Courts created by Executive notifications not akin to Special Courts: Madras HC

The Madras High Court has clarified that Sessions Courts created by Executive notifications are not the same as Special Courts created by special laws. In view of the same, they cannot abridge or supersede the jurisdictional powers conferred by the Code of Criminal Procedure (CrPC)..Observations to this effect were made by a Special Bench of R Subbiah and G Jayachandran, while examining the jurisdictional nature of Sessions Courts designated “for exclusive trial” of bomb blasts cases, brought into existence through government notifications..This aspect came into focus when the Court was approached by petitioners challenging the en masse transfer of cases under the Explosives Substances Act to such Sessions Courts, in purported compliance of an April 2017 circular..Case Background.A circular issued in April 2017 by the Registrar General of the Madras High Court had directed that cases under the Explosives Substances Act, 1908 be transferred to such courts, with the object of distributing the work among Sessions Courts..In Tamil Nadu, three Government notifications had designated two courts for the exclusive trial of bomb blasts cases at Poonamallee and Coimbatore..However, the circular also required that the cases only be transferred after assigning reasons as to the nature of the case and the need to transfer it. The cases were meant to be transferred depending on whether they were sensitive in nature and on a case-by-case basis..Instead, the circular prompted the indiscriminate transfer of a number of cases falling under the Explosives Act, without assigning any reason for such transfer..Challenging the same, a total of six petitioners accused in cases falling under the Explosives Act approached both Benches of the High Court. The Court was informed that the transfer of their cases took place despite the fact that their trials were progressing at various stages in the concerned Sessions Courts..High Court’s observations.The Court ultimately allowed their petitions, considering that the indiscriminate transfer of cases was made mechanically, without assigning any reason as required by the Registrar’s circular..“Merely because an offence punishable under the Explosive Substance Act is involved in a Sessions Case, it will not be a reason to transfer such a Sessions Case to the Sessions Court for exclusive trial of Bomb Blast Cases, Chennai at Poonamallee or at Coimbatore.”.Importantly, the Court noted that these courts do not hold exclusive jurisdiction over a particular subject matter, unlike Special Courts created by special statutes. As noted in the common order,.“… these two Courts are not special Courts created under any special statute. For example, these two Courts are not akin to the Special Courts for NDPS cases, Special Court for SC/ST (Prevention of Atrocities) Act Cases etc..They are ordinary additional Sessions Courts, that have been created to lessen the burden of the existing Session Courts. They are similar to the Mahila Courts (Sessions level) that are functioning in various Districts to deal with offences against women.”.The Bench went on to note that as with any other Additional Sessions Court, these courts may also have to try cases other than bomb blasts cases. In any case, such courts created by a government notification cannot abridge the powers conferred on Additional Sessions Courts by the CrPC..“Though the Government has sanctioned separate staff and other infrastructure for these two Courts, they are not denuded of their power from trying other sessions cases that are made over to them by the District and Sessions Judges under Section 194 of the Code of Criminal Procedure. These two Courts do not have the original jurisdiction to take cognisance of an offence under Section 190 of the Code of Criminal Procedure….…Just because the notifications refers to certain special crimes and criminals, it does not mean that the two Courts can try only the cases referred to in the notifications. .An executive notification cannot abridge the powers conferred on the additional Sessions Court by the Code of Criminal Procedure. Nor can the State create a power centre parallel to the District and Session Judge as that could lead to confusion inasmuch as the Magistrates will not know as to where the cases should be committed.”.Furthermore, the Court emphasized that a transfer of the case in terms of the circular can only be done by a jurisdictional Court of Session, in view of Section 9(1), read with Section 209 of the CrPC..In other words, Magistrates cannot directly transfer the case to the Sessions Courts mentioned in the circular. Rather, they would first have to commit the case to a jurisdictional Sessions Court, which may then transfer the case depending on the sensitive nature of the case, after according reasons for the transfer..An additional factor that prompted the Court to undo the transfer was that several of the cases involved were already part-heard by the concerned Sessions Courts. It was noted that transferring these cases would thus be against the interests of expedient justice. Therefore, there was no justification left to transfer the case from these courts..For these reasons, all the cases were directed to be transferred back to the concerned Special Courts within two weeks from the date of the order for expeditious disposal..Read the order: