{"id":40871,"date":"1962-11-07T00:00:00","date_gmt":"1962-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajit-kumar-palit-vs-state-of-west-bengal-on-7-november-1962"},"modified":"2018-06-28T18:53:41","modified_gmt":"2018-06-28T13:23:41","slug":"ajit-kumar-palit-vs-state-of-west-bengal-on-7-november-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajit-kumar-palit-vs-state-of-west-bengal-on-7-november-1962","title":{"rendered":"Ajit Kumar Palit vs State Of West Bengal on 7 November, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ajit Kumar Palit vs State Of West Bengal on 7 November, 1962<\/div>\n
Equivalent citations: 1963 AIR 765, \t\t 1963 SCR Supl. (1) 953<\/div>\n
Author: N R Ayyangar<\/div>\n
Bench: Ayyangar, N. Rajagopala<\/div>\n
           PETITIONER:\nAJIT KUMAR PALIT\n\n\tVs.\n\nRESPONDENT:\nSTATE OF WEST BENGAL\n\nDATE OF JUDGMENT:\n07\/11\/1962\n\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nIMAM, SYED JAFFER\nMUDHOLKAR, J.R.\n\nCITATION:\n 1963 AIR  765\t\t  1963 SCR  Supl. (1) 953\n CITATOR INFO :\n RF\t    1966 SC  69\t (5)\n R\t    1978 SC 188\t (7,10)\n\n\nACT:\nCriminal   Trial-Special   Court-Cognizance,   when    taken\nAllotment of case to Special Court- If sufficient for taking\ncognizance-West\t Bengal\t Criminal  Law\tAmendment   (Special\nCourts)\t Act, 1949 (W.B. XXI of 1949) ss. 4, 5- West  Bengal\nCriminal Law Amendment (Special Courts) (Amending) Act, 1960\n(W.  B. 24 of 1960) s. 2.\n\n\n\nHEADNOTE:\nIn  1958  the  police  filed  a\t report\t before\t the  'Chief\nPresidency Magistrate charging, the appellant and others  of\noffenses under ss. 120-B\/409 and 477 Indian Penal Code.\t  On\nJune 1,1959, the State Government in de an order under s.  4\n(2) W. B. Criminal Law Amendment (Special Courts) Act, 1949,\nassigning the case to a Special Court.\tSection 5 (1) of the\nAct  provided  that a Special Court may take  cognizance  of\noffenses  without  the\taccused being committed\t to  it\t for\ntrial.\tOn a petition made by the Investigating Officer, the\nSpecial Court took cognizance of the case and issued process\nto  the accused.  The appellant contended that\tthe  Special\nCourt could take cognizance only according to the  procedure\nprescribed by s. 190 (1) Code of Criminal Procedure and\t not\nmerely\tupon  the allotment of the case to it  or  upon\t the\n'complaint' of the Police Officer.\nHeld,  that the Special Court could take cognizance  of\t the\ncase as soon as it received orders of allotment of the\tcase\nand it became vested with jurisdiction to apply its mind and\nto  issue  process to the accused as soon it  received,\t the\nrecords of the case.  The provisions of 190 (1) of the\tCode\nwere  upon  its own terms inapplicable to a  Special  Court.\nThough\ta  Special  Court  was \"deemed\" to  be\ta  court  of\nsession, s. 5 (1') of the Act specifically provided that  an\norder  of  commitment  was  not necessary  for\tit  to\ttake\ncognizance and so s. 193 (1) of the Code was not applicable.\nBhajahari Mondal v. The State of West Bengal,<\/a> [1959] S. C.\nR. 1276, explained.\n954\nSection\t 5  (1)\t as  amended by the  Amending  Act  of\t1960\nprovide-,  that\t a'  Special Court may\ttake  cognizance  of\noffenses in the manner laid down ins. 190(1) (a) and (b)  of\nthe Code without an order of commitment.  This amendment did\nnot  affect  the  cognizance already taken  by\tthe  Special\nJudge.\t The amending Act did not declare what the  law\t was\nbut actually effected a change.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 188 of
\n1961.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nJune 8 1961 of the Calcutta High Court in Criminal  Revision
\nNo. 1557 of 1959.\n<\/p>\n
P.   K. Chakravarti, Amiyalal Chatterjee and P.K.  Mukherjee
\nfor the Appellant.\n<\/p>\n
B.Sen,\tP.  K.\tChatterjee  and\t P.  K.\t Bose,\tfor   the
\nRespondents.\n<\/p>\n
1962.\tNovember 7. The judgment of the Court was  delivered
\nby
\nAYYANGAR,’  J.-This  appeal  raises  for  consideration\t the
\nproper\tconstruction  of  ss. 4 and 5  of  the\tWest  Bengal
\nCriminal  Law Amendment (Special Courts) Act, 1949  (W.\t  B.
\nXXI  of\t 1949)\tto which we shall refer\t as  the  Act.\t The
\npreamble  to the Act recites that it was enacted to  provide
\nfor  the  speedy  trial of the\toffenses  specified  in\t the
\nSchedule.   Section  2\tempowers  the  State  Government  to
\nconstitute  by notification in the Official Gazette  one  or
\nmore special courts.  Section 4 enacts, to extract only\t the
\nportion relevant to this appeal :\n<\/p>\n
\t      “S. 4(1) Notwithstanding anything contained in
\n\t      the  Code of Criminal Procedure, 1898,  or  in
\n\t      any  other law, the offenses specified in\t the
\n\t      Schedule shall be triable by Special Courts
\n\t      only.\n<\/p><\/blockquote>\n
\t      (2)   The distribution amongst Special  Courts
\n\t      of  cases involving offenses specified in\t the
\n\t      Schedule,
\n\t      955<\/span>
\n\t      to  be  tried by them, shall be  made  by\t the
\n\t      State Government.”\n<\/p><\/blockquote>\n
This is followed by s. 5 reading, again confining  ourselves
\nto the portion material for this appeal
\n\t      “S.  5 (1).  A Special Court may\ttake  cogni-
\n\t      zance  of offenses without the  accused  being
\n\t      committed\t to  his  Court for  trial,  and  in
\n\t      trying  accused  persons,\t shall\tfollow\t the
\n\t      procedure, prescribed by the Code of  Criminal
\n\t      Procedure,  1898,\t for the  trial\t of  warrant
\n\t      cases  by\t Magistrates,  instituted  otherwise
\n\t      than on a police report.\n<\/p>\n
\t      (2)   Save as provided in, sub-section (1)  or
\n\t      subsec.  I (a), the provisions, of the Code of
\n\t      Criminal Procedure, 1898 shall, so far as they
\n\t      are  not\tinconsistent with the  present\tAct,
\n\t      apply  to the proceedings of a Special  Court;
\n\t      and for the purposes of the said provisions, a
\n\t      special Court shall be deemed to be a Court of
\n\t      Session  trying  cases without a jury,  and  a
\n\t      person  conducting  a  prosecution  before   a
\n\t      Special  Court shall be deemed to be a  Public
\n\t      Prosecutor.  ”\n<\/p>\n
\t      .lm0
\n\t      As  recited in the preamble and in s.4,  there
\n\t      is  a Schedule setting out the offenses  which
\n\t      are triable solely by these Special Courts.
\n\t      The  facts giving rise to the  present  appeal
\n\t      may now be stated.  The police filed a  report
\n\t      before  the  Chief  Presidency  Magistrate  at
\n\t      Calcutta\t in  February,\t1958  charging\t ten
\n\t      accused  persons including the  appellant;  of
\n\t      offenses\tunder s. 120-B read with s. 409\t and
\n\t      s.  477, Indian Penal Code.  Subsequently,  by
\n\t      an order of the State Government dated June 1,
\n\t      1959,  notified in the official , Gazette\t the
\n\t      said   case  was\tassigned  to  the   Calcutta
\n\t      Additional Special
\n\t      956<\/span>
\n\t      Court  under s. 4 (2) of the Act, and  in\t the
\n\t      said  communication the names and\t description
\n\t      of  the accused as well as the  offenses\twith
\n\t      which   they  were  charged  were\t  set\tout.\n<\/p>\n
\t      Sometime\tlater amendments were made  to\tthis
\n\t      Notification  but nothing turns on  them.\t  On
\n\t      September 26, 1959, the Investigating  Officer
\n\t      of  the Enforcement Branch, Calcutta, filed  a
\n\t      petition before the Special judge praying that
\n\t      the judge might be pleased to take  cognizance
\n\t      of the case which had been allotted to him and
\n\t      issue process against the several accused\t and
\n\t      pass  such orders as he might deem  just.\t  On
\n\t      the   same  day  (September  26,\t1959),\t the
\n\t      Additional  Special judge took  cognizance  of
\n\t      the offenses and issued notices to the accused
\n\t      persons fixing a date for their appearance.
\n\t      On  receipt of this notice the appellant\tmade
\n\t      an   application\tbefore\tthe  Special   judge
\n\t      stating that the initiation of the proceedings
\n\t      the  petition  of\t the  Investigating  Branch,
\n\t      Calcutta,\t  was  not  proper  and\t  legal\t  in
\n\t      consequence  the Special Judge was to  proceed
\n\t      in  the matter.  The Additional Special  judge
\n\t      rejected\tthat petition.\tThe  appellant\tthen
\n\t      moved the High Court of Calcutta in  revision,
\n\t      urging  the  same\t ground,  namely,  that\t the
\n\t      Special judge could not take cognizance of the
\n\t      offence  on the or  “complaint” of the  police
\n\t      officer  and had therefore no jurisdiction  to
\n\t      proceed  with the trial of the case.  At\tthis
\n\t      stage, it is necessary to mention that in\t two
\n\t      earlier  decisions of the Calcutta High  Court
\n\t      the  view had been held that a  Special  judge
\n\t      did  not acquire jurisdiction to proceed\twith
\n\t      the trial of a case merely on an allotment  of
\n\t      a\t case to him under s. 4 (2) of the Act\tduly
\n\t      notified\tin the Gazette, but that  to  enable
\n\t      him  to  take  “‘cognizance”  of\ta  case\t the
\n\t      provisions  of  s.  190 (1)  of  the  Criminal
\n\t      Procedure\t Code  had to be complied  with\t and
\n\t      that having regard to the concluding words  of
\n\t      s.  5(1) of the Act, extracted  earlier,\tthis
\n\t      had to be “otherwise than on a police report.”\n<\/p>\n
\t       957<\/span><\/p>\n
\t      In  the previous decisions the learned  Judges
\n\t      drew  a  distinction between cognizance  of  a
\n\t      case  and\t jurisdiction to  proceed  with\t the
\n\t      trial  and held that unless the Special  judge
\n\t      had   material  before  him  in\tthe   proper
\n\t      statutory form, he could not take “cognizance’
\n\t      notwithstanding  the allotment of the case  to
\n\t      him  by the State Government with\t the  result
\n\t      that he was incompetent to proceed with  trial
\n\t      of such a case.\n<\/p>\n
\t      The  Division Bench before which the  revision
\n\t      of the present appellant came on for  disposal
\n\t      entertained  doubts about the  correctness  of
\n\t      these  two earlier decisions  and\t accordingly the matter wa
\ns referred for the consideration
\n\t      of a Full Bench.\tThe questions referred were:
\n\t      (1)Does  the Special Judge appointed  under
\n\t      the WestBengal   Criminal\t  Law\tAmendment
\n\t      (Special Courts) Act, 1949, to whom a case has
\n\t      been allotted by notification u\/s 4(2) of\t the
\n\t      Act need a petition of   complaint for taking
\n\t      cognizance of the case or does\t  he\ttake
\n\t      cognizance  when on receiving  the  Government
\n\t      notification and the record of charge from the
\n\t      court\t of   the  Magistrate,\the   applies
\n\t      his mind to the facts of\tthe case ?\n<\/p>\n
\t      (2)There\t was  a\t second\t question   which
\n\t      specifically  referred  to  the  two   earlier
\n\t      decisions\t and  raised a query as\t to  whether
\n\t      they had been correctly decided.\n<\/p>\n
\t      The  learned  judges of the Full\tBench  by  a
\n\t      majority\tanswered questions in the  following
\n\t      terms :\n<\/p>\n
\t      “A Special Court is said to have taken  cogni-
\n\t      zance   when  on\treceiving   the\t  Government
\n\t      Notification of the allotment or\tdistribution
\n\t      of  the case and the records of the  case,  it
\n\t      applies its mind to the facts of the case and
\n\t      958<\/span>
\n\t      takes  some  steps for  proceeding  under\t the
\n\t      subsequent  sections  of\tChap.\tXXI  of\t the
\n\t      Code.”\n<\/p>\n
The second question was answered by saying that the  earlier
\ndecisions referred to were incorrect.
\nAfter  the order of reference to the Full Bench\t and  before
\nthe  hearing of the reference, the West\t Bengal\t Legislature
\nenacted\t Act  XXIV  of 1960-The\t West  Bengal  Criminal\t Law
\nAmendment (Special Courts) ( Amending) Act, 1960.  Section 2
\nof  this  enactment effected changes in s. 5 of the  Act  as
\nextracted earlier, so that after the amendment it read:\n<\/p>\n
\t      “S.  5( 1).  A Special Court may take  congni-
\n\t      zance of offenses in. the manner laid down  in
\n\t      clauses (a) and (b) of sub-sec. (1) of 8.\t 190
\n\t      of the Criminal Procedure Code, 1898,  without
\n\t      the  accused being committed to his Court\t for
\n\t      trial,\t  and\t  in\t trying\t     accused
\n\t      persons…………….\n<\/p><\/blockquote>\n
\t      the portion italicised being that newly added.\n<\/p><\/blockquote>\n
One of the points canvassed before the Full Bench related to
\nthe   applicability  of\t this  provision  to   the   present
\nproceedings.   The learned judges observed that\t though\t the
\namendment  being in relation to a matter of procedure  might
\nordinarily  apply to pending proceedings as well it did\t not
\nhowever have the effect of invalidating proceedings  already
\ntaken, in the absence of a specific provision to that effect
\nand  in consequence they held that the validity of the\tpro-
\nceedings  before the Special judge and his  jurisdiction  to
\nproceed with the trial of the accused was governed solely by
\nthe Act as it stood before the amendment.
\nFollowing  the\topinion\t expressed by  the  Full  Bench\t the
\nrevision petition file by the appellant was dismissed.\t The
\nappellant  who comes here by the special leave contests\t the
\ncorrectness of the answer of the Full Bench on these points.\n<\/p>\n
 959<\/span><\/p>\n
We shall first take up for consideration the main   question
\nthat  arises in the case as regards the jurisdiction of\t the
\nSpecial\t judge to take cognizance of an offence without\t the
\nprocedure prescribed by s.    190(1) being complied with.
\nIn  order  to  appreciate  the scope of\t s.  190(1)  of\t the
\nCriminal Procedure Code it is necessary to mention that\t it
\nis the first of a fasciculus of sections comprised in Part B
\nof  Ch.\t  XV  containing ss. 190 to  199  dealing  with\t the
\nstatutory   conditions\tnecessary  for\tthe  initiation\t  of
\ncriminal  proceedings.\t Of these ss. 190 to  194  form\t one
\ngroup and it is sufficient to confine attention to them :\n<\/p>\n
\t      “190. (1) Except as hereinafter provided,\t any
\n\t      Presidency Magistrate, District Magistrate  or
\n\t      Sub-divisional   Magistrate,  and\t any   other
\n\t      Magistrate specially empowered in this behalf,
\n\t      may take cognizance of any offence-\n<\/p><\/blockquote>\n
\t      (a)upon  receiving a complaint of facts  which
\n\t      constitute such offence;\n<\/p><\/blockquote>\n
\t      (b)upon a report in writing of such facts made
\n\t      by any police-officer;\n<\/p><\/blockquote>\n
\t      (c)upon  information received from any  person
\n\t      other  than a police-officer, or upon his\t own
\n\t      knowledge or suspicion, that such offence\t has
\n\t      been committed.\n<\/p><\/blockquote>\n
\t      (2)…………………………………………………\n<\/p><\/blockquote>\n
.\n<\/p>\n
\t      (3)……………………………………….
\n\t      “191.   When a Magistrate takes cognizance  of
\n\t      an offence under sub-section (1), clause\t(c),
\n\t      of  the preceding section, the accused  shall,
\n\t      before any evidence is taken, be informed that
\n\t      he  is  entitled\tto have the  case  tried  by
\n\t      another Court,
\n\t      960<\/span>
\n\t      and  if the accused, or any of the accused  if
\n\t      there be more than one, objects to being tried
\n\t      by such Magistrate, the case shall, instead of
\n\t      being  tried by such Magistrate, be  committed
\n\t      to  the  Court of Session\t or  transferred  to
\n\t      another Magistrate.”\n<\/p>\n
\t      “192  (1).  Any Chief  Presidency\t Magistrate,
\n\t      District\tMagistrate or Sub-divisional  Magis-
\n\t      trate  may transfer any case, of which he\t ES;
\n\t      taken cognizance, for inquiry or trial, to any
\n\t      Magistrate subordinate to him.\n<\/p>\n
\t      (2).  Any District Magistrate may empower\t any
\n\t      Magistrate  of the first class who  has  taken
\n\t      cognizance  of  any case to  transfer  it\t for
\n\t      inquiry  or  trial  to  any  other   specified
\n\t      Magistrate  in his district who  is  competent
\n\t      under  this Code to try the accused or  commit
\n\t      him for trial; and such Magistrate may dispose
\n\t      of the case accordingly.”\n<\/p>\n
\t      “193. (1).  Except as otherwise expressly pro-
\n\t      vided by this Code or by any other law for the
\n\t      time  being  in force, no\t Court’\t of  Session
\n\t      shall  take  cognizance of any  offence  as  a
\n\t      Court  of\t original  jurisdiction\t unless\t the
\n\t      accused\thas  been  committed  to  it  by   a
\n\t      Magistrate duly empowered in that behalf.”
\n\t      “194. (1).  The High Court may take cognizance
\n\t      of any offence upon a commitment made to it in
\n\t      manner hereinafter provided.\n<\/p>\n
\t      ‘Nothing\therein contained shall be deemed  to
\n\t      affect the provisions of anY letters patent or
\n\t      law  by which a High Court. is constituted  or
\n\t      continued,  or  any other\t provision  of\tthis
\n\t      Code.’
\n\t      (2).(a).\t Notwithstanding  anything  in\tthis
\n\t      Code contained, the Advocate-General may, with
\n\t      the
\n\t      961<\/span>
\n\t      previous\tsanction  of the  State\t Government,
\n\t      exhibit  to  the High Court,  against  persons
\n\t      subject to the jurisdiction of the High Court,
\n\t      informations  for all purposes for  which\t Her
\n\t      Majesty’s Attorney-General may exhibit  infor-
\n\t      mations  on  behalf of the Crown in  the\tHigh
\n\t      Court of justice in England.\n<\/p>\n
\t       (b)…………………………………\n<\/p>\n
\t      (c)……………………………………\n<\/p>\n
\t       (d)…………………………………….
\nA  perusal  of\tthese would show  that\tproceedings  may  be
\ninitiated and cognizance of an offence taken either directly
\nor  upon  transfer  of\ta case\tof’  by\t commitment,  or  on
\ninformation   filed   by   the\t Advocate-General.    Direct
\ncognizance   can  be  taken  only  by  certain\tclasses\t  of
\nMagistrates  specified in s. 190(1).  It should\t be  noticed
\nthat   the  application\t of  this  section  is\tlimited\t  to
\nPresidency Magistrates, District Magistrates, Sub divisional
\nMagistrates  and  other Magistrates specially  empowered  in
\nthat  behalf and it is common ground that the judge  of\t the
\nSpecial Court appointed under s. 2 of the Act is not  within
\nthe  class of Magistrates designated by s. 190(1) and  hence
\nthere  can be no question of such a judge having  to  comply
\nwith  its requirements before he can “take cognizance of  an
\noffence.”  Nor\tis it the contention of the  appellant\tthat
\nsuch Court is a Sessions Court or a High Court as to require
\nan order of committal by a Magistrate as a precondition\t for
\nthe emergence of its jurisdiction to proceed judicially with
\nthe matter.\n<\/p>\n
It  is\tthus clear that there is  no  statutory\t requirement
\nunder  the  Criminal  Procedure Code as\t to’  the  class  or
\ncharacter  of material that must be before a  special  judge
\nbefore he can assume and exercise jurisdiction over a  case.
\nIt  was common ground that the same is not a requirement  of
\nthe Special Courts Act either.\n<\/p>\n
962<\/span><\/p>\n
There  were however certain matters which were relied on  as
\npointing  to  a\t different  inference  to  which  we   shall
\nimmediately refer.  In the first place it was urged that  s.
\n5(1) of the Act merely precluded an objection being taken to
\nthe  jurisdiction  of the Special Court by reason  of  their
\nbeing no commitment, but did not positively provide  whether
\nor not other material was necessary before cognizance  could
\nbe  taken  of the offence besides, of course, the  order  of
\nallotment  under s. 4(2).  In other words, the argument\t was
\nthat  the order of allotment was not either expressly or  by
\nnecessary  implication\tto be equated to a  committal  order
\nunder\ts.  193(1).   This  contention\twas  sought  to\t  be
\nreinforced by reference to the language employed in s.\t5(2)
\nof the Act where under the special court was not constituted
\n“a  court  of session” but was only deemed to  be  one\tsuch
\nindicating,  as it were, that it was not that in truth.\t  We
\nconsider  that this submission totally lacks substance.\t  We
\nare  unable to draw the inference which learned Counsel\t for
\nthe appellant does from the word “deemed” in s. 5(2) of\t the
\nAct.   The fact is that the words “court of session” have  a
\nwell-understood meaning and significance in the hierarchy of
\ncourts under the, Code of Criminal Procedure and the Special
\nCourt  is  constituted not such a court but as it  is  being
\nvested\twith  the  powers of a sessions\t court\tthough\twith
\nmodifications,\tthe word “‘deemed” is used.  If the  special
\ncourt  is “deemed” to be a court of session, a\tdoubt  might
\narise  as to whether the provision in s. 193(1) of the\tCode
\nis or is not inconsistent with the Act (vide s. 5(2) of\t the
\nAct), and hence to clear the position s. 5(1) enacts, so  to
\nsay,  that notwithstanding that a special court is  “deemed”
\nto be court of session, section 193(1) does not apply to  it
\nand that an initial cognizance\tby a Magistrate\t followed by
\nan order of commitment is not necessary for cognizance being
\ntaken by the Special judge.\n<\/p>\n
If  s. 190 (1) and s. 193 (1) of the Code do not apply,\t the
\nnext question that calls for consideration
\n 963<\/span>
\nis  what more besides the order of the State Government\t u\/s
\n4(2)  of  the  Act  is\tneeded\tto  vest  that\tcourt\twith
\njurisdiction to proceed.  It was suggested that s. 5 (1)  of
\nthe Act might at the best obviate the necessity for an order
\nof  commitment but that it did not on that account  negative
\nthe  need  for some proper material on the basis  of which
\nalone “cognizance” may be taken and it was further submitted
\nthat in the case of a fudge of a Special Court cognizance of
\na case was different from jurisdiction to conduct the trial,
\nthe  former  being dependent on the  existence\tof  material
\nwhich  alone invested the court or judge with  jurisdiction,
\nso  to speak, to initiate the proceedings.   Throughout\t the
\narguments of the learned Counsel for the appellant there was
\nan  underlying assumption that jurisdiction to proceed\twith
\nthe trial of the case was different from “‘Cognizance” which
\nwas  some technical requisite necessary to invest the  Judge
\nor  Magistrate with jurisdiction and that in the absence  of
\nproper\t material   for\t cognizance  being  taken   he\t was
\nincompetent  to proceed with the trial of the case  allotted
\nto him.\n<\/p>\n
Much of the arguments on this head was based on a passage in
\nthe judgment of this court in Bhajahari Mondal v. The  State
\nof  West Bengal<\/a> (1) which dealt with the Act.  That  passage
\nruns :\n<\/p>\n
\t      “‘The   crucial  date  for  the\tpurpose\t  of
\n\t      determining  the\tjurisdiction  of  the  Court
\n\t      would be the date when the Court received\t the
\n\t      record  and  took cognizance of the  case\t and
\n\t      took  any step in aid of the progress  of\t the
\n\t      case   and  not  when  the  evidence  of\t the
\n\t      witnesses began to be recorded.  Under s. 4 of
\n\t      West  Bengal  Act\t (W.  B. Act  XXI  1949)  as
\n\t      amended by the Act of 1952 the jurisdiction of
\n\t      the  Court  arises when  the  notification  is
\n\t      issued  distributing the case to a  particular
\n\t      special court giving
\n\t      (1)   [1959] S.C.R. 1276.\n<\/p><\/blockquote>\n
\t      964<\/span><\/p>\n
\t      the  name\t of the accused and  mentioning\t the
\n\t      charge  or charges against him which  must  be
\n\t      under  one  of the offenses specified  in\t the
\n\t      Schedule.\t  In  the absence of  any  of  these
\n\t      elements\tthe  special  Court  would  have  no
\n\t      jurisdiction.”\n<\/p><\/blockquote>\n
It was stressed that reference was here made to two  matters
\nas  necessary to confer jurisdiction on the special court  :
\n(1)  The ‘issue of notification under s. 4 (2) of the  Act.,
\n(2) Receipt of the record and “the taking cognizance of\t the
\ncase” and the taking of a step in aid of the progress of the
\ncase and it was urged that the latter requirement brought in
\nreally the substance of s. 190 (1) of the Criminal Procedure
\nCode.\tWe  are satisfied that these observations  were\t not
\nmeant to suggest that the jurisdiction of the Special  judge
\nto proceed with the trial of a case duly alloted to him\t did
\nnot  spring  wholly from the allotment which  really  was  a
\nsubstitute  for a commitment under s. 193 (1) of  the  Code,
\nbut  depended  in part at least on the\texistence  of  other
\nmaterial  of a nature prescribed by statute  disclosing\t the
\ncommission   of\t  an  offence.\t Our  reading\tis   further
\nstrengthened by the fact that in a later portion of the same
\njudgment when dealing with the applicability to the  special
\njudge of the curative provision ins. 529 of the Code reading
\n:\n<\/p>\n
\t      “If any Magistrate not empowered by law to  do
\n\t      any of the following things, namely:\n<\/p><\/blockquote>\n
\t      (e)   to\ttake cognizance of an offence  under
\n\t      s.    190,  sub-section  (1),  clause  (a)  or
\n\t      clause (b) ;\n<\/p><\/blockquote>\n
\t      965<\/span><\/p>\n
\t      erroneously in good faith does that thing, his
\n\t      proceedings  shall not be set aside merely  on
\n\t      the ground of his not being so empowered.”\n<\/p><\/blockquote>\n
It was specifically pointed out that- the provision which is
\napplicable  to Magistrates designated in s. 190 (1)  is\t not
\napplicable to the special judge who does not take cognizance
\nin that manner.\n<\/p>\n
The provisions of s. 190 (1) being obviously, and on its own
\nterms, inapplicable, the next question to be. considered  is
\nwhether\t it is the requirement of any principle\t of  general
\njurisprudence that there should be some additional  material
\nto entitle the Court to take cognizance of the offence.\t The
\nword   ” cognizance” has no esoteric or\t mystic significance
\nin criminal law or procedure.  It merely means become  aware
\nof and when used with reference to a Court or judge, to take
\nnotice\tof  judicially.\t It was stated in Gopal\t Marwari  v.
\nEmperor (1) by the learned judges of the Patna High Court in
\na passage quoted with approval by this Court in R. R.  Chari
\nv.  State of Uttar Pradesh<\/a> (2) that the\t word,\t“cognizance’
\nwas  used  in  the  Code to  indicate  the  point  when\t the
\nMagistrate or judge takes judicial notice of an offence\t and
\nthat it was a word of indefinite import, and is not  perhaps
\nalways\tused  in  exactly the same sense.   As\tobserved  in
\nEmperor\t  v.  Sourindra\t Mohan\t Chuckerbutty(3),   “‘taking
\ncognizance  does not involve any formal action ;  or  indeed
\naction\tof any kind, but occurs as soon as a Magistrate,  as
\nsuch,  applies\this mind to the suspected commission  of  an
\noffence.”  Where  the statute prescribes  the  materials  on
\nwhich alone the judicial mind shall operate before any\tstep
\nis  taken,  obviously  the  statutory  requirement  must  be
\nfulfilled.   Thus,  a sessions judge  cannot  exercise\tthat
\noriginal  jurisdiction\twhich magistrates  specified  in  s.
\n190(1) can, but the material on which alone he can apply his
\njudicial  mind\tand proceed under the Code is  an  order  of
\ncommitment.  But statutory provision
\n(1) A.I.R. (1943) Pat. 245.    (2) [1951] S.C.R. 312, 320.
\n(3) (1910) ~I.L.R. 37 Cal. 412, 416.\n<\/p>\n
966<\/span><\/p>\n
apart, there is no set material which must exist before\t the
\njudicial mind can operate.  It appears to us therefore\tthat
\nas soon as a special judge receives the orders of  allotment
\nof the case passed by the State Government it becomes vested
\nwith  jurisdiction to try the case and when it receives\t the
\nrecord\tfrom the Government it can apply its mind and  issue
\nnotice\tto  the\t accused and thus start\t the  trial  of\t the
\nproceedings assigned to it by the State Government.
\nSome little point was made of the words “otherwise than\t on
\na police report” occuring at the end of s. 5(1) of the\tAct.
\nIn our opinion, nothing turns on them.\tThese words were not
\nthere  in  the Act as originally enacted in 1949,  but\twere
\nintroduced by an amendment effected by W. B. Act 26 of 1956.
\nIn 1949 at the date of the original enactment there were not
\ntwo procedures prescribed for being followed by\t magistrates
\ntaking\tcognizance under the different clauses of s.  190(1)
\nof the Code.  But the Criminal Procedure Code was amended by
\nAct  26 of 1955 when s. 251 A was introduced and under\tthis
\nnew  provision\ta special procedure was introduced  for\t the
\ntrial  of  cases of which cognizance was taken on  a  police
\nreport\t(s.  190(1)(b)).  The amendment of the\tAct  by\t the
\ninclusion   of\tthose  words  was  merely  to\tensure\t the
\ninapplicability of s. 251-A to the procedure to be  followed
\nin special courts and has obviously no further significance.
\nThe  next  point  for consideration is\tthe  effect  of\t the
\namendment  of 1960 on the jurisdiction of the special  court
\nto deal with the case of the appellant.\t Learned Counsel for
\nthe  appellant addressed an elaborate argument on it but  in
\nsubstance  the contention was that the amending Act  was  in
\nessence declaratory since it had accepted the correctness of
\none  of\t two interpretations which had been placed  upon  s.
\n5(1)  of  the  Act as it  originally  stood.   He  therefore
\ninvited us to hold that the Legislature had thereby intended
\n967<\/span>
\nthat  that interpretation should govern the  provision\tfrom
\nthe  date  when\t the Act  was  originally  enacted.   Before
\nconsidering this point it is necessary to put aside  certain
\nmatters\t :  (1)\t It was not contended that  there  were\t any
\nexpress\t  words\t  in  the  amending  Act   which   made\t  it
\nretrospective\tor   retroactive   to\toperate\t  from\t the
\ncommencement  of the Act, (2) The amendment relating to,  as
\nit is, obviously a matter of procedure would have applied to
\npending proceedings, but it was not suggested that there was
\nanything  in  the  amending  Act  invalidating\t proceedings
\ncommenced  without reference to the amended provisions ;  in
\nother  words,  the  special judge  having  validly  acquired
\njurisdiction to proceed with the trial of the case  allotted
\nto  ‘him, there was nothing in the amending Act\t to  deprive
\nhim of that jurisdiction.\n<\/p>\n
It  is in the background of these considerations  which\t the
\nlearned\t Counsel did not dispute, that his submissions\thave
\nto  be\tconsidered.  Learned Counsel referred us to  a\tvery
\nconsiderable  number of decisions on the  interpretation  of
\nstatutes,  but we have not found them of assistance or\teven
\nrelevance.   The  amending  Act\t does  not  purport  to\t  be
\ndeclaratory but seeks in terms to carry out an amendment, in
\nother  words,  to effect a change.  The mere fact  that\t the
\nchange\teffected  conforms to  a  particular  interpretation
\nwhich  the  words which previously existed  might  bear\t and
\nwhich  found acceptance at the hands of the courts in a\t few
\ncases, is, in our opinion, a wholly insufficient  foundation
\nto base an argument that it is declaratory and further\tthat
\nit  must  be  taken  to\t have  declared\t the  law  from\t the
\ncommencement  of  the  parent Act so as\t to  invalidate\t all
\nproceedings  validly taken on a proper construction  of\t the
\nlaw as it then stood.\n<\/p>\n
We find therefore that there is no substance in the argument
\nregarding the effect of the amending Act upon which reliance
\nis placed for the purpose of
\n968<\/span>
\nimputing the jurisdiction of the special court and, we\thave
\nno hesitation in repelling that argument.
\nThe result is that the appeal fails and is dismissed.
\nAppeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ajit Kumar Palit vs State Of West Bengal on 7 November, 1962 Equivalent citations: 1963 AIR 765, 1963 SCR Supl. (1) 953 Author: N R Ayyangar Bench: Ayyangar, N. Rajagopala PETITIONER: AJIT KUMAR PALIT Vs. RESPONDENT: STATE OF WEST BENGAL DATE OF JUDGMENT: 07\/11\/1962 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-40871","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAjit Kumar Palit vs State Of West Bengal on 7 November, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajit-kumar-palit-vs-state-of-west-bengal-on-7-november-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajit Kumar Palit vs State Of West Bengal on 7 November, 1962 - 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