JUDGMENT
Jamuar, J.
1. The question arising in these cases involves the true interpretation of the provisions regarding the procedure embodied in the Criminal Law Amendment Act (46 of 1952), the question being whether two of the accused concerned in these cases, against one of whom there is a charge under Section 161 and against the other under Section 161 read with Section 109, Penal Code, should be tried by the Court of Session or by a Special Judge appointed under Section 7 of that Act.
2. The relevant facts are shortly these. During the last world war, in the year 1944, at the instance of the Government, certain accounts, known as the Defence Savings Bank (Cane) Accounts, were opened in different post offices. A sum of two annas was deducted from the price of each maund of sugar-cane supplied by the growers of sugar-cane to different mills. These deductions used to be made by the mills themselves, and the mill authorities, after taking the thumb mark or the signature of the cane grower, used to send the amount so deducted to the nearest post office to be deposited in the accounts opened in the names of the cane growers, and Savings Bank Pass books were issued in the names of these cane growers individually who were called the depositors. Government had given assurance to them that the money so kept in deposit would be refunded to them with interest after the termination of the War. In 1947 Government passed orders for the refund of these amounts together with interest to the depositors, and prescribed a procedure for the purpose.
3. The procedure was this : the cane growers used to hand over their passbooks to the postmaster of their particular post office, and had to fill up prescribed forms for the withdrawal. They had to be identified by identifiers. The postmaster had then to give them receipts duly stamped with date stamp of that post office. The passbooks were then sent to the head office and, in the present case, we are concerned with the head office at Motihari where a separate section for this work was opened. This section was under the supervision of one of the accused in this case, namely, C. P. Singh, as the Superintendent of Post Offices. It was at this head office that interest was calculated. When the accounts were passed, the passbooks were returned to the respective post offices whence they had been sent, and payments were there made. Payments could also be made at the head offices in cases where the depositors filed their passbooks direct at the head office, and the clerk in-charge of payments at the Motihari Head Office was another accused named Rameshwar Prasad.
4. Now, it appears that some depositors who had deposited their passbooks along with the Withdrawal forms duly filled up did not get any payment. They, therefore, preferred complaints before the Postal authorities. A Postal inspector made the initial enquiry, and then referred the cases of such depositors to the Motihari police for institution of a case. During the course of the investigation, it transpired that all the accused in the case had entered into a conspiracy to commit criminal breaches of trust of money and forgeries and also to forge warrants of payment which were later used as genuine with knowledge that they had been forged.
The accused are the Superintendent, the Supervisor of this special section, the payment clerk, some other clerks and outsiders who acted as identifiers. It further transpired that C. P. Singh, the Superintendent, had accepted a sum of Rs. 300/- as illegal gratification from Mathura Singh, one of the accused, and Rajendra Singh, another accused, had abetted the commission of this act which was an offence under Section 161, Penal Code. On completing the investigation, the police submitted a charge-sheet against twelve persons, one of whom died since then and another was discharged by the Court below, while a third absconded to Pakistan.
5. Accordingly, charges under various sections of the Penal Code, including Section 161 and Section 161 read with Section 109, were framed, and the accused were placed for trial before a Magistrate; but, as the learned Magistrate has said, since elements of offences triable by a Court of Session were brought on record, the accused were informed that the procedure of commitment proceedings would be followed, and nine of the accused were, ultimately, committed, on 12-8-1952, to the Court of Session to stand their trial under the charges framed against them.
6. The accused then moved the Sessions Judge of Motihari for quashing the commitment, and the learned Sessions Judge had made the reference to this Court recommending that the commitment order be quashed, and the Magistrate be directed to send this case to the Special Judge for trial according to the provisions of Act 46 of 1952. Revision applications have also been filed.
7. The point for decision, therefore, is whether the learned Magistrate in committing the accused to the Court of Session to take their trial there by his order dated 12-8-1952, acted illegally.
8. The Criminal Law Amendment Act, 1952, came into force on 28-7-1952, that is, at a time when the enquiry before the committing Court was proceeding. Section 7 of that Act is as follows :
“(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law the offences specified, in Sub-section (1) of Section 6 shall be triable by special judges only.
(2) Every offence specified in Sub-section (1) of Section 6 shall be tried by the special judge for the area within which it was committed, or where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the State Government.
(3) When trying any case, a special judge may also try any offence other than an offence specified in Section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial.”
9. Sub-section (1) of Section 6 refers to an offence under Section 161, Section 165 or Section 165A, Penal Code or Sub-section (2) of Section 5, Prevention of Corruption Act, 1947 (II of 1947).
10. Thus, under the provisions of Sub-section (1) of Section 7, an offence punishable under Section 161, Penal Code became exclusively triable by a Special Judge; and, by virtue of Sub-section (3) of Section 7, a Special Judge is given discretion, when trying any case as a Special Judge, also to try any offence not specified in Section 6 but with which the accused has been charged at that trial : that is a matter left to the discretion of the Special Judge, and it is unnecessary to pass any direction upon him one way or the other in that regard.
11. A very relevant section of the Act is Section 10 which is in these terms :
“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.”
By virtue of the provisions of this section, the Magistrate before whom the commitment proceedings were proceeding in the present case was bound to forward the case for trial to the Special Judge having jurisdiction over the case, as the Act was passed, as shown above, prior to the final order of the Magistrate committing the accused for trial to the Court of Session.
12. The argument advanced, however, was as to what would happen, as in the present case, when, at the date of the commitment order, no Special Judge had been appointed, and it was argued that, where no such appointment had been made by the State before the date of the commitment order, the commitment to the Court of Session for trial is good.
13. The power to appoint Special Judges is given to the State Government by Sub-section (1) of Section 6 of the Act which is in these terms:
“The State Government may, by notification in the Official Gazette, appoint as many special judges as may be necessary for such area or areas as may be specified in the notification to try following offences namely:
(a) an offence punishable under Section 161, Section 165 or Section 165A, Penal Code (Act 45 of 1860) or Sub-section (2) of Section 5, Prevention of Corruption Act, 1947 (II of 1947);
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in Clause (a).”
It was contended that the committing Magistrate was justified in committing the accused to the Court of Session, because, on the date of his order, the State Government had not appointed any special Judge, the appointment having been made on 28-8-1952.
14. Reliance was placed upon a decision of a single Judge of this Court in the case of — ‘State v. Surajdeo Sinha’, AIR 1954 Pat 80 (A). The provisions of the Criminal Law Amendment Act, 1952, came to be considered in that case in the following circumstances. In the course of commitment enquiry before a Magistrate, an application was filed on 25-7-1952, for the examination of one Mr. Mahadevan on commission on the ground of his serious illness. This application was allowed on 31-7-1952, and Mr. Mahadevan was examined on three dates in August, 1952. Now, the Criminal Law Amendment Act, 1952, received the assent of the President of India on 28-7-1952, and was published in the Bihar Gazette of 7-8-1952. In pursuance of the provisions of Section 6 of that Act, the State Government made the appointment of Special Judges on 28-8-1952, and, on 9-9-1952, the proceedings which were pending before the Magistrate were transferred to the Special Judge appointed under the Criminal Law Amendment Act.
On 16-3-1953, the deposition of Mr. Mahadevan recorded on commission was sought to be tendered in evidence under Section 33, Evidence Act before the Special Judge; but the Special Judge refused to take in that evidence on the ground that, the Act having come into force on 28-7-1952, the Magistrate before whom the proceedings were pending before the commencement of the Act had no jurisdiction to continue the proceedings, and, consequently, the order for the examination of Mr. Mahadevan on commission was without jurisdiction, and the deposition of Mr. Mahadevan recorded on commission could not be said to be evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it. As against that order of the Special Judge, the State filed an application before this Court, and the provisions of the Criminal Law Amendment Act thus came up for consideration. The question which was posed by his Lordship was : Does any proceeding pending before a Magistrate immediately before the commencement of the Criminal Law Amendment Act cease to be a judicial proceeding merely because the Act came into force on a particular date? It was observed that there is no provision in that Act which specifically terminates a proceeding pending in a Court of law. It was also pointed out that Section 6 of the Act does not state that the State Government shall appoint Special Judges, nor does it state that such a Government shall establish Courts of Special Judges. It was pointed out that Section 6, Criminal Law Amendment Act empowered the State Government to appoint Special Judges, and that the word “may” is used in Section 6, and not the word “shall”.
It was held that the word “may” must be given its ordinary and natural meaning, and that that word should be read to mean that “it shall be lawful” for the State Government to appoint Special Judges. It was further held that, until the State Government appointed Special Judges for such area or areas as may be specified in the notification, the operative part of Section 6 and onwards of the Act would not come into effect, and that, therefore, until Special Judges were appointed under the provisions of that Act, Sections 6, 7, 8, 9 and 10 of the Act could not come into operation, although the Act came into force on 28-7-1952. In the case under consideration, the Magistrate had passed the order permitting the examination of Mr. Mahadevan on commission on 31-7-1952, and the evidence of Mr. Mahadevan had been recorded on three dates prior to 28-8-1952, which was the date on which the State Government had made the appointment of Special Judges under Section 6, Criminal Law Amendment Act.
Accordingly, it was observed in that case that, if an enquiry under Chapter 18, Criminal P. C., was pending immediately before the commencement of the Act, that enquiry could proceed even after the commencement of the Act, and, at the end of the enquiry, the Magistrate concerned would be bound to send the case for trial to the Special Judge having jurisdiction over the case, if such a Judge had been appointed under Section 6 of the Act. It was, therefore, held that the proceedings before the Magistrate, in the course of which the evidence of Mr. Mahadevan had been recorded on commission, did not cease to be judicial proceedings merely because the Act came into force on 28-7-1952, and the evidence of Mr. Mahadevan recorded on commission was evidence given in a judicial proceeding, and was admissible under Section 33, Evidence Act.
Upon that view of the provisions of the Criminal Law Amendment Act, it was sought to be argued that the commitment order in the present case, with which we are concerned, having been passed on 12-8-1952, that is to say, though after the coming of the Criminal Law Amendment Act into force on 28-7-1952, but before the appointment of Special Judges by the State Government on 28-8-1952, under Section 6 of the Act, the commitment order ought to be held to have been validly made.
15. Reference was made to an earlier decision of the Madras High Court reported in — ‘State v. P. K. Swamy’, AIR 1953 Mad 451 (B), wherein Section 10, Criminal Law Amendment Act, 1952, fell for consideration. In this case certain accused were committed to the High Court Session for trial by an order of a Magistrate dated 8-7-1952, and the High Court became seized of that case immediately the order of committal was passed. One of the- offences with which the accused–were charged was under Section 5(2) of Act 2 of 1947. Twenty days later, that is on 28-7-1952, the Criminal Law Amendment Act, 1952, came into force. and the forum for the trial of that offence was altered, it having been made triable by a Special Judge and not by the Court of Session.
Special Judges were appointed by the State of Madras on 25-8-1952, for certain areas including the area covering the local limits of the original jurisdiction of the High Court of Madras. When the case came up for trial before the High Court Session, objection was raised that, by virtue of the Criminal Law Amendment Act, 1952, the Court had no jurisdiction to try the offence under Section 5(2) of Act 2 of 1947, and that it was triable only by the Special Judge appointed for that particular area. After discussing certain cases, it was stated as follows:
“This case establishes that if an order had been validly passed committing a case to the Court of Session under the law then in force, a subsequent change in the law would not divest the Court of Session of its jurisdiction to try it and the accused acquired a vested right to have the ease continued in that Court and tried according to the law in force on the date of the order of commitment.”
And again :
“It will be clear from the principles laid down in the above decisions that on the date of the order of commitment in this case the accused had a vested right to be tried in this Court with the aid of a jury and he could not be deprived of that right.”
16. There was another ground given for overruling the objection, namely, that the Criminal Law Amendment Act did not make provision for any cases pending before a Court other than that of a Magistrate, for example, a case pending before the High Court Session. No provision was made for cases pending before Courts other than Magistrates and, therefore, trial of cases pending before Courts other than those pending before Magistrates was not affected.
17. It is to be noted that, whereas in the Madras case, just referred to, the Criminal Law Amendment Act came into force after the date of the order of commitment, in the present case before us the Act had come into force even prior to the date of the commitment order. Whereas, therefore, in the Madras case the commitment was in accordance with the law then in force, in the present case the commitment was not in accordance with the law in force, namely, the Criminal Law Amendment Act, 1952.
18. The important question, however, is whether Section 10, Criminal Law Amendment Act, 1952, has to remain in abeyance till after the appointment of the Special Judge for the particular area or whether it came into effect as soon as the Act was passed with the result that the Magistrate was bound to stay his hands and stop further proceedings. This question came up for consideration in case of — ‘In re Azgaralli Nazaralli’, AIR 1954 Bom 327 (C), where their Lordships examined this argument exhaustively.
19. In this Bombay case (a decision of a Division Bench) criminal proceedings were commenced before a Magistrate on 14-7-1951, and the charge against the accused was framed on 27-9-1951, under Section 161 read with Sections 116, 109 and 114, Penal Code. The Magistrate delivered his judgment on 29-9-1952, convicting two of the accused and acquitting three of them. The Criminal Law Amendment Act, 1952, came into force, as already pointed out, on 28-7-1952, that is, during the pendency of the proceedings before the Magistrate and before the delivery of the judgment. The appointment of the Special Judge having jurisdiction to try that case had been made on 23-9-1952, that is, six days before the judgment was delivered.
20. Appeals were filed before the Bombay. High Court — both against the order of acquittal by the State and against the order of conviction by the accused. It was held that the Magistrate had no jurisdiction to proceed with the case after 28-7-1952, the date of coming into force of the Criminal Law Amendment Act, 1952, and the order of acquittal as also that of conviction was set aside.
21. It was pointed out that, on reading Sections 7 and 10 of the Act of 1952 together, it was clear that the legislature intended the Act to apply to pending proceedings, and this is made clear in Section 10 and, inasmuch as the two sections have to be read together, Section 7 is also retrospective in so far as it takes away the jurisdiction of the other Courts to try the case. With regard to the argument that Section 10 could not be complied with till the appointment of Special Judge, Bavdekar, J. observed:
“It is true that the case is to be transferred only to a Special Judge appointed under the Act, and there was in this case no appointment for some time after 28-7-1952. But, in the first instance, it is impossible to read Section 10 as if it made the transfer of jurisdiction conditional upon the appointment of a Special Judge. There would have been some force in such a contention, in case it was contemplated that whereas in some areas Special Courts would be constituted, yet in others there would be no appointment of a Special Judge made.
It is true that the section which empowers the State Government to appoint Special Judges uses the word ‘may’; but that does not mean that there was any option left to the State Government because Section 7 provided that the Courts which would have jurisdiction to try the offences under Section 6(1) would cease to have jurisdiction to try them after the coming into force of the Act, and even if Section 7 was not retrospective, arrangements obviously had to be made after the coming into force of the Act for trial of offences mentioned in Sub-section (1) of Section 6 which may be committed after the coming into force of the Act. The appointment of a Special Judge was obviously, therefore, really compulsory.”
And the other learned Judge, Vyas, J., said:
“….there are distinct words in the Act itself which clearly and unequivocally express the intention of the legislature that the Special Judges appointed under the Act will alone try the cases specified in Section 6 and that all cases triable by the Special Judges under Section 7 which, immediately before the commencement of the Act, were pending before the Magistrates shall on such commencement be forwarded for trial to the Special Judges having jurisdiction over such cases.”
22. It is true that the word used by the legislature in Section 6 is “may”, enabling the State Government to make the appointment of Special Judges; but, at the same time, it provided in Sub-section (1) of Section 7 that
“Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act 5 of 1898) or in any other law the offences specified in Sub-section (1) of Section 6 shall be triable by special judges only,”
that is to say, the Special Judges were given the exclusive jurisdiction to try these cases. Notwithstanding the use of the word “may” in Section 6, the State Government were enjoined to make the appointment which, in effect, became compulsory upon them so to do; otherwise the offences-specified in Sub-section (1) of Section 6 would not be tried by any Court at all. The very significant word in Sub-section (1) of Section 7 is the last word in that sub-section, namely, the word “only”, and, if I may very respectfully point out, this was not sufficiently noticed in the Patna case reported in AIR 1954 Pat 80 (A), and I say so for the reason that, when quoting that sub-section on page 82 (paragraph 6) of the report, the word “only” is found to have been omitted.
Furthermore, Section 10 provides that all cases triable by a Special Judge “immediately before the commencement of this Act” and “pending before any Magistrate” shall at once “be forwarded for trial to the Special Judge having jurisdiction over such cases.” There is no doubt, therefore, left in my mind that the appointment of Special Judges by the State Government became compulsory on the passing of the Act under consideration, and the provisions of Section 10 at once became effective on the commencement of the Act.
23. The Magistrate before whom this case was pending on the commencement of the Act ceased to have jurisdiction to proceed with the trial of the offences which became triable by a Special Judge exclusively under the provisions of the Act. The Magistrate was, therefore, bound to stay his hands, and this was not conditional upon the appointment of Special Judges as such an appointment in effect, became compulsory upon the State Government.
24. I am of the opinion that the order of the Magistrate committing two of the accused, (1) C. P. Singh against whom one of the charges is under Section 161, Penal Code, and (2) Rajendra Singh against whom also one of the charges’ is under Section 161 read with Section 109, Penal Code, to take their trial before the Court of Session must be set aside, and I would direct that their case be forwarded to the Special Judge having jurisdiction over the ease for trial. The committal order passed in respect of the other accused must stand.
25. Another point raised was that sanction for prosecution under Sections 120B and 409, Penal Code, was necessary, and, as no such sanction had been obtained, the prosecution was bad. We indicated during the course of the hearing that, as this question of sanction will necessarily entail the examination of the facts and the circumstances of the case in detail, it must be left to be argued in the trial Court and decided by it.
26. The reference and the applications in revision are disposed of accordingly.
Kamla Sahai, J.
27. I agree.