IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06/05/2003
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
CRIMINAL ORIGINAL PETITION NO.18728 OF 2002
AND
Crl.M.P.No.7588 OF 2002.
1. K.Aravind
2. Ananthi
3. K.Krishnasamy
4. Ragunathan
5. D.Sathish Issac
6. R.Sathyamurthy
7. T.Mariadoss
8. K.Thirumaran
9. R.Suresh
10.R.Cheran
11.C.Rajasekaran
12.Mahendran
13.A.Balaji
14.P.Ramasamy
15.N.Usharani Shree
16.K.Sakthi Balaji
17.K.Ganesh Karthik
18.K.Lakshmanan @
Lakshminarayanan
19.C.Arasu
20.S.Sivaramakr
21.A.R.Narayanan .. Petitioners
-Vs-
The Inspector of Police,
Central Crime Branch,
Chennai. .. Respondent
Petition filed under Section 482 of the Criminal Procedure Code,
praying for the relief as stated therein.
For petitioners: Mr.Mohammed Rafi
For Respondents: Mr. O.Srinath
Govt Pleader
O R D E R
This petition has been filed praying to transfer the case in
C.C. No.16 of 1998 from the Court of Special Judge, TNPID Act Cases, Chennai,
to the Court of Chief Metropolitan Magistrate, Egmore, Chennai.
2. The averments of the petition are that the
petitioners/accused have been charged for an offence punishable under Sections
120(B), 409 , 420, 506(ii) IPC r/w. Section 109 IPC and Sections 3, 4, 5 and
6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978; that the
respondent police, upon receiving the complaint, registered the case under the
above said Sections of law and after completing the investigation, they laid
the charges against the petitioners/accused only under the above said
provisions of law offences and on 05.12.1996 , the charge sheet was filed in
C.C.No.8271 of 1996 before the Court of Chief Metropolitan Magistrate, Egmore,
Chennai.
3. The further case of the petitioners are that the case in
C.C. No.8271 of 1996 got transferred to the Special Judge, TNPID Act Cases,
Chennai and it was renumbered as C.C.No.16 of 1998 without any information to
the petitioners/accused and thereupon, the petitioners were regularly
attending the above case before the Special Judge, TNPID Act Cases, Chennai;
that Section 26 Cr.P.C. provides trial of the cases by the Special Court only
if offences under special laws are included, whereas, in the above case, the
respondent Police have filed the charge sheet only for the offences under IPC
and Prize Chits and Money Circulation Scheme (Banning) Act, 1978 and not under
Section 5 of TNPID Act, which is triable by the Special Court for TNPID Act in
Chennai.
4. The petitioners would further submit that as per Section 9
of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978, the
Chief Metropolitan Magistrate alone shall try the offences and other IPC
offences can be tried before the same Court, whereas, the Tamil Nadu
Protection of Interest of Depositors (in Financial Establishments) Act, 1997
came into force only on 7.8.1997 and the Special Court was constituted on
20.03.1998 to try the offences attracted under the TNPID Act through the
notification in G.O.Ms.No.1687, Home (CourtsII) Department, dated 20.11.1997;
that this Court has repeatedly and categorically held that in such cases, the
cases shall be transferred to the concerned jurisdictional Courts and hence
the order of taking cognizance by the Special Court for TNPID Act cases in
C.C.No.16 of 19 98 without any charge u/sec.5 of the said Act is illegal,
improper and not maintainable and the said case shall be transferred to the
Court of Chief Metropolitan Magistrate, Egmore, Chennai.
5. Though no counter has been filed by the respondent, the
learned Government Advocate on the criminal side representing the respondent
would argue that as per Section 6 of the TNPID Act all pending cases should be
transferred to the Special ing yet another provision of law under Section
13(1) and 13(2) the learned Government Advocate would point out that the
punishment is made more stringent than what it has been contemplated before
this new Act came into force and the higher punishment contemplated in the new
Act only could not be inflicted even though there is no impediment for the
trial of cases transferred to the Special Court which has been done only in
accordance with the provisions of the Act and it cannot be said that the trial
cannot be held by the Special Court constituted nor the competency of the
Special Court in conducting the trial since such of the Acts are neither
repugnant nor any illegality is involved in those cases being tried of the
Special Court.
6. But, on the contrary, the learned counsel for the petitioner would
attack the arguments of the learned Government Advocate stating that when
there are specific charges framed and already a final report has been filed
under the then existing laws, the Special Court could not have jurisdiction to
try the case. The learned counsel would further argue that Sections 6(3) and
13 of the TNPID Act would lay down the procedures regarding the trial and no
specific charge has been framed under the said Act and therefore the question
of trying under the said Act does not arise. The learned counsel would also
point out that the offence complained of since being one in the year 1996 long
prior to the advent of the Act, which came to force only on 7.8.1997 and the
Special Court itself came to be const ituted on 20.3.1998, under Article 20(1)
of the Constitution, no conviction could sustain under the subsequent Act that
came into force to the date of commission of the offence charged nor could any
person be subjected to a penalty greater than which, that might have been
inflicted at the time of commission of offence.
7. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for both since
to the facts and circumstances of the case in hand and the relief sought for
by the petitioner the relevant provision of law is Article 20(1) of the
Constitution of India and within the meaning, implications, and significance
of which a decision has to be taken in the above Criminal Original Petition
seeking retransfer of the case from the Special Court of TNPID Act cases to
that of the Court in which the case lay at the time of registration of the FIR
i.e. the Court of Additional Chief Metropolitan Magistrate, Egmore, Chennai
and therefore, it is relevant to extract Article 20(1) of the Constitution of
India.
“20. Protection in respect of conviction for offences:-(1) No person shall be
convicted of any offence except for violation of the law in force at the time
of the commission of the act charged as an offence, nor be subjected to a
penalty greater than tha t which might have been inflicted under the law in
force at the time of the commission of the offence.”
8. On a plain reading of the above Constitutional provision a person
shall be convicted for any offence for the violation of the law in force at
the time of commission of the act charged as an offence, nor he be subjected
to a penalty greater than what could be inflicted under the law in force at
the time of commission of the said offence. In short, it could be stated that
the conviction could be only in accordance with the law in force at the time
of commission of the act charged and the penalty shall also be inflicted in
accordance with law in force at the time of commission of the offence.
Needless to mention that it is the time of commission of offence which is a
relevant factor for consideration in order to ascertain the conviction and
sentence to be inflicted particularly to decide whether it could be in
accordance with the then prevailing laws or in accordance with the new
Legislation or amendment introduced after the commission of the offence.
9. However, the learned Government Advocate on the Criminal side
citing Sections 6, 13(1) and 13(2) of the TNPID Act, 1997 would submit that
under Section 6(1) a Special Court in the cadre of a District and Sessions
Judge shall be constituted by the Government with the concurrence of the Chief
Justice of the High Court which has been constituted and is functioning and it
is to this Court the case in hand has been transferred.
10. As per Section 6(2) of the TNPID Act, no Court other than the
Special Court shall have jurisdiction in respect of any matter to which the
provisions of this Act apply and Section 6(3) contemplates that any pending
case in any other Court to which the provisions of this Act apply shall stand
transferred to the Special Court.
11. Needless to mention that Sections 6(2) and 6(3) are mandatory in
nature. So far as these sub-sections (2) and (3) of Section 6 are concerned
as it has been well remarked by the learned Government Advocate they have tobe
complied with and in compliance of these mandatory provisions of law all the
pending cases of such nature instituted in other Courts immediately after the
advent of this Act got transferred to the Special Court having jurisdiction in
respect of those matters and therefore, according to the Government Advocate
the transfer effected to the Special Court is just and proper. The learned
Government Advocate would further submit that added to these Sections, Section
13(1) and 13(2) would also specify the procedure to be adopted by the Special
Court which is nothing but the procedure prescribed in the Code of Criminal
Procedure, 1973 and therefore, the learned Government Advocate would seek no
valid ground for the petitioner to offer, while the law is such and
particularly as per Section 14 of the TNPID Act being the Special Act ‘has got
the over-writing effect notwithstanding anything contained in any other law
for the time being in force or customary usage which is inconsistent with the
provisions of this Act.’ Learned Government Advocate during the course of his
arguments would also point out that only the higher punishment contemplated in
the new Act could not be inflicted and there is no impediment for the trial of
cases transferred to the Special Court being conducted by the said Court
itself since the same is going to be conducted only in accordance with the
procedures prescribed by the Cr.P.C. and therefore, the learned Government
Advocate would end up his arguments with the note to dismiss the above
Criminal Original Petition filed by the petitioner.
12. Now the point for consideration is whether the transfer of the
said case from the Court of original jurisdiction i.e. Additional Chief
Metropolitan Magistrate to that of the Special Court constituted under the
TNPID Act is violative of the Article 20(1) of the Constitution of India so as
to order retransfer the case to the earlier Court for the conduct of trial as
it has been prayed for, on the part of the petitioner in the above Criminal
Original Petition?
13. Even though as against the provisions of the general Acts such as
the Cr.P.C. the provisions of the TNPID Act will definitely prevail, since it
has got the overriding effect, not only being a Special Act but also very
clearly and mandatorily providing for transferring cases of such nature to the
jurisdiction of the Special Court constituted under the new Act as per Section
6 of the said Act, still, the test is whether those provisions of the Special
Act the TNPID Act, 1997 could have anything todo with any of the Articles of
the Law of the Land, the Constitution of India and the answer is certainly in
the negative and therefore it is relevant to again focus the attention to
Article 20(1) of the Constitution of India wherein it has been clearly spelt
out that the case cannot be tried under any other law excepting the law in
force at the time of commission of the act charged as an offence for such
violation and therefore the arguments advanced on the part of the learned
Government that as per Section 6(2) and 6(3) since the case has been
transferred to the jurisdiction of the Special Court there is no impediment in
conducting the trial in accordance with the procedures established by Cr.P.C.
to only penalty cannot go beyond what has been contemplated by the law in
force at the time of the commission of the act charged, falls to the ground
since it is not only the sentence but the very conviction as well cannot be
maintained and without arriving at the conviction, question of sentence cannot
be arrived at all. While the Constitutional mandate is such that not only the
conviction but the sentence as well cannot be arrived at and inflicted other
than in accordance with the law in force at the time of commission of the
offence charged, the provision of which are alleged to have been violated and
therefore since being violative of Article 20(1) of the Constitution of India,
no conviction or sentence could be maintained and therefore there is no point
to permitting the trial to be held by the Special Court and in result the
prayer of the petitioner to retransfer the case from the file of the Court of
Special Judge for TNPID Act cases Chennai to the Court of Chief Metropolitan
Magistrate, Egmore, Chennai has to be considered in the affirmative and hence
the following order:
In result,
(i) the above Criminal Original Petition succeeds and the same is
allowed;
(ii) the case in C.C.No.16 of 1998 pending on the file of the Court of
Special Judge, TNPID Act cases, Chennai
is ordered to be transferred to the Court of Chief Metropolitan Magistrate,
Egmore, Chennai;
(iii) the matter is remitted back to the file of the Chief
Metropolitan Magistrate, Egmore, Chennai to frame charges in accordance with
the provisions of law which were in force at the time of commission of the
offence on such materials placed before the said Court and to conduct the
trial following the procedures so as to deliver the judgment on merits and in
accordance with law.
iv) Consequently, Crl.M.P.No.7588 of 2002 is closed.
6.5.2003.
Index:Yes
Internet:Yes
gs/Rao
To
1. The Inspector of Police, Central Crime Branch,Egmore, Chennai.
2. The Special Court for TNPID Act Cases, Chennai.
3. The Chief Metropolitan Magistrate, Egmore, Chennai-8.
4. The Public Prosecutor, High Court, Madras.