JUDGMENT
Miabhoy, C.J.
1. The following two points have been referred to this Full Bench by a Division Bench consisting of two of us :–
(1) What is the correct interpretation of the expression “the Sub Divisional Magistrate specially empowered by the State Government in that behalf” as used in Section 56 of the Bombay Police Act; and
(2) Is respondent No. 1 specially appointed within the meaning of the above expression by the notification No. 6304/6 Home Department dated 1st August 1961, of the State of Bombay?
The main point which arises for determination in this case is a short one. It is, what is the correct interpretation of the word “specially” used in Section 56 of the Bombay Police Act, 1951 (hereafter: called the Act).
2. In this case, petitioner challenges the externment order, Exhibit ‘F’, dated 21st August 1966, passed by one Shri Thakar, Sub Divisional Magistrate, Baroda. The order was passed under Section 56 of the Act, directing petitioner to remove himself outside the district of Baroda by a certain route within three days from the date of the receipt of the order and prohibiting him from entering or returning to the said district for a period of two years from the date of the order without his permission in writing or that of the District Magistrate, Baroda. The externment proceedings were started as a result of a notice, dated 21st August 1965, given to petitioner by one Shri Dhruv, the Sub Divisional Magistrate in charge of the city of Baroda, on whose transfer subsequently, Thakar probably took charge. One of the grounds on which petitioner attacks the above order is the competence of the Sub Divisional Magistrate to pass the impugned order under Section 56 of the Act. Therefore, it is first necessary to read that section, which is as follows:–
“56. — Whenever it shall appear in areas for which a Commissioner has been appointed under Section 1 to the Commissioner and in other area or areas to which State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property, or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence, and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm or the outbreak or spread of such disease or to remove himself outside the area within the local limits of his jurisdiction or such area and any district or districts, or any part thereof contiguous thereto by such route and within such time as the said officer may prescribe and not to enter or return to the said area or the area and such contiguous district, or part thereof as the case may be, from which he was directed to remove himself,”
A plain reading of the section shows that the first part of the section mentions the officers who are competent to act under the section. The officers mentioned are (1) the Police Commissioner, (2) the District Magistrate and (3) the Sub Divisional Magistrate. The powers of externment are not automatically conferred upon all these three officers. It is only the Police Commissioner who has been invested with the power under the section by the statute itself. The District Magistrate also has been invested with the same power, but his power is dependent upon the determination of the State Government as to whether the provisions of Section 56 should or should not be applied to the district in which the District Magistrate presides. If and when the provisions of Section 56 happen to be extended by the State Government, then the District Magistrate, by the impact of the notification concerned, will get the power under the section. However, the Sub Divisional Magistrate does not get the power under the section by virtue of either the statute or by virtue of the notification which the State Government is empowered to issue for extending the provisions of the section to a district or a part thereof. In order that the Sub Divisional Magistrate may get the power under the section, it is necessary that he should further be specially empowered by the State Government in that behalf. Therefore, so far as a Sub Divisional Magistrate is concerned, it is quite clear that, before he can get the power to act under Section 56, Firstly, there must be a notification by the State Government extending the provisions of the section over the Sub Division over which the Sub Divisional Magistrate presides, and secondly, that, he must be specially empowered by the State Government to act under the section. It is only when these two conditions are satisfied that the Sub Divisional Magistrate would be competent to act under the section. Therefore, in order to decide the question, it is necessary to ascertain whether Shri Dhruv, the Sub Divisional Magistrate who passed the impugned order, was or was not specially empowered within the meaning of Section 56 aforesaid. Now, there is no dispute in the present case that the State of Bombay, which was the relevant authority then, issued a notification in its Home Department, No. 6304/6, dated 1st August
1951, extending the provisions of Section 56 to a number of areas specified in a schedule appended thereto, in which was included the district of Baroda. There is also no dispute that, on the same date, by another notification bearing the same number and date and published at page 5272 in the Bombay Government Gazette dated August, 16, 1951, Part I, powers were conferred under Section 56, inter alia, upon the Sub Divisional Magistrates in charge of the Sub Divisions specified in column 1 of the schedule appended thereto in the districts specified against them in column 2 thereof. Amongst the places mentioned in this notification are the four Sub Divisions of the district of Baroda named (1) Baroda City, (2) Baroda (3) Dabhoi, and (4) Chhota Udepur. The relevant part of the notification reads as follows:–
“In exercise of the powers conferred by sections 55, 56 and 57 of the Bombay Police Act, 1951 (Bom. XXII of 1951) the Government of Bombay is pleased to empower the Sub Divisional Magistrates in charge of the Sub Divisions specified in column 1 of the Schedule appended hereto in the Districts specified against them in column 2 thereof for the purpose of the said sections 55, 56 and 57:
SCHEDULE
Sub Division
District
1
2
1 Baroda City
2 Baroda
3 Dabhoi
Baroda
4 Chhota Udepur
The rival contentions are based upon the language used in this notification. According to respondents’ contention, Shri Dhruv, the Sub Divisional Magistrate concerned, has been “specially empowered” within the meaning of Section 56 under this notification and, therefore, the entrustment of the power is good. According to petitioner, Shri Dhruv has not been specially empowered under that notification. According to him, the entrustment of the power is general and, therefore, it is void.
3. Therefore, the first question which” arises for determination in the case is, what is the connotation of the word “specially” as used in Section 56. Mr. Thakore’s contentions are two in number. His first contention is that, a special entrustment connotes an entrustment by name. His second contention is that, even if a special entrustment connotes an entrustment in virtue of one’s office, an entrustment to a class of officials in virtue of their title is not a special entrustment but a general one. On the other hand, the learned acting Advocate General contends that, a special entrustment does not need an entrustment by name and that, an entrustment in virtue of office is also a special entrustment. He, therefore, contends that, a special entrustment is not necessarily confined to a particular individual, but that, an entrustment to an officer working in a particular office so as to enure not only for the benefit of the officer for the time being working at the date of the notification but his successor. in office, will also be a special entrustment.
4. Before we undertake a detailed discussion of the rival contentions, it will be useful to indicate broadly the interpretation which the learned acting Advocate General places upon the notification in question, which is the second point which has been referred to this Full Bench,
5. Now, it is conceded that the above notification does not confer power under Sec, 56 by name on the Sub Divisional Magistrate, Baroda City, from which this case comes. The power is conferred upon that officer in virtue of his office. Under Section 15 of the Bombay General Clauses Act, 1904 (hereafter called the Clauses Act), where, by any Bombay enactment, a power to appoint any person to fill any office or execute any function is conferred, then, unless it is otherwise expressly provided, any such appointment may be made either by name or by virtue of office. According to the learned acting Advocate General, therefore, the above notification is valid under Section 15 of the Clauses Act, Under Section 17(1) of the Clauses Act, it is sufficient for the purpose of indicating the application of a law to every person or number of persons for the time being executing the functions of an office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed.” According to the learned acting Advocate General, under this section, for the purpose of indicating that the Sub Divisional Magistrate, . Baroda City, is to exercise the functions of a Sub Divisional Magistrate under Section 56, it is enough for the State of Bombay to mention the official title and that a notification so issued would have the effect of conferring power upon the Sub Divisional Magistrate to execute the functions assigned to a Sub Divisional Magistrate under Section 56. Under Section 18 of the Clauses Act, it shall be sufficient “for the purpose of indicating the relation of a law to the successors of any functionaries. … to express its relation to the functionaries …..”. Therefore, accordingto the learned acting Advocate General, the aforesaid notification under the above section not only confers power upon the Sub Divisional Magistrate who occupied that position on the date of the notification, but, all his successors in office. Therefore, according to the learned acting Advocate General, the proper interpretation of the notification in the light of the provisions contained in sections 15, 17 and 18 of the Clauses Act, is that, it confers power, not only on the Sub Divisional Magistrate who occupied that position on the date of the notification, but also all his successors who happen to be appointed Sub Divisional Magistrates in the Sub Division of the city of Baroda,
6. According to the learned acting Advocate General, the entrustment of power to the Sub Divisional Magistrate in the above manner is still a special entrust-ment. According to Mr. Thakore, the en-.trustment is not special but is general. It is in the context of these two rival contentions that the question has to be answered as to what is a special empowerment within the meaning of Section 56 of the Act.
7. The expression which requires to be construed is, “the Sub Divisional Magistrate specially empowered by the State Government in that behalf.” The key word in this expression appears to be the adverb “specially”. The expression, when amplified, would read, according to the rules of grammar, as follows: “the Sub Divisional Magistrate who is specially empowered by the State Government in that behalf.” It may be noticed that, the adverb “specially” qualifies the verb “empowered” and the expression “Sub Divisional Magistrate” is qualified by the adjectival clause “(who is) specially empowered by the State Government in that behalf.” Therefore, reading, the expression apart from any authority, according to rules of grammar, the result is that, the Sub Divisional Magistrate contemplated by the expression is the one who is specially empowered by the State Government concerned. Reading the expression from a different angle, it is quite clear that, the authority which can entrust power is the State Government. The authority on which power can be conferred is the Sub Divisional Magistrate. But, in order that power may be so conferred, the Legislature requires that the power must be specially conferred. Therefore, in order that the expression may be satisfied, it is not merely enough that the State Government must entrust the power to the Sub Divisional Magistrate. It is necessary that the same should be done specially. Now, according to the ordinary canons of construction, the Legislature must be taken to have used the word “specially” advisedly. One cannot proceed on the assumption that the expression “specially” is superfluous. If that was the intention, then, the Legislature would have carried
out its meaning by merely using the expression “the Sub Divisional Magistrate empowered by the State Government in that behalf.” Having regard to the fact that the Legislature has qualified the entrustment of the power by the adverb “specially”, there is no doubt whatsoever that the Legislature does intend to convey that the entrustment of the power must be done specially and not otherwise. It is true that, the word “specially” may have a different connotation in different contexts. But, from the context in which the word appears in the above expression, the Legislature appears to have used the word. “specially” in contradistinction to the word “generally”. In other words, in order that the expression may be satisfied what the State Government must do is to entrust the power specially and not generally. If the entrustment is general, then, it does not satisfy the expression. But, the above approach leads only to a negative conclusion. It does not convey clearly the ideas as to what exactly is special and what is general. The idea may have to be ascertained with the aid of dictionary or other aids which are usually adopted for construing statutes. But before we undertake this task, in out judgment, it is easy to dispose of the contention of Mr. Thakore that, in order that an entrustment may be special, it must be by name and in no other way. In support of this argument, Mr. Thakore brings to aid the fact that Section 56 confers wide power upon the officers named therein. The power is to restrict the movements of a citizen. He contends that, the legislative policy appears to be that the enjoyment of such wide power must necessarily be restricted to the hands of a highly placed officer like the Commissioner or the District Magistrate and that, if the same is to be placed in the hands of an officer of a lower rank like a Sub Divisional Magistrate, then, the entrustment thereof must be done by the State Government by an exercise of its special discretion and that this restriction is placed on the State Government in order that the Government may bear in mind not merely the official position of a Sub Divisional Magistrate, but, it must also satisfy itself that the person concerned has also the special experience and equipment which would ensure it that the power will be enjoyed with propriety and justice. Mr. Thakore contends that, the latter result can be obtained only if the expression is construed to mean that, in each case, the State Government must consider the name of the Sub Divisional Magistrate concerned and if it is satisfied that the officer has the necessary experience and equipment, it should name the officer accordingly so as to ensure that the power will not be abused. Now, in our judgment, there is considerable force in
the argument of Mr. Thakore that the Legislature intends that the power conferred by the State Government must be exercised by a special choice. But, in our judgment, it does not follow therefrom that the power can be conferred only on the officer concerned by name and not in any other manner. It is true, as we shall presently point out, that the main idea is that the officer who is to be the repositary of the power, must be selected and chosen by the State Government and that this process can be done only if the identity and individuality of the officer concerned is clearly borne in mind by the State Government. But, in our judgment, that does not mean that if once the identity and individuality is established, the officer must necessarily be named and cannot be entrusted with the power by virtue of his office. It is true that, if the State Government has confidence in a particular person, who is a Sub Divisional Magistrate for the time being, and the State Government has the authority to confer power by name on him. But, if that is not the intention of the Government, and the Government wants that a particular person occupying the position of a Sub Divisional Magistrate at a place to exercise the power whilst he is occupying the office at a particular place, there does not appear to be any restriction inherent in the aforesaid expression, which would oblige the Government not to entrust the power to him by official designation. Moreover, such a limited construction of the above expression is not justified by the wide language used in Section 15 of the Clauses Act. Under that section, the State Government has the authority to appoint any person to execute any function by name or by virtue of his office, unless it s otherwise expressly provided. In our judgment, the word “specially” as used in the aforesaid expression cannot be regarded as a special provision to the contrary, excluding the conferment of power on a person by virtue of his office. In our judgment, Section 15 of the Clauses Act is applicable both when the State Government has the authority to confer power specially or generally. In order that the State Government may be restricted in the aforesaid manner, in our judgment, the statute must clearly state that the conferment of power was intended to be by name and not by virtue of office. Mr. Thakore derives support for his above contention from the judgment of the Sind Court in Emperor v. Udho, AIR 1943 Sind 107. In that case, the Sind Court was called upon to construe the expression “by an Assistant or Deputy Superintendent especially empowered by Government in this behalf.” In that case, Davis C.J., after observing that the above expression implies the exercise by
Government of a certain selection or discrimination as regards an individual on whom power is to be conferred, goes on to consider the objection raised on behalf of the Government, on administrative grounds, and goes on further to observe that no such difficulty is likely to arise if the officer is to be empowered by name. However, the learned judge has not given any special reason for this conclusion of his that the entrustment of power should be by name. In our judgment, the learned Judge has omitted to consider the effect of Section 15 of the General Clauses Act. The above interpretation of the above expression was definitely differed from by a Division Bench of the Bombay High Court in Emperor v. Savlaram Kashinath Joshi, 49 Bom LR 798 = (AIR 1948 Bom 156) on the basis of Section 39, Sub-section (1) of the Code and Section 15 of the Clauses Act. As we shall presently point out, there is a sharp cleavage of judicial opinion on the correct interpretation of the expression that we are called upon to construe as used in various statutes. But, the Sind Court is the solitary Court which holds that the expression requires entrustment of power by name. None of the other Courts have gone to that extent. For the above reasons, we are not in agreement with the first part of Mr. Thakore’s contention that the expression aforesaid requires conferment of power by name and in no other way. We hold that if power is conferred upon the Sub Divisional Magistrate by virtue of his office, then, it does not cease to be a special conferment of power.
8. That brings us to the question about the concept of special conferment of power. The learned acting Advocate General contends that the term “specially” is intended to emphasise the fact that the power which is to be conferred by the State Government is the special power mentioned in Section 56. We are unable to agree with this interpretation. In our judgment, the power which is intended to be conferred under Section 58 is only one power, namely, the power of externment. Therefore, it is hardly probable that the Legislature intends, by the use of the expression, “specially,” to designate the power of externment. Such an interpretation must be rejected on more than one ground. In the first instance, the same result can be obtained by the omission of the word “specially” and, in that view, the word “specially” would be superfluous. Moreover, the idea of the power is contained in the expression “in that behalf.” There can be no reason for the Legislature to use that expression “in that behalf” if the same was intended to be conveyed by the use of the word “specially”. Moreover, the above interpretation would conflict with the grammatical reading of the expression as a whole. In our judgment, the expression “specially” as used in the adjectival clause “(who is] specially empowered by the State Government in that behalf” has reference to the Sub Divisional Magistrate, and the reference is made in order to emphasise that the Sub Divisional Magistrate on whom the power is to be conferred must be selected or chosen by the State Government and that, such officers must not be generally selected for the conferment of the power. Whether the officer is selected by name or by virtue of his office, the person who is so selected must be an individual in whom the State Government has faith that he will be able, by virtue of his experience and equipment and similar other considerations, to discharge the responsibility or duty cast upon him by the section. This is the interpretation which was placed by the Madras High Court which had to construe a similar expression used in the Indian Opium Act, in the case of Mahomad Kasim v. Emperor, AIR 1915 Mad 1159. The same interpretation is placed by the Sind Court in Udho’s case, AIR 1943 Sind 107, already referred to. The Bombay High Court in Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156) already referred to, adopted the same interpretation. We are respectfully in agreement with the above interpretation placed in the above three authorities. In the cases of Mahomad Kasim, AIR 1915 Mad 1159, and Savlaram, 49 Bom LR 798= (AIR 1948 Bom 156) support is derived from the language used in Sub-section (1) of Section 39 of the Code. In Udho’s case, AIR 1943 Sind 107 however, the same result is obtained on a consideration of the language of the expression without reference to the latter section. Spencer, J. in Mahomad Kasim’s case, AIR 1915 Mad 1159 has expressed himself as follows at page 1160:
“Section 39, Criminal F, C. throws light on what is meant by specially empowering persons.
It declares that the local Government may empower classes of officials generally by their official titles or persons specially by name or in virtue of their office. When therefore a class of officials is invested with powers to try certain offences, it would appear that they are ‘generally’ empowered. The word ‘generally’ is in contrast to the word ‘specially’ which is used in speaking of individuals.”
Seshagiri Aiyar J., who concurred with Spencer J., has given two more reasons for reaching the above conclusion. One reason is that, if the above expression were to be construed in a general way, then, it Would be enlarging the definition of the word “Magistrate” as defined in the Opium Act The second and, in our
judgment, very weighty reason which is given by the same learned Judge, is that, the word “special” excludes the concept of the conferment of power on the successors of the person selected for the entrustment of the power. The same idea is forcefully expressed by Davis C.J. in Udho’s case, AIR 1943 Sind 107 as follows:–
“Apart from all other considerations the very wording of the sub-section ‘or by an Assistant or Deputy Superintendent especially empowered by Government in this behalf clearly to our minds implies the exercise by Government of a certain selection or discrimination as regards an Individual on whom special power is to be conferred; and to authorise the deputy Superintendent of Police of Bohri, whoever he may be, however numerous the successors to this office may be, would be to go against the principle of selection embodied in this sub-section and to be something in the form or nature of a general and not a special power.”
Sub-section (1) of Section 39 of the Code reads as follows:
“39. (1) In conferring powers under this Code the State Government may, by order, empower persons specially by, name or in virtue of their office, or classes of officials generally by, their official titles”.
This is an enabling sub-section. It in
dicates the modes in which the State Government may confer powers under the
Code. The modes indicated are two in
number. One may be called, the special
mode and the second, the general mode,
of conferment of power. The special mode
is shown as conferment of power on per
sons “by name or in virtue of their
office.” The general mode is the confer
ment of power on classes of officials “by
their official titles.” Therefore, according
to the above sub-section, if power is
conferred on a person or persons by name
or by virtue of his or their office, then,
it is a special conferment of power. If, on
the other hand, power is conferred, not
on persons or individuals, but, upon
classes of officials, then, the power is conferred “by official titles.” The first part
of the first mode is very simple. When
ever a person is empowered by name, it is
a special mode of conferment of power.
But whenever power is conferred, not by
name, but by virtue of office occupied by
a person, then, the conferment would be
special or general according as the con
ferment is on a person by virtue of his
office or on a class of officers by official
title. It is to be noticed that, in the
second part of the first mode, the selection is of a person or individual and the
office which he occupies is mentioned but
not his name. In the second mode, power
is conferred, not on one individual but a
class of officials and when power is so
conferred, the office which the officials
occupy is not mentioned but the official title. The sub-section contemplates a clear distinction between the office of an official and his title. Broadly speaking, the distinction appears to be that, when a person belonging to a certain class of office occupies a particular office, then, power can be conferred upon him in virtue of the office occupied by him. But, if power is conferred upon the whole class to which the officer belongs, then, it is done by virtue of his official title. Probably, a Sub Divisional Magistrate is an official title. But, if a Sub Divisional Magistrate is posted in a particular Sub Division to discharge the duties of his office, then, though holding the title of a Sub Divisional Magistrate, he would be occupying the office of the Sub Divisional Magistrate at that particular place. Therefore, if power is conferred upon Sub Divisional Magistrates, then, it will be a general power. But, if power is conferred upon a Sub Divisional Magistrate occupying a particular office at any given time and place then, it would be a special conferment of power on him. The distinction between the two modes will still persist. Whether an officer is empowered by name or by virtue of his office, he is all the same a particular officer. If, on the other hand, if an officer alone is not given power but the whole class, of which he is one, then, it will be a general conferment of power. The learned acting Advocate General is right that it is not proper to take the aid of the aforesaid sub-section for the purpose of construing other statutes. It may be that, one may be justified in taking the aid of the aforesaid subsection when construing statutes in pari materia or statutes dealing with criminal matters. But, at the same time, in our judgment, Courts must remember, whenever they are called upon to interpret an expression of the aforesaid type in a different statute, that, the primary duty is to construe the expression according to the ordinary canons of construction in the context in which the expression is used in that particular statute. But, all the same, in the absence of any indication in the statute to be construed, if the legislative mind is sought to be understood with the aid of the aforesaid sub-section, we do not see any flaw in that approach, although, while taking the aid of the sub-section, one must bear in mind that it cannot be regarded as a definition, clause or as conclusive, overriding all other considerations. Approaching Sub-section (1) in the above manner, in our judgment. the same result is obtained that we have arrived, at originally on a construction of the expression used in Section 56 of the Act, In our judgment, the emphasis, in the case of special conferment of power, is on the individual or individuals and, in the case of general conferment, the
emphasis is solely on the class of officers by their official title, Therefore, whenever we get a case where power is conferred on an officer, either by name or ex officio, then, it is a special conferment of power on him, whereas, if power is conferred on a class of officials by official title, then, it is a general conferment of power on the class. In that view of the matter, in our judgment, ,the conclusion arrived at by the learned Judges of the Madras High Court in Mahomad Kasim’s case, AIR 1915 Mad 1159 and the conclusion of the learned Judges of the Sind Court in Udho’s case, AIR 1943 Sind 107 except its conclusion about naming the officer, appear to be correct. In Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156) the learned Judges of the Bombay High Court appear to have, accepted the same view in one part of the judgment which, as two of us have stated in the referring judgment, represents the ratio of the case. The passage which occurs after the quotation of Sub-section (1) of Section 39 of the Code which represents the ratio, is as follows, at page 801:
“This throws a flood of light on what is meant by ‘specially empowering’ persons. It emphasises the distinction between ‘specially empowering’ and ‘generally empowering.’ When a class of officials is invested with powers to try certain, offences or to do certain functions, it would appear that, they are ‘generally empowered’, but if any persons are so empowered by name or in virtue of their office, they are said to be ‘specially empowered’. This distinction was clearly pointed out in AIR 1915 Mad 1159, where Section 3 of the Opium Act, 1878, had to be interpreted,”
However, so far as Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156) is concerned, although the above passage, in our judgment, clearly represents the law on the subject, the difficulty arises because the learned Judges did not accept the proposition laid down in Udho’s case AIR 1943 Sind 107 wherein the learned Judges emphasise the concept of selection and discrimination in the matter of conferment of power. The second difficulty in Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156) arises, on account of the actual application of the law on the subject to the notification which their Lordships had to apply on the facts of that case. From the facts narrated in the case it is quite clear that, Mr. Crone who had issued the search warrant in that case, was not the person occupying the position of an Assistant Superintendent at Poona when the notification was issued. The notification was issued as far back as 1928 and the special search warrant was issued in 1944. In spite of this, their Lordships held that, Mr. Crone was specially empowered, and the reason which Lokur J., speaking for the Court,
gives Is to be found in the following pas^ sage at page 801;
“I respectfully think that when a particular place was selected by Governor, It is conceivable that Government intended to post there only such assistant or Deputy Superintendent as was competent to exercise the power under Section 6 of the Act. This would be covered by the words ‘in virtue of their office’ used in Section 39 of the Criminal Procedure Code.”
In support of this conclusion, Lokur 3, has relied upon the Madras case of Alaga Pillai v. Emperor, AIR 1924 Mad 256. As we shall presently point out, it is by no means clear that the facts in Alaga Pillai’s case, AIR 1924 Mad 256 were on all fours with the facts in Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156) but, apart from this, in our judgment, the above reasoning which has been adopted by their Lordships of the Bombay High Court in Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156) does not represent correct test. It jettisons the rule which is to be obtained on a proper construction of Sub-section (1) of Section 39 of the Code. In our judgment, if a notification empowers, not a person holding a particular office at a particular point of time, but, empowers all his successors in office, then, the Government does not select any particular person, an individual or an officer, for the conferment of power, but it selects a place and confers power upon all officers who may happen to be transferred at that place, including an officer who may not have been in service at the time when the notification was issued and about whose capacity or experience the Government may not have the slightest idea at the time when the notification is issued. In our judgment, it is wrong to regard such a notification as a special conferment of power and not general. Therefore, though we accept the ratio as embodied in Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156) as having been correctly laid down, we cannot hold that the application of that ratio to the facts of the case which the learned Judges had to deal with is correct. Several of the Judges who have differed from Mohamed Kasim’s case, have had occasion to refer to Alaga Pillai’s case. Some of the learned Judges have construed the latter case as being inconsistent with the former case and some others have explained the latter case on the basis that the Second Class Magistrates were mentioned in the notification relevant in that case by names. The notification relevant in that case is not to be found in the judgment. Therefore, it is difficult to explain the latter case on one or the other ground. All that one can say is that, their Lordships did not differ from the ratio laid down in Mohamed Kasim’s case, but,
on the notification before them, they held that the ratio in that case was satisfied. In our judgment, it will not be proper to hold that the Division Bench in Alaga Pillai’s case intended to by-pass Mohamed Kasim’s case in reality, though conceding lip sympathy towards it. We are not prepared to hold that Alaga Pillai’s case is inconsistent with Mohamed Kasim’s case. In our judgment, the Madras view, in view of the special reasoning given in Mohamed Kasim’s case, must be taken to be one which we have extracted from the judgment of Spencer, J. and which we have reproduced from the judg-ment of Seshagiri Aiyar, J.
9. Therefore, on the whole, we have come to the conclusion that, the correct interpretation of the expression which we have to construe is that, in order that there may be a special conferment of power under Section 56 aforesaid in regard to a Sub Divisional Magistrate, power must be conferred upon that officer either by his name or by virtue of his office. In either case, Government must have definitely before its mind’s eye the particular individual or person who is being selected for the conferment of power. If that is not so, then, the officer is not specially empowered. On the other hand, in our judgment, if power is conferred upon the classes of Sub Divisional Magistrates, which will be the case i1 more than one particular individual is intended by the Government — and specially so if the Government intends to empower the successors in office of the Sub Divisional Magistrates concerned–(then, it is a general conferment of power,
10. Before we part with the above topic, it is necessary to mention one more judgment, in which the same view has been taken, which case was fairly pointed out to us by the learned acting Advocate General, and some other cases in which according to the learned acting Advocate General, a different view has been taken. The same view has been taken by the Saurashtra High Court in Polubha Vajubha v. Tapu Ruda, AIR 1956 Sau 73. The cases which, according to the learned acting Advocate General, take a different view, are the State v. Judhabir Chetri, AIR 1953 Assam 35 (FB), K.N. Vijayan v. The State, AIR 1953 Trav. Co. 402; Public Prosecutor (Andhra Pradesh) v. N. Shriramabhadrayya, AIR 1960 Andh Pra 282, Ashiq Hasan Khan v. Sub Divisional Officer, Sadar Monghyr, AIR 1965 Pat 446; and State of Mysore v. Kashambi, (1963) 2 Cr. LJ 226 (Mys), In view of the strong reliance placed by the learned Acting Advocate General on those cases, it is necessary to consider them now. In all these cases, except (1963) 2 Cri LJ 226 (Mys) the challenge to the notifications was grounded on the fact that the conferment
of power on the officer concerned should have been by name and not by official designation. The challenge so made was negatived. With respect, we agree with this particular view of the interpretation of the expression “specially empowered”. But, in negativing the above contention, the view taken in Mahomed Kasim’s case has been dissented from in the above cases. In so far as the Madras case takes the view that when power is to be conferred by official designation, the power must be conferred on an individual or person and not on a class of officials. Thadani C.J. has differed from it in the State v. Judhabir Chetri. The main reason which the learned Chief Justice has given in support of his conclusion is grounded on a distinction between an officer and an official. According to the learned Chief Justice, a first class Magistrate is not an official, but, an office being synonymous with the Court of the First Class Magistrate. In that case, the learned Chiei Justice was concerned with a notification Issued under Section 16 of the Assam Opium Prohibition Act, which required special conferment of power under that section. The officer on whom the power Was conferred was a First Class Magistrate. The learned Chief Justice did not disagree with the view that, if a class of officials is invested with powers to try offences by their official title, the empowerment is a general empowerment. But, according to the learned Chief Justice, the expression “class of officials” must not be confused with First Class Magistrates who, according to him, are Courts or offices, in the same way as Judges are but are not a class of officials. Now, this distinction has been doubted in State of Mysore v. Koshambi. Hegde J., after referring to the above distinction, has pointed out that he was unable to subscribe to the view expressed by Thadani, C.J. that Magistrates are not a class of officials within the meaning of that expression as used in Section 39 of the Criminal Procedure Code. This view has also not been accepted by the Saurashtra High Court in AIR 1956 Sau 73. Shah C.J., after referring to the reasons given by Thadani C.J. for his above view, makes the following observations at page 74 a
“With all respect, we are unable to agree with this view of the Assam High Court. It is true that the heading of Chapter II of the Criminal P. C. is ‘The constitution of powers of Criminal Courts and officers’ and the word ‘office’ in the heading means the office of a Judge or a Magistrate. Even so, it does not necessarily exclude the concept of a Judge or a Magistrate being an official; and this view is fortified by the heading of Chapter III of the Code, which is ‘Power of Courts’.
Part A of the Chapter speaks of description of offences cognizable by each Court; Fart B deals with sentences which may be passed by Courts of various Classes; Part C speaks of Ordinary and Additional Powers; and Part D speaks of conferment, continuance and cancellation of powers. Now these powers are all powers of the Courts and in fact Chapter III deals with that subject itself.
la spite of it, we find in Section 39 of the Code the words ‘classes of officials generally by their official titles.’ ‘Officials’ in the sense in which that expression is interpreted by Thadani C.J. in AIR 1953 Assam 35 have really no place in the scheme of Chapter III of the Code, and with all respect to the learned Chief Justice we are unable to agree with that interpretation, which refers to Secretaries, Under Secretaries and Deputy Secretaries to Government or to other Heads of Government Departments.
Chapter 111 of the Code does not envisage empowering such officials with powers under the Code. Considering that this Chapter is concerned with powers of Courts and that the powers conferred thereby are on the Courts, we think the proper construction of the expression officials’ in Section 39 would be to equate it with Courts and not to interpret it as meaning officials of Government. ‘Officials’ should rather be given its normal meaning viz., persons holding an office) and that office here is the office of a Judge or a Magistrate.
The contrast in Section 39 is really between empowering persons on the one hand and empowering classes (of officials) on the other hand, the underlying idea being that it is Courts which are to be empowered. What the section provides is that where persons (that is to say Magistrates or Judges) are to be empowered the empowering shall be by name or in virtue of their office and this empowering will be special , empowering as against general empowering which empowering is to be of the whole class of officials (who would also be Magistrates or Judges) by their official titles.”
With great respect, we agree with the above views of Shah C.J. in regard to the observations made by Thadani C.J. in AIR 1953 Assam 35. One of the reasons given by Thadani C. J. for not relying upon Mohamad Kasim’s case (AIR 1915 Mad 1159) is the case of Alaga Pillai, AIR 1924 Mad 256, which according to the learned Chief Justice, “sought to reconcile the previous decision of the same court to which I have referred (Mohammad Kasim’s case, AIR 1915 Mad 1159), the reconciliation is I think only apparent and not real. In my view it makes no difference that in the notification involved In the later decision of the Madras High Court the names of the
Magistrates were also mentioned”. We have already mentioned in this judgment that, the above explanation, of Alaga Pillai’s case, AIR 1924 Mad 256 is not correct. Moreover, there is no warrant for the observation made by the learned Chief Justice that, in Alaga Pillai’s case, AIR 1924 Mad 256 the names of the Magistrates were also mentioned. AIR 1953 Trav. Co. 402 merely follows, AIR 1953 Assam 35 and does not contain any, independent reasons in support of its conclusion. Both the Assam High Court and the Travancore Cochin High Court also rely upon the case of Sunderlal v. Emperor, AIR 1933 All 676 in support of their view. That case however, also does not contain any independent reasoning, but merely follows a previous Allahabad decision which, unfortunately, not being quoted in the judgment, is not available to us. In AIR 1960 Andh Pra 282, the question for consideration was whether Sanitary Inspectors can be appointed by virtue of their office under Section 9 of the Prevention of Food Adulteration Act, as Food Inspectors. The question for decision is formulated in paragraph 10 at page 284 of the report as follows:
“The whole contention involves the ascertainment of the power vested by Section 20 of the Act. When, the legislature authorised a person appointed in that behalf by State Government or Local authority to lodge complaints in respect of prosecution for an offence under the Act, should that person be signified by name or can he be appointed by virtue of his office? It is contended by the learned Advocate for the accused that the appointment does not conform to the rules made under the Act, and that in any case, Sanitary Inspectors as a class were not under the contemplation of the powers vested in Section 20 of the Act.”
It does not appear from the report that the relevant rule required any special appointment of such Sanitary Inspectors in contradistinction to general appointment. In AIR 1965 Pat 446, Misra J. has construed Section 39 of the Code as follows at page 448:
“In my opinion, the Legislature in that section has not used the word ‘specially’ by itself but in conjunction with the two words, ‘by name’ so that the legislature Contemplated conferment of power upon the official by name or by virtue of the office or classes to which he belonged in general terms. There is no dichotomy between special power and general power, but special power by name and general power by official title. That section cannot be construed to mean that whenever the legislature or, for the matter of that, any rule-making authority has used the expression that certain classes of officials may be empowered that would necessarily cannot be authorisation by name.”
Whilst we agree with the conclusion that, when empowerment is by name, it is special empowerment, we cannot agree with Misra J., for the reasons already given, that the word “specially” goes With the words “by name” only and that It does not refer to “in virtue of their office.” In (1963) 2 Cri LJ 226 (Mys) Hegde J., (as he then was) who was concerned with a notification issued under the, Suppression of Immoral Traffic in Women and Girls Act, 1956, has dealt with the question about the correct interpretation of the expression “specially empowered” more in detail. The learned Judge has agreed with the interpretation of Section 39 of the Criminal Procedure Code, as given by Shah C, J. in Polubha Vajubha’s case, AIR 1956 ,Sau 73 upto a certain extent, but, has disagreed with the observations made by Shah C.J. in the following passage at page 228:
“”Agreeing with Mahomad Kasim’s case, AIR 1915 Mad 1159, therefore, we hold that the powers conferred by the notification in the present case on all Taluka Magistrates does not amount to specially empowering them within the meaning of Section 39 Cr.P.C. and therefore the Taluka Magistrate of Talaja was not empowered to hold proceedings under Section 245 Cr.P.C. and that the order made by him was without jurisdiction.'”
With respect, the above passage does not constitute the main reason for the conclusion arrived at by Shah C. J. The mam reason is to be found in the passage with which Hegde J. has agreed. Another reason which Hegde J. has given is that, in the expression “Magistrates of first Class specially empowered” used in Section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, the word “specially” is an adjective to the word “empowered” and not to the noun “Magistrates.” With due respect, the learned Judge is grammatically wrong. As we have pointed out, the word “specially” is an adverb to the verb “empowered” and the whole clause is an adjectival clause qualifying the expression “Magistrates of First Class.” For ail these reasons, we are unable to see any good reason in any of the decisions on which the learned acting. Advocate General relies for taking a different view which, for the reasons already recorded, has appealed to us as the correct view.
11. For the above reasons, we answer the first question formulated by the Division Bench by holding that, the correct Interpretation of the expression is that. In order that there may be a special conferment of power under Section 56 aforesaid in regard to a Sub Divisional Magistrate, the power must be conferred upon that officer either by his name or by virtue of his office. In either case. Government must have definitely before its
mind’s eye the particular individual or person who is being selected for, the conferment of power.
12. That takes us to the second question formulated by the Division Bench. We have already indicated in a previous part of this judgment the interpretation which the learned acting Advocate General places upon the notification in question. In our judgment, that interpretation is the correct interpretation having regard to the provisions contained in sections 15, 16 and 18 of the Clauses Act. In so far as this notification confers power on the officer who actually occupied at the date of its publication the post of a Sub Divisional Magistrate, the notification may be valid. But, in so far as that notification purports to confer powers on the successors of the Sub Divisional Magistrate who may happen to be appointed at some future date, the entrustment of power being general, is invalid. The learned acting Advocate General contends that, such interpretation of the notification is inconsistent with the findings which were given by a Division Bench of this High Court in Special Civil Appln. No. 1475 of 1965 (Guj) and the group of other special civil applications, of which I was one of the Members and in which the question for consideration was whether one Master, a Special Land Acquisition Officer, was specially appointed to perform the functions of a Collector within the meaning of Section 3, Clause (c) of the Land Acquisition Act. The judgment in those applications was delivered on 15th October 1966. We cannot agree with the submission of the learned acting Advocate General. In that case, the Court had to deal with not one single notification but the combined effect of two notifications. In the first notification, Master was appointed as a Special Land Acquisition Officer by name and in the second notification, all Special Land Acquisition Officers were empowered with the powers of a Collector within the meaning of Section 3, Clause (c) of the Land Acquisition Act. The Division Bench considered the combined effect of the aforesaid two notifications, and came to the conclusion that, the proper interpretation of the two notifications was that Master was specially appointed a Collector within the meaning of Section 3, Clause (c) of the Land Acquisition Act. We fail to see how that interpretation can help the prosecution in the present case. In the present case, there is one single notification and the Sub Divisional Magistrates who have acted under the notification are not mentioned therein either by name or by virtue of their office in the sense that we have interpreted the Clause “specially empowered” in this judgment. In the judgment delivered on 15th October 1966, we do not find anything which militates
against the view which we have taken as to the correct interpretation of the expression “specially empowered.”
13. The next argument of the learned acting Advocate General is that, though the impugned notification takes within its purview not only officers who were Sub Divisional Magistrates at the time when the notification was published but all Sub Divisional Magistrates who happen to be appointed in the sub-divisions mentioned in future, the general effect of the above notification is that, at any given time, there would be only one single Sub Divisional Magistrate who will be exercising the power under Section 56 and that this would, in law, amount to special empowerment and not general. We cannot agree with this submission. In our judgment, for the purpose of considering the validity of a notification, the test is not whether it confers, at one given time, power on one particular officer, but the test is as to whether, under that notification, power is conferred on one Individual or a class of officials. In the present case, in our judgment, having regard to the submissions made by the learned acting Advocate General based upon Sections 15, 16 and 18 of the Clauses Act, the correct interpretation is that, not only the Sub Divisional Magistrate who was working in the respective sub-division at the time when the notification was issued, but, all his successors are also intended to be included. Not only the successors who were holding the offices of Sub Divisional Magistrates in their subdivisions then, but, also the persons who were not borne in the cadre on the date on which the notification was published. Under the circumstances, in our judgment the proper interpretation of the above notification is that, it confers a general power on the Sub Divisional Magistrates concerned and, as such, does not satisfy the requirement of Section 56 of the Act.
14. Therefore, the finding on the second query of the Division Bench will be that, respondent No. 1 is not specially appointed under the impugned notification within the meaning of the expression “specially empowered” used in Section 56 of the Act.
15. The case will go back with the aforesaid two findings to the Division Bench concerned for disposal according to law.
16. The case referred to this Full Bench has been set down today for delivery of judgment. The learned Acting Advocate General today draws our attention to the judgment of their Lordships of the Supreme Court in Sindhi Lohana Choithram v. State of Gujarat, Criminal Appeal No. 13 of 1964= (AIR 1967 Guj
1532), in which, according to the submission of the learned acting Advocate General, the same point which was referred to this Full Bench has been decided. Mr. Thakore, on the other hand, contends that, though the Supreme Court resolves the conflict between the Sind case of Udho, AIR 1943 Sind 107 and the Bombay case of Savlaram, 49 Bom LR 798= (AIR 1948 Bom 156) it does not touch the point which he has raised for the decision of the Full Bench. Now, the question which directly arose for decision before their Lordships of the Supreme Court in the above case was whether, in order that a person may be specially empowered within the meaning of Section 6(1)(i) of the Bombay Prevention of Gambling Act, it is necessary that he should be designated by name only and that a designation by his official title is not sufficient. Now, on that point, their Lordships have definitely held that a person, though he may be appointed by virtue of his office, still, he would be specially empowered within meaning of the aforesaid Section 6(l)(i) of the Bombay Prevention of Gambling Act. After referring to the two cases of Udho, AIR 1943 Sind 107 and Savlaram, 49 Bom LR 798 = (AIR 1948 Bom 156) their Lordships have expressed their conclusion in the following words:
“We think that where power is conferred on a person by name or by virtue of his office, the individual designated by name or as the holder of the office for the time being is empowered specially. Judged by this test, the notification dated January 22, 1955, specially empowered Shri Pandya as the holder of the office of the Deputy Superintendent of Police, Porbandar, to issue the search warrant under Section 6.”
On the one hand, Mr. Thakore emphasises this aspect of the case, namely, that, it is the individual who becomes designated by name or by holding the office, on the other hand, the learned acting Advocate General contends that the above passage does not emphasise the individual to be empowered, but, emphasises that, a holder of an office can be specially empowered without naming him. In support of his submission, the learned acting Advocate General relies specially upon a later passage in the judgment which is as follows:
“For the purpose of this case, it Is sufficient to hold that a notification conferring power on the Deputy Superintendent of Police of Porbandar to issue a search warrant specially empowers the holder of that office by virtue of his office to issue the warrant.”
Now, so far as their Lordships have laid down that a person can be specially empowered even though he may be
named by his official, title, we have not taken a different view. We have agreed with the ratio in Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156) and definitely disagreed with the ratio in Udho’s case, AIR 1943 Sind 107 on that particular subject. But, in our judgment, the further question as to whether the successor in office of a person designated by his official title, when intended to be included, is specially or generally empowered, their Lordships have not expressed any view in the above case. That question did not directly arise for decision of their Lordships. It was not raised before them, nor do we find anything in the above observations, on which reliance is being placed by the learned acting Advocate General, to justify the submission that the successor in office of an office-holder is also specially empowered when he is intended to be included. ,In this respect, it is important to notice that the two allied questions which usually arise in connection with a question of this type have been definitely and expressly kept open by their Lordships of the Supreme Court. Their Lordships have definitely stated that they were not called upon to resolve the controversy which has arisen between different High Courts as to whether, when all Magistrates of a certain class are empowered to try certain cases, they can be said to be specially empowered or generally empowered. They have also not expressed any opinion on the question as to whether the office which a Magistrate holds is an office and whether a Magistrate is an official or not. Whereas, these two questions, in our judgment, have no bearing on the above question when the : controversy is only as to whether the person should be designated by name or by official title, they have some bearing on the question as to whether a person can be said to be specially empowered when he is not the person on whom power is conferred either by name or by official title but happens to be the successor-in-office of the person on whom the power is so conferred. In our opinion, the judgment, which ,we are delivering today and which was prepared before Sindhi Lohana Choithram’s case, Cri Appeal, No. 13 of 1964 = (AIR 1967 SC 1532) was decided, is not affected by the latter judgment. It is noteworthy that, the view which we have expressed in this judgment that, a Sub Divisional Magistrate is specially empowered even though the power may have been so conferred on him by virtue of his office, stands confirmed by the decision in Sindhi Lohana Choithram’s case, Cri Appeal No. 13 of 1964 = (AIR 1967 SC 1532). The learned acting Advocate General states that, as their Lordships of the Supreme Court have, in terms, approved of Savlaram’s case, 49 Bom LR 798 = (AIR 1948 Bom 156), they must be taken to have also approved of the test of the place which was laid down therein. We cannot agree. In our judgment, the further question about the successor in office of the person being said to be specially empowered was not before their Lordships, nor is there anything in the judgment to show that their Lordships were called upon to decide the correctness of the test of place, In our judgment, the question whether, in order that a person designated by virtue of his office may be said to be specially empowered, the empowering authority must have definitely before its mind’s eye the particular individual or person who is being selected for the conferment of power, was not before their Lordships of the Supreme Court and the question is still res integra and, therefore, our judgment on the latter question does not militate against the decision in Sindhi Lohana Choithram’s case, Cri. App. No. 13 of 1964 = (AIR 1967 SC 1532).
17. For the above reasons, we direct that the two points referred to this Full Bench by the Division Bench should be answered as already indicated. The case will go back to the Division Bench for disposal according to law and in the light of this judgment.