This case analysis has been done by Ananaya Chauhan (Law (4th Year), Delhi Metropolitan Education, Noida)
Table of Contents
INTRODUCTION:
This case is of “Repeal and Temporary Statute”. This case applies the “Doctrine of Implied Repeal which is based on the Latin maxim legesposteriorespriorescontrariasabrogant, which means that the later laws shall abrogate the earlier laws that are contrary or in conflict with the subsequent laws.”
In the mentioned case, there was a conflict between different acts, which are mentioned below:
- “The Special Court Act, 1979”
- “The Code of Criminal Procedure Act, 1898”
- “The Code of Criminal Procedure Act, 1973”
BACKGROUND:
- The Special Court Act, 1992, provides for the formation of Special Courts for the trial and crimes, which are related to transactions in Securities or for matters, which are connected to Securities or incidental thereto.
- During the year 1992, the Reserve Bank of India observed large number of irregularities and misconducts in government as well as other securities, which were done by some brokers who were involved with the banks and other financial institution. Due to the mentioned irregularities and misconducts there was huge diversion of funds from the banks and financial institution to the own personal account of those brokers.
- “Securities includes Shares, Stocks, Debentures, Scrips, and Debenture Units of the Unit Trust of India along with other mutual funds or marketable securities of the same nature in or of any Incorporated Company or any other Body Corporate.”[1]
- The mentioned act deals with such situation and to specific ensure fast recovery of the large amount involved in such practices along with punishing the guilty and to also re-establish the confidence and maintain the basic uprightness and reliability of the banks and the Financial Institution.
- “It also provides for establishment of Special Court, which consists of one or more than one sitting judges of the High Court who are nominated by the Chief Justice of the High Court within the local limits of whose jurisdiction the Special Court is located, with the consensus of the Chief Justice of India.”[2]
- “Section 6 of the Act provides that the Special Court shall take cognizance of or try cases as are instituted before it or transferred to it.
- Section 3 provides for appointment and functions of custodian. Sub-section (2) of Section 3 provides that the custodian may, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after the first day of April, 1991 and on or before 6th June, 1992, notify the name of such person in the Official Gazette.
- Section 7 provides for the exclusive jurisdiction of Special Court and stipulates that notwithstanding anything contained in any other law, any prosecution in respect of any offence referred to in sub-section (2) of Section 3 shall be instituted only in the Special Court and any prosecution in respect of such offence pending in any court shall stand transferred to the Special Court. The Special Court, therefore, is a court of exclusive jurisdiction in respect of offences referred to in sub-section (2) of Section 3.
- Section 9 of the Act lays down the procedure and powers of Special Court and stipulates the following of the procedure prescribed by the Code for the trial of warrant cases before a Magistrate. Section 9(2), inter alia, provides for the applicability of the provisions of the Code to the proceedings before the Special Court insofar as they are not inconsistent with the provisions of the Act.”[3]
FACTS OF THE CASE:
- In summary, on June 21, 1993, two independent petitions for pardon were made before the Special Court under the rules of the “Code of Criminal Procedure”, by “SarvothamVishwanathPrabhuand Bhaskar Roy Choudhury.”
- The Central Bureau of Investigation (CBI) backed these petitions. “Prabhu and Choudhury” had already made statements to the Magistrate under “Section 164 of the Code”. It is alleged that they actively and readily disclosed their participation in the offences, as well as the participation of other accused in the offences, in such remarks.
- “The investigating officer who supported the application for grant of pardon stated before the Special Court that in order to obtain the evidence of these two accused who are directly or indirectly involved in or privy to the offences under investigation, it is necessary and desirable, as well as in the interests of justice, that their applications for tender of pardon to them be supported so that all the facts and circumstances relating to the commission of the offence can be obtained.”[4]
- By ruling dated June 22, 1993, the Special Court allowed both accused’s applications on the condition that they provide testimony during the hearing and make a full and true confession of all state of affairs connected to the offence and associated concerns. Prabhu and Chaudhury accepted the conditional tender of pardon.
- The appellants sought the revocation of the pardon in applications filed before the Special Court on January 9, 1996. The applications argued that the pardons awarded to “Prabhu and Chaudhury” were void in the eyes of the law, owing to the Special Court’s lack of competence to grant pardons. It was argued that the ability to award pardon had to be specifically imparted; “there is no inherent power in any court to grant pardon, and the Special Court had received no such power.”
- The Special Court denied the revocation applications in an order dated February 6, 1996, ruling that the Special Court has the authority to grant pardon. “The Special Court dismissed the argument that the orders dated June 22, 1993 lacked jurisdiction.”
ISSUE RAISED:
- “Is it true that the provisions of the Criminal Procedure Code apply to the Special Court?”
- “Does the special court have the authority to give a Tender Pardon?”
- “Is the Special Court’s tender pardon valid?”
ISSUE 1:
“The question is whether the pardon provision in Sections 306 and 307 of the Code applies to the proceedings before the Special Court under the Act?”
“The attorney mentioned that in the case Ram NarainPoply v. Central Bureau of Investigation, one of the issues is whether a Magistrate has the authority to award a pardon to a person accused of an offence covered by the Act. Counsel was also given the opportunity to make arguments on this point. The grant of pardon relieves the grantee of the penalty for the offence. The nature of the authority of pardon under Sections 306 and 307 is fundamentally distinct from the nature of such power under the Indian Constitution, which empowers the President and/or Governor to give pardon. After a person is found guilty, those powers are utilised. That is not the case here.”[5]
ISSUE 2:
Mr. Jethmalani relied heavily on this Court’s decision in “Lt. Commander Pascal Fernandes v. The State of Maharashtra &Ors. ((1968) 1 SCR 695)” to buttress his claim that the Special Court has the authority to grant pardons in the absence of an explicit provision in the Act to that effect.
The learned counsel contends that because the Act does not presuppose the matter being committed to the Special Court and no provision has been included in the Act to authorise the Special Court to award pardon, the doubted judgement granting pardon is short of jurisdiction.
“In this scenario, because the provisions of the later legislation (the Act) are in conflict with those of the earlier (the Code), the latter essentially repeals the earlier in accordance with the maxim legesposteriorespriorescontrariosabrogant (later laws abrogate earlier contrary laws). This is subject, however, to the exception stated in the maxim generatiaspecialitousnon derogant (a general provision does not deviate from a special one).
One essential test to assess the problem of implied repeal would be whether the provisions of the Act are so incompatible with those of the Code that the two cannot coexist, or if the legislature’s goal was just to augment the provisions of the Code. This goal can be deduced from the Act’s provisions. The courts are leaning against implied repeal.”[6]
There will be no implied repeal if, by any reasonable understanding, both statutes may be read together.If at all feasible, implied repeal should be avoided. The assumption against the purpose to repeal by implication is overturned, however, if the new law is incongruous with or repugnant to the old law, since the contradiction or repugnancy discloses a desire to abolish the existing laws.
“Mr. Jethmalani does not contest that the special court established by the statute is a court of original criminal jurisdiction. Mr Jethmalani, on the other hand, contends that only the court of original criminal jurisdiction to which special power of pardon is bestowed, or the conventional criminal courts established under section 6 of the code, can exercise such a power, and no other court of original criminal jurisdiction.”[7]
ISSUE 3:
“There is no provision in the Act that limits the Special Court’s ability to give pardons. The Special Court has the authority to award a pardon at any time during the proceedings.
The power granted by Section 307 cannot be refused just because the matter is not committed to the Special Court. The learned Solicitor General, in our opinion, correctly contends that the other statutes are only an external aid to the interpretation and that to rely on the omission of a provision contained in another different enactment, it must be demonstrated that the two acts are similar, which is not the case here.”[8]
As previously said, the arrangement of two acts is significantly different.In the current situation, we are unable to uncover any discrepancy or clause that may openly or by necessary inference suggest the exclusion of the Code provision-allowing grant of pardon.
The absence of an obligation to the Special Court just indicates that the provision will apply to the extent appropriate, but it does not rule out the Special Court’s ability to give pardon. “Section 6” abolishes the procedure of committing a case to the Sessions Court.
The Special Court will hear cases that have been brought before it or transferred to it.
ANALYSIS:
The Full Bench’s majority finding, with which we agree, is practically a thorough answer to Mr. Jethmalani’s views. It has dominated the industry for almost a half-century. It becomes evident that the capacity to give pardon stands alone and the others are just procedural. If procedural difficulties are unimportant in such a situation, the authority to grant a pardon remains intact.
In terms of procedural considerations, it simply means that the same applies to the extent appropriate. As a result, we cannot accept the argument that there was an implicit repeal.It is likewise impossible to assume that the Special Court under the Act was not meant to have the competence to give pardons by necessary implication. The Special Court has all of the powers granted to it by Sections 306 to 308 of the Act, to the extent that they are appropriate and can be exercised.
“The provisions of the Act and the Code can coexist. There are no inconsistencies. The two statutory provisions can coexist without producing confusion or having ludicrous implications, and the system of the Code can easily fit into the framework of the Act.”Finally, we should highlight that the Special Court’s authority to hear a matter is granted not by committal but by the act that formed the court.
CONCLUSION:
As a result, we hold that the Special Court created by the Act has Exclusive Jurisdiction. “Section 6 and 7” provide for the wide-ranging power of the court. It is deemed to be, the court of “Original Criminal Jurisdiction” with a large number of powers granted to the courts by the Code, including the powers by “Section 306 to 308”.
Due to the aforementioned grounds, we conclude that the learned Special Court correctly denied the plaintiffs’ plea for overturning the order of pardon. As a result, the appeals were dismissed by the court.
[1]Harshad S. Mehta v/s State of Maharashtra available at: https://www.lawyerservices.in/Harshad-S-Mehta-Versus-State-of-Maharashtra-2001-09-06 (Last Visited on 07-04-2022)
[2] The Special Courts Act, 1979, Act No. 22 of 1979
[3]ibid
[4]Harshad S. Mehta v. State Of Maharashtra Through C.B.I,Available at: https://www.legitquest.com/case/harshad-s-mehta-v-state-of-maharashtra-through-cbi/3ef (Last Visited on 07-04-2022)
[5]Case Anaysis of Harshad Mehta, Available at: https://www.slideshare.net/DharmendraTripathi2/harshad-mehta-vs-state-of-maharashtra-case(Last Visited on 08-04-2022)
[6]Harshad S. Mehta &Ors vs The State Of Maharashtra on 6 September, 2001, available at: https://indiankanoon.org/doc/729673/ (Last visted on 08-04-2022)
[7] Available at: https://www.casemine.com/judgement/in/5609ad9fe4b0149711411e72#29(Last Visited on 09-04-2022)
[8]ibid
