Holding

The Special Court, being a court of original criminal jurisdiction, is deemed to possess all powers of a court under the CrPC, including the substantive power to grant pardon under Sections 306‑308, as the Act does not expressly exclude them.

Summary

The appellants, Harshad S. Mehta and others, sought to revoke conditional pardons granted by the Special Court under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, arguing that the Court lacked jurisdiction to grant pardon because the power under Sections 306 and 307 of the Criminal Procedure Code (CrPC) was not expressly conferred. The State contended that the Act incorporated the provisions of the CrPC by reference and did not exclude the pardon power, making the Special Court a court of original criminal jurisdiction with all CrPC powers. The Supreme Court examined whether the pardon power is a substantive right requiring specific statutory conferment and whether the doctrine of implied repeal applied. It held that the Act does not expressly deny the pardon power and, through harmonious construction and the doctrine of legislation by incorporation, the Special Court is deemed to have all powers of a court under the CrPC, including Sections 306‑308. Consequently, the Special Court’s grant of pardon was within its jurisdiction. The appeals were dismissed.

Issues considered

The Special Court under the 1992 Act has the power to grant pardon under Sections 306, 307 and 308 of the CrPC.
Whether Section 9(2) of the Act incorporates the CrPC provisions, including the pardon power, by reference.
Whether the doctrine of implied repeal applies to exclude the CrPC pardon provisions in favour of the later Act.
Whether the power to grant pardon is a substantive power that must be expressly conferred.
Whether the Special Court can exercise the pardon power at the pre‑cognizance stage without a prior commitment.

Legislation cited

Code of Criminal Procedure, 1973s. 157, s. 306, s. 307, s. 308, s. 4(2), s. 6
Criminal Law Amendment Act, 1952s. 8
General Clauses Acts. 3(32)
Special Courts Act, 1979s. 9
Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992s. 13, s. 6, s. 7, s. 9(1), s. 9(2), s. 9(4)

Subjects

Special CourtPardon powerCriminal Procedure CodeImplied repealStatutory interpretationSubstantive powerOriginal criminal jurisdictionSecurities law

Judgment

HARSHAD S. MEHTA AND ORS. A
v.
THE STATE OF MAHARASHTRA

SEPTEMBER 6, 200 I
.B
[S.P. BHARUCHA, Y.K. SABHARWAL AND BRIJESH KUMAR, JJ]
.....
Code of Criminal Procedure, 1973:

Special Court (Trial of Offences Relating to Transactions in Securities)
Act, 1992-Sections 6.7,9(2) and (4), 13--Code ofCriminal Procedure, 1973- C
Sections 6, 157, 306, 307, and 308-Power ofSpecial Court to grant pardon--'
Held, is a substantive power and not an inherent power-Power to Special
Court not denied either expressly or impliedly under the Act-All proceedings
relating to offences under the Act is committed before the Special Court and
not before criminal courts constituted under Cr PC-Special Court has all the D
powers available to a criminal court-Hence, Special Court has power to
grant pardon at any stage of the proceedings.

Interpretation of Statutes:

Doctrine of implied repeal-Applicability of-Held, there in no E
inconsistency between the provisions ofCrPC and the Act-Hence, the doctrine
is not applicable.

Harmonious Construction-Held, the provisions of the Act and the CrPc
must be harmoniously construed without causing any confasion or resulting
in absurd consequences. Special Court (Trial of Offences Relating for F
Transactions in Securities) Act, 1992--Code of Criminal Procedure, 1973.

Accused P and C filed applications before the Special Court set up under
the Special Court (Trial of Offences Relating to Transactions in Securities)
Act, 1992 for grant _of pardon. The applications were supported by Central
Bureau of Investigation with a view to obtain evidence. The accused earlier G
made statements under Section 164 of the Criminal Procedure Code, 1974
before a Magistrate. The Special Court granted conditional pardon to the
accused. Appellants filed applications before the Special Court seeking
revocation of the pardon granted to the accused on the ground·that the Special
Court had no such power under the Act. The applications were dismissed by H
577
578 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A the Special Court.

In appeal to this Court, the appellants contended that the order of the
Special Court granting pardon is without jurisdiction; that the power to grant
pardon is not inherent power but a substantive power which is not conferred
specifically under the Act; that the power the grant pardon contain in sections
B 306 and 307 CrPC is not applicable to the proceedings before the Special
Court constituted under the Act; that the Legislature deliberately never
intended to confer the power on the Special Court under the Act and which
was specifically conferred under similar earlier enactments like Criminal Law
(Amendment) Act, 1952 (since repealed) and the Special Courts Act, 1979;
C that section 307 CrPC is not applicable since no commitment of the case is
made to the Special Court; that at pre-cognizance stage_, no power of any
nature has been conferred to the Special Court under the Act; that it is only
that court of original jurisdiction, on which special power of pardon is
conferred, can exercise such power; that the Special Court will have the power
to grant pardon only after commitment of the case; that the power is not
D available during investigation of the offence; and that the power contained
in section 308 CrPC to punish the accused for violation of the terms and
conditions of the pardon has not been conferred to the Special Court.

The appellants further contended, the provisions of the Act, which is a
later enactment, impliedly repeals the earlier enactment i.e. CrPC in
E accordance with the max·im leges posteriores priores contertrios abrogant (later
laws abrogate earlier laws); and that the presumption against the implied
repeal stands rebutted as the provisions of the Act are inconsistent with or
repugnant to the provisions of the earlier Acts and that the two cannot stand
together.
F
The respondent-State contended that the earlier enactments referred
to by the appellants are only an external aid for interpretation of the provisions
of the Act; that the scheme of the enactments and the present Act is entirely
different and that the omission of power of granting pardon in the Act does
not mean that the Legislature never intended to confer the power.
G
Dismissing the appeals, the Court

HELD: 1.1. Penal laws require that punishment shall be inflicted on
every person found guilty of an offence under those laws. The grant of pardon
results in the grantee escaping the punishment for the offence. The nature of
H power of pardon under section 306 and 307 CrPC is essentially different than
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA 579

the nature of such power under the Constitution of India whereby the A
President and/or Governor are empowered to grant pardon. Those powers
are exercised after a person is found guilty. Under sections 306 and 307 CrPC,
pardon is tendered during investigation, enquiry or trial. The object is to
obtain evidence of an accomplice so as to facilitate conviction of others. Such
a power has to be conferred specifically. It is a substantive power. The power B
has to be derived from the statutory provisions. Section 306 confers the power
to grant pardon in respect of serious offen~es and on certain class of
Magistrates. From the scheme of the section and having regard to the nature
of the power, power to grant pardon is not an inherent power of a criminal
court and is a substantive power to be specifically conferred. Such a
substantive power does not flow from section 9(4) of the Special Court (Trial C
of Offences Relating to Transactions in Securities) Act, 1992 and to this extent
the Special Court was not right in concluding that section 9(4), on account of
the wide powers it confers, would include amongst others a right on the Special
Court to grant pardon. Section 9(4) does not confer on the Special Court any
such power. Section 9(4) is in the nature of a general provision. It confers
inherent powers on the Special Court to deal with any matter that may be D
brought before it providing that for dealing with such matter the Special Court
may adopt its own procedure consistent with the principles of natural justice.
The conferment of that inherent power does not include the power to grant
pardon, which cannot be said to be a matter of procedure. (590-C-H; 591-Af

1.2. The Act does not contain any independent machinery or provision
E
for the purpose of investigation, enquiry or trial. It has no legs of its own to
stand. It has borrowed the legs from CrPC. The legislative device of
incorporation by reference is well known and duly recognised device. This
device is adopted for the purpose of convenience. It obviates the need to
reproduce the provisions of an existing statute sought to be adopted in a later F
statue. This is what has been done while enacting the Act. Instead of
reproducing the provisions of CrPC, it has incorporated those provisions in

- the Act by so providing in Section 9(2) but at the same time, the Act maintains
its own superiority as stated therein and also in section 13. Neither Section
9(2) nor section of the Act nor any other provision in the Act expressly exclude G
the applicability of sections 306 and 307 CrPC to the proceedings before the
Special Court. [591-C, D, E]

1.3. If powers wider than the one contemplated by CrPC are intended
to be conferred, a provision to that effect will have to be made. It does not
follow therefrom that in an altogether different statute, if no special provision H
580 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A is made, an inference can be drawn that even where the powers under CrPC
and not wide powers are intended to be conferred, save and except where it
is so stated specifically, the effect of omission would be that the Special Court
will not have even similar power as are exercised by the ordinary criminal
courts under CrPC. [601-G, H; 602-A)

B State of Tamil Nadu v. V. Krishnaswami Naidu and Anr., [1979) 3 SCR
928; Lt. Commander Pascal Fernandes v. The State of Maharashtra and Ors.,
[1968) l SCR 695; State Of UP. v. Kai/ash Nath Agarwal and Ors., [1973] l
sec 751, referred to
1.4. The institution of the prosecution as envisaged by section 7 of the
C Act is wider than taking congnizance of or trying of such cases as provided
in section 6. It does not appear from the language of sections 6 and 7 read
with sections 3 and 9 of the Act that at pre cognizance stage all steps including
those of remand, bail are required to be taken before the normal criminal
courts constituted under section 6 CrPC. After the enforcement of the Act,
D the legislature has not intended that in relation to the offences under the Act,
the normal criminal courts should continue to have power at the stage earlier
to taking of cognizance by the Special Court. Further, all such proceedings
including those of remand, bail, production of the accused at pre-cognizance
stage have always been taken before the Special Court and not before criminal
courts constituted under CrPC. A Magistrate has no power to grant pardon
E under Section 306 CrPC to alleged offenders under the Act at any stage of
the proceedings. [604-C-E]

1.5. The Special Court has all the powers of a Court of Session and/or
Magistrate, as the case may be, after the prosecution is instituted or
transferred before that Court. The width of the power of the Special Court
F will be the same whether trying such cases as are instituted before it or
transferred to it. The use of different words in Sections 6 and 7 of the Act
show that the words in section 7 that the prosecution for any offence shall be
instituted only in the Special Court deserve a liberal and wider construction.
They confer on the Special Court all powers of the Magistrate including the
one at the stage of investigation or enquiry. Here, the institution of the
-
G prosecution means taking any steps in respect there of before the Special court.
The scheme of the Act nowhere contemplates that it is was intended that steps
at pre-cognizance stage shall be taken before a court other than a Special
Court. [606-F-H; 607-A)

J.K. Cotton Spinning & Weaving Mills Co. Ltd v. State of UP. and Ors.,
H AIR 1961 SC (1170) Willie (William) Slaney v. State of Madhya Pradesh, AIR
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA 581

(1956) SC 116, referred to. A
1.6. Section 9(1) of the Act provides that the Special Court in the trial ·
of such cases follow the procedure prescribed by CrPC for the trial of warrant
cases before the Magistrate. The expression 'trial' is not defined in the Act or
the CrPC. For the purpose of the Act, it has a wider connotation and also
includes in it the pre-trial stage as well. Section 9(2) makes the Special Court, B
a Court of Session by a fiction by providing that the Special Court shall be
deemed to be a Court of Session and shall have all the powers of a Court of
Session. In case, the Special Court is held not to have the dual capacity and
power both of the Magistrate and the Court of Session, depending upon the
stage of the case, there will be a complete hiatus. The Special court under the C
Act comprises of a High Court Judge and it is a court of exclusive jurisdiction
in respect of any offence as provided section in 3(2) which will include offences
under the Indian Penal Code, Prevention of Corruption Act and other penal
laws. It is only in the event of inconsistency that the provisions of the Act would
prevail as provided in section 13 thereof. Any other interpretation will make
the provision of the Act unworkable which is not the intention of the D
Legislature. Section 9(2) does not exclude sections 306 to 308 CrPC from the
purview of the Act. This section rather provides that the provisions of the
CrPC shall apply to the proceedings before the Special Court. The
inconsistency seems to be only imaginary. There is nothing in the Act to show
that Section 306 to 308 were intended to be excluded from the purview of the E
Act. (607-C-G]

1. 7. The CrPC ·has been incorporated in the Act by application of the
doctrine of legislation by incorporation. The power to grant pardon has not
been denied expressly or by necessary implication. It was not necessary to
make specific provision in the Act conferring power on the Special Court to p
grant pardon at trial or pre-trail stage. The Special Court is a court of original
criminal jurisdiction and has all the powers of such a court under the CrPC
including those of Sections 306 to 308 CrPC, the same not having been
excluded specifically or otherwise. (611-E-F]

A.R. Antulay v. Ramada.s Sriniwas Nayak and Anr., (1984] 2 SCC 500, G
relied on.

l.8. There is no provision in the Act which negates the power of the
Special Court to grant pardon. The Special Court has power to grant pardon
at any stage of the proceedings. The power under Section 307 cannot be denied
merely because no commitment of the case is made to the Special Court. Other H
582 SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A statutes are only an external aid to the interpretation. The scheme of the two
Acts are substantially different. The provisions of Sections 6 and 7 of the Act
confer much wider power. Everything after institution of the prosecution is
required to be done by the Special Court. There is nothing in those provisions
or in section 9 to warrant exclusion of sections 306 to 308 CrPC from the
B purview of the Act. (611-F, G, H; 612-A]

1.9. The fact that there is no commitment to the Special Court only
shows that the section will apply to the extent applicable but that does not
lead to exclusion of the power of the Special Court to grant pardon. Section
6 of the Act doe~ away with the procedure of commitment of a case to the
C Sessions Court. It is the Special Court which is to take cognizance of the cases
instituted before it or transfe11red to it. Another deviation is provided in Section
7 of the Act which stipulates that any prosecution of any offence relating to
transactions in securit1es shall be instituted only in Special Court. Provisions
of the CrPC not inconsistent with the Act shall apply to the proceedings before
the Special Court under Section 9(2) of the Act. (612-F, G, HJ
D
Directorate of Enforcement v. Deepak Mahajan and Anr., (1994) 1 SCR
445 and Harihar Sinha and Ors. v. Emperor, AIR (1936) Calcutta 356 (FB),
referred to.

1.10. The power to tender pardon is not controlled by sub-sections (4)
E or (5) of Section 306 CrPC. These sub-sections deal with the matters pertaining
to post-pardon stage. These provisions only show that where there is no
commitment, sub-section (5) of Section 306 will not apply. But this does not
take away the power of pardon as provided in sub-section (1) of section 306.
It only means that these provisions will apply to the extent applicable.
F (613-A, Bl

2. One of the important tests to determine the issue of implied repeal
would be whether the provisions of the Act are irreconcilably with the
provisions of CrPC; that the two cannot stand together or the intention of
the legislature was only to supplement the provisions of CrPC. This intention
G is to be ascertained from the provisions of the Act. Courts lean against implied
repeal. If, by any fair interpretation, both the statutes can stand together, there
will be no implied repeal. If possible implied repeal should be avoided. The
presumption against the intent to repeal by implication is overthrown if the
new law is inconsistent with or repugnant to the old law, for the inconsistency
or repugnance reveals an intent to repeal the existing laws, Repugnance must
H be such that the two statutes cannot be reconciled on reasonable construction
HARSHAD S. MEHTA v. STA TE OF MAHARASHTRA 583
or hypothesis. They ought to be clearly and manifestly irreconcilable. It is A
possible that the inconsistency may operate on a part of a statute. If the words
are plain and simple and call for only one construction that construction is
to be adopted whatever be its effect. There is no express provision in the Act
excluding therefrom the applicability of Sections 306 and 307 CrPC.
[597-D, E, F; 599-C, E)
B
S.P. Gupta and Ors. etc. etc. v. Union ofIndia and Ors. etc. etc., AIR (1982)
SC 149 (CB); The Commissioner ofSales Tax, UP., Lukhnow v. Mis Parson Tools
and Plants, Kanpur, [1975) 4 SCC 22 and Harcharan Singh v. Smt. Shivrani
and Ors., (1981) 2 SCC 535, referred to.

Lord Howard De Walden v. Inland Revenue Commissioners, [1948) 2 All C
E.R. 825 and Johnson and Anr. v. Moreton, (1978) 3 All E. R. 37, referred to.

Statutory Interpretation by Francis Bennion, (1984) Edition, referred to.

3. The power to tender pard6111 stands alone and others are matter of
procedure. If in a situation, the matters of procedure are not applicable, it D
would not negate the power to grant pardon .. Insofar as procedural matters
are concerned, it would only mean that the same apply to the extent applicable.
Thus it cannot be said that there was any implied repeal. It cannot also be
said that it was intended by necessary implication that the Special Court under
the Act shall not have the power to grant pardon. All Powers of Sections 306 E
to 308 CrPC to the extent applicable and can be complied are available to
the Special Court under the Act. The provision of the Act and the CrPC can
stand together.- There is no inconsistency. The two statutory provisions can
harmoniously operate without causing any confusion or resulting in absurd
consequences and the scheme of CrPC can, without any difficulty, fit in the
scheme of the Act. The jurisdiction to try a case is conferred on the Special F
Court not by committal bnt by the statute which has established that Court.
[616-D, E, F)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 319-
320 of 1996.
G
From ·the Judgment and Order dated 6.2.96 of the Special Court at
Bombay in Misc. Application Nos. 10 and 11 of 1966.

Harish N. Salve, Solicitor General, Rakesh Dwivedi, Jaspal Singh, Ram
Jethmalani, V.G. Pradhan, R.K. Jain, Harish Gulati, Ms. Geetanjali Mohan,
Aron K. Sinha, Rakesh Singh, Ms. Kamini Jaiswal, Mahesh Jethmalani, Ms. H
584 SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A Shomila Bakshi, Rani Jethmalani, Ms. Gouri K. Das, Ms. Susila Ram, A.D.
Chaugule, P.G. Sabnis, Ms. Gitanjali Malviya, Saurabh Avasthi, Pervez A.
Siddiqui Surender Chandra Gupta, A. Subba Rao, R.S. Mhamane, Tara
Chandra Sharma, P. Parmeswaran, Ms. Lata Krishnamurthi, Ms. Sushma
Suri, Ajay Bhalla, P.K. Goswami, P.K. Jain, S.V. Deshpande, Bishwajit
Bhattacharya, Ranjan Mukherjee, Ms. Puja Khatkar for the appearing parties.
B
The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. Criminal Courts are normally constituted under
the provisions of the Criminal Procedure Code. Section 6 of the Code of
Criminal Procedure, 1973 (for short, 'the Code') provides for the classes of
c criminal courts. In addition to the provisions contained in the Code or the old
Code of 1898, from time to time, enactments have been passed providing that
in respect of certain offences, there will be a Special Court manned by persons
having specified qualifications. In the present appeals, we are concerned with
such an enactment, namely. The Special Court (Trial) of Offences Relating
D to Transactions in Securities) Act, 1992 ('the Act' for short). The passing of
the Act was preceded by an Ordinance which was promulgated on 6th June,
1992.

It is an Act to provide for the establishment of a Special Court for the
trial of offences relating to transactions in securities and for matters connected
E therewith or incidental thereto. In the year 1992, large scale irregularities and
malpractices were noticed by the Reserve Bank of India in relation to
transactions in both the Government and other securities, indulged in by
some brokers in collusion with the banks and financial institutions. The said
irregularities and malpractices led to the diversion of funds from banks and
financial institutions to the individual accounts of certain brokers. The Act
F deals with the situation and in particular to ensure speedy recovery of the
huge amount involved, to punish the guilty and restore confidence in and
maintain the basic integrity and credibility of the banks and financial
institutions.

G The Act provides for establishment of Special Court to consist of one
or more sitting Judges of the High Court nominated by the Chief Justice of
the High Court within the local limits of whose jurisdiction the Special Court
is situated, with the concurrence of the Chief Justice of India. 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
H and functions of custodian. Sub-section (2) of Section 3 provides that the
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA [Y.K. SABHARWAL, J.] 585
custodian may, on being satisfied on information received that any person A
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. 'Securities' includes :

(i) shares, scrips, stocks, bonds, debentures, debenture stock, units of
the Unit Trust of India or any other mutual fund or other marketable B
securities of a like nature in or of any incorporated company or other
body corporate:

(ii) Government securities; and

(iii) Rights or interests in securities. c
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 D
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, E
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. As provided in this· provision, the Special Court is deemed to be
a Court of Session. The main bone of contention is the interpretation of
Section 9 which reads as under :
F
"9. Procedure and powers of Special Court.-

(I) The Special Court shall, in the trial of such cases, follow the
procedure prescribed by the Court for the trial of warrant cases before
a magistrate.
G
(2) Save as expressly provided in this Act, the provisions of the Code
shall, insofar as they are not inconsistent with the provisions of th is
Act, apply to the proceedings before the Special Court and for the
purposes of the said provisions of the Code, the Special Court shall
be deemed to be a Court of Session and shall have all the powers of
a Court of Session, and the person conducting a prosecution before H
586 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A the Special Court shall be deemed to be a Public Prosecutor.

(3) The Special Court may pass upon any person convicted by it any
sentence authorized by law for the punishment of the offence of
which such person is convicted.

B (4) While dealing with any other matter brought before it, the Special
Court may adopt such procedure as it may deem fit consistent with
the principles of natural justice."

The Act has an overriding effect as provided in Section 13 which, inter
alia, stipulates that the provisions of the Act shall have effect notwithstanding
C anything inconsistent therewith contained in any other law for the time being
in force. Section 14 is the rule making power of the Central Government.
Section 15 repeals the Ordinance.

The circumstances under which these appeals have come up in brief
are that on 21st June, 1993 two separate applications were filed before the
D Special Court under the provisions of the Code, one by Sarvotham Vishwanath
Prabhu and the other by Bhaskar Roy Choudhury praying for grant of pardon.
These applications were supported by the Central Bureau of Investigation.
Prabhu and Choudhury had earlier made statements under Section 164 of the
Code before the Magistrate. It is claimed that in those statements they
E voluntarily and willingly made full disclosure of their participation in the
offences and also participation of other accused in commission of the offences.
The investigating officer suppo1ting the application for grant of pardon stated
before the Special Court that with a view to obtain the evidence of these two
accused who are directly or indirectly concerned in or privy to offences
which were under investigation, it is necessary and desirable, as well as in
F the interests of justice, that their applications praying for tender of pardon to
them be suppo1ted so that all the facts and circumstances relating to the
commission of offences and also the manner of participation by other accused
may come on record during the trial. The Special Court, by order dated 22nd
June, 1993, granted the application of both the accused on the condition that
G they will give evidence during the trial and make a full and true disclosure
of the whole of the circumstailces within their knowledge relating to the
offence and to other problems. The conditional tender of pardon was accepted
by Prabhu and Chaudhury.

The appellants by applications dated 9th January, 1996 filed before
H the Special Court sought revocation of the pardon. It was pleaded in the
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA [Y.K. SABHARWAL, J.] 587
applications that the pardon granted to Prabhu and Chaudhury was void and A
non-est in the eyes of law mainly on the ground of Jack of jurisdiction of the
Special Court to grant par.don. It was urged that the po'Wer to grant pardon
had to be expressly conferred; there is no inherent power in any court to
grant pardon and that no such power had been conferred on the Special
Court.
B
The applications seeking revocation were dismissed by the Special Court
by order dated 6th February, 1996 holding that the Special Court has the
power to tender pardon. The Special Court rejected the contention that the
orders dated 22nd June, 1993 were without jurisdiction. The legality of the
order dated 6th February, 1996 is in issue before us. C
Chapter XXIV of the Code deals with the general provisions as to
inquiries and trials. Sections 300 to 327 are in this Chapter. Sections 306 and
307 deal with tender of the pardon to accomplice. Section 306 confers power
on Magistrates and Section 307 on the court to which the commitment is
made. Section 308 provides for the consequences of not complying with the D
conditions of pardon by a person who has accepted tender of pardon made
under Section 306 or Section 307. These three sections read as under :

"306. Tender of pardon to accomplice.-(1) With a view to obtaining
the evidence of any person supposed to have been directly or indirectly
concerned in or privy to an offence to which this section applies, the E
Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of
the investigation or inquiry into, or the trial of, the offence, and the
Magistrate of the first class inquiring into or trying the offence, at
. any stage of the inquiry or trial, may tender a pardon to such person
on condition of his making a full and true disclosure of the whole of F
the circumstances within his knowledge relative to the offence and to
every other person concerned, whether as principal or abettor, in the
commission thereof.

(2) This section applies to-
G
(a) any offence triable exclusively by the Court of Session or by the
Court of a Special Judge appointed under the Criminal Law
Amendment Act, 1952 (46 of 1952)

(b) any offence punishable with imprisonment which may extend to
seven years or with a more severe sentence. H
588 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A (3) Every Magistrate who tenders a pardon under sub-section (I)
shall record-

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to
whom it was made, and shall, on application made by the accused,
B furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section
(I)-

(a) shall be examined as a witness in the Court of the Magistrate
C taking cognizance of the offence and in the subsequent trial, if
any;

(b) shall, unless he is already on bail, be detained in custody until
the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-
D
section (I) and has been examined under sub-section (4), the Magistrate
taking cognizance of the offence shall, without making any further
inquiry in the case,-

(a) commit it for trial-

E (i) to the Court of Session if the offence is triable exclusively
by that Court or if the Magistrate taking cognizance is the
Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the Criminal
Law Amendment Act 1952 (46 of 1952), if the offence is
F triable exclusively by that Court;

(b) in any other case, make over the case to the Chief Judicial
Magistrate who shall try the case himself.

307. Power to direct tender of pardon.-At any time after commitment
G of a case but before judgment is passed, the Court to which the
commitment is made may, with a view to obtaining at the trial the
evidence of any person supposed to have been directly or indirectly
concerned in, or privy to, any such offence, tender a pardon on the
same condition to such person.

H 308. Trial of person not complying with conditions of pardon.-( 1)
HARSHAD S. MEHTA 1•. STATEO~ MAHARASllTRA IY K. SAIJHARWAL, J.l 589

Where, in regard to a person who has accepted a tender of pardon A
made under Section 306 or section 307, the Public Pr.osecutor certifies
that in his opinion such person has, either by wilfully concealing
anything essential or by giving false evidence. not complied with the
condition on which the tender was made, such person may be tried
for the offence in respect of which the pardon was so tendered or for
any other offence of which he appears to have been guilty in B
connection with the same matter, and also for the offence of giving
false evidence :
I
Provided that such person shall not be tried jointly with any of
the other accused:
c
Provided further that such person shall not be tried for the offence
of giving false evidence except with the sanction of the High Court,
and nothing contained in section 195 or section 340 shall apply to that
offence.

(2) Any statement made by such person accepting the tender of D
pardon and recorded by a Magistrate under section 164 or by a Court
under sub-section ( 4) of section 306 may be given in evidence against
him at such trial.

(3) At such trial, the accused shall be entitled to plead that he has
complied with the condition upon which such tender was made, in E
which case it shall be for the prosecution to prove that the condition
has not been complied with.

(4) At such trial the Court shall-

(a) If it is a Court of Session, before the charge is read out and F
explained to the accused;
(b) if it is the Court of a Magistrate before the evidence of the
witnesses for the prosecution is taken, ask the accused whether
he pleads that he has complied with the conditions on which the
tender of pardon was made. G
(5) If the accused does so plead, the Court shall record the plea and
proceed with the trial and it shall, before passing judgment in the
case, find whether or not the accused has complied with the conditions
of the pardon, and, if it finds that he has so complied, it shall
notwithstanding anything contained in this Code, pass judgment of H
590 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A acquittal."

The question for determination is whether the pardon prov1s1on as
contained in Sections 306 and 307 of the Code apply or not to the proceedings
before the Special Court under the Act. We were also told that in Criminal
Appeal No. I097 of 1999 Ram Narain Pop~v v. Cei7/ral Bureau of Investigation
B one of the questions is as to the power of a Magistrate to grant pardon to
a person accused of an offence that falls within the purview of the Act.
Counsel were given the opportunity to address arguments on this question
as well.

To answer the question, it is necessary to closely scrutinise and consider
C the provisions of the Act, the Code and other enactments relied upon by
Mr.Jethmalani and the effect of the said enactments on the interpretation of
the provisions of the Act.

Penal laws require that the punishment shall be inflicted on every
D person found guilty of an offence under those laws. The grant of pardon
results in the grantee escaping the punishment for the offence. The nature
of power of pardon under Sections 306 and '307 is essentially different than
the nature of such power under the Constitution of India whereby the President
and/or Governor are empowered to grant pardon. Those powers are exercised
after a person is found guilty. That is not so here. Under Sections 306 and
E 307, the pardon is tendered during the investigation, enquiry or trial, as the
case may be. The object is to obtain evidence of an accomplice so as to
facilitate conviction of others. Undoubtedly, as contended by Mr.Jethmalani,
such a power has to be conferred specifically. It is a substantive power. The
power has to be derived from the statutory provisions. Section 306 confers
the power to grant pardon in respect of serious offences and on certain class
F of Magistrate. From the scheme of the section and having regard to the nature
of the power, we find that Mr. Jethmalani is right in contending that the power
to grant pardon is not an inherent power of a criminal court and is a substantive
power to be specifically conferred. It, therefore, follows that such a substantive
power does not flow from Section 9(4) of the Act and to this extent the
G learned Special Cou11 was not right in concluding that Section 9(4), on
account of the wide powers it confers, would include amongst others a right
on the Special Court to grant pardon. Section 9(4) of the Act does not confer
on the Special Com1 any such power. Section 9(4) is in the nature ofa general
provision. It confers inherent powers on the Special Court to deal with any
matter that may be brought before it providing that for dealing with such a
H matter the Special Court may adopt its own procedure consistent with the
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA (Y.K. SABHARWAL, J.] 591

principles of natural justice. Sections 3 and 4 of the Act show that variety A
of matters could corrie up before the Special Court for its consideration and
for dealing with those matters, the Special Court was empowered to regulate
its own procedure consistent with the principles of natural justice. The
conferment of that inhere~t power does not include the power to grant
pardon, which cannot be said to be a matter of procedure ..
B
Our view in respect of Section 9(4), however, does not conclude the
matter for that the main question is about the interpretation of Section 9(2)
of the Act. Does it exclude the applicability of Sections 306 and 307 while
making applicable the provisions of the Code to the proceedings before the
Special Court, is the real question. C
The Act contains fifteen sections. Most of these have already been
noticed by us hereinbefore; It is evident therefrom that the Act does not
contain any independent machinery or· provision for the purpose of
investigation, enquiry or trial. For these matters it has no legs of its own to
stand. It has borrowed the legs from the Code. The legislative device of D
incorporation by reference is well known and duly recognised device. This
device is adopted for the purpose of convenience. It obviates the need to
reproduce the provisions of an existing statute sought to be adopted in a later
statute. This is what has been done while enacting the Act. Instead of
reproducing the provisions of the Code, it has incorporated those provisions
in the Act by so providing in Section 9(2) but at the same time, the Act E
maintaining its own superiority as stated therein and also in Section 13.

Neither Section 9(2) nor Section 13 nor any other provision in the Act
expressly exclude the applicability of Sections 306 and 307 to the proceedings
before the Special Court. Whether it is so excluded by necessary implication F
is an aspect which needs serious consideration.

Mr. Jethmalani, learned counsel appearing for the appellant, contends
that Sections 306 and 307 have not been extended to the Special Court under
the Act. It is contended that the Speeial Court is not a clas.s of a court
enumerated in sub-section (I) of ~ection 306 or a court as contemplated by G
Section 307 to which commitment is made. Therefore, the contention is that
neither Section 306 nor Section 307' is applicable to the proceedings before
the Special Court under the Act and· hence that court has no power or
jurisdiction to tender pardon. Learned counsel further contends that it was
a matter of policy for the law makers to confer or not upon the Special Court
H
592 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A such a power and in their wisdom, probably considering the gravity of the
offence and situation with which the country was confronted, it took a policy
decision not to confer power of pardon so that no one should escape
punishment and every accused is equally treated. Learned counsel contends
that this course was adopted by the legislature despite the fact that law
makers were fully conscious that in all similar earlier enactments power to
-
B grant pardon was specifically conferred by insertion of specific provision to
that effect while passing law establishing Special Court. While enacting the
Act the provision conferring power to grant pardon was deliberately omitted
and this almost conclusively shows that such power was not intended to be
conferred, is the submission of Mr.Jethmalani.
c Reference has been made by learned counsel, in particular, to Section
8 of the Criminal Law (Amendment) Act, 1952 (for short, 'the 1952 Act'). That
Act has since been repealed by the Prevention of Corruption Act, 1988. It
would be convenient to reproduce Section 8. It reads as under:

"8. Procedure and Powers of Special Judges.-( I) A Special Judge may
D
take cognizances of offence without the accused being committed to
him for trial, and in trying the accused persons, shall follow the
procedure prescribed by the Code of Criminal Procedure, 1898 (5 of
1898) for the trial of warrant cases by Magistrate

E (2) A Special Judge may, with a view to obtaining the evidence of any
person supposed to have been directly or indirectly concerned in, or
privy to, an offence, tender a pardon to such person on condition of
his making a full and true disclosure of the whole circumstances
within his knowledge relating to the offence and to every other person
concerned whether as principal or abettor, in the commission thereof;
F and any person so tendered shall, for the purposes of Secs. 339 and
339-A of the Code of Criminal Procedure 1898 (5of1898) be deemed
to have been tendered under Section 338 of that Code.

(3) Save as provided in sub-section (I) or sub-section (2), the
provisions of the Code of Criminal Procedure, 1898 (5of1898) shall,
G so far as they are not inconsistent with this Act, apply to the
proceedings before a Spei;ial Judge; and for the purposes of the said
provisions, the Court of the Special Judge shall be deemed to be a
Court of Session trying cases without a jury or without the aid of
assessors and the person conducting a prosecution before a Special
H Judge shall be deemed to be a public prosecutor.
HARSHAD S. MEHTA v. STATEOFMAHARASHTRA[Y.K. SABHARWAL, l] 593

(3-A)In particular, and without prejudice to the generality of the A
provisions contained in sub-section (3), the provisions of Sections
350 and 549 of the Code of Criminal Procedure, 1898, (5of1898), shall,

- so far as may be, apply to the proceedings before a special Judge, and
for the purposes of the said provisions of Special Judge shall be
deemed to be a Magistrate.

(4) A special Judge may pass upon any person convicted by him any
B

sentence authorized by law for the punishment of the offence of
which such person is convicted."

Mr. Jethmalani contends that for all intents and purposes, the aforesaid C
provisions have been repeated while enacting Section 9 of the Act but by not
providing in Section 9 a provision similar to abovesaid Section 8(2) conferring
on the Special Court under the Act power to grant pardon almost conclusively
shows the legislative intendment of not conferring power of pardon on the
Special Court. This omission, according to learned counsel, provide a complete
answer to the question. Our attention has also been drawn to the Special D
Courts Act, 1979. Section 9 thereof provides for procedure and powers of the
Special Courts established under the said Act. It confers on the Special Court
power to tender pardon as stipulated in sub-section (2) of Section 9 of that
Act which is similar to Section 8(2) of the 1952 Act.

Mr. Jethmalani contends that a plain reading of the provisions of Sections E
306 and 307 shows that these provisions do not fit in the scheme of the Act
and thus cannot apply to the Special Court under the Act. The Special Court,
consisting of a Judge of the High Court, is not a Magistrate falling in any
of the category of the Magistrates enumerated by sub-section (I) of Section
306, is the contention of the learned counsel. Further the contention is that F
Section 307 is also not applicable since the case is not committed to the
Special Court and Section 307 can apply where commitment of a case is made
and is available only to a court to which the commitment is made. The
submission is that the Act does not postulate any commitment to be made
to the Special Court for it provides for the institution of or transfer of a case
before the Special Court and institution of any prosecution in respect of any G
offence referred to in Section 3(2) only in the Special Court (Sections 6 and
7).

We have no difficulty in accepting the contention that the Special
Court, per se, is not a Magistrate falling in any of the categories of Magistrates
as enumerated in Section 306(1) and also that it is not a court to which the H
594 SUPREME COURT REPORTS [2001) SUPP. 2 S.CK

A commitment of a case is made. But, it does not necessarily follow therefrom
that the power to tender pardon under Sections 306 and 307 has not been
conferred on the Special Court.

B
The Special Court may not be a criminal court as postulated by Section
6 of the Code. All the same, it is a criminal court of original jurisdiction. On
this count the doubt, if any, stands resolved by the decision of Constitution
-
Bench of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak and Anr.
[1984] 2 SCC 500. In Antulay's case the Constitution Bench said that shorn
of all embellishment, the Special Court is a court of original criminal jurisdiction
and to make it functionally oriented some powers were conferred by the
C statute setting it up and except those specifically conferred and specifically
denied, it has to function as a court of original criminal jurisdiction not being
hide bound by the terminological status description of Magistrates or a Court
of Session. Under the Code, it will enjoy all powers which a court of original
criminal jurisdiction enjoys save and except the ones specifically denied.

D Therefore, let us see whether the power to grant pardon has been
specifically denied to the Special Court established by the Act.

In support of the contention that the Special Court has no power to
tender pardon in the absence of specific provision to that effect in the Act,
strong reliance has been placed by Mr. Jethmalani on the decision of this
E Court in Lt. Commander Pascal Fernandes v. The State of Maharashtra and
Ors., [1968] I SCR 695. The relevant passage reads thus:

"Before we discuss the validity or propriety of the tender of pardon
to Jagasia we shall refer briefly to the statutory provisions on the
subject of the tender of pardon. The topic of tender of pardon to an
F accomplice is treated in the twenty-fourth chapter of the Code as part
of the general provisions as to inquiries and trials. Sections 337 to 339
and 339-A contain all the provisions which refer to courts of criminal
jurisdiction established under the Code. The Special Judge created
under the Criminal Law Amendment Act, 1952 (Act 46 of 1952) is not
one of them. For the cases triable by Special Judges under the Criminal
G
Law Amendment Act a special provision is to be found in s.8(2) of
that Act, for tender of pardon to an accomplice, as part of the
procedure and powers of Special Judges. The section is set out below.
The second sub-section necessarily differs in some respects from the
provisions of the Code because the procedure of trial before the
H Special Judge is different, but on the tender of pardon by the Special
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA [YK. SABHARWAL, J.] 595

Judge the provisions of ss. 339 and 339A of the Code apply. The A
tender of pardon by the Special Judge is deemed by fiction to be one
tendered under s.338 of the Code for purposes of sections 339 and
339A."

Reliance has also been placed by Mr. Jethmalani on State o/Tamil Nadu
v. V. Krishnnaswami Naidu and Anr., (1979) 3 SCR 928. The passage relied B
upon by the learned counsel reads thus:

"It may be noted that the Special Judge is not a Sessions Judge,
Additional Sessions Judge or an Assistant Sessions Judge under the
Code of Criminal Procedure though no person can be appointed as a
Special Judge unless he is or has been either a Sessions Judge or an C
Additional Sessions Judge or an Assistant Sessions Judge. The Special
Judge is empowered to take cognizances of the offences without the
accused being committed to him for trial. The jurisdiction to try the
offence by a Sessions Judge is only after committal to him. Further
the Sessions Judge does not follow the procedure for the trial of D
warrant cases by Magistrates. The Special Judge is deemed to be a
Court of Sessions only for certain purposes as mentioned in Section
8(3) of the Act while the first part of sub-section (3) provides that
except as provided in sub-sections (I) and (2) of Section 8 the
provisions of the Code of Criminal Procedure, 1898 shall so far as they
are not inconsistent with this Act, apply to the proceedings before E
the Special Judge. The sub-section further provides that 'for the
purpose of the said provisions, the Court of the Special Judge shall
be deemed to be a Court of session trying cases without a jury or
without the aid of assessors and the person conducting a prosecution
before a special judge shall be deemed to be a public prosecutor'. The
F
deemed provisions has to be confined for the purposes mentioned in
the sub-section. Section 8(2) enables the Special Judge to tender a
pardon to a person with a view to obtaining evidence supposed to
have been concerned for the commission of an offence and the pardon
so tendered was for the purposes of Section 339 and 339(a) of the
Code of Criminal Procedure, 1898. This sub-section was enacted G
because Special Judge not being a Court to which a commitment has
been made cannot tender pardon under the provisions of Section 338
and so this section is introduced to enable the Special Judge to tender
a pardon. Sub-section 3(a) has made the provisions of section 350 and
549 applicable to proceedings before a Special Judge and for the
H·
596 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A purposes of the said provisions a Special Judge shall be deemed to
be a Magistrate. Section 350 of the Code of Criminal Procedure enables
a succeeding Special Judge to act on the evidence recorded by his
predecessor or partly recorded by his predecessor and partly recorded
by himself. Section 549 empowers a Magistrate when any person is
brought before him charged with an offence for which he is liable to
B be tried by a Court to which this Court applies or by a Court-martial,
the Magistrate shall deliver him to the Commanding Officer of the
Regiment for the purpose of being tried by the Court-martial. This
provision also is made specifically applicable to the Special Judge.
Section 8(A) empowers the Special Judge to try certain offences in a
c summary way and the provisions of section 262 to 265 of the Criminal
Procedure Code is made applicable so far as they may apply."

The contention of learned counsel is that in the case in hand the Act
does not postulate commitment of the case being made to the Special Court
and no provision having been inserted in the Act to empower Special Court
D to tender µardon, the impugned order granting pardon is without jurisdiction.

Mr. Jethmalani further contends that simply to confer on the Special
Court the power to tender pardon by itself is not enough without conferring
on it the power to punish the person who accepts tender of pardon in case
of violation by him of terms and conditions on which the pardon is tendered.
E The submission is that a reading of the provisions of the Act clearly shows
that the power as contained in Section 308 of the Code to punish the accomplice
for violation of the tenns and conditions of the pardon has not been conferred
on the Special Court and, therefore, it is evident that the power to tender
pardon has also not been conferred on that court.
F
Counsel submits that for deciding these matters the paramount question
one is required to ask himself is why provisions similar to the one in 1952 Act
and other such enactments conferring specific power to grant pardon and to
inflict punishment in the event of violation of the terms and conditions of the
pardon were omitted from the Act. The obvious and the only answer of the
G question, according to learned counsel, is that the intention of the legislature
was not to confer the power of pardon on the Special Court and any other
interpretation will defeat that intention of the legislature.

Mr. Jethmalani also sought to invoke the doctrine of implied repeal.
Pointing out that the Code is a general law and the Act - a special later
H enactment, Section 13 whereof shows its predominance and superiority, this
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA [Y.K. SABHARWAL, J.] 597

Court should not have any reluctance to accept the applicability of doctrine A
of implied repeal in these matters, was the submission of learned counsel
though he, very fairly and rightly, conceded that there is a presumption
against a repeal by implication.

The reason for the presumption as aforesaid is that the legislature
while enacting a law has a complete knowledge of the existing laws on the B
subject matter and, therefore, when it does not provide a repealing provision,
it gives out an intention not to repeal the existing legislation. The burden to
show that there has been a repeal by implication lies on the party asserting
it. Relying upon statutory interpretation by Francis Bennion (I 984 Edition),
counsel contends that where, as in the present case, the provisions of the C
later enactment (the Act) are contrary to those of the earlier (the Code), the
later by implication repeals the earlier in accordance with the maxim leges
posteriores priores contrerios abrogant (later laws abrogate earlier contrary
laws). This is, however, subject to the exception embodied in the maxim
generatia specialitous non derogant (a general provision does not derogate
from a special one). D
One of the important tests to determine the issue of implied repeal
would be whether the provisions of the Act are irreconcilably inconsistent
with those of the Code that the two cannot stand together or the intention
of the legislature was only to supplement the provisions of the Code. This
intention is to be ascertained from the provisions of the Act. Courts lean E
against implied repeal. If by any fair interpretation both the statutes can stand
together, there will be no implied repeal. If possible implied repeal shall be
avoided. It is, however, correct that the presumption against the intent to
repeal by implication is overthrown if the new law is inconsistent with or
repugnant to the old law, for the inconsistency or repugnancy reveals an p
intent to repeal the existing laws. Repugnancy must be such that the two
statutes cannot be reconciled on reasonable construction or hypothesis.
They ought to be clearly and manifestly irreconcilable. It is possible, as
contended by Mr.Jethmalani, that the inconsistency may operate on a part of
a statute. Learned counsel submits that in the present case the presumption
against implied repeal stands rebutted as the provisions of the Act are so G
inconsistent with or repugnant to the provisions of the earlier Acts that the
two cannot stand together. The contention is that the provisions of Sections
306 and 307 cannot be complied with by the Special Court and thus the
legislature while enacting the Act clearly intended that the said existing
provisions of the Code would not apply the proceedings under the Act. H
598 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A Learned counsel contends that this court will not construe the Act in a
manner which will make Sections 306 and 307 or at least part of the said
sections otiose and thereby defeat the legislative intendment whatever be the
consequences of such an interpretation.

The contention further is that the deficiency in the Act, if any, cannot
B be provided by the court particularly when the language is plain and simple
and the assumed gaps cannot be filled by the Court and that the wilful
omission made by the legislature has to be respected by the court. On the
legislature wilfully omitting to incorporate something of an analogous law in
a subsequent statute, or even if there is a casus omissus in a statute, the
C language of which is otherwise plain and unambiguous, the court is not
competent to supply the omission under the guise of interpretation by analogy
of implication, something what it thinks to be a general principle of justice and
equity, reliance has been placed upon The Commissioner of Sales Tax, U.P.,
Lucknow v. MIS. Parson Tools and Plants, Kanpur, [1975] 4 SCC 22, Lord
Howard De Walden. v. Inland Revenue Commissioners, (1948) 2 All E.R. 825,
D Johnson and Anr. v. Moreton (1978) 3 All E.R. 37 and Harcharan Singh v.
Smt. Shivrani and Ors., [1981] 2 SCC 535. The contention is that any
interpretation by this court other than the one propounded would be
entrenching upon the power o.f legislature. On the principles of interpretation
on detail consideration of various decisions of this court and courts of other
E countries, in S.P. Gupta and Ors. etc. etc. v. Union ofIndia and Ors. etc. etc.,
AIR (1982) SC 149; a Bench of seven judges said:

"But there is one principle on which there is complete unanimity of
all the courts in the world and this is that where the words or the
language used in a statute are clear and cloudless, plain, simple and
explicit unclouded and unobscured, intelligible and pointed so as to
F
admit of no ambiguity, vagueness, uncertainty or equivocation, there
is absolutely no room for deriving support from external aids. In such
cases, the statute should be interpreted on the face of the language
itself without adding, subtracting or omitting words therefrom (para
197).
G
Where, however, the words or expressions used in the
constitutional or statutory provisions are shrouded in mystery, clouded
with ambiguity and are unclear and unintelligible so that the dominant
object and spirit of the legislature cannot be spelt out from the
language, external aids in. the nature of parliamentary debates,
H immediately preceding the passing of the statute the report of the
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA [Y.K. SABHARWAL, J.] 599

Select Committees or its Chairman, the Statement of Objects and A
Reasons of the statute, if any, or any statement made by the sponsor
of the statute which is in .close proximity to the actual introduction
or insertion of the statutory provision so as the become, as it were,
a result of the statement made, can be pressed into service in order
to ascertain the real purport, intent and will of the legislature to make B
the constitutional provision workable. We might make it clear that
such aids may neither be decisive nor conclusive but they would
certainly assist the courts in interpreting the statute in order to
determine the avowed object of the Act or the Constitution as the
case may be. (para 271 (2)."

On the principles of interpretation, we have no difficulty in accepting
c
the contentions of Mr. Jethamlani but the question is about the applicability
thereof.

There is no doubt that ifthe words are plain and simple and call for only
one construction that construction is to be adopted whatever be its effect. D
The question in the present case, however, is can it be said from the plain
language of the Act that the power to grant pardon has been excluded from
the purview of the Special Court, either expressly or by necessary implication
by not incorporating in Section 9 of the Act a provision similar to Section 8(2)
of the 1952 Act.
E
There cannot be any controversy that there is no express provision in
the Act excluding therefrom the applicability of Sections 306 and 307 of the
Code. Can it be said to be so, by necessary implication is what we have to
determine.

The cases (Fernandes and Krishnnaswami Naidu) relied upon by Mr. F
Jethmalani, it has to be borne in mind, relate to the interpretation of the
provision relating to grant of pardon as they existed in the Code of 1898. This
Court, however, is concerned with the provisions in 1973 Code. There is a
departure in the language of the provisions of Sections 306 to 308 of the Code
on one hand and Section 337 to 339 of 1898 Code on the other. Furtl:er the G
legal position has undergone a substantial change after the decision in the
case of A.R. Antulay which aspect we will advert to little later.

Let us first examine the Fernandes 's case, At this stage we may note
some of the significant departure in the relevant provisions of old Code and
the Code. Under the old Code (Section 338), after commitment, the court to H
600 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A which commitment is made could either tender pardon itself or order the
committing Magistrate or the District Magistrate to so do. Now under Section
307, there is no power to so order the committing Magistrate. In the old Code,
the Court of Session and that of the Magistrate had concurrent jurisdiction ·
to grant pardon seems evident. In State of UP. v. Kai/ash Nath Agarwal &
Ors. [1973] I SCC 751 the question for consideration was whether a District
B Magistrate is competent under Section 337 of the old Code to exercise.power
of pardon even after commitment and the conferment of the power to grant
pardon on the Special Judge under Section 338. It was held that Section 338
does not deprive the District Magistrate of his power to grant pardon under
Section 337 of the old Code. This Court said that even after commitment, a
C District Magistrate will have power to grant pardon, though it was necessary
to bear in mind that the authorities under Sections 337 and 338 have to
exercise jurisdiction in harmony in order to further the interest of justice and
avoid conflicting orders being passed. This decision also takes note of other
provision of the old Code which provide for exercise of conferment of
D concurrent powers and when the Legislature intended that the two authorities
should not exercise concurrent jurisdiction on an identical matter, it used
appropriate language to that effect. Now, the facts in brief of Fernandes's case
are that grant of pardon to one J agasia was opposed by his co-accused, the
objection besides others being that powers of the Special Judge in tendering
conditional pardon under Section 8(2) of 1952 Act, are limited to application
E by the prosecution in that behalf and the Special Judge cannot act suo motu
without being invited by the prosecution to consider the tender of pardon to
one of the accused before him. This Court upholding the order of the High
Court dismissing the revision petition of the co-accused challenging the order
granting pardon to Jagasia, noticed that before the High Court the prosecution
had supported grant of pardon to him. That decision brings out the width of
F power under Section 8(2) of the 1952 Act and the width of the power to direct
tender of pardon under Section 338 of the 1898 Code. It was held that the
fiction in latter part of Section 8(2) providing that pardon sought under law
for the purposes of Sections 339 and 339A of the 1898 Code be deem~d to
have been tendered under Section 338 of that Code is only that the tender
G of pardon is deemed to be one under Section 338 for purposes of applying
Sections 339 and 339A. The whole of Section 338 is not applicable. The power
to order the committing Magistrate or the District Magistrate to tender pardon
is not available to the Special Judge because the fiction does not cover that
part of Section 338. After noticing the distinction between the powers granted
under the Code and the powers under the 1952 Act to tender pardon, it was
H held that the conditions for exercise of the power by the Courts under the
HA RS HAD S. MEHTA v. STA TE OF MAHARASHTRA [Y.K. SABHARWAL, J.) 601
1898 Code are not applicable when the Special Judge exercises that power A
whose powers are not circumscribed by any condition except one, namely,
that action must be with a view to obtaining the evidence of any person
supposed to have been directly or indirectly concerned in or privy to an
offence. The powers under the 1952 Act were held to be enabling and wide
enough to enable the Special Judge to tender a pardon to any person who B
is supposed to have been directly or indirectly concerned in or. privy to an
offence even when such a person is not arraigned before the Special Court.
There was distinction in exercise of the power under the two provisions which
were under consideration before the Special Court which is evident from the
following:

"It follows that the powers of the Special Judge are not circumscribed
c
by atty condition except one, namely, that the action must be with a
view to obtaining the evidence of any person supposed to have been
directly or indirectly concerned in, or privy to an offence. The pardon
so tendered is also on condition of his making a full and true disclosure
of the whole circumstances within his knowledge relating to the offence D
and to every other person concerned, whether as principal or abettor.
The disclosure must be complete as to himself and as to any other
person concerned as principal or abettor. There is no provision for the
recording of reasons for so doing, nor is the Special Judge required
to furnish a copy to the accused. There is no provision for recording E
a preliminary statement of the person.

There can be no doubt that the section is enabling and its terms
are wide enough to enable the Special Judge to tender a pardon to
any person who is supposed to have been directly or indirectly
concerned in, or privy to an offence. This must necessarily include a F
person arraigned before him. But it may be possible to tender pardon
to a person not so arraigned. The power so conferred can also be
exercised at any time after the case is received for trial and before its
conclusion. There is nothing in the language of the section to show
that the Special Judge must be moved by the prosecution. He may
consider an offer by an accused as in this case. The action, therefore, G
was not outside the jurisdiction of the Special Judge in this case."

It is understandable that if powers wider than the one contemplated by
the Code are intended to be conferred, a provision to that effect will have to
be inade. It does not follow therefrom that in an altogether different statute,
if no special provision is made, an inference can be drawn that even where H
602 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A the powers under the Code and not wide powers were intended to be conferred,
save and except where it is so stated specifically, the effect of omission would
be that the Special Court will not have even similar power as are exercised
by the ordinary criminal courts under the Code.

Similarly, the observations made in the earlier reproduced passage in
B Krishnnaswami Naidu's case have also to be appreciated in the context of
what we have said above regarding the conferment of wider power than the
Code under the 1952 Act. It is in this context that the observations were made
in that case to the effect that "This sub-section was enacted because the
Special Judge not being a court to which a commitment has been made cannot
C tender pardon under the provisions of Section 338 and so this sub-section
is introduced to enable the Special Judge to tender a pardon". These
observations do not mean that if same powers as are in Code are intended
to be conferred, that cannot be achieved by sub-section (2) of Section 9 of
the Act. Legislature inserted Section 8(2) since wider powers were to be
conferred on the Special Judge under 1952 Act.
D
There is also another aspect of Krishnnaswami Naidu 's case and that
is in relation to Section 167 of the Code. In that case while noticing that
Section 167 of the Code requires that whenever any person is arrested and
detained in custody and when it appears that the investigation cannot be
completed within a period of 24 hours, the Police Officer is required to forward
E the accused to the Magistrate and if the Magistrate to whom the accused is
forwarded is not the Magistrate having jurisdiction to try the case, he may
authorize the detention of the accused in such custody as he thinks fit for
a term not exceeding 15 days on the whole. If he has no jurisdiction to try
the case and if he considers that the further detention is necessary, he may
F order the accused to be forwarded to any Magistrate having jurisdiction who
may authorize detention of the kind provided beyond period of 15 days but
for a total period not exceeding 60 days. The accused in that case were
produced before the Special Judge who had the jurisdiction to try the case.
The contention which found favour with the High Court was that the words
'Magistrate having jurisdiction' cannot apply to a Special Judge having
G jurisdiction to try the case. It was held in this case that no doubt the word
'Special Judge, is not mentioned in Section 167 but the question is whether
that would exclude the Special Judge from being a Magistrate having
jurisdiction to try the case. On examining vari0us provisions of the Code
including Section 193 thereof, it was held that in taking cognizance of an
H offence without the accused being committed to him, he is not a Sessions
HARSHADS. MEHTA v. STATEOFMAHARASHTRA[Y.K. SABHARWAL,J.) 603

Judge for Section 193 of the Code provides that no Court of Sessions Judge A
shall take cognizance for any offence as a court of original jurisdiction unless
the case has been committed to it by a Magistrate under the Code and strictly

- he is not a Sessions Judge for no Session Judge can take a cognizance as
a Court of Session without committal. Referring to the Criminal Law
(Amendment) Act, it was held that the provisions of the Code are not excluded B
unless they are inconsistent with the Criminal Law (Amendment) Act and,
thus, read there could be no difficulty in coming to the conclusion that the
Code is applicable when there is no conflict with the provisions of Criminal
Law (Amendment) Act. The Court said that "if a Special Judge who is
empowered to take cognizance without committal is not empowered to
exercise powers of remanding an accused person produced before him or C
release him on bail it will lead to an anomalous situation" (Emphasis
supplied). The contention urged by Mr. Jethmalani that at pre-cognizance
stage Special Court under the Act has no jurisdiction clearly runs contrary
to the aforesaid dictum. The Court in that case further went on to explain the
anomaly. It was said that to hold that a Magistrate other than a Magistrate
having jurisdiction cannot keep hitll in custody for more than 15 days and D
after the expiry of the period if the Magistrate having jurisdiction to try the
case does not include the Special Judge, it would mean that he would have
no authority to extend the period of remand or to release him on bail. Further
if the Special Judge is not held to be a Magistrate having jurisdiction, a
charge sheet under Section 173 cannot be submitted to him. Referring to E
clause (32) of Section 3 of the General Clauses Act and Section 3 of the Code,
it was held that there can be no difficulty in construing the Spedal Judge as
a Magistrate for the purpose of Section 167 and, thus, rejecting the contention
and reversing the arguments which weighed with the High Court that the
words "Magistrate having jurisdiction" cannot apply to a Special Judge
having jurisdiction to try the case, this Court held: F
"It is relevant to note that the General Clauses Act Section 3(32)
. defines a Magistrate as including every person exercising all or any
of the powers of a Magistrate under the Code of Criminal Procedure
for the time being in force. Section 3 of the Criminal Procedure Code G
provides that any reference without any qualifying words, to a
Magistrate, shall be construed, unless the context otherwise requires
in the manner stated in the sub-sections. If the context otherwise
requires the word 'Magistrate' may include Magistrates who are not
specified in the Section. Read along with the definition of the
Magistrate in the General Clauses Act there can be no difficulty in H
A
604 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

construing the Special Judge as a Magistrate for the purposes of
-
Section 167."

MR. Jethmalani, of course, contends that to the aforesaid extent,
Krishnnaswami Naidu 's case is not correctly decided. We are unable to
accept the contention.
-
B
Mr. Jethmalani also contends that at pre-cognizance stage no power of
any nature has been conferred on the Special Court under the Act and this,
counsel says is clear from the language of Sections 6 and 7 of the Act. It,
however, needs to be noticed that while Section 6 uses the expression 'case'
in the context of Special Court taking cognizance or trying 'such cases' as
c instituted before it or transferred to it as provided therein, on the other hand,
Section 7 uses the expression 'prosecution' in the context of institution
thereof in respect of any offence referred to in sub-section (2) of Section 3
of the Act or transfer of any pending 'prosecution'. In the present context,
the institution of the prosecution as envisaged by Section 7, is wider than
the taking cognizance of or trying of such cases as provided in Section 6. It
D
does not appear from the language of Sections 6 and 7 read with Sections
3 and 9 that at pre-cognizance stage all steps including those of remand, bail
are required to be taken before the normal criminal courts constituted under
Section 6 of the Code. It does not seem that after the enforcement of the Act,
the legislature intended that in relation to the offences under the Act, the
E normal criminal courts should continue to have power at the stage earlier to
taking of cognizance by the Special Court. Further, admittedly in practice, all
such proceedings including those of remand, bail, production of the accused
at pre-cognizance stage have always been taken before the Special Court and
not before criminal courts constituted under the Code. It also does not appear
that a Magistrate has a power to grant pardon under Section 306 to alleged
F ;-
offenders under the Act at any stage of the proceedings.

Mr. Jethmalani does not dispute that Special Court constituted under
the Act is a court of original criminal jurisdiction (Antulay 's case). Mr.
Jethmalani, however, submits that it is only that court of original criminal
G jurisdiction on which special which of pardon is conferred that can exercise
such a power or it can be exercised by the normal criminal courts constituted
under Section 6 of the Code and no other court of original criminal jurisdiction.
Such a power was conferred on court of original criminal jurisdiction with
which this Court was concerned in Antulay 's case and has not been conferred
on the court of original criminal jurisdiction with which we are concerned, is
H the contention of Mr. Jethmalani. It is pointed out that Antulay 's case did not
HARSHAD S. MEHTA v. STATEOF MAHARASHTRA [Y.K. SABHARWAL, J.] 605

hold that the Special Court was a court of original criminal jurisdiction as A
postulated by the Code. Since the power of pardon is not inherent in every
court of criminal jurisdiction, the observation that the Special Court is a court
of original criminal jurisdiction does not carry the case of the prosecution any
further is the submission of Mr.Jethmalani. Regarding Section 307 prescribing
the power of the court, three reasons are given by the learned counsel in B
SE_pport of the submission that the said provision has not been extended to
the Special Court, namely, (I) no commitment is made to the Special Court,
(2) It operates 'after commitment' and only thereafter the court will have
power to grant pardon and (3) It does not confer power to grant pardon
during investigation of the offence. It was submitted that in these appeals the
pardon was granted during investigation as the order was passed by Special C
Court granting pardon on 22nd June, 1993 whereas the charge sheet was filed
later i.e. on 24th June, 1993

Section 306(4)(a) postulates that every person accepting a tender of
pardon made under sub-section (I) of Section 306, shall be examined as a
witness in the court of the Magistra~e taking cognizance of the offence and D
in the subsequent trial, if any. Here, it is pointed out, the cognizance cannot
be taken by the Magistrate in view of Sections 6 and 7 of the Act and it can
be exclusively taken by the Special Court and, therefore, this section becomes
redundant, is the contention. Likewise, Section 306(5) is also inapplicable
since there can be neither any committal nor is the Special Court one of the E
court enumerated in this sub-section and the effect, according to learned
counsel, is that Section 306(4) and (5) cannot be complied by Special Court
and they stand excluded with a consequence that the entire Section 306 of
the Code would stand excluded from its applicability to the Act.

Mr. Jethmalani, however, does not dispute the applicability of Section
4(2) subject to superiority of the Act as postulated in Section 13 of the Act F
but submits that the effect of it only is that at pre-cognizance stage it is the
normal court of criminal jurisdiction as constituted under Section 6 which
would have power and jurisdiction to deal with matters at pre-cognizance
stage and not the Special Court.' To a query from this Court that if it is so,
would not such normal court have power under Section 306 of the Code, to G
grant pardon, the answer of Mr.Jethmalani is that .those courts will not have
the said powers since the legislature intended to exclude that power from the
Special Court, it would be evident that it also intended to so exclude normal
courts as well. Alternatively, it was contended that assuming such powers at
pre-cognizance stage vest with normal courts, it does not mean that Special H
Court would also have the power of pardon. There is no anomaly in grant of
606 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A power of pardon at the stage of investigation and enquiry and denial of such
power at the stage of trial to the Special Court as it is a question of policy,
according to Mr.Jethmalani.

It is not possible to accept that the legislature could ever intend to
create such a anomalous position where a Magistrate will have power to grant
B pardon at pre-cognizance stage but after cognizance the Special Court will not
have that power. It makes no sense. It is not possible to attribute such an
absurdity to the legislature. It does not flow from the provisions of the Act.
·For this purpose we are assuming that at pre-cognizance stage, all aspects
are required to be dealt with by normal courts although as dealt with later,
C in our view, at that stage too power vests in Special Court.
In any case learned counsel contends, that the court will not construe
the provisions of the Act in a manner which will make sub-sections (4) and
(5) of the Code redunant in its applicability to the provisions of the special
law, namely, the Act. Relying upon J.K. Cotton Spinning and Weaving Mills
D Co. Ltd. v. State of U.P. and Ors., AIR ( 1961) SC 1170, it was contended that
there is a presumption that the legislature inserts every part of a statute for
a purpose and that every part should have effect and since sub-sections (4)
and (5) of Section 306 would not have effect as those sub-sections cannot
be complied, it is evident that the power of Section 306 was not intended to
be conferred on the Special Court by the legislature when that court with
E exclusive power of cognizance cannot comply with Section 306 of the Code.
The later part of submission does not follows from J.K. Cotton Spinning and
Weaving Mills' case. Even the earlier part of the submission does not lead
to the conclusion that power of pardon was intended to be excluded. The
reliance upon the decision in the celebrated case of Willie (William) Slaney
v. State of Madhya Pradesh, AIR (1956) SC 116 (para 100) laying down that
F every provision of the Code of Criminal Procedure is meant to be obeyed is
also of no help for resolving the issue in these appeals.

To our mind, the Special Court has all the powers of a Court of Session
and/or Magistrate, as the case may be, after the prosecution is instituted or
G transferred before that Court. The width of the power of the Special Court will
be same whether trying such cases as are instituted before it or transferred
to it. The use of different words in Sections 6 and 7 of the Act as already
noticed earlier also show that the words in Section 7 that the prosecution for
any offence shall be instituted only in Special Court deserve a liberal and
wider construction. They confer on the Special Court all powers of the
H Magistrate including the one at the stage of investigation or enquiry. Here,
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA [Y.K. SABHARWAL, J.] 607

the insti~tion of the prosecution means taking any steps in respect thereof A
before the Special Court. The scheme of the Act nowhere contemplates that

- it was intended that steps at pre-cognizance stage shall be taken before a
court other than a Special Court. We may note an illustration given by Mr.
Salve referring to Section 157 of the Code. Learned counsel submitted that
the report under that Section is required to be sent to a· Magistrate empowered B
to take cognizance of offence. In relation to offenc,e under the Act, the
Magistrate has no power to take cognizance. That power is exclusively with
the Special Court and thus report under Section 157 of the Code will have to
be sent to the Special Court though section requires it to be sent to the
Magistrate. It is clear. that for the expression 'Magistrate' in Section 157, so
far as the Act is concerned, it is required to be read as 'Special Court' and · C
likewise in respect ofother provisions of the Code.. If the expression 'Special
Court' is read for the expression 'Magistrate', everything will fall in line. This
harmonious construction of the provisions of the Act and the Code makes
the Act work. That is what is required by principles of statutory interpretation.
Section 9(1) of the Act provides that the Special Court in the trial of such
cases follow the procedure prescribed by the Code for the trial of warrant D
cases before the Magistrate. The expression 'trial' is not defined in the Act
or the Code. For the purpose of the Act, it has a wider connotation and also
includes in it the pre-trial stage as well. Section 9(2) makes the Special Court,
a Court of Session by a fiction by providing that the Special Court shall be
deemed to be a Court of Session. and shall have all the powers of a Court of E
Session. In case, the Special Court is held not to have the dual capacity and
powers both of the Magistrate and the Court of Session, depending upon the
stage of the case, there will be a complete hiatus. It is also to be kept in view
that the Special Court under the Act comprises of a High Court Judge and
it is a court of exclusive jurisdiction in respect of any offence as provided in
Section 3(2) which will include offences und.er Indian Penal Code, Prevention F
of Corruption Act and other penal laws. It is only in the event of inconsistency
that the provisions of the Act would prevail as provided in Section 13 thereof.
Any other interpretation will make the provision of the Act unworkable which
could not be the intention of the Legislature. Section 9(2) does noi ~xclude
Sections 306 to 308 of the Code from the purview of the Act. This section G
rather provides that the provisions of the Code shall apply to the proceedings
·before the Special Coµrt. Tlie inconsistency .seems to be only· imaginary.
There is nothing in the Act to show that Sections 306 to 308 were intended
to be excluded from the pu~iew of the Act.

Reliance has been placed by the learned Solicitor General on A.R. H
608 SUPREME COURT REPOR rs [2001) SUPP. 2 S.C.R.

A Antu/ay's case. That case holds that in contra-distinction to the Sessions
Court, the Court of Special Judge to be a court of original criminal jurisdiction
and wherever the expression 'Magistrate' occurs, the expression 'Special
Judge' is required to be read and the provisions of Sections 238 to 250 of the
Code stood incorporated in 1952 Act by application of the doctrine of
...
B 'Legislation by incorporation'.

After the pronouncement of a Constitution Bench decision in Antulay 's ·
case, there can now be no doubt that the Special Court under the Act will
enjoy all powers which a court of original criminal jurisdiction enjoys whether
of a Magistrate or a Court of Session, save and except the one specifically
C denied. The passage from Antulay's case relevant for the present purposes
reads thus :

"It is, however, necessary to decide with precision and accuracy the
position of a Special Judge and the Court over which he presides
styled as the Court of a Special Judge because unending confusions
D have arisen by either assimilating him with a Magistrate or with a
Sessions Court. The Prevention of Corruption Act, 1947 was enacted
for more effective prevention of bribery and corruption. Years rolled
by and experience gathered showed that unless a special forum for the
trial of such offences as enumerated in the 194 7 Act is created, the
object underlying the 194 7 Act would remain a distant dream. This led
E to the enactment of the Criminal Law accompanying the Bill refers to
the recommendations of the Committee chaired by Dr. Bakshi Tek
Chand appointed to review the working of the Special Police
Establishment and to make recommendations for improvement of laws
relating to bribery and corruption. To take the cases of corruption out
F of the maze of cases handled by Magistrates, it was decided to set
up special courts. Section 6 conferred power on the State Government
to appoint as many Special Judges as may be necessary with power
to try the offences set out in clauses (a) and (b). Now if at this state
a reference is made to Section 6 of the Code of Criminal Procedure
which provides for constitution of criminal courts, it would become
F clear that a new court with a new designation was being set up and
that it has to be under the administrative and judicial superintendence
of the High Court. As already pointed out, there were four types of
criminal courts functioning under the High Court. To this list was
added the court of a Special Judge. Now when a new court which is
G indisputably a criminal court because it was not even whispered that
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA [YK. SABHARWAL, J.] 609
the Court of Special Judge is not a criminal court, is set up, to make A
it effective and functionally oriented, it becomes necessary to prescribe
its powers, procedure, status and all ancillary provisions. While setting
up a court of a Special Judge keeping in view the fact that the high
dignitaries in public life are likely to be tried by such a court, the
qualification prescribed was that the person to be appointed as a
Special Judge has to be either a Sessions Judge, Additional Sessions B
Judge or Assistant Sessions Judge. These three dignitaries are above
the level of a Magistrate. After prescribing the qualification, the
Legislature proceeded to confer power upon a Special Judge to take
cognizance of offences for the trial of which a Special court with
exclusive jurisdiction was being set up. If a Special Judge has to take C
cognizance of offences, ipso facto the procedure for trial of such
offences has to be prescribed. Now the Code prescribes different
procedures for trial of cases by different courts. Procedure for trial of
a case before a Court of Sessions is set out in Chapter XVIII; trial of
warrant cases by Magistrates is set out in Chapter XIX and the
provisions therein included catered to both the types of cases coming D
before the Magistrate, namely, upon police report of otherwise that on
a police report. Chapter XX prescribes the procedure for trial of
summons cases by Magistrates and Chapter XXI prescribes the
procedure for summary trial. Now that a new criminal court was being
set up, the Legislature took the first step of providing its comparative E
position in the hierarchy of courts under Section 6 Cr. P.C. by bringing
it on level more or less comparable to the Court of Sessions, but in
order to avoid any confusion arising out of comparison by level, it
was made explicit in Section 8(1) itself that it is not a Court of
Sessions because it can take cognizance of offences without
commitment as contemplated by Section 193 Cr.P.C. Undoubtedly in F
Section 8(3) it was clearly laid down that subject to the provisions of
sub-sections (1) and (2) of Section 8, the Court of Special Judge shall
be deemed to be a Court of Session trying cases, without jury or
without the aid of assessors. In contra-distinction to the Sessions
Court this new Court was to be a court of original jurisdiction. The G
Legislature then proceeded to specify which out of the various
procedures set out in the Code, this new court shall follow for trial
of offences before it. Section 8(1) specifically says that a Special
Judge in trial of offences before him shall follow the procedure
prescribed in the Code of Criminal Procedure for trial of warrant cases
by Magistrates. The provisions for trial of warrant cases by the H
610 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R .

A . Magistrate are to be found in Chapter XX! of 1898 Code. A glance
through the provisions will show that the provisions therein included
catered to both the situations, namely, trial of a case initiated upon
police report (Sec. 25 IA) and trial of cases instituted otherwise than
on police report (Sec. 252 to 257). If a Special Judge is enjoined with
a duty to try cases according to the procedure prescribed in foregoing
provisions he will have to first decide whether the case was instituted
-
Upon a police report or otherwise than on police report and follow the
procedure in the relevant group of sections. Each of the Secs. 25 IA
to 257 of 1898 Code which are in pari materia with Secs. 238 to 250
of 1973 .Code refers to what the Magistrate should do. Does the
c Special Judge, therefore, become a Magistrate? This is the fallacy of
the whole approach. In fact, in order to give full effect to Section 8(1),
the only thing to do is to read Special Judge in Sections 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
D purposes of Section 190 which conferred power on the Magistrate to
take cognizance of the offence, Special Judge is a Magistrate? What
is to be done is that one has to read the expression ·Special Judge'
in place of Magistrate, and the whole thing becomes crystal clear. The
Legislature wherever it found the grey area clarified it by making
E specific provision such as the one in sub-section (2) of Section 8 and
to leave no one in doubt further provided in sub-section (3) that all
the provisions of the Code of Criminal Procedure shall so far as they
are not inconsistent with the Act apply to the proceedings before a
Special Judge,. At the time when the 1952 Act was enacted what was
in operation was the Code of Criminal Procedure, 1898. It did not
F 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 authority to tender pardon (Section
338) and then after declaring its status as comparable to a Court of
G
Session 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 jurisdiction was set up and whenever
a question arose as to what are its powers in respect of specific
H questions brought before it as court of original criminal jurisdiction,
· HARSHAD S. MEHTA v. STATE OF MAHARASHTRA (Y.K. SABHARWAL, l.] 611

it had to refer to the Code of Criminal Procedure undaunted by any A
designation claptrap. When taking cognizance, a Court .of Special
Judge enjoyed the powers under Section 190. When trying cases, it
is obligatory to follow the procedure for tiial of warrant cases by a
Mag!strate though as and by way of status it was equated with a
Court of Session. The entire argument inviting us to specifically B
decide whether a court of a Special Judge for a certain purpose is a
Court of Magistrate or a Court of Session 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 Session. Such an approach
would strangulate the functioning of the court and must be eschewed.
Shorn of ali'embellishment, the court of a Special Judge is a court of C
original criminal jurisdiction. As a court of original criminal jurisdiction
in order to make it functionally oriented some powers were conferred
by the.statute setting up the court. Except those specifically conferred
and specifically denied, it has to function as a court of original
criminal jurisdiction not being hide bound by the terminological status
description of Magistrate or a Court of Session. Under the Code, it D
will enjoy all powers which a court of original criminal jurisdiction
enjoys· save and except the ones specifically denied."

The Code has been incorporated in the Act by application of the
doctrine of legislation by incorporation. The power to grant pardon has not
been denied expressly or by necessary implication. As earlier stated after E
decision in the case of A.R. Antulay, it was not necessary to make specific
provision in. the Act conferring power on the Special Court to grant pardon
at trial or pre-trial stage. The Special Court is a court of original criminal
jurisdiction and has all the powers of such a court under the Code including
those of Sections 306 to 308 of the Code, the same not having been excluded p
specifically or otherwise.

There is rio provision in the Act which negates the power of the Special
Court to grant pardon. The Special Court has power to grant pardon at any
... stage of the proceedings. The power under Section 307 cannot be denied
merely because no commitment of the case is made to the Special Court. G
Learned Solicitor General, in our view, rightly contends that the other statutes
are only an external aid to the interpretation and to rely upon the omission
of a provision which is contained in another different enactment, it has to be
shown that two acts are similar which is not the position here. The scheme
of two acts is substantially different as has been earlier noticed by us. It is
also evident from Fernandes's case as well. H

\
612 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A As noticed, the provisions of Sections 6 and 7 of the Special Courts Act
confer much wider power. Everything after institution of the prosecution is
required to be done by the Special Court. There is nothing in those provisions
or in Section 9 to warrant exclusion of Sections 306 to 308 of the Code from
the purview of the Act. Reference may also be made to Section 4(2) of the
-
Code which stipulates that the investigation, inquiry and trial of all offences
B under any other law than the Indian Penal Code shall also be dealt with
according to the provisions of the Code but subject to any enactment for the
time being in force regulating the manner or place of investigating, enquiring
into, trying or otherwise dealing with such offences.

C Mr. Salve also relies upon the decision in the ~ase of Directorate of
Enforcement v. Deepak Mahajan and Anr., (1994] I SCR 445. In that case, one
of the question that came up for consideration was whether the jurisdiction
of the Magistrate to authorize detention of an arrestee produced before him
either in judicial custody or otherwise under Section 167(2) of the Code is
completely excluded or ousted by the absence of any specific provision in
D the FERA or the Customs Act empowering the Magistrate to 'authorise the
detention' of the arrestee under the Code. After surveying the relevant
statutory provisions and various judgments including that of Antulay 's case
this Court summed up that Section (4) of the Code is comprehensive and
Section 5 is not in derogation of Section 4(2) and it only relates to the extent
E of application of the Code in the matter of territorial and other jurisdiction but
does not nullify the effect of Section 4(2). It was held that the provisions of
the Code would be applicable to the extent in the absence of any contrary
provision in the Special Act or any special provision excluding the jurisdiction
or applicability of the Code.

F In the present case, we are unable to find either any inconsistency or
any provision which may indicate expressly or by necessary implication the
exclusion of the provision of the Code empowering grant of pardon.

The fact that there is no commitment to the Special Court only shows
that section will apply to the extent applicable but that does not lead to
G exclusion of the power of the Special Court to grant pardon. Section 6 does
away with the procedure of commitment of a case to the Sessions Court. It
is the Special Court which is to take cognizance of the cases instituted before
it or transferred to it. Another deviation is provided in Section 7 which
stipulates that any prosecution of any offence relating to transactions in
securities shall be instituted only in Special Court. Provisions of the Code not
H inconsistent with the Act shall apply to the proceedings before the Special
HARSHAD S. MEHTA v. STATE OF MAHARASHTRA [Y.K. SABHARWAL, J] 613
Court (Section 9{2}). A
The power to tender pardon is not controlled by sub-sections (4) or (5)
of Section 306, These sub-sections deal with the matters pertaining to post-
pardon stage. These provisions only show that where there is no commitment,
sub-section (5) of Section 306 will not apply. But this does not take away the
power of pardon as provided in sub-section(!) of Section 306. It only means B
that these provisions will apply to the extent applicable.

Reference may also be made to a decision of Calcutta High Court
strenuously relied upon by Mr. Salve. In Harihar Sinha and Ors. v. Emperor,
AIR (1936) Calcutta 356 a Full Bench of Calcutta High Court was faced with
a question whether a Special Magistrate appointed under Section 24 of the C
Bengal Suppression of Terrorist Outrages Act, XII of 1932 had power to
tender a pardon under Section -337 of 1898 Code or otherwise. The facts of
the said case relevant for the present purposes were that the Special Magistrate
therein tendered a conditional pardon to one of the accused under Section
337; that accused was taken out of the dock, put into the witness box and D
he gave evidence in the trial before the Special Magistrate. The contention
urged on behalf of the appellants before the High Court was that the Special
Magistrate on grant of pardon by virtue of sub-section 2(a) which provided
that in every case, where a person has accepted a tender of pardon and has
been examined under sub-section (2), the Magistrate before whom the
proceedings are pending shall, if he is satisfied that there are reasonable E
grounds for believing that the accused is guilty of an offence, commit him for
trial to the Court of Session or High Court, as the case may be. In the Code,
similar provisions are in sub-section (5) of Section 306. Before Full Bench, the
contentions that are relevant for our purposes which were urged were two.
One - that the Special Magistrate had no power to tender a conditional pardon F
under Section 337 to Gouranga because the duty of the Special Magistrate
was to try Gouranga and not to pardon him. The contention was not accepted.
It was observed that the Special Magistrate was charged with the duty of
trying the appellants with Nalini and Gouranga. Nalini had been earlier
discharged under sub-section (a) of Section 494 but thereupon he went into
box and gave evidence; the public prosecutor was of the opinion that Nalini G
had not told all he knew and was hostile to the prosecution and, thus, applied
to the District Magistrate to have him recommitted to take his trial along with
the accused which was ordered and thereafter Gouranga was tendered
conditional pardon and examined as a witness. The Court held that it is not
infrequently happens in a trial that the only way in which justice can be done H
614 SUPREME COURT REPORTS (2001) SUPP. 2 S.C.R.

A. is through one of the accused giving evidence on behalf of the Crown, and
if this evidence is given according to law, there is nothing wrong in it though
as the evidence of an accomplice it is open to suspicion and that Section 337
provides the terms on and the machinery by which the pardon, for the
· purpose of giving evidence, can be granted by the Magistrate, and the
B Magistrate was acting within his powers in granting the conditional pardon.
The second contention which in fact is more relevant for the present
purpose was that the Special Magistrate having tendered a conditional pardon
to Gouranga was bound, under sub-section (2-A), to commit the other accused
for trial to the Court of Session or the High Court but as he was directed to try the
C accused himself and, therefore, could not commit them to the Sessions or the High
Court, the whole of the provisions of Section 337 are nugatory in this case, from
which it follows that ifhe is to try the accused, he cannot pardon any one of them
under Section 337. The contention was held not to be sound and for that basis,
the provision of Section 26(2) of the aforesaid 1932 Act in question was referred
to. The said provision provided that the provisions of the Code so far as they are
D not inconsistent with the Chapter (i.e. Chapter 2), shall apply to the proceedings
of a Special Magistrate and Section 34 of the said Act provided that the provisions
of the Criminal Procedure Code in so far as they may be applicable and insofar as
they are not inconsistent with the provisions of this Chapter (i.e. Chapter 2), shall
apply to all matters connected with, arising from or consequent upon a trial by
E Special Magistrates. It was concluded from these provisions that a Magistrate
may, acting under Section 337( I) tender a conditional pardon and under Section
337(2) examine the pardoned man as aWitness in his court, but must, acting under
the Bengal Suppression of Terrorist Outrages Act, 1932, try the accused himself
instead of committing him for trial to the Court of Session or the High Court as
Section 337(2-A) of the Code provides. Reference was made by the Full Bench to
F an earlier decision of the Calcutta High Court reported in Abdul Majid v. Emperor
[60 Cal. 652] wherein a Special Magistrate tried certain prisoners under the
provisions of Ordinance 2of1932. Sections 37(1), 37(2) and 52 of the Ordinance
as reproduced in that decision read as under :

"37(1) In th~ trial of any case under this Ordinance a Special Magistrate
G shall follow the procedure laid down in sub-section (I) of Section 32
for the trial of cases by a Special Judge.

37(2) In matters not coming within the scope of sub-section (I), the
provisions of the Code in so far as they are not inconsistent with this
Ordinance shall apply to the proceedings of a Special Magistrate; and
H for the purposes of the said provisions, the Special Magistrate shall
HARSHADS. MEHTAv. STATE OF MAHARASHTRA [Y.K. SABHARWAL,J.] 615
be deemed to be a Magistrate of the first class. A
52. The provisions of the Code and of any other law for the time being
in force, in so far.as they may be applicable and in so far as they are
not inconsistent with the provisions of this Ordinance, shall apply to
all matters connected with, arising from or consequent upon a trial by
special criminal Courts constituted under this Ordinance." B
The Full Bench noticed that the after quoted provisions are respectively
essentially the same as Sections 26 and 34 of the Bengal Suppressfon of
Terrorist Outrages Act, 1932. In Abdul Majid's case one of the accused who
was granted conditional pardon under Section 337 by the Special Magistrate
proceeded to give evidence against his co-accused before the Special C
Magistrate who dealt with the case and sentenced the prisoners. Ir was
objected on appeal that the Special Magistrate had no power to tender a
conditional pardon and afterwards dispose of the case himself, instead of
sending it to the Sessions Court or the High ·Court. The appeal from the
conviction was dismissed. The observations of the Chief Justice Rankin from
that decision which was cited with approval by the Full Bench are to the D
following effect

"It is right to notice the contention that was put forward to the effect
that the proceedings before the Special Magistrate were bad. It is said
that his having tendered pardon to the approver, sub-section 2-A,
S.337, Criminal P.C., made it obligatory upon him to commit the accused E
for trial to the Court of Session. It is .not disputed that, under the
Ordinance (2 of 1932), he certainly could not commit the accused for
trial to any Court of Session. When we look at the Ordinance, we find
that there is an express provision that the provisions of the Code are
to apply in the case of Special Magistrates so far as they are not
inconsistent with the Ordinance, and similar phrasing is used more F
elaborately in S.52 and also in connection with Sessions Judges in
S.32. It makes no difference whatever, so far as I can see, whether the
Magistrate tend.ering the pardon had beer;f the District Magistrate and
not the Magistrat.es trying the case. The provisions of sub-s.(2-A)
would apply equally, whoever had been the Magistrate tendering the
pardon, and it is quite clear that the Special Magistrate is the Magistrate G
who, under the Ordinance, is to try the ~ase; Unle~s, there.fqre, we
were to hold that no approver could ever give eviden(£·before a
Special Magistrate, the appellants would not succeed in making the
argument logical. But it is quite clear that, in so far as the Ordinance
is inconsistent with sub-s.(2-A), the Ordinanc: prevails and there is H
616 SUPREME COURT REPORTS (2001] SUPP. 2 S.C.R.

A no ground for supposing that it is impossible for the Special Magistrate
to hear the evidence."

The Full Bench accordingly held that the Special Magistrate could try
the case himself even after grant of pardon and it does not follow that the
absence of power to commit the accused to the Court of Session or the High
-
B Court would show that the Special Magistrate has no power to tender pardon.
The position here also is almost identical. To the extent the provisions of sub-
sections (4) and (5) of Section 306 cannot be followed by the Special Court,
they are not required to be followed. As already held these sub-sections do
not control the power to grant pardon. Under these circumstances, Mr.
Jethmalani contended that the minority opinion expressed by Mukherji, J. in
C the Full Bench decision lays down the law correctly. For the reasons already
indicated, we do not agree. The majority decision of the Full Bench, with
which we are in agreement, is almost a complete answer to the submissions
of Mr. Jethmalani. It has held the field for more than half a century. It seems
evident that the power to tender pardon stands alone and others are matter
of procedure. If in such situation, the matters of procedure are not applicable,
D it would not negate the power to grant pardon. Insofar as procedural matters
are concerned, it would only mean that the same apply to the extent applicable.
We are, therefore, unable to accept the contention that there was any implied
repeal. It is also not possible to accept that it was intended by necessary
implication that the Special Court under the Act shall not have the power to
E grant pardon. All powers of Sections 306 to 308 to the extent applicable and
can be complied are available to the Special Court under the Act. The provision
of the Act and the Code can stand together. There is no inconsistency. The
two statutory provisions can harmoniously operate without causing any
confusion or resulting in absurd consequences and the scheme of Code can,
without any difficulty, fit in the scheme of the Act. In the end, we may also
F note that jurisdiction to try a case is conferred on the Special Court not by
committal but by the statute which has established that court.

Our conclusion, therefore, is that the Special Court established under the
Act is a court of exclusive jurisdiction. Sections 6 and 7 confer on that court wide
powers. It is a court of original criminal jurisdiction and has all the powers of such
G a court under the Code including those of Sections 306 to 308. ...
For the foregoing reasons, we are of the opinion that the learned Special
Court rightly rejected the application of the appellants for revocation of the
order of pardon. The appeals are accordingly dismissed. The intervention
applications are also dismissed.
H B.S. Appeals dismissed.