Judge to take cognizance of' offences set out in s. 6(1) (a) (b) does not
directly or indirectly, expressly or by necessary implication indicate that the
only method of t<iking cognizance is the police report under s. 173(2> of the
Code of Criminal Procedure submitted by a police officer of the designated
rank or permissible rank as set out in s. SA of the Prevention of Corruption Act, 1947. [9320-H]
2:4. In. the absence of a specific provision made in the statute ·indicating t·hat offences will have to be investigatedJ inquired intoJ tried and
otherwise dealt with according to that statute, the same will have to be
investigated, inquired ·into, tried and otherwise dealt with according to the
Code Qf Criroi11al Procedure.
In other words, Code of Criminal Proce1.fure
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A.R. ANTULAY v. R.S. NAYAKi
917
is the parent statute which provides for investigation:. inquiring_ into and
trial of cases by criminal courts of various designations. [93SA-B]
2:5. If Cour-t of-special Judge is.a criminal court, which atleast was
not di!:puted, and jurisdiction is conferred''upon the presiding officer Of the
Court of special Judge to take cognizance of offences simultaneously excJu.
ding one out of the four recognis"d modes of taking cogoizance 1 namely,
upon commitment of by a Ma8istrate as set out ins. 193, the only other
1'
method by which the Court of special Judge can take cognizance of an
offence-for the trial of which it was set up, is any one of the remaining
three other methods known to law by which a criminal court would take
---~- cognizance of- _an offe_nce not as an
idle formality
but
with a view
'°'
to initiating proceedings
and
ultimately to try the accused.
If the
language einployed in S. 8(1) is read in this light and in the background
that a special Judge may take cognizance of offence without the accused
being committed to him for trial 1 it necessarily implies that the Court of
special Judge is armed with power to ·take _Cognizance without commitment
~
by the Magistrate.
Thus the special Judge can take cognizance of offences
enumerated ins. 6(1) (a) and (b) Upon a complaint or uPon a police report
Or upon bis coming to know in some mariner of the offence having been
cornmitted.
The provisions of the Criminal Procedure Code have to .be
applied to the Court of special Judge in such manner· and to such extent as
~
to retain the separate identity of the Court of special Judge and not that be
must either fulfil a , role of a Magistrate or~ Session Court.
Section
8(1) of 1952 Act says that the special Judge shall take cognizance
··•(
of an offence and shall not take it on commitment of the accused.
The Legislature provided for both the pQsitive and the negative.
It posi·
, tively conferred power Oil special Judge to take C~gaizance· Of ·offences and
it negatively removed any concept of comtnitment.
It is not possible thereforeJ to read s. 8(1) that cognizance can ooly be taken upoo a police report
'C
and any other.view wiU render the safeguard under s~ SA illusory.
[93SD·F; 9368; C; E)
2:6. Section SA is a safeguard against investigatlonJ by police officers
lower in rank than designated officcrJ of offences against pnb1ic servants.
This has no he3.ring either directly or indirectly with the mode and method
of taking cognizance or trial by the special Judge.
Therefore, an investigation under.s. SA is not a condition precedent before _cognizance can be
taken of offerices triable by a special Judge, who acquires p0wer under
s. 8(1) to take Qognizance of offences enumerated in s. 6(1) (a) and (b) of
the Prevention of Corruption Act 1 with this limitation alone that it shall not
be upon commitment to him by the Magistrate. [94lA-B]
2:7;. Once s. SA is out of the way 10 the matter of taking cognizance
of offences committed by public servants .bY a special Judge, the Power of
the special Judge to take cognizance of such offences conferred by s. 8( 1)
"·ith only one limitation; in any one of the known methods of taking cogai ..
zance of offences by courts of original jurisdiction remains undeoted.
One
such statutorily recognised well.known method of taking cognizance of
offences by a coQrt competent to tak;e cognizance is upon receiving a comp ..
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918
SUPREME COURT REPORTS
(1984) t2 S.C.R.
laint of facts which constitutes the offence.
And s. 8(1) says that the
special Judges has the power to take cognizance of offences enumerated in
s. 6(1) (a) & (bl and the only mode of taking cognizance e•cluded by the
provision is upon commitment.
It therefore, follows that the special Judge
can take cognizante of offences committed by public servants upon receiviag
a complaint of facts constituting such offences. [941F·H]
There is no \\'arrant for an approach that on receipt of the complaint,
the special Judge must direct an investigation under s. SA. [942<;:]
H. N. Rishbud & lnder Singh v. State of Delhi,
[1955] S.C.R. 1150;
State of Madhya Pradesh v. Mubarak Ali; [1959] Supp. 2 S.C.R. 201; State
of Uttar Pradesh v. Bhagwant Kishore Joshi; [1964] 3 S.C.R. 71; s. N. Bose
v. State of Bihar; [1968] 3 S.C.R. 563; P. Sirafuddln etc. v. State of.Madras
etc.; [1976] 3 S.C.R. 931; Union of India v. Madhya Bharat; A.I.R. i957
Madhya Bharat, 43 Taylor v. Tay/or, (1875-76) 1 Ch. Divn. 426;· Nazir
Ahmed v. King Emperor; A. I. R. 1936 P. C. 253(2) Chettiam Vcttil Ammad
and Anr. v. Taluk Land Board & Others; [1979] 3 S.C.R. 839; refered to.
2:8. In order to give full effect fo s. 8(1), the only thing to do is to
read special Judge ins. 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 s. 190 which conferred power on the
Magistrate to take cognizance of the offence, special Judge is a .t\-fagistrate1
What is to be done is that one has to read the expression ~special in place
of Magistrate, and· the whole thing beco:i1~s crystal clear. [94SB·F]
2:9. The Legislature wherever it found the grey area clarified: it by
making specific provision such as the one in
sub~s. CJ) of s .8 and to leave
no one in doubt further provided in aub-s. (3) that all the provisions of the
Code of Criminal Procedure shall so far as they are not incoasistent with
the Act apply to the proceedings before a speci.il Judge.
At the tim.e
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 authorit). to
tender pardon (s.338) and then after declaring its status as comp.arable to
a Court of Sessions 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 jurisdictioD 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 bad to refer to the
Code of Criminal Procedure undaunted by ·any designation clap.trap.
When taking cognizance, a Court of special Judge enjoyed the powers
under· s. 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. [94SF·H; 946A-D]
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A.R. ANTULAY V. R.S. NA.YAK'
919
2:10.
The deeming fiction enacted in s.8 (3) is confined to the limits
of its requirement in that the person conducting a prosecution before a
special Judge is to be deemed to be a public prosecutor.
On the contrary,
conscious of the position that a private complaint may be filed before a
special Judge who may take cognizance of, the offences on such a complaint,
the Legislature wanted to clothe the person in charge of the prosecution
before a special Judge with the status of a public prosecutor for the
purposes of the Code of Criminal Procedure. [949A-C)
Shwe Pru v. The King; A. I. R. 1941 Rangoon 209; Amlesh Chandra &
Ors. v. The state, A.l.R. 1952 Cal. 481; Raj Kishore Rabidas v. The State:
A.J.R. 1969 Cal 321; Re. Bhupalll Mal/iah and Ors. A.J.R. 1959 A.l.R.
A.P. 477; Medichetty Ramakbtiah and Ors. v. State of Andhra Pradesh;
A.J.R. 1955 A.P. 659; referred to.
2 :t ~.
It is not a condition precedent to the iS!!iUe of process ·that
the court of necessity must bold the inquiry as envisaged by s.202 or direct
investifiation as therein contemplated.
The po'Wer to take cognizance without holding inquiry or directing· investigation is implicit in s.202 or the
Code.
Therefore the matter is -left to the judicial discretion or the Court
whether on examining the complainant and the witnesses if any as .contemplated by s.200 to issue process or to postpone the issue of process.
This
discre.tion which the court enjoys cannot be circumscribed or denied .by
making it mandatory upon the court either to bold tho· inquiry or direct investigation. Such an approach would be contrary to the statutory provision.
Therefore, there is no merit in the contention that by entertaining a private
complaint, the purpose of speedy trial would be thwarted or that a pre-process safeguard would be denied. Further when cognizance is taken on a private
complaint or to be precise otherwise than on a police report, the special
Judge has to try the case according to the procedure prescribed for trial of
warrant cases instituted otherwise than on police report by a Magistr1te
(ss. 252 to 258 of 1898 Code of Criminal Procedure).
This procedure
provides more adequate safeguard than the investigation by police officer of
designated rank and therefore, search for fresh or. additional safeguard is
irrelevant. [951A-F; H)
2:12.
Prior to 1955, the procedure .for trial of warrant cases instituted on a police rt)port and otherwise than on police report was the same
and the Act of 1952 set up the court of special JudgC to try cases under
the 1947 Act and the trial was to be held according to the procedure
prescribed for trial of a warrant case.
It necessarily fo1lows that between
195'.? to 1955, the Court of sPecial Judge would have followed the same
procedure for trial of a case instituted upon a police report or otherwise
than on a police report.
lf.in 19SS. the Legislature prescribed two d"ifferent procedures and left the· one for trial of warrant cases instituted otherwise than on police report intact and the position remained unaltered even
after the introduction of s.7A, it is nor suggestive of such a grave consequence that a private complaint is not maintainable.[953A-C]
3:1. The entire argument inviting the court to specificaliy decide
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whether a court of a special-Judge for a cCrtain purpose is a court o MagisJJ
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SUPREMB COURT REPORTS
[1984] 2 sc.R.
trate or a court of Sessions revolves round a mistaken belief that a special
Judge has to be one or the other, and must fit in the slot of a Magistrate or
a Court of Sessions.
Such an approach would strangulate the functioning
of the court and must be eschewed.
Shorn of all embellishment, th(! 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 o.riented
some powers were conferred by the statute setting up the court.
Except'
those specifically conferred and ·specifically denied, H has to fuoctioil as a
court of original criminal jurisdiction ·not being hide bound by the tfrmioological status description of Magistrate or a Court of :Sessions.
Under the
. Code it will enjoy all powers which a court of original criminal
juris~iction
enjoys sav<; and except the ones specifically denied. [946C-E]
3:2. The Court of a special Judge, once created by an indep'endent
statute, has been broitght as a court of original criminal jurisdiction' under
the High Court because s. 9 confers on the High Court all the power's con·
ferred by Chapter XXXI and XXXIII of the Code of Criminal Procedure,
1898 on a High Court as if the court of Special Judge were a Court of
Sessions trying cases without a jury within the local limit of the jurisdiction
of the High Court.
Therefore is no ,gainsaying the fact that a new cr~minal
coor' with a name, designation and qu8.Jificatioa of the officer eligible to
preside over it with powers specified and the particular procedure wti.ich \t
must follow has been set up under the 1951 Act.
The Court has to be
treated as a court of original criminal jurisdiction and shall have all the
powers as any court of original criminal jurisdictiOn bas under the Code of
Criminal Procedure except those specifically ·excluded. [9460-H; 947A-B)
t!ll.IMINAL APPELLATE Jua1srncnoN : Ck"n. \L APPEAL No.
Z47 OF 1983
'From the judgment and order date.: 7. 3. 83 of the Bombay
High Court in Criminal Revision Application No. 510 of 1982.:
Dr. L, M. Singhvi, Dalveer Bhandari, A. M. Singhvl, S. S.
Parkar, H. Bhardwaj, U. N. Bhandari, H. M. Singh, Ranbir Singh,
S. G.·Hasnain, Shamrao Samant, and HA Sekhar, for the appellimt.
Ram Jethmalani, PR Vakil, Ms. Rani Jethmalani, Mukesh
Jethmalani, OP Malviya, Shailendra Bhardwaj, Harish Jagtlani for
the respondents.
The Judgment of the court was delivered by
DESAI, J. This appeal by special leave is directed against the
decision of a Division Bench of Bombay High Court in Criminal
Revision Application No. 510 of 1982, which was preferred by the
appellant against the rejection of his application by the learned
H
spe_cial Judge as per his order dated October 20, 1982.
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A.a. AN'.rULAY .. a.s. NAYAE (Dtsal. J.)
The various stages through which Special Case No. 24 of 1982
progressed upto and inclusive of October 18, 1982 have been set out
in our Judgment rendered today in cognate Criminal Appeal No. 356
of 1983 and they need not be recapitulated here.
After the learned
special Judge Shri P. S. Bhutta took cognizance of· th~ offences
upon a complaint of Ramdas Sriniwas Nayak, the first respondent
(Original complainant), the case was adjourned to October 18, 1982
for recording the evidence of the complainant. On that day, learned
counsel appearing for the appellant in the trial court moved an
application questioning the jurisdiction of the court on two specific
counts; (i) that the Court of special Judge set up under Sec. 6 .of the
Criminal Law Amendment Act, 1952 ('1952 Act' for short) cannot
take ~ognizance of any of the offences enumerated in: Sec .. 6 (I) (a)
and (b) upon a private complaint of facts constituting the offence
·and (ii) that where there are more special Judges than· one for any
area, in the absence of a specification by the State Government in
this behalf, specifying the local area over which each special Judge
would have jurisdiction, the special Judge (Mr. Bhutta) had no
jurisdiction to take cognizance of the offences and try the case. The
learned special Judge rejected both the contentions. The appellant
filed Criminal Revision Application No. 510 of 1982 in the Bombay
High Court. , On a reference made by the learned Single Judge, this
revision application was heard by a Division Bench of the High
Court. The. learned Judges by two separate but concurring judgments held that special Judge is competent and is entitled to take
cognizance of offences set out in Sec. 6 (1) (a) and (b) upon a private complaint of facts constituting the offence and consequently
rejected the first contention. In reaching this conclusion the learned
Judges held that a prior investigation under Sec. 5 A of the Prevention of Corruption Act, 1947 ('1947 Act' for sMrt) by a police
officer of the designated rank is not a condition precedent to the
special Judge taking cognizance of the offences under Sec. 8 (I) of.
1952 Act.
The learned Judges also held that· by the time the matter
was heard by them, the Government of Maharashtra had issued. a
notification dated January 15, 1983, under sub-s. (2) of Sec. 7 of
1952 Act specifying Shri R. B. Sule, special Judge fm Greater Born•
bay for trying Special Case No. 24 of 1982, After taking note of
this notification ·and the statement of Shri P. R. Vakil, learned.
· counsel for the respondent, the second contention of the learned
counsel for the appellant was also rejected. ' The learned Judges
accordingly rejected the revision petition. Hence this appeal by
special leave.
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On behalf of the appellant, the pivotal point canvassed was
that a private complaint cannot be entertained by the special Judge
in respect of all or any of the offences enumerated in Sec. 6 (1) (a)
and (b) of the 1952 Act.· In support of this submission, it was very
vehemently urged that the provision contained in Sec. 5 A of the
19.52 Act has been repeatedly held to be mandatory in character and
if its non-compliance is brought to the notice of the superior court
at a stage anterior to the conclusion of the trial, the proceeding
would be vitiated. It was urged that Sec. SA incorporates a safe·
gnard against frivolous, speculative and tendentious prosecutions and
therefore, it must not only held to be mandatory but it must be so
interpreted as to make an investigation under Sec. 5A a condition
precedent to the taking of the cognizance of an offence or offences
committed by a public servant by the special Judge. A number of
subsidiary points were submitted in support of this principal contention which need not be enumerated, but would be dealt with in
the course of the judgment.
On behalf of the respondent.complainant it was urged that it
is one of the fundamental postulates of the administration of criminal
justice that anyone can set the criminal law into motion unless the
statute enacting the offence makes a special provision to the contrary
both with regard to the locus standi of the complainant, the manner
and method of investigation and the person competent to investigate
the offence, and the court competent to take cognizance. It was
submitted that in Sec. 8 (1) which specifically confers power on the
special Judge to take cognizance of an offence without commitment
of the case to it there is nothing which would preclude a complainant from filing a private complaint or which would deny .jurisdiction
to the special Judge to take cognizance of the offences on such a
private complaint. It was submitted that even if Sec. 5A is treated
as mandatory and incorporates a safeguard, it is a safeguard against
investigation of offences committed by a public servant by police
officers of lower rank and nothing more. It was lastly urged that
on a comprehensive view of the provisions of 1952 Act,' it does not
transpire that any of its provisions and more specifically Sec.
SA
denies the power to the special Judge to take cognizance of offences
enumerated in Sec.
6 (I) (a) and (b) upon a private complaint. It
was also contended that before taking such a drastic view of blocking
the access to justice by holding that a private complaint cannot be
entertained ,by the special Judge, the court must insist on specific
and positive provision of such incontrovertible character as to supplant the scheme of Code of Criminal Procedure which permits two
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A.ll. ANTULAY v. R.S. NAYABi (Desai, J.)
parallel and independent agencies to take criminal offences .to conrt.
An incidental submission was that the Legislature clearly expresses
itself when it requires a certain qualification for filing the complaint,
an<l to specify a certain court competent to take cognizance and the
method and manner of taking cognizance of those specified offences.
To substantiate this submission our attention was drawn to a number
of statutes which we will presently mention.
·
The contention put in the forefront was that Sec. SA upon its
true interpretation and keeping in view that it enacts a mandatory
safeguard in favour of public servants, investigation therein contemplated is a condition precedent to taking cogni1ance of offences
enumerated in Sec. 6 (1) (a) and (b) and as a corollary a private
complaint would not lie and cannot be entertained by a apecial Judge
under Sec.' 8 (1) of 1952 Act. The contention may be examined on
principle and precedent.
·
It is a well recognised principle of criminal jurisprudence that
anyone can set or put the criminal law into motion except where the
statute enacting or creating an offence indicates to the contrary. 1he
scheme of the Code of Criminal Procedure envisages two parallel
and independent agencies for taking criminal offences to court. Even
for the most serious offence of murder, it was not disputed that a
private complaint can, not only be filed but can be entertained and
proceeded with according to law.
Locus standi of the complainant
is a concept foreign to criminal jurisprudence save and except that
where the statute creating an offence provides for the eligibility of
the complainant, by necessary implFcation the general principle gets
excluded by such statutory provision. Numerous statutory provisions,
can be referred to in support of this legal position such as (i) Sec.
187 A of Sea Customs Act, 1878 (ii) Sec. 97 of Gold Control Act,
1968 (iii) Sec. 6 of Import and Export Control Act, 1947 (iv) Sec.
271 and Sec. 279 of the Income Tax Act, 1961 (v) Sec. 61 of the
Foreign Exchange Regulation Act, 1973, (vi) Sec. 621 of the Companies Act, 1956 and (vii) Sec .. 77 of the Electricity Supply Act.
This list is only illustrative and not exhaustive. While Sec. 190 of
the . Code of Criminal Procedure permits anyone to approach the
Magistrate with a complaint, it does not prescribe any qualification
the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contem·plated specific provisions have been made such as to be found in
S"cs. 195 to 199 of the Cr. P. c: These specific provisions clearly
indicate that in the absence of any such statutory provision, a focus
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siandl of a complainant is a concept foreign to criminal jurisprudence.
In other words, the principle that anyone can set or put the criminal
law in motion remains intact unless contra-indicated by a statutory
provision. This general principle of nearly universal application is
founded on a policy that an offence i. e. an act or omission made
punishable by any law for the time being in force (See Sec. 2 (n),
Cr. P. C.) is not merely an offence committed in relation to the
person who suffers harm but is also an offence against society. The
society for its orderly and peaceful development is interested in the
punishment of the offender. Therefore, prosecution for serious
offences is undertaken. in the name of the State representing the
people which would exclude any element of private vendatta or
vengeance. If such is the public policy underlying penal statutes who
·tirings an act or omission made punishable by law to the notice of
the authority competent to deal with it, is immaterial and irrelevant
unless the statute indicates to the contrary. Punishment of the
offender in the interest of the society being one of the objects behind
penal statutes enacted for larger good of the society, right to initiate
proceedings cannot be whittled down, circumscribed or fettered by
· putting it into a straight jacket formula of locus standi unknown to
criminal jurisprudence, save and except specific statutory exception.
To hold that such an exception exists. that a private complaint for
offences of corruption committed by public servant is not maintainable, the court would require an unambiguous statutory provision
and a tangled web of argument for drawing a far fetched implication, cannot be a substitute for an express statutory provision. In
tho matter of initiation of proceeding before a special Judge under
Sec. 8 (1), the Legislature while conferring power to take cognizance
had three opportunities to unambiguously state its m.ind whether
the cognizance can be taken on a private complaint or not. The
first one was an opportunity to provide in Se.c. 8 ( l) itself by merely
stating that the special Judge may take cognizance of an offence on
a police report submitted to it by an investigating officer conducting
investigation as contemplated by Sec. SA.
While providing for
investigation by designated police officers of superior rank, the
Legislature did not fetter the power of special Judge to take cognizance in a manner otherwise thari on police report. The second
opportunity was when by .Sec. 8 (3) a status of a deemed public
prosecutor was conferred on a private complainant if he chooses to
conduct the prosecution. The Legislature being aware of a provision like the one contained in Sec. 225 of the Cr. P. C., could have
as well provided that in every trial before a special Judge the pro_
secution shall be conducted by a Public. Prosecutor, though that
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A.R. ANTULAY v. R.S. NAYAE (Desai, J.)
925
itself would not have heen decisive of the matter. And the third
oyportunity was when the Legislature while prescribing the procedure
prescribed for warrant cases to be followed by special Judge did not
exclude by· a specific provision that the only procedure which the
special Judge can follow is the one prescribed for trial of warrant
cases on a police report. The disinclination of the Legislature to so
provide points to the c.ontrary end no canon of construction permits
the court to go in search of a hidden or implied limitation on the
power of the special Judge to take cognizance unfettered by such _
requirement of its being done on a police report alone. In our
. opinion, it is no answer to this fairly well-established legal position
that for the last 32 years no case has come to the notice of the court
in which cognizance was taken by a special Judge in a private complaint for offences punishable under the 1947 Act. If something that
did not happen in the past is to be the sole reliable guide so as to·
deny any such thing happening in the future, law wou.ld be rendered
&tatic and slowly whither away.
The scheme underlying Code of Criminal Procedure clearly
reveals that anyone who wants to give information of an offence
may either approach the Magistrate or the officer in charge of a
Police Station. If the offence complained of is a non-cognizable
one, the Police Officer can either direct the complainant to approach
the Magistrate or he may obtain permission of the Magistrate and
investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious
one, the Magistrate is competent to take cognizance of the offence
and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to court. One would
'therefore, require a cogent and explicit provision to hold that Sec ..
5A displaces this scheme.
The Prevention of Corruption Act, 1947 (' 1947 Act' for short)
was put on the statute book in the year 1947. Sec. 5A did not
form part of the statute in 1947 .. Sec. 5A was first introduced
in the
Act in the ·year 1952. Prior thereto, Sec. 3 of the
1947 Act which made the offences under Secs.
161 and 165 JPC
cognizable had a proviso engrafted to it which precluded investigation of the offences under the Prevention of Corruption Aci by a
police officer below· the rank of Deputy Superintendent of Police
except without the order of a Magistrate of the first class. There
was ah identical provision in sub-s. ( 4) of Sec. 5 for investigatioa of
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the offence of criminal misconduct. Sec. 5 A makes a provision for
investigation by police officers of higher rank. Sec. SA starts with
a non-obstante clau.se that : 'Notwithstanding anything contained in
the Code of Criminal Procedure, 1898, no police officer below the
rank ...... ' Assuming that Sec. SA did not make it obligatory to
conduct investigation by police officer of a certain rank, what would
have been the position i.n law.
Chapter XII of the Code of Criminal Procedure, . 1973 bears
'- the heading 'Information to the police and their powers to investigate.' Sec. 154 provides for information to police in cognizable
cases. It casts a duty on the officer in charge of a police station to
reduce to writing every information relating to commission of a
cognizable ·offence given to him and the same will be read over to
the informant and the same shall be signed by the informant and a
copy thereof shall be given to him. If information given to an
officer in charge of a Police Station disclosed a non-cognizable
offence, he has to enter the substance of the information in a book
to be l<ept by such officer in such form as the State Government
may prescribe in this behalf and to refer the informant to the Magistrate (Sec. 155 <I).
Sub-s. (2) puts an embargo on the power of
the police officer in charge of the police station to investigate a noncognizable offence without the order of a Magistrate having power
to try the case or commit the case for trial. Sec. !56 sets out the
powers of the officer in charge of police station to investigate cognizable cases. Sub-s. (2) o(Sec. 156 may be noticed. It says that 'no
proceeding of a police officer in any such case shall at any stage be
called in question on the ground that the case was one which such
officer was not empowered under the section to investigate.' Sub-s.
(3) confers power on the Magistrate empowered under Sec. 190 to
take cognizance of an offence, to order an investigation as set out in
sub-ss. (l) and (2) of Sec. 156. · Sec. 167 enables the Magistrate to
remand the accused to police custody in the circumstances therein
mentioned. Sec.
17 3 provides tb.at ·'every investigation under
Chapter XII sh.all be completed without unnecessary delay and as
soon as it is completed, the officer in charge of the police station
shall forward to a Magistrate empowered to.take cognizance of the
offence on a police report, a report in the form prescribed by the
State Government, setting out various things enumerated in the
section. Sub.-s. (8) of Sec. 173 provides that despite submission of
the report on completion of the investigation, further investigation
can be conducted in respect of the same offence and further evidence
so collected has to be forwarded to the same Magsitrate. The report
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A.R. ANTULAY v. R.S. NAYAK <Desai, J.)
927
of this further investigation shall by and large conform with the
requirements of .sub·ss. (2) to (6).
Fasciculus of sections in Chapter·
XIV prescribed conditions requisite for initiation of proceedings.
Sec. 190. provides that subject to the provisions of the Chapter, any
Magistrate of the first class, and any Magistrate of the second class
specially ~mpowercd in this behalf under sub-sec.