JUDGMENT
Imam, C.J.
1. This is an application against an order passed by a Special Magistrate on 11-9-1952, whereby he forwarded the case before him to the Special Judge under the provisions of the Criminal Law Amendment Act, 1952 (Act 46 of 1952). The application is also made against an order of the Special Judge, dated 7-4-1953, whereby he summoned witnesses to attend his Court who had been examined before the Special Magistrate. The Special Judge had decided to try the case independent of the fact that some witnesses had already been examined by the Special Magistrate.
2. It may be stated forthwith that the validity of the Criminal Law Amendment Act, 1952, has. not been questioned by Mr. Baldeva Sahay, who has appeared for the petitioner. Mr. Baldeva Sahay’s grievance may be stated to be as two in number. His first grievance was that if Section 10, Criminal Law Amendment Act, be construed properly, the Special Magistrate wrongly forwarded the case before him to the Special Judge for trial. His second grievance was that even if the case was properly before the Special Judge, the Special Judge acted wrongly in deciding to hold a ‘de novo’ trial; he should have acceded to the request of the accused that if he was going to try the case he should act, upon the evidence already recorded by the Special Magistrate. The majority of the witnesses for the prosecution had been already examined and a large number of documents had been exhibited and the proceedings before the Special Magistrate had taken considerable time. In such circumstances to start the evidence all over again was to inflict further harassment upon the accused, the accused having suffered grievously while the proceedings were before the Special Magistrate.
3. It appears that the case of the petitioner was started on a first information report dated 26-8-1949. The matter was under police investigation, it seems, until the charge-sheet was submitted on 13-8-1951. Cognizance was taken by the Magistrate on 28-8-1951. The Criminal Law Amendment Act of 1952 came into force on 28-/- 1952. If the case against the accused had been
proceeded with diligently without undue delay, in all probability it would have concluded before the Criminal Law Amendment Act, 1952, came into force. For some reason or the other the case proceeded before the Special Magistrate in a leisurely fashion. I have been informed that at one stage only 13 witnesses were examined in seven months. There can be, therefore, no question that there will be hardship upon the accused if at the trial in the Court of the Special Judge his trial is prolonged by the Court having to re-examine all the witnesses who had already given evidence before the Special Magistrate. Hardship, however, is one thing; to observe the law and to give effect to statutory provisions is another, and it is the bounden duty of a Court to carry out the provisions of the law in spite of full knowledge that the enforcement of the law may result in hardship to an accused person. It remains, therefore, to be seen as to whether the orders complained against were invalid in the eye of law.
4. Section 10, Criminal Law Amendment Act, 1952, reads as follows:
“All cases triable by a Special Judge under Section 7 which, immediately before the commencement of this Act, were pending before any Magistrate shall, on such commencement, be forwarded for trial to the Special Judge having jurisdiction over such cases.”
There can be no question that this provision is mandatory and there is no ambiguity in its language. Cases which a Special Judge can try under Section 7 are enumerated in Section 6 of the Act. There is no question that some of the offences alleged against the petitioner are covered by the provisions of Section 6, Criminal Law Amendment Act. The case before the Magistrate against the petitioner was undoubtedly pending immediately before the commencement of the Act and, therefore, on the commencement of the Act had to be forwarded for trial to the Special Judge having jurisdiction over the case. To my mind it makes no difference whether the case against the petitioner immediately before the commencement of the Act was in the stage of enquiry before a Magistrate or whether it was by way of trial. It was a case in either circumstance pending before a Magistrate immediately before the commencement of the Act. It seems to me, therefore, that there was no alternative for the Special Magistrate in this case but to forward the case of the petitioner to the Special Judge. It wa,s said that the order passed by the Special Magistrate was made behind the back of the petitioner without haying been heard. In my opinion when the provisions of Section 10 of the Act are mandatory there is no question of hearing any party in the matter. The Magistrate was ‘compelled to send on the case to the Special Judge.
5. So far as the Special Judge deciding to try the case by resummoning all the witnesses who were examined before the Special Magistrate is concerned, it will have to be seen as to whether he could do otherwise, and that, even if he could do otherwise, then, whether he had exercised his discretion wrongly. Section 8, Criminal Law Amendment Act, provides for the procedure to be adopted by Special Judges. Clause (1) of this section authorises a Special Judge to take cognizance of offences without the accused being committed to him for trial, and that at the trial of an accused person he shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates. Clause (3) of this section reads as follows:
“Save as provided in Sub-section (1) or Sub-section (2), 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 a Special 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 Judge shall be deemed to be a public prosecutor.”
Section 9 of the Act reads as follows:
“The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act 5 of 1898) on a High Court as if the Court of the Special Judge were a Court of Session trying cases without a jury within the local limits of the jurisdiction of the High Court.”
6. As I read the provisions of Clause (3) of Section 8 and the provisions of Section 9 of the Act, I am satisfied that for the purposes of the Code of Criminal Procedure the Court of the Special Judge is to be regarded as a Court of Session. There is no ambiguity in my mind so far as this is concerned, having regard to the language of Clause (3) of Section 8 and Section 9 of the Act. In the case of –‘In re A. Vaidyanatha Iyer’, AIR 1954 Mad 350 (A), their Lordships of the Madras High Court had the occasion to consider the provisions of Clause (3) of Section 8 of the Act and they expressed their opinion as follows:
“We are definitely of opinion that when Sub-section (3) of Section 8 of the Act says that ‘the Court of the Special Judge shall be deemed to be a Court of Session’, it certainly is not in fact a Court of Session. The Court is that of a Special Judge whose procedure in the trial of such cases shall be the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases in which case Section 350 of the Code is definitely applicable. If that is so, there is no provision by which the public prosecutor can ask the Court to recall and re-examine the witnesses already examined.”
With great respect to the learned Judges, as at present advised, I cannot accept the view expressed by them. It is, however, not altogether necessary in the present case to give a definite decision on the point. Assuming for a moment that the view which I have ventured to express is correct, then for the purposes of the provisions of the Code of Criminal Procedure the Court of a Special Judge must be regarded as a Court of Session. Then in that case no question arises of such a Court acting upon evidence recorded by some other Court.
7. In the case of — ‘Ramchandra Naik v. Emperor’, AIR 1947 Pat 428 (B), it has been definitely pointed out that Section 350, Criminal P. C., applies only to Magistrates and not to Sessions Judge, and that a Sessions Judge is not competent to pronounce judgment on evidence recorded by his predecessor, or on evidence partly recorded by his predecessor and partly by himself. If the Special Judge in the present case is a Court of Session, then it seems to me that the Special Judge could not in law act upon evidence already recorded by the Special Magistrate. On the other hand, if it is assumed that the view taken by their Lordships of the Madras High Court is correct, then one must proceed on the assumption that the Special Judge is a Magistrate and that the provisions of Section 350, Criminal P. C., would be applicable. Even so Section 350, Clause (1), does authorise a succeeding Magistrate to re-summon the witnesses and to re-commence the enquiry or trial held by his predecessor. In the present case the Special Judge decided to re-summon the witnesses and : to hold his trial independent of any evidence recorded by the Special Magistrate. It was within his discretion, if he is to be treated as a Magistrate, to do so, and unless this Court was satisfied that it was a wholly wrong exercise of his jurisdiction, this Court cannot, in my opinion, interfere with his discretion in the exercise of revisional jurisdiction,
It seems to me that in the present case where there is such extensive evidence, oral and documentary, and where questions of fact may be extremely complicated for the purpose of decision, it cannot be said that the Special Judge exercised his discretion wrongly in deciding to examine 1 anew all the witnesses who were examined by the Special Magistrate.
8. In the net result, there is no alternative for this Court but to dismiss this application. Before, however, I close my judgment I would like to point out to the Special Judge absolute need for a quick disposal of the present case. The case has been pending in a Court of law since August, 1951, and there has been enormous expenditure of time and money already. Further delay in the disposal of this case would be quite unjustified. The Special Judge will, therefore, take every step to expedite the hearing of this case and as far as possible to try the case without interruption and from day to day. Sometimes it may be difficult for the Special Judge to try the case from day to day, but he should devote as much time as he can towards this case. One of the causes for delay in the disposal of a case is the number of adjournments that are granted. The Special Judge will bear in mind this aspect of the matter as well. In making these observations I have no wish in the least to fetter his discretion. My observations are merely to emphasise the great need for expedition in the present case.
Das, J.
9. I agree entirely with my Lord the Chief Justice and I need only add that I entertain the same doubt as has been expressed by my Lord the Chief Justice with regard to the decision of the Madras High Court in the case of — ‘AIR 1954 Mad 350 (A)’. It seems to me that Sub-section (3) of Section 8, Criminal Law Amendment Act, 1952, is quite clear. It states that for the purposes of the provisions of the Code of Criminal Procedure 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. If the Court of the Special Judge shall be deemed to be a Court of Session for the purposes of the provisions of the Code of Criminal Procedure, I do not see how Section 350 can apply. Section 350 in express terms applies only to the Court of a Magistrate and not to the Court of Session. Even if the expression “shall be deemed to be” creates what is called a statutory fiction, the fiction has to be accepted because the law itself creates a fiction.
10. Moreover, even if the Court of the Special Judge is to be treated as the Court of a Magistrate. I doubt if Section 350, Criminal P. C., is of any help. In the case before us the Magistrate who had seisin of the case before it was forwarded to the Special Judge had jurisdiction only to enquire into the case; he had no jurisdiction to try the case. He is succeeded by a Special Judge, assuming that it is a case of succession, who can try the case. I do not think the jurisdiction exercised by the latter is of the same kind as the jurisdiction exercised by the former. Section 350, Criminal P. C., so far as I can make out, talks of the succeeding Magistrate exercising the same kind of jurisdiction as was exercised by the former Magistrate.
11. Furthermore, as has been pointed out by
my Lord the Chief Justice, Sub-section (i) of Section 350,
Criminal P. C., itself gives a discretion to the
succeeding Magistrate, and this is not a case in
which it can be said that the discretion has been
exercised improperly or arbitrarily or capriciously.
