2023/MHC/2505

Reserved on 17.04.2023

Delivered on      08.06.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

CORAM THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

AND

THE HONOURABLE MRS.JUSTICE L. VICTORIA GOWRI

Criminal RC (MD) No.869 of 2022

1. Mangalanatha Durai
2. Asmathullah
3. Jegan Prasath
4. Noordeen
5. Satham Hussain

6. Singam State Through the Inspecto fo Police, Bazaar Police station, Ramanathapuram.	… Petitioners/Accused 1 to 6 Vs.
Crim No.692 of 2016	… Respondent/Complainant

Prayer: Criminal Revision filed under Section 397 read with 401 of the Code of Criminal Procedure, praying to call for the records pertaining to the impugned order in Crl. M.P.No.586 of 2021 in SC No.5 of 2020 dated 11.07.2022 on the file of the Principal District and Sessions Judge,

Ramanathapuram and set aside the same by allowing this Criminal Revision Petition.

For Appellants       : Mr.S.Ramesh

For Respondents    : Mr. Hassan Mohammed Jinnah

Public Prosecutor assisted by

MR.T.Senthil Kumar

Additional Public Prosecutor

& Mr. A.Gobinath,

Government Advocate (Crl.Side)

& Miss.J.R.Archana, Advocate

 J U D G M E N T

(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)

This Criminal Revision is before us consequent upon a reference

made by Hon’ble Mr.Justice G.Ilangovan, who noted conflicting views that were expressed by various Hon’ble Judges of this Court on the applicability of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 to damage caused to private property in certain circumstances.

2. The question that has been referred to the Bench by the Hon’ble

Mr.Justice G.Ilangovan, is as follows:

“Whether or not, the offence causing loss or

damage to the private properties during private dispute between two groups or individuals can be investigated and tried as per the provisions of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 as amended by

Act 46 of 1994.”

3. The law relating to prevention of damage to public property

was codified as a separate enactment by the Parliament which introduced the Prevention of Damage to Public Property Act, 1984.  The said Act sought to carve out certain Acts causing damage to public property as a criminal offence and prescribed a punishment for the same. This led to various States passing various enactments covering the subject viz. Prevention of Damage to Public Property.

4. As far as the State of Tamil Nadu is concerned, the State Legislature had enacted the Tamil Nadu Public Property (Prevention of Destruction and Loss) Act, 1982, which is a very short legislation with only seven Sections. The said enactment while criminalising a mischief with respect to Public Property provided for punishment and the word ‘mischief’ was to take the same meaning as the one defined under Section 425 of the Indian Penal Code. The said enactment dealt with only properties owned by public entities. upon the enactment of the 1984 Act by the Parliament, the 1982 Act naturally became void and unenforceable.  The State Legislature therefore, enacted what is known as the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 (hereinafter referred to as ‘the 1992 Act’).  The 1992 Act was enacted after repealing the 1982 Act.  The 1992 Act apart from incorporating the provisions of the 1982 Act also extended its scope and created a machinery for grant of compensation for the loss caused to property. The 1992 Act, as it was originally enacted, applied only to public property and it was titled as Tamil Nadu Public Property (Prevention of

Damage and Loss) Act, 1992.

 

5. Section 2(4) of the said Act defined Public property as property

movable or immovable or machinery owned by or in possession of or under the control of –

• the Central Government; or
• the State Government; or
• any local authority; or
• the Tamil Nadu State Electricity Board; or
• any University in this State; or
• any co-operative society including a land development bank registered or deemed to be registered under the Tamil Nadu Co-operative Societies Act, 1983; or

(g)any corporate body constituted under any Act passed by Parliament or the Legislative Assembly of this State; or

(h)any other corporation owned or controlled by the Central

Government or the State Government; or (i) any institution concern or undertaking; or (j) any company.

6. 6. In the charging Sections viz., Sections 3, 4, 7, 9 and 10 of the 1992 Act, the word ‘property’ was prefixed with a word public to give effect to the statement and objects of the Act viz. to criminalise mischief caused to public property and to provide for payment of compensation for loss caused due to such mischief. However, two years after enacting the Tamil Nadu

Public Property (Prevention of Destruction and Loss) Act, 1992, the State Legislature thought it fit to amend the Act, widen its scope and to make it applicable to private property also.  The Statement of objects and reasons of the amending Act viz. Act 46 of 1994 reads as follows:

STATEMENT OF OBJECTS AND REASONS OF AMENDMENT ACT: T.N. ACT 46 OF 1994

The Tamil Nadu Pubic Property (Prevention of Damage and Loss) Act, 1992 (TN Act 59 of 1992) was enacted to prevent widespread damages to public property by enacting a comprehensive legislation providing for punishments of the persons who actually cause damage or loss to the public property and to make the political parties or communal, language or ethnic groups which organised procession, assembly, meeting, agitation, demonstration or other activities liable to pay compensation in respect of damage or loss, caused to any public property during such procession, assembly, meeting, agitation, demonstration or other activities.  Widespread damages to private property are also being caused during procession, meeting, agitation, demonstration or other activities organised by political parties or communal, language or ethnic groups.  The provisions of the said Act (1992) do not provide for the payment of compensation and for the punishment in respect of the damage or loss caused to private property.  It has, therefore, been decided to amend the said Act suitably providing for punishments of the persons who actually cause damage or loss to the private property to AND the political parties or communal, language or ethnic group which organised such procession, assembly, meeting, agitation, demonstration, or other activities liable to pay compensation in respect of damage or loss caused to any private property also.

The statement of objects and reasons of the original enactment viz. the

Tamil Nadu Act 59 of 1992 reads as follows:

STATEMENT OF OBJECTS AND REASONS

OF T.N.Act 59 of 1992:

The Tamil Nadu Public Property

(Prevention of Destruction and Loss) Act, 1982 was enacted to provide punishment for causing damage or loss to public property by mischief.  Consequent on the enactment of a similar law by Parliament in the year 1984, namely, Prevention of Damage to Public Property Act, 1984 (Central Act 3 of 1984), the provisions of Tamil Nadu Act 29 of 1982 have become void.

Widespread damages to public property are being caused during procession, assembly, meeting, agitation, demonstration or other activities organised by political parties or communal language or ethnic groups.  The provisions of the said Central Act 3 of 1984 do not provide the payment of compensation for damage or loss caused to the public property by the political parties or communal, language or ethnic groups.  It has been decided to prevent such widespread damages to public property by enacting a comprehensive legislation providing for punishment of the persons who actually cause damage or loss to the public property AND to make the political parties or communal, language or ethnic groups which organised such processions, assembly, meeting, agitation, demonstration or other activities liable to pay compensation in respect of damage or loss caused to any public property.  It has, therefore, been decided to undertake a comprehensive legislation to achieve the object.  It has also been decided to repeal Tamil Nadu Act 29 of 1982.

7. 7. By the amendment introduced in 1994, the title of the enactment itself was amended to read as “Tamil Nadu Property ( Prevention of Damage and Loss ) Act 1992”, the word public that was prefixed to the word property was removed. Section 2(4) of the said Act defined property as property movable or immovable or machinery owned by or in possession of or under the control of any person including –]

• the Central Government; or
• the State Government; or
• any local authority; or
• the Tamil Nadu State Electricity Board; or
• any University in this State; or
• any co-operative society including a land development bank registered or deemed to be registered under the Tamil

Nadu Co-operative Societies Act, 1983; or

• any corporate body constituted under any Act passed by

Parliament or the Legislative Assembly of this State; or

• any other corporation owned or controlled by the

Central Government or the State Government; or

• any institution concern or undertaking; or
• any company.

Explanation. – For the purposes of this clause, “company’ means anybody corporate and includes a trust, a firm, a society or other association of individuals.

8. As a consequence the charging Sections viz. Sections 3,4,7,9

and 10 were also amended and the prefix ‘Public’ appended to the word ‘Property’ was removed, thereby making the Act applicable to mischief caused to private property also. After the amendment, question arose, as to whether, a mischief caused to a private property during a private dispute between two groups or individuals can be investigated and tried under the 1992 Act as amended by Act 46 of 1994.

9. The charging provision of the Act of 1992 viz., Section 3 before

amendment by Act 46 of 1994 read as follows:

“Punishment for committing mischief in

respect of public property. – whoever, –

• Commits mischief by doing any act in

respect of any public property and thereby causes damage or loss to such public property to the amount of one hundred rupees or upwards; or

• Commits mischief by doing any act which

causes or which he knows to be likely to cause a diminution of the supply of water to the public or to any person for any purpose or an inundation of, or

obstruction to, any public drainage, or

• Commits mischief by doing any act which renders any public road, bridge, navigable channel, natural or artificial impassable or less safe for travelling or conveying property, shall be punished with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine:

Provided that the Court may, for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than one year.

Section 4 of the 1992 Act, prior to the amendment read as follows:

“4. Mischief causing damage to public property by fire or explosive substance. – Whoever commits mischief by fire or any explosive substance intending, to cause or knowing it to be likely that he will thereby cause damage to any public property to the amount of one hundred rupees or upwards, shall be punished with rigorous imprisonment for a term which shall not be less than two years but which may extend to ten years and with fine:

Provided that the Court may for any adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than two years.”

Section 7 of the 1992 Act, before amendment read as follows:

7. Order to Pay Compensation. – (1) When imposing a sentence of fine for an offence under this Act, the court may when passing judgment, order the whole or any part of the fine recovered to be applied-

• in defraying expenses properly incurred in the prosecution;
• in the payment, to any person, of compensation for any loss or injury caused by the offence;
• in replacing or as the case may be, restoring to the previous state, the public property including any public road, bridge, navigable channel, natural or artificial.
• If the fine is imposed in a case which is

subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

• An order under this section may also be made by an Appellate Court or by the High Court when exercising its powers of revision.
• At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.
• Save as otherwise provided, when a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

Section 10 of the 1992 Act, before amendment read as follows:

10. Claim for Compensation.–

(1) Any claim for compensation for damage or loss caused to the property shall be made by-           (i) any person who has been affected by such damage or loss; or

          (ii) such officer empowered by the authorities specified in sub clauses (a) to (j) of clause (4) of Section 2.

(2). Every application for claim for compensation for damage or loss caused to the Public Property shall be in such form and containing such particulars as may be prescribed.

10. A reading of the above provisions as they stood prior to the

amendment would make it clear that a mischief caused to a public property would be punishable if the value of the damage caused to such property is more than rupees hundred.  Though the statement of objects and reasons of the 1992 Act, referred to damage being caused to public property during processions, assemblies, meetings, agitations, demonstrations and other activities, the material provisions of the enactment extracted above did not make any reference to the context in which the mischief is caused.  While Section 3 of the Act made, mischief caused to public property of a value of one hundred rupees or upwards and offence punishable, Section 4 makes mischief causing damage to public property by fire or explosive substances punishable with imprisonment.  Section 7 provides for defraying the fine recovered to be applied for payment of compensation and or restoration of the property. Section 10 provides for machinery for determination of compensation.

11. By the amendment introduced in 1994, the scope of the Act

was widened so as to take within its fold mischief or damage caused to private property also.  Again the statement of objects and reasons of the amending Act also referred to widespread damages being caused during processions, assemblies, meetings, agitations, demonstrations or other activities organised by political parties or communal, language or ethnic groups.  After the amendment a question arose as to whether the mischief or damage should have occurred in the course of a procession, assembly, meeting, agitation, demonstration or other activities organised by political parties or to communal, language or ethnic groups or it would also take within its fold a damage caused to a private property in a completely private dispute between two individuals or groups.  While some of the Hon’ble

Single Judges in the following cases:

• Logu @ Loganathan v. State
• Pavalayee v. State
• Bhuvaneswaran v. State
• Annamalai v. State
• Vijayalakshi v. State

relied upon the statement of objects and reasons of the amending Act, concluded that the Act was enacted to prevent damage or loss caused to any private property during processions, assemblies, meetings, agitations, demonstrations or other activities organised by political parties or communal, language or ethnic groups alone and would not take within its ambit an ordinary mischief caused to a private property in a fight between two individuals or groups.

12. On the other hand, in the following cases:
    • Venkataesam v. State
    • Giri v. State
    • Balu v. Jayaganthan
    • Mokkamayan v. State

The Hon’ble Single Judges of this Court concluded that dehors the Statement of objects and reasons on a plain reading of the provisions of the enactment, a mischief caused to a private property in a private dispute would also constitute an offence under Section 3 of the Act and invocation of the provisions of the Act by the Investigating Agency is justified.  This conflict had led to the reference being made to a Larger Bench.

13. We have heard Mr.S.Ramesh, learned counsel appearing for

the petitioner and Mr.Hassan Mohammed Jinnah, learned Public Prosecutor appearing for the State.

14. During the course of the hearing, it was brought to our notice

that another Single Judge of this Court in C.Guhamani v. State rep. by Deputy Superintendent of Police, Crime Branch CID, Coimbatore, reported in 2016 SCC Online Mad 3492, had expressed the opinion that in view of Section 8 of the Act, the cases under this Act will have to be tried only by the Court of Session and no other Court inferior to it.  The learned Public Prosecutor brought to our notice a judgment of the Division Bench of this Court in In Re The Registrar (Judicial), High Court, reported in 2017 (4) CTC 371, which according to him expresses a different opinion, we therefore thought it fit to include the said question also and by our order dated 31.03.2023 framed two more questions which, in our opinion, stemmed out of the reference made and they are:

“2. Whether the statement of objects and

reasons set out to the bill when the amendment was

carried out and the original enactment could be used as a tool in determining the object of the enactment and in interpreting the enactment?

3. Whether the offences under this Act

should be tried only by a Sessions Court?”

 

15. After framing those questions, we had heard the counsel for

the parties on 17.04.2023. We are therefore, to answer the following three questions:

“1. Whether or not, the offence causing loss

or damage to the private properties during private dispute between two groups or individuals can be investigated and tried as per the provisions of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, as amended by Act 46 of 1994?

2. Whether the statement of objects and

reasons set out to the bill when the amendment was carried out and the original enactment could be used as a tool in determining the object of the enactment and in interpreting the enactment?

3. Whether the offences under this Act should

be tried only by a Sessions Court?”

16. The questions 1 and 2 will have to be discussed together. The

legislative history with reference to criminalization of Acts of mischief causing damage to property has been set out earlier.  At the risk of repetition, we would sum it up as follows:

The State of Tamil Nadu brought in the Tamil Nadu Public Property (Prevention of Destruction and Loss) Act, 1982  a very crisp enactment with just seven provisions. The said Act only dealt with criminalisation of mischief to public property,  Then came to 1984 enactment enacted by the Parliament christened  Prevention of Damage to Public Property Act 3 of 1984, which is also a very short legislation with only seven Sections and it only dealt with criminalisation of mischief causing damage to public property and prescription of punishment for such offences.

17. Various States enacted various Laws relating to damage to

public property and the State of Tamil Nadu came up with the Act 59 of 1992 which was more comprehensive in nature and it inter alia provided for determination in payment of compensation.  While the Legislation as introduced in 1992 was confined to public property alone by the amendment introduced in 1994, by Act 46 of 1994, the Act was extended to private property also. The statement of objects and reasons for both the enactment viz. the Principal Act of 1992 and the Amending Act of 1994 made a reference to widespread damage being caused to the property during processions, assemblies, meetings, agitations, demonstrations or other activities organised by political parties or communal, language or ethnic groups and it was also stated the enactment seeks to achieve the object of making such organisers responsible for payment of compensation for the damage caused to property.

18. Nonetheless the charging Sections of the enactment did not

make any reference to the processions, assemblies, meetings, agitations, demonstrations or other activities organised by political parties or communal, language or ethnic groups.  We therefore have on hand the 1994 enactment.  If we are to go by the statement of objects and reasons set out while the amending Act was enacted, we have to necessarily accept and uphold the view in Logu @ Loganathan v. State; Pavalayee v. State; Bhuvaneswaran v. State; Annamalai v. State; and R.Vijayalakshi v. State.

19. While Mr.S.Ramesh, learned counsel appearing for the

petitioners in the Revision would submit that the statement of objects and reasons of the enactment will necessarily have a bearing on the interpretation of the enactment. He would also draw our attention to provisions of similar enactments which are in force in other States, in support of his contention that the intendment of the legislature was to criminalise damage to property, be it public or private during processions, assemblies, meetings, agitations, demonstrations or other activities organised by political parties or communal, language or ethnic groups.

20. Contending contra, the learned Public Prosecutor appearing

for the State would submit that resort to statement of objects and reasons, when the language of the enactment is unambiguous and does not admit more than one construction, is not a sound rule of interpretation of statutes.

The learned Public Prosecutor would also rely upon the judgment of the

Hon’ble Supreme Court in Narain Khamman v. Parduman Kumar Jain, reported in (1985) 1 SCC 1, in support of his submission.

21. While considering the use of external aids for interpreting a

statute, the Hon’ble Supreme Court had held that the statement of objects and reasons accompanying a Legislative Bill cannot be used to determine the true meaning and effect of the substantive provisions of a statute.  It is permissible to refer to the statement of objects and reasons for the purpose of understanding the background, the antecedent State of affairs, the surrounding circumstances in relation to the statute.  Our attention is also drawn to the judgment of the Hon’ble Supreme Court in S.C.Prashar and another v. Vasantsen Dwarkadas and others, reported in (1964) 1 SCR 29, wherein the Hon’ble Supreme Court has held as follows:

“23.….It is indeed true that the Statement of Objects and Reasons for introducing a particular piece of legislation cannot be used for interpreting the legislation if the words used therein are clear enough. But the Statement of Objects and Reasons can be referred to for the purpose of ascertaining the circumstances which led to the legislation in order to find out what was the mischief which the legislation aimed at. The decision of the Calcutta High Court to which I have earlier made a reference was adverted to in the Statement of Objects and

Reasons. …..”

22. In Giri v. State rep through the Inspector of Police, the

learned Single Judge of this Court had also adverted to the statement of objects and reasons of this very enactment and had held that the statement of objects and reasons cannot be used to circumscribe the Act. It is therefore clear that the statement of objects and reasons of a particular enactment can be taken as an aid to find out the mischief that is sought to be remedied by the enactment, the same cannot be used to interpret the enactment in a restrictive manner as suggested by the learned counsel for the petitioner. Mr.S.Ramesh, learned counsel for the petitioner would attempt to persuade us to invoke Heydon’s Rule of statutory interpretation established in England as far back as in 1584 which held that for the true interpretation of all statutes in general four things are to be discerned and considered they are:

“(1) What was the common law before the making of the

Act,

• What was the mischief and defect for which the common law did not provide,
• What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth, and
• the true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy….”

23. We are constrained to point out that applicability of Heydon’s Rules of interpretation is not absolute. The Hon’ble Supreme Court in Parayankandiyal Eravath Kanapravan Kalliani Ammal v. K. Devi and others, reported in AIR 1996 SC 1963, had after discussing the principles set out in Heydon’s case concluded as follows:-

“71. …. Heydon’s Rule is generally invoked where the words in the statute are ambiguous and /or are capable of two meanings. In such a situation, the meaning which avoids the mischief and advances the remedy, specially in the case of a beneficial statute, is adopted. There is some controversy whether Heydon’s rule can be invoked in any other situation specially where the words of the statute are clear and unambiguous. In C.I.T., M.P. & Bhopal vs. Sodra Devi, AIR 1957 SC 832, it was indicated that the rule in Heydon’s case is applicable only when the words in question are ambiguous and capable of more than one meaning. That is what was expressed by Gajendragadkar, J. in Kanailal Sur vs.

Paramnidhi Sadhukhan, AIR 1957 SC 907. In Maunsell vs. Olins (1975) 1 All ER 16 (HL) P-29, Lord Simon explained this aspect by saying that the rule in Heydon’s case is available at two stages; first before ascertaining the plain and primary meaning of the statute and secondly at the stage when the court reaches the conclusion that there is no such plain meaning.”(emphasis supplied)

24. It is therefore clear that resort to Heydon’s Rule of

interpretation or resort to external aids for interpreting the enactment could be had only when the statute is ambiguous or it admits of more than one interpretation. We have already extracted the relevant provisions of the 1992 enactment and the amendments carried out by the 1994 amending Act.   We find that the language of the enactment is plain and simple and it is neither ambiguous nor does it admit of more than one interpretation.  Sections 3 and 4 of the Act, criminalise mischief caused to property of a value of rupees one hundred or upwards, mischief to property can be caused in several situations some of the situations are set out in the statement of objects and reasons and such setting out of some of the situations alone cannot restrict the meaning of the actual words used in the enactment.

25. Moreover, the amendments carried out to the Act and the

language used would also impel us to conclude that we should resort to an interpretation that would be based on the plain and simple language of the enactment.   If we look at the original definition of property under Sub Section 4 of Section 2 of the 1992 Act, the term public property has been defined as ‘property movable or immovable or machinery owned by or in possession of, or under the control of’.  After the amendment in 1994, the word property has been defined as property movable or immovable or machinery owned by or in possession of or under the ‘control of any person including’.  Therefore, it is clear that the intendment of the Legislature was, to make the Act applicable to private property also and criminalise damages caused to private property also.  If we are to read the statement of objects and reasons of both the enactments, which we have already extracted, carefully we find that the Legislative intent was to provide for punishment of persons who actually cause damage or loss to  property and to make political parties or communal, language or ethnic groups which organised such processions, assemblies, meetings, agitations, demonstrations or other activities, liable to pay compensation in respect of damage or loss caused to any  property.

26. The statement of objects and reasons of the amending Act of 1994 also states that a decision has been taken to amend the Act suitably providing for punishments of persons who actually caused damage or loss to private property and to make the political parties or communal, language or ethnic group which organized such procession, assembly, meeting, agitation, demonstration or other activities liable to pay compensation for the damages. Therefore, it is very clear that the intendment of the legislature was to provide for punishment to persons who cause damage and also to make the organisers of processions, assemblies, meetings, agitations, demonstrations or other activities, liable to pay damages. We are therefore constrained to conclude that the word used in the statement of objects and reasons would necessarily repel the interpretation that is sought to be placed by the Hon’ble Judges who concluded that the Act cannot be invoked in respect of damage caused to private property in a private dispute.
27. We are therefore constrained to conclude that the charging

provisions of the Act being clear and unambiguous, taking recourse to the statement of objects and reasons so as to give a restricted interpretation to the enactment is not justified.  With great respect to the Hon’ble Judges who decided Logu @ Loganathan v. State; Pavalayee v. State; Bhuvaneswaran v. State; Annamalai v. State; and R.Vijayalakshi v. State,  we conclude that the Act would apply to even cases of damage to private property in a private dispute. We therefore overrule those judgments and approve the judgments in Venkataesam v. State;  Giri v. State; Balu v. Jayaganthan; and R.Mokkamayan v. State.

28. Thus the question No.1 referred to us is answered to the effect

that even loss or damage to private properties caused during private disputes between two groups or individuals can be investigated and tried under the provisions of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 as amended by Act 46 of 1994.

29. The second question relating to the use of the statement of

objects and reasons as a tool in determining the object of the enactment and interpreting the enactment is answered to the effect that the statement of objects and reasons could be resorted to in interpreting the enactment only when the provisions of the enactment are ambiguous or when they admit of more than one interpretation.

30. Having answered the first two questions, we now advert to the

third question viz., whether the offences under the Act should be tried only by a Sessions Court.  In C.Guhamani v. State, reported in 2016 SCC Online Mad 3492, the Hon’ble Mr.Justce R.Subbiah had taking note of Section 8 of the Act held that the offences under this Act are ought to be tried only by the Court of Session and not by any other Court. Section 8 of the Act reads as follows:

“No Court inferior to that of a Chief Metropolitan Magistrate or a Court of Session shall try offences punishable under this Act.”

31. The question that arose was, as to whether the restriction

imposed is absolute and the same would prevent an Additional Sessions

Judge or Assistant Sessions Judge from trying offences under the 1992 enactment. The learned Judge after considering the definition of Court of Session under Section 9 of the Code of Criminal Procedure, concluded that the offences are triable only by a Sessions Court and the same will not include an Assistant Sessions Court.

32. The learned Public Prosecutor would invite our attention to

the judgment of a Division Bench of this Court in In Re The Registrar (Judicial), High Court, reported in 2017 (4) CTC 371, which stemmed out of an administrative order passed by the Hon’ble Chief Justice treating a letter of the Sessions Judge, Magalir Neethi Mandram, Tiruchinapalli, seeking clarifications of the powers of the Judicial Magistrate to remand the accused involved in cases relating to offences under the POCSO Act and

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as a reference under Section 395 of the Code of Criminal Procedure, wherein the Division Bench has held that the term Court of Session is not confined only to the Principal Sessions Judge and it would take within its ambit an Additional Sessions Judge also. The Division Bench had in paragraph 20 of the said judgment had observed as follows:

“20. From the above discussion, on comparison of

various provisions of the Code, it is crystal clear that the

Court of Session established for a Sessions Division by the State Government is presided over by a Sessions Judge appointed by the High Court and an Additional Sessions Judge appointed by the High Court exercises jurisdiction in the same Court of Session. There is no separate or independent “Court of Additional Sessions Judge”

established. It is also clear that so far as the powers of the Sessions Judge and an Additional Sessions Judge are concerned, for certain matters, they exercise different powers and in many other respects, they exercise similar powers.”

33. On the above understanding, the Division Bench went on to

conclude that designation of an Additional Court of Sessions as a Special Court under the said enactments was perfectly justified.  In view of the above said judgment of the Division Bench, the term Court of Session used in Section 8 of the 1992 Act would necessarily include a Court of Additional Sessions Judge also.  The effect of the judgment of the Division Bench is that the Additional Sessions Judges and Assistant Sessions Judges who are appointed to exercise the jurisdiction of a Court of Sessions can also try offences under the Act.  The only requirement being that the case should be made over to such Additional or Assistant Session Judge by the Court of Session. Therefore, the restrictive interpretation of Section 8 made by Hon’ble Mr.Justice R. Subbiah, cannot hold good in view of the pronouncement of the Division Bench. The maximum punishment

prescribed under the Act is under Section 4 which may extend to 10 years with imprisonment with fine.

34. Section 28 of the Code of Criminal Procedure empowers an Assistant Sessions Judge to pass a sentence for a term not exceeding 10 years. Therefore, if the offence is to be tried by under the Indian Penal Code by an Assistant Sessions Judge, he can impose a punishment up to a maximum of 10 years.   However, in view of the language of Section 8 which states that no Court inferior to that of a Chief Metropolitan Magistrate or a Court of Session shall try any offence punishable under this

Act, Hon’ble Mr.Justice R.Subbiah, has taken the view that its only the Court of Session and no other Court which will have the power to try an offence under this Act.

35. The learned Public Prosecutor has also invited our attention to the judgment of the Full Bench of Patna High Court in District Bar Association, Civil Court, Patna v. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna, reported in 2017 Crl LJ 1, wherein a similar question was considered by the Full Bench of the Patna High Court and the Full Bench after considering the language of Sub Section 3 of Section 10 of the Code of Criminal Procedure, concluded that the expression ‘Court of Session’ would include not only the Session Judge but also the Additional or Assistant Judge and the term ‘Sessions Judge’ cannot be treated to include an Additional or Assistant Session Judge. The Full

Bench observed in paragraph 76 of the judgment as follows:

“76. What crystallizes from the above discussion is that the expression ‘Court of Session’, which occurs in the new Code, is contextual in nature. While, ordinarily, the expression ‘Court of Session’ would include not only the Sessions Judge, but also Additional or Assistant Judge, the expression Sessions Judge, unless the context, otherwise, requires, cannot be treated to include an Additional or Assistant Sessions Judge. While the Sessions Judge presides over the sessions-division, an Additional or Assistant Sessions Judge merely exercises jurisdiction in a

Court of Session. The overall control of

administration, in a given sessions division, as already noticed above, rests in the Sessions Judge. Wherever the code intended that the power can be exercised only by a Sessions Judge, the code has used the expression ‘Sessions Judge’ and not ‘Court of Session’.”

36. Even under the Code of Criminal Procedure Section 9 requires

the Government to establish a Court of Session for every Sessions division.

Sub Section 3 of Section 9 empowers the High Court to appoint Additional Sessions Judge and Assistant Sessions Judge to exercise jurisdiction in a Court of Session.

Sub Section 4 of Section 9 provides that a Sessions Judge of one Sessions Division may be appointed by the High Court to be also an Additional Sessions Judge of another Division.

Sub Section 5 of Section 9 enables the High Court to make arrangements for the disposal of urgent application by the Additional or Assistant Sessions Judges in the absence of a

Sessions Judge.

Therefore, the term ‘Court of Session’, in our considered opinion, would also include the Court of Additional or Assistant Sessions Judge.

37. The subordination of the Assistant Session Judges provided

under Section 10 is only for administrative convenience and it cannot be said that the Court of Assistant Session Judges, who exercise power in a Court of Session are inferior to or subordinate to the Court of Session.  If they are entitled to try the offence under the code of Criminal Procedure and impose a punishment up to the maximum level, then the Court of Assistant Sessions Judge would also be Court of Sessions. We are unable to concur with the restrictive interpretation given by Hon’ble Mr.Justice R.Subbiah, to the expression ‘Court of Session’ and we find the judgment of the Full Bench of the Patna High Court in District Bar Association, Civil Court,

Patna v. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna, more acceptable and reasonable.  We therefore conclude that the expression ‘Court of Session’ used in Section 8 of the Act would include both Additional and Assistant Sessions Judges, who exercise power in a Court of Session.

38. We therefore overrule the judgment of Hon’ble Mr.Justice

R.Subbiah, in C.Guhamani v. State rep. by Deputy Superintendent of

Police, Crime Branch CID, Coimbatore, and conclude that the expression

‘Court of Session’ used in Section 8 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 would include both Additional and Assistant Session Judges.

39. We answer the third question to the effect that the term ‘Court

of Session’ would include both Additional as well as Assistant Sessions Judges.

40. Having answered the reference as above, we direct the Registry to place the Criminal R.C. (MD) NO.869 of 2022 before the concerned Judge for disposal in accordance with law.

                 

      (R.SUBRAMANIAN, J.)      (L. VICTORIA GOWRI, J.) 08.06.2023

Index: Yes

Internet: Yes

Neutral Citation : Yes Speaking Order jv

To

1. The Principal District and Sessions Judge,
2. The Publice Prosecutor High Court of Madra.

 

 

 

 

R.SUBRAMANIAN, J. and     

1. VICTORIA GOWRI, J.

jv Criminal RC (MD) No.869 of 2022

08.06.2023