Antony v. The State represented by Inspector of Police Economic Offence Wing – IINagercoil Kanyakumari District.

Establishments) Act, 1997 [hereinafter referred to as "the TANPIDAct"] and sentenced to under go rigorous imprisonment for threeyears under each count and to pay a fine of Rs.5000/- for eachcount and in default to undergo rigorous imprisonment for twomonths. [Each accused has to pay a total fine of Rs.1,35,000/-]. 3. When the appeal was taken up today for final hearing, adoubt arose in the mind of this Court as to whether, as against thejudgement impugned in this appeal, an appeal would lie directly tothis Court in view of the provision contained in Section 374 (2) ofthe Code of Criminal Procedure [in short, "the Code"]. Thoughinitially, the learned counsel for the appellant submitted that suchan appeal to this Court directly lies, later on, the learnedcounsel, after having gone through the provisions of the Act, hasalso conceded that an appeal against such conviction and sentencewhich is not more than 7 years lies only to the Court of Sessionsunder Section 374 (2) of the Code. Since it involves an importantquestion, I am inclined to deal with the same elaborately. 4. The term 'Special Court' has not been defined in the TANPIDAct. However, Section 6 of the said Act deals with 'Special Court',which reads as follows:-"(1) For the purpose of this Act, theGovernment may, with the concurrence of theChief Justice of the High Court, bynotification, constitute [one or more SpecialCourts for such area or areas or such case orcases as may be specified in the notification]in the cadre of a District and Sessions Judge. (2) No Court including the Courtconstituted under the Presidency TownsInsolvency Act, 1909 (Central Act III of 1909)and the Provincial Insolvency Act, 1920 (CentralAct V of 1920), other than the Special Courtshall have jurisdiction in respect of any matterto which the provisions of this Act apply. (3) Any pending case in any other Court towhich the provisions of this Act apply shallstand transferred to the Special Court. (4) [When trying any case, the SpecialCourt may also try any offence, other than anoffence specified in Section 5, with which theaccused may, under the Code of CriminalProcedure, 1973 (Central Act 2 of 1974), becharged, at the same trial]. https://hcservices.ecourts.gov.in/hcservices/

5. Section 7 of the Act deals with the power of the SpecialCourt regarding attachment, sale, realisation and distribution.Section 8 of the Act deals with attachment of property of mala fidetransferees. Section 9 of the Act deals with security in lieu ofattachment. Section 10 deals with administration of propertyattached. Section 11 of the Act deals with appeal against any ordermade by the Special Court. At this juncture , it may be misconstruedas though the appeals provided in Section 11 of the Act willinclude an appeal against conviction for an offence under Section 5of the TANPID Act also. But, the scheme of the TANPID Act , moreparticularly, the arrangement of the provisions of the TANPID Actwill make it clear beyond the pale of any doubt that the provisionfor appeal provided in Section 11 relates only to the orders passedby the Special Court under Sections 7 to 10 of the TANPID Act.After Section 11 of the TANPID Act, as per the arrangement, Section12 of the TANPID Act deals with Special Public Prosecutor and thencomes the provision relating to the procedure and powers of theSpecial Court in Section 13 regarding offences which reads asfollows:- 13. Procedure and powers of Special Courtregarding offences. - (1) The Special Court maytake cognizance of the offence without theaccused being committed to it for trial and intrying the accused person, shall follow theprocedure prescribed in the Code of CriminalProcedure, 1973 (Central Act 2 of 1974) for thetrial of Warrant cases by Magistrates. (2) The provisions of the Code of CriminalProcedure, 1973 (Central Act 2 of 1974) shall,so for as may be, apply to the proceedingsbefore a Special Court and for the purpose ofthe said provisions, a Special Court shall bedeemed to be a Magistrate."[Emphasis supplied]6. Section 14 of the Act states that this Act shall overrideother laws, if there is any inconsistency between the provisions ofthis Act and any other law. In respect of the provision for appealprovided under Section 374 of Code of Criminal Procedure, there isno inconsistent provision in this Act and therefore, Section 14 ofthe Act has no role to play in this regard. 7. Now coming back to Section 13 of the said Act, it is statedthat the provisions of the Code of Criminal Procedure, 1973 shall beapplicable to the proceedings before a Special Court and for thepurpose of the said provisions, a Special Court shall be deemed to https://hcservices.ecourts.gov.in/hcservices/ be a Magistrate. Thus the said provision makes it very obvious thatthough the Special Court is presided over by an Officer in the cadreof a District and Sessions Judge, the powers which are exercised byhim are only with that of a Magistrate. Therefore, in my consideredopinion, as provided under Section 374(2) Code of CriminalProcedure, an appeal lies against the conviction and sentencerecorded by the Special Court only to the Court of Sessions, if itis not more than seven years of imprisonment.8. The learned counsel for the appellant submitted that it isdoubtful as to whether such an appeal could be entertained by theSessions Judge, when the Special Court itself is presided over by aDistrict and Sessions Judge. In order to obviate this doubt, I mayrefer to the provisions of few special enactments whereunder alsoSpecial Courts are constituted. 9. Section 30 of the Protection of Human Rights Act, 1993 Actdeals with Human Rights Courts, which reads as follows:-"For the purpose of providing speedy trialof offences arising out of violation of humanrights, the State Government may, with theconcurrence of the Chief Justice of the HighCourt, by notification, specify for eachdistrict a Court of Session to be a Human RightsCourt to try the said offences:- Provided that nothing in this section shallapply if :- (a) a Court of Session is alreadyspecified as a Special Court; or (b) a Special Court is already constituted,for such offences under any other law for thetime being in force."10. Section 14 of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989 deals with Special Court, whichreads as follows:-"For the purpose of providing for speedytrial, the State Government shall, with theconcurrence of the Chief Justice of the HighCourt, by notification in the Official Gazette,specify for each district a Court of Session tobe a Special Court to try the offences under thisAct."[Emphasis supplied]11. Section 36-C of the Narcotic Drugs and PsychotropicSubstances Act, 1985 deals with Special Court to be constituted https://hcservices.ecourts.gov.in/hcservices/ under the said Act, which reads as follows:-"Application of Code to proceedings beforea Special Court – Save as otherwise provided inthis Act, the provisions of the Code of CriminalProcedure, 1973 (2 of 1974) (including theprovisions as to bail and bonds) shall apply tothe proceedings before a Special Court and forthe purposes of the said provisions, the SpecialCourt shall be deemed to be a Court of Sessionand the person conducting a prosecution before aSpecial Court, shall be deemed to be a PublicProsecutor. "[Emphasis supplied]12. Under the Prevention of Corruption Act, 1988 [in short,"the PC Act"], a Special Judge is appointed under Section 3 of theAct. Section 4 of the PC Act states that notwithstanding anythingcontained in the Code of Criminal Procedure 1973 or in any otherLaw for the time being in force, the offences specified in sub-section (1) of Section 3 shall be tried by the Special Judges only.Section 5 of the PC Act deals with the procedure and the powers ofthe Special Judge. Sub-sections 3 to 5 of Section 5 of the PC Actread as follows:-"5. Procedure and powers of Special Judge:-(1) ........(2) ....... (3) Save as provided in sub section (1)or sub-section (2), the provisions of the Code ofCriminal Procedure 1973(2 of 1974), shall, so faras they are not inconsistent with this Act applyto the proceedings before a Special Judge and forthe purposes of the said provisions, the court ofthe Special Judge shall be deemed to be a Courtof Sessions and the persons conducting aprosecution before Special Judge shall be deemedto be a public prosecutor. [Emphasis supplied](4) In particular and without prejudice tothe generality of the provisions contained insub-section (3), the provisions of sections 326and 475 of the Code of Criminal Procedure, 1973(2 of 1974, shall, so far as may be, apply to the https://hcservices.ecourts.gov.in/hcservices/ proceeding before a special judge and for thepurposes of the said provisions, a Special Judgeshall be deemed to be a Magistrate. (5) A Special Judge may pass upon any personconvicted by him any sentence authorized by lawfor the punishment of the offence of which suchperson is convicted."Similarly, in The Special Court (Trial of Offences relating tothe Transaction in Securities) Act, 1992, a Special Court isconstituted under Section 5 of the Act which reads as follows:-"5. Establishment of Special Court. - (1)The Central Government shall, by notification inthe Official Gazette, establish a court to becalled special Court.(2) The Special Court shall consist of asitting Judge of the High Court nominated by theChief Justice of the High Court within the locallimits of whose jurisdiction the Special Court issituated, with the concurrence of the ChiefJustice of India.(3) ... ........."13. Section 9 of the said Act deals with the procedures andpowers of the Special Court which reads as follows:- "9. Procedure and powers of Special Court.-(1) The Special Court shall, in the trial of suchcases, follow the procedure prescribed by theCourt for the trial of warrant cases before amagistrate.(2) Save as expressly provided in this Act,the provisions of the Code shall, insofar as theyare not inconsistent with the provisions of thisAct, apply to the proceedings before the SpecialCourt and for the purposes of the said provisionsof the Code, the Special Court shall be deemed tobe a Court of Session and shall have all thepowers of a Court of Session, and the personconducting a prosecution before the Special Courtshall be deemed to be a Public Prosecutor.(3) The Special Court may pass upon anyperson convicted by it any sentence authorised by https://hcservices.ecourts.gov.in/hcservices/ law for the punishment of the offence of whichsuch person is convicted.(4) While dealing with any other matterbrought before it, the Special Court may adoptsuch procedure as it may deem fit consistent withthe principles of natural justice."14. A careful reading of the provisions of the variousenactments extracted above would make it explicit that in theseenactments , a Sessions Court in existence is specified by means ofa notification as a Special Court. Because such a Sessions Courtis specified as a Special Court, yet the said Special Court shallnot lose its character as Sessions Court. Undoubtedly, it stillcontinues to be a Court of Sessions. 15. But, in Section 6 of the TANPID Act, it is not as though aSessions Court is specified as a Special Court, instead, it onlystates that the Special Court to be constituted shall be presidedover by an officer in the cadre of a District and Sessions Judge.Thus, what is prescribed in Section 6 of the Act is only thequalification of the Judge who will preside over the Special Court.The said court never partakes the character of a Court of Sessionsas in the case of the Special Courts constituted under the otherenactments referred to above. 16. Now, the procedures and powers of the Special Courtsconstituted under various enactments may be analyzed. As we havenoticed in the provisions of various enactments referred to above,the Special Courts constituted under the said enactments shall bedeemed to be Sessions Courts. Therefore, they exercise thepowers of the Court of Sessions. In addition to that by means ofspecific provisions in the respective enactments certain powersexercisable by Magistrates have also been conferred upon the SpecialCourts. Thus, they enjoy the powers of a Court of Sessions as wellas certain powers of a Magistrate. 17. At this juncture, I may refer to the Constitution Benchjudgement of the Hon'ble Supreme Court in A.R.Antulay v. RamdasSriniwas Nayak , AIR 1984 SC 718 : 1984 Cri.L.J. 647, wherein theHon'ble Supreme Court had an occasion to decide with precision andaccuracy the position of the Judge of the Special Courtconstituted as per the provisions of the Criminal Law Amendment Act[Act 46 of 1952]. After having analyzed various provisions of the PCAct and the Criminal Law Amendment Act , in paragraph 27 of thejudgement, the Hon'ble Supreme Court formulated the following https://hcservices.ecourts.gov.in/hcservices/ question:- 27. .................. It is, however,necessary to decide with precision and accuracythe position of a special Judge and the Courtover which he presides styled as the Court of aSpecial Judge because unending confusions havearisen by either assimilating him with aMagistrate or with a SessionsCourt. ............"The said question was then answered by the Hon'ble Supreme Court inparagraph 27 as follows:- "27. .......... Shorn of all embellishment,the court or a special Judge is a court oforiginal criminal jurisdiction. As a court oforiginal criminal jurisdiction in order to makeit functionally oriented some powers wereconferred by the statute setting up the court.Except those specifically conferred andspecifically denied, it has to function as acourt of original criminal jurisdiction notbeing hide-bound by the terminological statusdescription of Magistrate or a Court ofSessions. Under the Code it will enjoy allpowers which a court of original criminaljurisdiction enjoys save and except the onesspecifically denied."18. Similar question arose before the Hon'ble Supreme Court inGangula Ashok and antoher v. State of A.P., (2000) 2 SCC 504,wherein the Hon'ble Supreme Court had an occasion to deal with aSpecial Court constituted under Schedule Castes and the ScheduledTribes [Prevention of Atrocities] Act, 1989. In paragraph 9 of thejudgement, the Hon'ble Supreme Court has held as follows:- "9. Thus the Court of Session isspecified to conduct a trial and no other Courtcan conduct the trial of offences under the Act.Why did the Parliament provide that only a Courtof Session can be specified as a Special Court?Evidently the legislature wanted the SpecialCourt to be a Court of Session. Hence theparticular Court of Session, even after beingspecified as a Special Court, would continue tobe essentially a Court of Session anddesignation of it as a Special Court would notdenude it of its character or even powers as aCourt of Session, The trial in such a Court can https://hcservices.ecourts.gov.in/hcservices/ be conducted only in the manner provided inChapter XVIII of the Code which contains afasciculus of provisions for 'trial before aCourt of Session"19. In the said judgement, after referring to A.R.Antulay'scase referred to above, in paragraph 16 of the judgement, theHon'ble Supreme Court has held as follows:- "16. Hence we have no doubt that a SpecialCourt under this Act is essentially a Court ofSession and it can take cognizance of theoffence when the case is committed to it by theMagistrate in accordance with the provisions ofthe Code. In other words, a complaint or acharge-sheet cannot straight away be laid beforethe Special Court under the Act."20. And, in paragraphs 23 and 24 of the said judgement, afterreferring to the observation made in A.R.Antulay's case, theHon'ble Supreme Court, has held as follows:- "23. It must be noted that the observationsof this Court in A. R. Antulay [ (1984) 2 SCC500] were made in connection with theestablishment of a Special Court under CriminalAmendment Act of 1952. What is to be pointed outis that a Special Judge appointed under the saidAct was given the specific power to takecognizance of the offence without the case beingcommitted to him. Hence the observations in A.R. Antulay case cannot be profitably utilized tosupport the interpretation of another Actwherein there is no such specific provision.24. It is contextually relevant to noticethat Special Courts created under certain otherenactments have been specially empowered to takecognizance of the offence without the accusedbeing committed to it for trial, [e.g. Section36-A(1)(d) of the Narcotics Drugs PsychotropicSubstances Act]. It is significant that there isno similar provision in the Scheduled Castes andScheduled Tribes (Prevention of Atrocities)Act."21. In Harshad S. Mehta v. State of Maharashtra, 2001 (8)SCC 257 after referring to A.R.Antulay's case and various other https://hcservices.ecourts.gov.in/hcservices/ cases, while dealing with an identical situation with reference toAct 46 of 1952, the Hon'ble Supreme Court has held as follows:-"48. ......... Section 9(2) makes theSpecial Court, a Court of Session by a fiction byproviding that the Special Court shall be deemedto be a Court of Session and shall have all thepowers of a Court of Session. In case, theSpecial Court is held not to have the dualcapacity and powers both of the Magistrate andthe Court of Session, depending upon the stage ofthe case, there will be a complete hiatus. It isalso to be kept in view that the Special Courtunder the Act comprises of a High Court Judge andit is a court of exclusive jurisdiction inrespect of any offence as provided in Section 3(2) which will include offences under IndianPenal Code, the Prevention of Corruption Act andother penal laws. It is only in the event ofinconsistency that the provisions of the Actwould prevail as provided in Section 13 thereof.Any other interpretation will make the provisionof the Act unworkable which could not be theintention of the Legislature. Section 9(2) doesnot exclude Sections 306 to 308 of the Code fromthe purview of the Act. This section ratherprovides that the provisions of the Code shallapply to the proceedings before the SpecialCourt. The inconsistency seems to be onlyimaginary. There is nothing in the Act to showthat Sections 306 to 308 were intended to beexcluded from the purview of the Act"22. From the judgement of the Constitution Bench of theHon'ble Supreme Court and the other judgements referred to above,doubt, if any, on this aspect stands obviated since the Hon'bleSupreme Court categorically and consistently has held that a SpecialCourt which is deemed to be a Sessions Court shall be a criminalcourt of original jurisdiction enjoying dual powers of a Court ofSessions as well as a Magistrate provided such powers of aMagistrate have also been conferred upon the Special Court.23. But, in the TANPID Act, the law makers have consciouslyintended to have the Special Court constituted under the Act only asa Court of Magistrate which is evident from Section 13 (2) of theAct which states that the Special Court for the purpose of the saidprovisions shall be deemed to be a Magistrate. Therefore, theSpecial Court constituted under the TANPID Act does not enjoy thepowers of a Court of Session though it is presided over by a Judge https://hcservices.ecourts.gov.in/hcservices/ who is in the cadre of the District and Sessions Judge. By means ofthe deemed clause referred to above, he exercises the originaljurisdiction of only a Magistrate.24. Now, let us move on to Section 14 of the TANPID Act whichstates that save otherwise provided in this Act, the provision ofthis Act shall have effect notwithstanding anything inconsistenttherewith contained in any other law for the time being in force ,etc. The TANPID Act is traceable to Entry 32 in the State List ;whereas the Code of Criminal Procedure is traceable to Entry 2 inthe concurrent List of Seventh Schedule of the Constitution. TheTANPID Act is a substantive law; whereas the Code of CriminalProcedure is a pure and simple a law relating to procedure. Thoughthe constitution makers have in pragmatic and scientific manneridentified the respective fields for the Parliament and the Statelegislature to enact laws in their respective fields, the experienceshows that it has also happened during the past that there are, attimes, incidental overlappings or inconsistencies between the lawmade by the Parliament and the law made by the State legislature.It is needless to point out that if both the laws are traceable toentries in the concurrent list, surely, Article 254 of theConstitution, which is a mechanism to resolve the inconsistency,will come to the rescue. But, if the overlapping is between a lawmade by the Parliament traceable to an entry in the concurrent listand a law made by the State legislature traceable to an Entry in theState List, then, the doctrine of pith and substance is to beapplied and both are to be reconciled. It is only in case where bothcannot survive simultaneously, then the State law will give way forthe law made by the Parliament to have overriding effect. In thecase on hand, if we analyse the provisions of the TANPID Act, wefind no provision in the Act, which is inconsistent with Section 374(2) of the Code of Criminal Procedure. Therefore, the TANPID Actand Section 374 (2) of the Code can go hand-in-hand and they cansurvive simultaneously. Therefore, in this context Section 14 ofthe TANPID Act has no role to play as there is no inconsistency andas such it is ipso facto clear that as against conviction underSection 5 of the TANPID Act imposing a sentence of imprisonment fornot more than 7 years by a Special Court, as per Section 374 (2) ofthe Code, appeal would lie only to the Court of Sessions. 25. Nextly, referring to Section 13(1) of the TANPID Act whichstates that the Special Court may take cognizance of an offencewithout the accused being committed to it for trial, it may beargued that the intention of the legislature is, therefore, only tohave the Special Court as a Court of Session. This contention cannotbe countenanced at all, because the said provision is notinconsistent with Section 190 of the Code. As a matter of fact, itis only complementary or in the nature of clarificatory to Section https://hcservices.ecourts.gov.in/hcservices/ 190 of the Code. 26. The apprehension raised by the learned counsel for theappellant that such an appeal cannot be heard by the learnedSessions Judge because, the Officer presiding over the Special Courthimself is a Sessions Judge cannot have any legal basis andtherefore, the same cannot be accepted. 27. In view of the above, I hold that the instant appeal beforethis Court is not maintainable and the appeal against the judgmentimpugned in this case lies only to the Principal Sessions Court,Chennai. 28. Accordingly, the Registry is directed to transmit thisappeal to the Court of Principal Sessions Judge, Chennai and thelearned Principal Sessions Judge, Chennai shall, after affordingopportunity to the appellants herein as well as to the respondent,dispose of the said appeal in accordance with law. 29. It is further directed that suspension of sentence grantedby this Court already shall be deemed to be an order of suspensiongranted under Section 389 of Code of Criminal Procedure Code by thePrincipal Sessions Court and the same shall be in force until thedisposal of this appeal. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.kmk / bgTo1.The Special Court under Tamil Nadu Protection of Interest of Depositors (In Financial Establishment) Act, Chennai.2. The Principal Sessions JudgeChennai (with the memorandum and appeal and records)3. The Inspector of PoliceEconomic Offence Wing – IINagercoilKanyakumari District. https://hcservices.ecourts.gov.in/hcservices/

4. The Public Prosecutor,High Court, Madras 1 cc to Mr.N. Rajan, Advocate, Sr. 17006Crl. A.No. 850 of 2004 JRG (CO)kk 31/3