PETITIONER: AJIT KUMAR PALIT Vs. RESPONDENT: STATE OF WEST BENGAL DATE OF JUDGMENT: 07/11/1962 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA IMAM, SYED JAFFER MUDHOLKAR, J.R. CITATION: 1963 AIR 765 1963 SCR Supl. (1) 953 CITATOR INFO : RF 1966 SC 69 (5) R 1978 SC 188 (7,10) ACT: Criminal Trial-Special Court-Cognizance, when taken Allotment of case to Special Court- If sufficient for taking cognizance-West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W.B. XXI of 1949) ss. 4, 5- West Bengal Criminal Law Amendment (Special Courts) (Amending) Act, 1960 (W. B. 24 of 1960) s. 2. HEADNOTE: In 1958 the police filed a report before the 'Chief Presidency Magistrate charging, the appellant and others of offenses under ss. 120-B/409 and 477 Indian Penal Code. On June 1,1959, the State Government in de an order under s. 4 (2) W. B. Criminal Law Amendment (Special Courts) Act, 1949, assigning the case to a Special Court. Section 5 (1) of the Act provided that a Special Court may take cognizance of offenses without the accused being committed to it for trial. On a petition made by the Investigating Officer, the Special Court took cognizance of the case and issued process to the accused. The appellant contended that the Special Court could take cognizance only according to the procedure prescribed by s. 190 (1) Code of Criminal Procedure and not merely upon the allotment of the case to it or upon the 'complaint' of the Police Officer. Held, that the Special Court could take cognizance of the case as soon as it received orders of allotment of the case and it became vested with jurisdiction to apply its mind and to issue process to the accused as soon it received, the records of the case. The provisions of 190 (1) of the Code were upon its own terms inapplicable to a Special Court. Though a Special Court was "deemed" to be a court of session, s. 5 (1') of the Act specifically provided that an order of commitment was not necessary for it to take cognizance and so s. 193 (1) of the Code was not applicable. Bhajahari Mondal v. The State of West Bengal, [1959] S. C. R. 1276, explained. 954 Section 5 (1) as amended by the Amending Act of 1960 provide-, that a' Special Court may take cognizance of offenses in the manner laid down ins. 190(1) (a) and (b) of the Code without an order of commitment. This amendment did not affect the cognizance already taken by the Special Judge. The amending Act did not declare what the law was but actually effected a change. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 188 of
1961.
Appeal by special leave from the judgment and order dated
June 8 1961 of the Calcutta High Court in Criminal Revision
No. 1557 of 1959.
P. K. Chakravarti, Amiyalal Chatterjee and P.K. Mukherjee
for the Appellant.
B.Sen, P. K. Chatterjee and P. K. Bose, for the
Respondents.
1962. November 7. The judgment of the Court was delivered
by
AYYANGAR,’ J.-This appeal raises for consideration the
proper construction of ss. 4 and 5 of the West Bengal
Criminal Law Amendment (Special Courts) Act, 1949 (W. B.
XXI of 1949) to which we shall refer as the Act. The
preamble to the Act recites that it was enacted to provide
for the speedy trial of the offenses specified in the
Schedule. Section 2 empowers the State Government to
constitute by notification in the Official Gazette one or
more special courts. Section 4 enacts, to extract only the
portion relevant to this appeal :
“S. 4(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1898, or in
any other law, the offenses specified in the
Schedule shall be triable by Special Courts
only.
(2) The distribution amongst Special Courts
of cases involving offenses specified in the
Schedule,
955
to be tried by them, shall be made by the
State Government.”
This is followed by s. 5 reading, again confining ourselves
to the portion material for this appeal
“S. 5 (1). A Special Court may take cogni-
zance of offenses without the accused being
committed to his Court for trial, and in
trying accused persons, shall follow the
procedure, prescribed by the Code of Criminal
Procedure, 1898, for the trial of warrant
cases by Magistrates, instituted otherwise
than on a police report.
(2) Save as provided in, sub-section (1) or
subsec. I (a), the provisions, of the Code of
Criminal Procedure, 1898 shall, so far as they
are not inconsistent with the present Act,
apply to the proceedings of a Special Court;
and for the purposes of the said provisions, a
special Court shall be deemed to be a Court of
Session trying cases without a jury, and a
person conducting a prosecution before a
Special Court shall be deemed to be a Public
Prosecutor. ”
.lm0
As recited in the preamble and in s.4, there
is a Schedule setting out the offenses which
are triable solely by these Special Courts.
The facts giving rise to the present appeal
may now be stated. The police filed a report
before the Chief Presidency Magistrate at
Calcutta in February, 1958 charging ten
accused persons including the appellant; of
offenses under s. 120-B read with s. 409 and
s. 477, Indian Penal Code. Subsequently, by
an order of the State Government dated June 1,
1959, notified in the official , Gazette the
said case was assigned to the Calcutta
Additional Special
956
Court under s. 4 (2) of the Act, and in the
said communication the names and description
of the accused as well as the offenses with
which they were charged were set out.
Sometime later amendments were made to this
Notification but nothing turns on them. On
September 26, 1959, the Investigating Officer
of the Enforcement Branch, Calcutta, filed a
petition before the Special judge praying that
the judge might be pleased to take cognizance
of the case which had been allotted to him and
issue process against the several accused and
pass such orders as he might deem just. On
the same day (September 26, 1959), the
Additional Special judge took cognizance of
the offenses and issued notices to the accused
persons fixing a date for their appearance.
On receipt of this notice the appellant made
an application before the Special judge
stating that the initiation of the proceedings
the petition of the Investigating Branch,
Calcutta, was not proper and legal in
consequence the Special Judge was to proceed
in the matter. The Additional Special judge
rejected that petition. The appellant then
moved the High Court of Calcutta in revision,
urging the same ground, namely, that the
Special judge could not take cognizance of the
offence on the or “complaint” of the police
officer and had therefore no jurisdiction to
proceed with the trial of the case. At this
stage, it is necessary to mention that in two
earlier decisions of the Calcutta High Court
the view had been held that a Special judge
did not acquire jurisdiction to proceed with
the trial of a case merely on an allotment of
a case to him under s. 4 (2) of the Act duly
notified in the Gazette, but that to enable
him to take “‘cognizance” of a case the
provisions of s. 190 (1) of the Criminal
Procedure Code had to be complied with and
that having regard to the concluding words of
s. 5(1) of the Act, extracted earlier, this
had to be “otherwise than on a police report.”
957
In the previous decisions the learned Judges
drew a distinction between cognizance of a
case and jurisdiction to proceed with the
trial and held that unless the Special judge
had material before him in the proper
statutory form, he could not take “cognizance’
notwithstanding the allotment of the case to
him by the State Government with the result
that he was incompetent to proceed with trial
of such a case.
The Division Bench before which the revision
of the present appellant came on for disposal
entertained doubts about the correctness of
these two earlier decisions and accordingly the matter wa
s referred for the consideration
of a Full Bench. The questions referred were:
(1)Does the Special Judge appointed under
the WestBengal Criminal Law Amendment
(Special Courts) Act, 1949, to whom a case has
been allotted by notification u/s 4(2) of the
Act need a petition of complaint for taking
cognizance of the case or does he take
cognizance when on receiving the Government
notification and the record of charge from the
court of the Magistrate, he applies
his mind to the facts of the case ?
(2)There was a second question which
specifically referred to the two earlier
decisions and raised a query as to whether
they had been correctly decided.
The learned judges of the Full Bench by a
majority answered questions in the following
terms :
“A Special Court is said to have taken cogni-
zance when on receiving the Government
Notification of the allotment or distribution
of the case and the records of the case, it
applies its mind to the facts of the case and
958
takes some steps for proceeding under the
subsequent sections of Chap. XXI of the
Code.”
The second question was answered by saying that the earlier
decisions referred to were incorrect.
After the order of reference to the Full Bench and before
the hearing of the reference, the West Bengal Legislature
enacted Act XXIV of 1960-The West Bengal Criminal Law
Amendment (Special Courts) ( Amending) Act, 1960. Section 2
of this enactment effected changes in s. 5 of the Act as
extracted earlier, so that after the amendment it read:
“S. 5( 1). A Special Court may take congni-
zance of offenses in. the manner laid down in
clauses (a) and (b) of sub-sec. (1) of 8. 190
of the Criminal Procedure Code, 1898, without
the accused being committed to his Court for
trial, and in trying accused
persons…………….
the portion italicised being that newly added.
One of the points canvassed before the Full Bench related to
the applicability of this provision to the present
proceedings. The learned judges observed that though the
amendment being in relation to a matter of procedure might
ordinarily apply to pending proceedings as well it did not
however have the effect of invalidating proceedings already
taken, in the absence of a specific provision to that effect
and in consequence they held that the validity of the pro-
ceedings before the Special judge and his jurisdiction to
proceed with the trial of the accused was governed solely by
the Act as it stood before the amendment.
Following the opinion expressed by the Full Bench the
revision petition file by the appellant was dismissed. The
appellant who comes here by the special leave contests the
correctness of the answer of the Full Bench on these points.
959
We shall first take up for consideration the main question
that arises in the case as regards the jurisdiction of the
Special judge to take cognizance of an offence without the
procedure prescribed by s. 190(1) being complied with.
In order to appreciate the scope of s. 190(1) of the
Criminal Procedure Code it is necessary to mention that it
is the first of a fasciculus of sections comprised in Part B
of Ch. XV containing ss. 190 to 199 dealing with the
statutory conditions necessary for the initiation of
criminal proceedings. Of these ss. 190 to 194 form one
group and it is sufficient to confine attention to them :
“190. (1) Except as hereinafter provided, any
Presidency Magistrate, District Magistrate or
Sub-divisional Magistrate, and any other
Magistrate specially empowered in this behalf,
may take cognizance of any offence-
(a)upon receiving a complaint of facts which
constitute such offence;
(b)upon a report in writing of such facts made
by any police-officer;
(c)upon information received from any person
other than a police-officer, or upon his own
knowledge or suspicion, that such offence has
been committed.
(2)…………………………………………………
.
(3)……………………………………….
“191. When a Magistrate takes cognizance of
an offence under sub-section (1), clause (c),
of the preceding section, the accused shall,
before any evidence is taken, be informed that
he is entitled to have the case tried by
another Court,
960
and if the accused, or any of the accused if
there be more than one, objects to being tried
by such Magistrate, the case shall, instead of
being tried by such Magistrate, be committed
to the Court of Session or transferred to
another Magistrate.”
“192 (1). Any Chief Presidency Magistrate,
District Magistrate or Sub-divisional Magis-
trate may transfer any case, of which he ES;
taken cognizance, for inquiry or trial, to any
Magistrate subordinate to him.
(2). Any District Magistrate may empower any
Magistrate of the first class who has taken
cognizance of any case to transfer it for
inquiry or trial to any other specified
Magistrate in his district who is competent
under this Code to try the accused or commit
him for trial; and such Magistrate may dispose
of the case accordingly.”
“193. (1). Except as otherwise expressly pro-
vided by this Code or by any other law for the
time being in force, no Court’ of Session
shall take cognizance of any offence as a
Court of original jurisdiction unless the
accused has been committed to it by a
Magistrate duly empowered in that behalf.”
“194. (1). The High Court may take cognizance
of any offence upon a commitment made to it in
manner hereinafter provided.
‘Nothing herein contained shall be deemed to
affect the provisions of anY letters patent or
law by which a High Court. is constituted or
continued, or any other provision of this
Code.’
(2).(a). Notwithstanding anything in this
Code contained, the Advocate-General may, with
the
961
previous sanction of the State Government,
exhibit to the High Court, against persons
subject to the jurisdiction of the High Court,
informations for all purposes for which Her
Majesty’s Attorney-General may exhibit infor-
mations on behalf of the Crown in the High
Court of justice in England.
(b)…………………………………
(c)……………………………………
(d)…………………………………….
A perusal of these would show that proceedings may be
initiated and cognizance of an offence taken either directly
or upon transfer of a case of’ by commitment, or on
information filed by the Advocate-General. Direct
cognizance can be taken only by certain classes of
Magistrates specified in s. 190(1). It should be noticed
that the application of this section is limited to
Presidency Magistrates, District Magistrates, Sub divisional
Magistrates and other Magistrates specially empowered in
that behalf and it is common ground that the judge of the
Special Court appointed under s. 2 of the Act is not within
the class of Magistrates designated by s. 190(1) and hence
there can be no question of such a judge having to comply
with its requirements before he can “take cognizance of an
offence.” Nor is it the contention of the appellant that
such Court is a Sessions Court or a High Court as to require
an order of committal by a Magistrate as a precondition for
the emergence of its jurisdiction to proceed judicially with
the matter.
It is thus clear that there is no statutory requirement
under the Criminal Procedure Code as to’ the class or
character of material that must be before a special judge
before he can assume and exercise jurisdiction over a case.
It was common ground that the same is not a requirement of
the Special Courts Act either.
962
There were however certain matters which were relied on as
pointing to a different inference to which we shall
immediately refer. In the first place it was urged that s.
5(1) of the Act merely precluded an objection being taken to
the jurisdiction of the Special Court by reason of their
being no commitment, but did not positively provide whether
or not other material was necessary before cognizance could
be taken of the offence besides, of course, the order of
allotment under s. 4(2). In other words, the argument was
that the order of allotment was not either expressly or by
necessary implication to be equated to a committal order
under s. 193(1). This contention was sought to be
reinforced by reference to the language employed in s. 5(2)
of the Act where under the special court was not constituted
“a court of session” but was only deemed to be one such
indicating, as it were, that it was not that in truth. We
consider that this submission totally lacks substance. We
are unable to draw the inference which learned Counsel for
the appellant does from the word “deemed” in s. 5(2) of the
Act. The fact is that the words “court of session” have a
well-understood meaning and significance in the hierarchy of
courts under the, Code of Criminal Procedure and the Special
Court is constituted not such a court but as it is being
vested with the powers of a sessions court though with
modifications, the word “‘deemed” is used. If the special
court is “deemed” to be a court of session, a doubt might
arise as to whether the provision in s. 193(1) of the Code
is or is not inconsistent with the Act (vide s. 5(2) of the
Act), and hence to clear the position s. 5(1) enacts, so to
say, that notwithstanding that a special court is “deemed”
to be court of session, section 193(1) does not apply to it
and that an initial cognizance by a Magistrate followed by
an order of commitment is not necessary for cognizance being
taken by the Special judge.
If s. 190 (1) and s. 193 (1) of the Code do not apply, the
next question that calls for consideration
963
is what more besides the order of the State Government u/s
4(2) of the Act is needed to vest that court with
jurisdiction to proceed. It was suggested that s. 5 (1) of
the Act might at the best obviate the necessity for an order
of commitment but that it did not on that account negative
the need for some proper material on the basis of which
alone “cognizance” may be taken and it was further submitted
that in the case of a fudge of a Special Court cognizance of
a case was different from jurisdiction to conduct the trial,
the former being dependent on the existence of material
which alone invested the court or judge with jurisdiction,
so to speak, to initiate the proceedings. Throughout the
arguments of the learned Counsel for the appellant there was
an underlying assumption that jurisdiction to proceed with
the trial of the case was different from “‘Cognizance” which
was some technical requisite necessary to invest the Judge
or Magistrate with jurisdiction and that in the absence of
proper material for cognizance being taken he was
incompetent to proceed with the trial of the case allotted
to him.
Much of the arguments on this head was based on a passage in
the judgment of this court in Bhajahari Mondal v. The State
of West Bengal (1) which dealt with the Act. That passage
runs :
“‘The crucial date for the purpose of
determining the jurisdiction of the Court
would be the date when the Court received the
record and took cognizance of the case and
took any step in aid of the progress of the
case and not when the evidence of the
witnesses began to be recorded. Under s. 4 of
West Bengal Act (W. B. Act XXI 1949) as
amended by the Act of 1952 the jurisdiction of
the Court arises when the notification is
issued distributing the case to a particular
special court giving
(1) [1959] S.C.R. 1276.
964
the name of the accused and mentioning the
charge or charges against him which must be
under one of the offenses specified in the
Schedule. In the absence of any of these
elements the special Court would have no
jurisdiction.”
It was stressed that reference was here made to two matters
as necessary to confer jurisdiction on the special court :
(1) The ‘issue of notification under s. 4 (2) of the Act.,
(2) Receipt of the record and “the taking cognizance of the
case” and the taking of a step in aid of the progress of the
case and it was urged that the latter requirement brought in
really the substance of s. 190 (1) of the Criminal Procedure
Code. We are satisfied that these observations were not
meant to suggest that the jurisdiction of the Special judge
to proceed with the trial of a case duly alloted to him did
not spring wholly from the allotment which really was a
substitute for a commitment under s. 193 (1) of the Code,
but depended in part at least on the existence of other
material of a nature prescribed by statute disclosing the
commission of an offence. Our reading is further
strengthened by the fact that in a later portion of the same
judgment when dealing with the applicability to the special
judge of the curative provision ins. 529 of the Code reading
:
“If any Magistrate not empowered by law to do
any of the following things, namely:
(e) to take cognizance of an offence under
s. 190, sub-section (1), clause (a) or
clause (b) ;
965
erroneously in good faith does that thing, his
proceedings shall not be set aside merely on
the ground of his not being so empowered.”
It was specifically pointed out that- the provision which is
applicable to Magistrates designated in s. 190 (1) is not
applicable to the special judge who does not take cognizance
in that manner.
The provisions of s. 190 (1) being obviously, and on its own
terms, inapplicable, the next question to be. considered is
whether it is the requirement of any principle of general
jurisprudence that there should be some additional material
to entitle the Court to take cognizance of the offence. The
word ” cognizance” has no esoteric or mystic significance
in criminal law or procedure. It merely means become aware
of and when used with reference to a Court or judge, to take
notice of judicially. It was stated in Gopal Marwari v.
Emperor (1) by the learned judges of the Patna High Court in
a passage quoted with approval by this Court in R. R. Chari
v. State of Uttar Pradesh (2) that the word, “cognizance’
was used in the Code to indicate the point when the
Magistrate or judge takes judicial notice of an offence and
that it was a word of indefinite import, and is not perhaps
always used in exactly the same sense. As observed in
Emperor v. Sourindra Mohan Chuckerbutty(3), “‘taking
cognizance does not involve any formal action ; or indeed
action of any kind, but occurs as soon as a Magistrate, as
such, applies his mind to the suspected commission of an
offence.” Where the statute prescribes the materials on
which alone the judicial mind shall operate before any step
is taken, obviously the statutory requirement must be
fulfilled. Thus, a sessions judge cannot exercise that
original jurisdiction which magistrates specified in s.
190(1) can, but the material on which alone he can apply his
judicial mind and proceed under the Code is an order of
commitment. But statutory provision
(1) A.I.R. (1943) Pat. 245. (2) [1951] S.C.R. 312, 320.
(3) (1910) ~I.L.R. 37 Cal. 412, 416.
966
apart, there is no set material which must exist before the
judicial mind can operate. It appears to us therefore that
as soon as a special judge receives the orders of allotment
of the case passed by the State Government it becomes vested
with jurisdiction to try the case and when it receives the
record from the Government it can apply its mind and issue
notice to the accused and thus start the trial of the
proceedings assigned to it by the State Government.
Some little point was made of the words “otherwise than on
a police report” occuring at the end of s. 5(1) of the Act.
In our opinion, nothing turns on them. These words were not
there in the Act as originally enacted in 1949, but were
introduced by an amendment effected by W. B. Act 26 of 1956.
In 1949 at the date of the original enactment there were not
two procedures prescribed for being followed by magistrates
taking cognizance under the different clauses of s. 190(1)
of the Code. But the Criminal Procedure Code was amended by
Act 26 of 1955 when s. 251 A was introduced and under this
new provision a special procedure was introduced for the
trial of cases of which cognizance was taken on a police
report (s. 190(1)(b)). The amendment of the Act by the
inclusion of those words was merely to ensure the
inapplicability of s. 251-A to the procedure to be followed
in special courts and has obviously no further significance.
The next point for consideration is the effect of the
amendment of 1960 on the jurisdiction of the special court
to deal with the case of the appellant. Learned Counsel for
the appellant addressed an elaborate argument on it but in
substance the contention was that the amending Act was in
essence declaratory since it had accepted the correctness of
one of two interpretations which had been placed upon s.
5(1) of the Act as it originally stood. He therefore
invited us to hold that the Legislature had thereby intended
967
that that interpretation should govern the provision from
the date when the Act was originally enacted. Before
considering this point it is necessary to put aside certain
matters : (1) It was not contended that there were any
express words in the amending Act which made it
retrospective or retroactive to operate from the
commencement of the Act, (2) The amendment relating to, as
it is, obviously a matter of procedure would have applied to
pending proceedings, but it was not suggested that there was
anything in the amending Act invalidating proceedings
commenced without reference to the amended provisions ; in
other words, the special judge having validly acquired
jurisdiction to proceed with the trial of the case allotted
to ‘him, there was nothing in the amending Act to deprive
him of that jurisdiction.
It is in the background of these considerations which the
learned Counsel did not dispute, that his submissions have
to be considered. Learned Counsel referred us to a very
considerable number of decisions on the interpretation of
statutes, but we have not found them of assistance or even
relevance. The amending Act does not purport to be
declaratory but seeks in terms to carry out an amendment, in
other words, to effect a change. The mere fact that the
change effected conforms to a particular interpretation
which the words which previously existed might bear and
which found acceptance at the hands of the courts in a few
cases, is, in our opinion, a wholly insufficient foundation
to base an argument that it is declaratory and further that
it must be taken to have declared the law from the
commencement of the parent Act so as to invalidate all
proceedings validly taken on a proper construction of the
law as it then stood.
We find therefore that there is no substance in the argument
regarding the effect of the amending Act upon which reliance
is placed for the purpose of
968
imputing the jurisdiction of the special court and, we have
no hesitation in repelling that argument.
The result is that the appeal fails and is dismissed.
Appeal dismissed.
