The Lucknow Bench of the Allahabad High Court while allowing an application observed that any investigation which are done by antiterror squad or the State Police of Uttar Pradesh, so far as the offences specified in the schedule are concerned, shall be tried by the Special Court, designated by virtue of the provisions provided under Section 13 of the Act 2008.
A Single Bench of Justice Shree Prakash Singh passed this order while hearing an application under section 482 filed by Vishal Mishra and Anr.
By means of the application, prayer has been made to quash the charge sheet and cognizance order dated 30.1.2023 and supplementary charge sheet and cognizance order dated 15.6.2023 passed by the Judicial Magistrate First Gonda as well as entire proceedings of Criminal Case under Sections 147, 148, 149, 323, 504, 506, 307 I.P.C & Section 2/3 Prevention of Damage to Public Property Act and Section 3 of Explosive Substance Act, registered at Police Station Kotwali Dehat, District Gonda.
The facts of the case are that the incident is said to have taken place on 1.11.2022 at 7.00 AM and the injury was examined on the same date at 11.50 AM, in the police custody and the F.I.R of the incident was lodged on 2.11.2022 at 1.05 pm. After the F.I.R was lodged, the police investigated the matter and submitted the charge sheet on 26.1.2023, under Sections 147, 148, 149, 323, 504, 506, 307 of I.P.C and 2 & 3 of the Prevention of Damage to Public Property Act, thereafter further investigation was done and supplementary charge sheet was filed on 9.6.2023, whereafter the trial court took cognizance of the offence under Section 3 of the Explosives Substances Act 1908 along with the other sections and has summoned the accused persons including the applicants.
Contention of the counsel for the applicants is that the Act 1908 has been substituted in the Schedule of the National Investigation Act, 2008 with effect from 02.08.2019 and, therefore, the jurisdiction of the Special Courts as defined under Section 2(1)(h) comes into play.
He further submitted that as per the provisions of Section 22 of the Act 2008, the State Government may designate one or more courts of sessions, as special courts by way of notification in the Official Gazette.
He also submitted that the Central Government inserted/substituted the Act, 1908, in the Schedule of the Act, 2008, which became effective on 2nd of August 2019.
Further, Section 13 of the ‘Act 2008’ provides the jurisdiction of the Special Courts, which starts from non-obstante clause and provides that every ‘Scheduled Offence’ investigated by the Agency shall be tried only by the Special Court.
Act 2008 is the Special Act and, therefore, any matter, which is under the ‘Scheduled Offences’, shall be tried by the Special Courts only as designated by the Central Government or the State Government.
So far as the case is concerned, supplementary charge sheet was filed under Section 3 of the Act, 1908 which is admittedly ‘the Scheduled Offence’ but the Judicial Magistrate-Ist, Gonda ignoring the provisions of the Act 2008 took cognizance and summoned the applicants including the other co-accused persons.
He further argued that it reveals from the impugned order dated 15.6.2023 that the Judicial Magistrate-I has taken cognizance of the offence under Section 3 of the Act 2008 along with the other offences of the Indian Penal Code whereas so far as the offence under Section 3 of the Act 1908 is concerned that is to be tried by the Special Courts as are designated under Section 22 and defined under Section 2(1)(h) of the Act, 2008.
Further submission is that since the order dated 15.6.2023 passed by the Judicial Magistrate-Ist is being against the provisions of the Act, 2008 is unlawful and erroneous and, therefore, the submission is that the order dated 15.6.2023 passed by the Judicial Magistrate-Ist may be set aside.
On the other hand, A.G.A has submitted that as per the powers derived from the provisions envisaged under Section 22 of the Act 2008, the State Government by way of notification dated 20.4.2021 has designated III Seniormost Court of Additional District and Session Judge, Lucknow as Special Court having territorial jurisdiction over whole State of Uttar Pradesh for the trial of all offences as specified in the Schedule appended to the aforesaid Act. He added that the State Government has acted in compliance with the provisions envisaged under Section 22 of the Act, 2008, as such, there is no lacuna in the act of the State Government.
The Court observed that,
Having heard counsel for the parties and after perusal of the record, it transpires that initially, an F.I.R was lodged under Sections 147, 148, 149, 323, 504, 506, 307 of I.P.C and 2 & 3 of the Prevention of Damage to Public Property Act, thereafter the matter was investigated and the charge sheet was filed on 2.11.2022 and the cognizance was also taken on 30.1.2023.
Later on, further investigation was done and Section 3 of the Explosive Substances Act, 1908 has been added and the supplementary charge sheet has been filed on 12.6.2023, thereafter, the Judicial Magistrate-I, Gonda took cognizance and issued summons against the applicants including the other co-accused persons.
The applicants have been charged for the offences under Section 3 of the Act, 1908 along with other Sections of the Indian Penal Code and once the charge sheet was filed, the Magistrate without considering the fact that there is a provision under Section 2(1) (h) of the Act, 2008, regarding designated special courts under Section 22 of the Act, 2008, took cognizance in the matter and issued summons.
Section 22 of the Act 2008 empowers the State Government to designate one or more courts of session as a special court for trial of the offences specified in the ‘schedule’. It is, prima facie evident from the Schedule of the Act 2008 that the ‘Act 1908’ is substituted with effect from 2nd of August 2019, in the Schedule of the Act 2008 and, therefore, the jurisdiction of the Special Courts as provided under Section 13 of the Act 2008, shall come into picture, so far as the matter is concerned.
“It is also evident from the First Information Report that the same was lodged on 02.11.2022, which is subsequent to the 02.08.2019, i.e, the date when the Act, 1908 has been inserted in the Act 2008 and further the notification was also done prior to the First Information Report was lodged and therefore the case of the applicants covers with the mandate of the Section 22 of the Act 2008 as well as the notification dated 20.04.2021, notified by the State of U.P, thereof.
Now, it is conclusive that any investigation which are done by antiterror squad or the State Police of Uttar Pradesh, so far as the offences specified in the schedule are concerned, shall be tried by the Special Court, designated by virtue of the provisions provided under Section 13 of the Act 2008 read with notification dated 20.4.2021 issued by the State Government.
So far as the matter is concerned, Section 3 of the Act 1908 has been charged after further investigation, by way of filing supplementary charge-sheet and therefore as per the notification dated 24.04.2021, issued by the Government of Uttar Pradesh while exercising its power provided under Section 22 of the Act, 2008 shall be applicable in the instant matter and therefore the matter is triable by the Special Court designated by the State of U.P, i.e, the third senior most Court of Additional District and Sessions Judge, Lucknow”, the Court further observed while allowing the application.
In view of the aforesaid submissions and discussions, the Court set-aside the cognizance order dated 30.06.2023 and further the order of cognizance on supplementary charge-sheet dated 15.02.2023 passed by the Judicial Magistrate First, Gonda.