BHAJAHARI MONDAL versus THE STATE OF WEST BENGAL

KAPUR J.-This is an appeal by le.ave of the High • Court of Calcutta against the judgment and order of that Court dismissing the appellant's appeal against the order of conviction by the Special Court of Bu.rd wan for an offence under'S. 165-A, Indian Penal Code and six months' rigorous imprisonment.

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The facts leading to this appeal .are, that one Istipada G bosh and his son were being tried in the court of an Assistant Sessions Judge, Burd wan, with a jury of five. During the course of the trial the appellant approached one of the jurors Baidya Nath Mukherjee• and offered him illegal gratification as an inducement for giving a verdict favourable to Ghoshl'lB. On the morning of September 6, 1952, the juror narrated these facts to the police and thereupon the officer in charge sent a Sub-Inspector to arrest the appellant if he offered the bribe. After a little while the appellant came to the appointed place and offered Rs. 40 in four 10 rupee notes to the juror and while he . was trying to pass those notes to the juror the Police Officer arrested the appellant. The First Infotmation Report for an offence under ss. 161/116, Indian Penal Code was made-soon after.· And after investigation a report • was made by the police officer in cmrge Burd wan

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police station which rcimltfd in the case being sent to "the Special Judge, BurUwan. On .November 27, 1952, the Government issued the following notification Xo. 6603J under s. 4(2) of the West Bengal Criminal Law Amendment. (Special Courts) Act, 1949 (W. B. X.XI of 1949):

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"In exercise of the power conferred by sub-section (2) of section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949), the c;o\·ernor is pleased to dist.ribute to the Burd wan Special Court constituted by notificat.ion ::\o. 4632J, dakd the 22nd August, 1952, under section 2 oft.he said Act the following cases involving offences specified in the Schedule to the i;aid Aul to.be tried by the said Special Court:- .....................................................................

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(4) The State versus Bhajhari Monda!, son of Bhuson Chandra :IIondal of Katwa. ~tation Bazar Police Station Katwa, district 13urdwan under sectio,1s • 16li116 oft.he Indian Penal Code ............ ". This notification shows that the offence charged :igainst the appellant was one under 161/116 of the Indian Penal Code.

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The ordoc sheet of the Special Court shows that the records of the case State v. B. C. Monda! under ss. l6lill6 Indian Penal Code were received by tho Special Judge on December 23, 1952, and the Special Court took cognizance of the ca.sc, the appellant was summoned for appearance on Ja.nua.ry 22, "1953, and he" did appear on that day. On December 21, 1953, after SC'l'eraJ adjournments the hearing of the CS.Se was fixed for January 29, 1954, on which date the examination of witnesses commenced. On February IO, 1954, a charge under s. 165A, Indian Penal Code was framed by the Special J udgc. The trial ended on J unc 7, 1954, and the appellant was convicted under 8. 165A of the Indian Penal Code and sentenced to six months' rigorous i~pris11nmcnt. Against this order of convic-

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tion the·a.ppella.nt took a.n appeal to the High Court of • Calcutta. which \\:as dismissed. It held that the appcl- !ant had rig~ly been convicted under s. 165A and that the Special Court h,ad • jurisdiction to try the offence under that section fro:th July 28, 1952, to May 9, 1953, under s. 7 of the Central Act (XLVI of 1952) and from May 9, 1953, under the West Bengal Act (W. B. XV of 1953). It also held that any deiect in the taking of cognizance was curable under s. ~9 (e) of the Criminal Procedure Code and that as a matter of fact the Special Judge took cognizance under s. 165A and not under ss. 161/116, Indian Penal Code. On December 16, 1955, the High Court granted leave to appeal to this Court.

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Counsel for the appellant has not contested the appeal on any question of fact but has confined his arguments to the question of jurisdiction. He contended that the Special Judge had no jurisdiction to try the case as (1) at the time he took cognizance of the case, s. 165A, Indiaih Penal Code, was not an offence specified in the Sche,dule i1f 'Vest Bengal Act XXI of 1949; (2) the, case distr\buted to him was one under sS. 161/116 an offence which no longer existed in the Indian Penal Code; (3) the Special Judge was exercising jurisdiction under the West Bengal Act (W. B. XXI of 1949) and not under the Central Act (XLVI of 1952) as no Special Judges were appointed by the State Government under that Act; (4) tJ:ie appellant could not be tried under the \Vest Bengal Act XV of 1953 be ca use there was no distribution of a case against him under s. 165A, Indian Penal Code. In order to decide these matters it is necessary to set out the dates on which'the' various statutes came into force and to see what provisions were made therein. On Marclr 11, 1947, Prevention of Corruption Act (Act II of 1947) was enacted by the Central Legislature. The West Bengal Legislature enacted the West Bengal Criminal Law Amendment Act of 1949 (IV. B. XXI of 1949) which received the assent of the Governor- GenerTl,l on June 23, 1949. Its preamble shows the objects of the Act to be more speedy trial and more effective punishment of certain offeuces .• By s. ~ of this Act, Special Courts were set up in West Bengal which u.oder s. 3·were to be presided over by Special' ,Judges. Section 4 provided for allotm~nt of ca8es for trial to the various Special if u<lges and also authorised the Provincial GoYernm~nt to transfer any case from one Special ,Judge to another and to make modifications in the description of c1iscs (whether in the name •Of the accused or in the charges preferred.or in any other manner) as may be considered necessary. The Special Judge had jurisdiction to t.ry the cases for the time being allotted to him under s. 4 (1) in respect of such of the charges for the offences specified in the Schec..lule us may be preferred against the accused. All cases pending before any court or before any other Special .Judge were deemed to be transferred to the Special Judge to whom they were allotted. The Special ,Judge when trying a case allotted to him could also t.ry any offence whether specified in the Schedufe or not with which irn accused could be charged at the same trial. By s. 5 the Special ,Judge could take cognizance of a case without. the case being committed and was to follow the proC'edure of warra!1t cases and the court of the Special ,J ndgc was deemed to be ~ court of Session trying without a jury. By s. 8 rules of e\·idence were amended in certain particulars. Section provided for enhfinecd punishment. By s. Hl the provisions of the Pre\•ention of Corruption Act, were made .applicable. The schedule to the Act enumerates t.he offences triable by a Hpecial Juc..lgc, the relevant items of which were :

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(1) "An offence punish>LblP under ss. 161, 162, 163 ors. 165 of the Indian Penal Code .

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. . . ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... .

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(8) Any conspirae~· to commit or any attempt to commit or any abetment of any of the offences specified in it-0ms l to 7 ".

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On ,July 28, l!l52, the Central Legislatnrc enacted t.hc Criminal Law Amendment Act( Act XLV l of.J!l52) by s. 3 of whic·h an oftimce of abctmrnt, s. 165A-with an enhanced punishment was inserted.

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' S. 16.5A. "\\rhoever abets any offence punishable oUnclcr section 161 or section 165, whe.thcr or ~10t th11,t "offence is com:8:J.itted in consequence of the abetment, shall be punished with impriscmment of either descrip- . . • d h tion for a term w hwh may ex ten . to t ree years, or with fine or with both". By s. 6 the State Government were authorised by notification to appoint Special Judges for variou~ areas to try the following offences :

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(a) "an offence punishable under section 161, section 165 or section 165A of the Indian Penal Code (Act XLV of 1860) or sub-section (2) of section 5 of the Prevention of Corruption Act (II of 1947);

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(b) any conspiracy to commit or any attempt to commit or any abetinent of any of the offences specified in clause (a) ............... ". By s. 7 exclusive jurisdiction was conferred on Special Judges. The effect of this enactment was the insertion in the Penal Code of an offence 165A and the creation of Special Judges to be appointed by the State. On August 12, 1952, the Central Legislature p~ssed another Act, the Prevention of Corruption (Second Amendment) Act (59 of 1952), s. 3 of which changes the rules of evidence in regard to presumption and onus by adding sub-s. 2 to s. 4 of the principal Act by which it was provided:

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" Where in any trial of an offence punishable under section 165A of the Indian Penal'Code(Act XLV of 1860) it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an ace.used person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the Indian Penal Code or, as the case may be, without consideration or for a consideration which he knows to be inadequate".

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On <l:nly 30, 1952, an Act, to amend the West Bengal Act XXI of 1949, the West Bengal Criminal. Law Amendment (Special Court Amending Act) (VV. B. XII of 1952) received the assent of the Pre;!iden£ and came into force. Section 3 of this Act substitutea a new • s. 2 in p!l~ce ofs. ~of the We~t Beng~lAgt(W. B. XXI 1282 SUPRE!\'lE COURT REPORTS of 1949). This substituted section 11.uthorised St:Lte Government t-0 c•mstitute Special Courts appoint Special Judges' to preside o,·er such which had jurisdiction throughout \Yest Bengal. s. 5, the following was substituted in place of s. 4 West •Bengal Act XXI of 1949:

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"(I) Notwithstanding anything contained Code of Criminal Procedure, 1898 (Act Y of 1898) or in any other law, the offences specified in the Schedule shall be triable by Special Courts only:

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Provided that when trying any case, a Special Court may also try any offence other than an specified in the Schedule, with which the accused under the Code of Criminal Procedure, 1898, he ed at the same trial.

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(2) The distribution amongst Special Courts cases involving offences specified in the Schedule, to be tried by them shall be made by the St.ale Govel'llment ".

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The Schedule unde1· the West Bengal Act XXI of 1949) was also amended by the insertion s. 164 Indian Pen.al Code on!~-. The West Act XXI of 1949 was further amended bv the Bengal Criminal Law Amendment (Sp~eial Courts) Amending Act, 1953 (Act XV of 1953). It. received assent of th'IJ Ptesident and came into force on May 9, 1953. Thi~ Act added s, J6;iA, ln<lian Penal in item No, I of the Sched11le of the 1949 West Bengal Act.

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The result of these various enactments, Central well as State wao the creation of Special Cou'rts otfence.q which were specified in the case of Bengal (W. B. XXI of 1949) in the Schedule and the case of Central Act in t.he body of the Act The West Bengal Act ( W. B. XX I of 1949) created Special .Judges to try cases involving offences specified in the Schedule and allotted to them by the Government alone. Cnder the Central Act (X l:vr 1952) also the St.ate Government was authorised appoint Sptocial •J udgcs ancl the offences specified the Act were triable by such Judges as stated in of the Act. The procedure to be 'followed by Special Judgel was that prescribed for the trial of warrant cases. Therefore iihe :jurisdiction of Special

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, . S Judges appomted under this tate enactment to try cases relating to offences specified in the Schedule arose only when they were allotted to them. By the West 'Bengal Amending Act of 1952 (W. B. XII of 1952) in place of" Special Judges" the words "Special Courts" were substituted and two conditions necessary for conferring jurisdiction on such Courts were: (1) cases to be tried related to offences specified in the Schedule and (2) the State Government had to make the distribution of such cases to the various Special Courts. Therefore no Special 'Court had jurisdiction tci try a case unless it was for offences specified in the Schedule and the State Government distributed it to the Special Court.

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The notification in the present case specified the name of the accused, the offence for which he was to be tried as one under s. 161/116, Indian Penal Code, an,d the case• was distributed to the Special Court, • Burdwan for trial. On the date of the notification s. 161 and abetment of s. 161 were offences specified in the Schedule but as a result oJ: the amendment by the Criminal Law Amendment Act 1952 (XLVI of 1952) s. 165A had been inserted in the Code providing for punishment for abetment of offences • mentioned in ss. 161 or 165. Section 165A created a distinct and separate offence and therefore abetment of an offence under s. 161 was no longer an offence under s. 161/ 116 of the, Code. Section 165A was not included in the Schedule to the West Bengal Act (W. B. XXI ,of 1949). Counsel for the State contended that this section although not specifically mentioned was all the time specified in and must be deemed to have been specified in the Schedule to the West Bengal Act (W. B. XXI of 1949) because item 8 specifically mentioned abetment of offences in items 1 to 7 and thats. 165A only prescribes punishment for abetment of offences under ss. 161 or 165 and cannot be called a new or a different offence. Section 165A is not merely a 'restatement (if the offence of abetment under s. 116 of the Code. It • • also comprises abetment under s. 109 of the Code and provides an enhanced 11enalty of three yea.rs imprisonment instead of l/4th of three years imposeable under s. 116. It further attra.cts the application of s. 4 (2) of the Prevention of Corruption Act (II of 1947) as subsequently amended. It cannot Le said therefort! that merely because the abetment of an offence under s. 161 was specified in the Schedule of the \Vest Bengal Act of 1949, s. 165A which did not then exist in the Penal Code, must be deemed to have been specified therein. lt is significant that the West Bengal Act was further amended on May 9, 1953, by Act XV of 1953 in order to include s. 165A in the Schedule.

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It appearH therefore that under tho notification the case distributed t-0 the Special Court for the appellant's trial was for a non-existing offence becauso when the Special Judge t-0ok cognizance of the case there was no such offence as ss. 161/l Hl of the Indian Penal Code. The notification did not mention s. 165A of the Code and at the time when the Special .fudge purpo1·t. ed to take cognizance he had no jurisdiction lo do so and try the case as the offence under s. 165A was not in the Schedule of the West Bengal Act, 1949, as amended in 1952. ·

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The crucial date for the purpose of determining the jurisdictio1i of"the Court would be the date when the Court received the record and took cognizance of the case und took any step in aid of the progress of the cri.~e and not when the evidence of the witnesses began to be recorded. Under s. 4 of \Vest B,cngal Act (\Y .13. XXl of 1949) as amended by the Act of 1952 the jurisdiction of the Court arises when the notifica. tion is iHsued distributing the CR.Se lo a particular Special Court giving the 11ame of tho accused and mentioning the charge or charges against him which must be under one of the offences specified in the Schedule. In the absence of anv of these eleme~ts t.he Special Court would ha\·c no" jurisdiction. The II igh .Court held :

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' "tbat the offence under section 165A was always • triable by a Special Judge only from 28th J;uly, 1952, to 9th )fay, 1953., under, section 7 of the Central Act and from 9th J\by, 1953, under the •\V. B. Act XV of 1953 ". . . • As already stated the case wb'ich was distributed to the Special Judge was one under s. 161/116, Indian Penal Code an offence not then existing in the Code and ass. 165A was not in the Schedule as an og'ence triable by a Special Judge it could not be held that the Special Judge :was trying the appellant for an offence under s. 165A. There is nothing to indicate that the appellant was being tried upto May 9, 1953, under s; 7 of the Central Act. No notification of the State Government appointing any Special Judge under s. 6 of the Central Act (Act XL VI of 1952) was brought to our notice. It was on the other hand· st(\ted by counsel for the State that there was no such notification. Nor is there anything to show that the Special Judge of Burdwan was trying the appellants' case under s. 7 of that Act. 'Ve are of the opinion that the trial was not under the Central Act, 1952. Nor could the. trial be under the provisions of West B~ngal Act XV of 1953 because no distribution of the appellants' case was made to the Special Judge by a notification mentioning the charge against him to be one under s. 165A, Indian Penal Code. ·The High Court also said :

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" It is true that if the offence under sootion 165A / be regarded as a distinct offence, the Special Judge appointed under the W. B. Act had no jurisdiction in December 1952 to take cognizance of the offence and cognizance could be taken only by a Special Judge appointed• under the provisions of the Central Act, But siD;ce in such case the Special Judge must •be deemed to have acted erroneously in good faith, the provisions of section 529(e) of the Criminal Procedure Code would apply and the proceedings would not be vitiated ......... It is trial without jurisdiction that vitiates a proceeding (section 530 Cr. P. C.) and not taking"of cognizance in good faith without jurisdiction".

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But that with respect, is an erroneous application pf s. 529 of the Code of Criminal Procedure which prov~M: "

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"If any Magistrate not empoweredo by law t-0 do any of the following thi.ng11, namely:

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. ................................................................ .

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(e) to take cognizance of an offence under section 190, Sllb-section (1), clause (a.) or clause (b);

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erroneously in good faith does that thing, hi~ proceedings shall not be set aside merely on ground of his not being so empowered." This section applies to i\fagistrates and would not apply t-0 a. Special Judge whose jurisdiction arises not on his taking cognizance under s. 190 of the Code of Criminal Procedure, but on the case for an offence specified in the Schedule being distributed to him by the

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State Government by not.ification. The defect ~f /jurisdiction therefore cannot be cured by s. 529(e) of · the Code of Criminal Procedure. The Special Judge was consequently not a Court of competent jurisdiction and the proceedings before him were null and ineffectual.

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·we are of the opinion, therefore, that \vhon the cMe was distributed to tho Special Court which is tho basis of tho jurisdiction of that Court, s. 165A was not one of the offences specifictl in the Schedule and consequently the appellant could not be tried for and convicted of toot offence. The conviction is therefore by a Court which had no jurisdiction t-0 try the case against the appellant and tho whole proceedings in this case are null and void.

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We would accordingly a.How the appeal and set a.side the conviction of the appellant under s. 165A,

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I. P. C., and the sentence imposed thereunder ..

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Appeal allowed .

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