STATE OF GUJARAT versus CHATRABHUJ MAGANLAL AND ANOTHER

SARKARIA, J. Controversy. l,1 these appeals centres round the' inc terpretation of the words "specially empowered" appearing iri. s. Z(c) of the Suppression of Immoral Traffic in Women and Girls Act; 1956 (to be hereinafter referred· to as the Act). '

p. 1077, margin G

'! The facts giving rise to these nppeals are as follows :

p. 1077, margin H

Chaturbhuj Maganlal and Bai Sabita, respondents herein,· ,are. husband and wife residing together at Parvati Bhuv,,.1, Rajkot.. Both of them together with Bai Hamid•a Basir Mohammed, respondent 3 herein, are accused 1, 2 and 3 respectively, in a trial for offences punishable under ss. 5 an.ct 6 of the Act before the Judicial Magistrate, First Class Rajkot in Cr. Cases Nos. 1372 and 1404 of 1968. When the trial was about to commence in these rnses, the accused moved applications rais;iag an objection that the Magistrate had no jurisdiction to try the offences as he had not been "specially empowered" as required by s. 2 ( c) of the Act. The Magistrate rejected those. applice..tious whereupon the ·accused went in revision before the Sessions Judge, Rajkot who dismissed the same.

pp. 1077–1078, margin H

Aggrieved, the accused filed two revisions (Cr. R. 321 and 322 of 1969) in the High Court of Gnjarat. A learned Judge of the High Court allowed the revisions on the gronnd that Mr. Modha, Magistrate 1st Class Ra jkot, before whom these cases were pe,1ding, had no jurisdict;on to try the same becanse the State Government notification, dated February 19, 1959 did not have the effect of making him a ··Mag:strate of the first class specially empowered" within the meaning of s. 2(c) of the Act. Accordingly, the Magistrate was directed to drop the proceedings pending against the revision-petitioners.

p. 1078, margin B

Against that dccisio>.1 of the High Court, the State has now filed these appeals on " certificate granted by the High Court under Article 134(1) (c) of the Constitution.

p. 1078, margin D

Section 2 ( c) of the Act defines a "Magistrate" to mean

p. 1078, margin D

·'a District Magistrate, a Sub-Divisional Magistrate of :he First Class specially empowered by the State Government. by notification in the Olficial Gazette, to exercise jurisdiction under the Act". Section 22 further says :

p. 1078, margin D

"No court inferior to that of a magistrate as defined in Clause ( c) of Section 2 shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Section 8".

p. 1078, margin E

The State Government Notification No. PPA/1257/84187/X of July 22, 1958, published in the Bombay Government Gazette of July 31, 1958, purporting to have been issued under s. 2(c), runs as follows :

p. 1078, margin F

"In the exercise of the powers conferred by s. 2 ( c) of the Suppression of Immoral Trafilc in Women and Girls Act, 1956, the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act, except under ss. 12(1), 18(1), 19, 20(1) and (3) of the Act."

p. 1078, margin G

The question is. whether this notification has the effect of maki11g every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction, a Magistrate competent to try any offence under ss. 3. 4. 5. 6, 7 and or 8 of the Act? ,;

p. 1078, margin G

Answer to this question depends on a correct interpretation of the exprcssicia "specially empowered" in Section 2 ( c). Tho;r~ has bee_n a shatp conflict of judicial opinion in regard to the meanmg of this expression.

p. 1079, margin A

One line of decisions has taken the view (hereafter referrecl to us the narrow view) that the word "specially" in this expressi9n has reference only to the mode of empowerment as indicated in s. 39(1) of the Code of Criminal Procedure, 1898. According to this view the word "specially·· s\'ands in contrast to the word "generally". Therefore, if powers to try certain offences are conferred on a class of officials by their official title, they are "gel1erally empowered"; but if the powers are conferred on particular individuals by name or by virtue of their o!hce. they are "specially empowered". On this reasoning it is deduced that the words "specially empowered" imply "the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power is to be conferred". Some of the cases in which this view has beea expounded are : Mohd. Qasim and anr. v. Emperor('); Emperor v. Udho Chandwnal('); Polubha Vajubha v. Tapu Ruda( and Sabuddin Sheikh Mansur v. J. S. Thakkar and a/Jr.(').

p. 1079, margin A

A different view (hereafter referred to as the broad view) has been taken in these decisions : K. N. Vijavan v. State('); State v. Judhabir Caetri( State of Mysore v. Kashambi and anr.(7); Ashaq Hussain Khan v. S. D. 0. Monghir,( C. V. Madhava Mannadiar v. District Collector and ors.(') According to this view, the word "specially" has reference to the special purpose of the empowerment and is not intended to convey the sense of a "special" as contrasted \Vith a "general" empowerment. "Specially" qualifies the word "empowered" and not the person on whom the power is conferred. In this view, the State Government is within its competence to confer powers under s. 2(c) of the Act on some or all the Magistrates of the First Class in the State. in uny of the modes known to law, and the Magis~rate or Magistrates cla whom powers are so conferred will be "specially empowered'" within the meaning of s. 2(c).

p. 1079, margin D

In our opinion. this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow vie\v.

p. 1079, margin F

It is well recognised that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision. comports best with its purpose und preserves its smooth worki'.1g, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system. This rule will apply in full force where the provision confers ample ~bd. A.LR. 1943 S:w. I.LR. discretion on the Government for a specific purpose to enable it to bring about an effective result.

pp. 1079–1080, margin F

The Act has been enacted to suppress a special kind of mischief. With that end in view it creates new offences, and confers wide powers on the Government to constitute special machinery for its enforcement. Th narrow view taken in the decision led by Mohd. Qasim's case, which reads, with external aid, into the expression "specially empowered" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act. It tends to latroduce unnecessary inconvenience, friction, confusion and artificiality in the working of the provision. It also tends to reduce its efficacy and impede the exercise of the discretionary power which the Legislature has, in its wisdom, confided full measure to the Government. In the context of s. 2(c) of the Act, therefore, the narrow, restrictive interpretation of the expression "specially empowered" has to be eschewed.

p. 1080, margin A

Incidently, it may be noticed that none of the decisions expounding 1 the narrow view, was concerned with the interpret.ition of the expression "specially empowered" in the context of the Suppression of Immoral Traffic in Women and Girls Act. In Mohammed Qasim v. Emperor, (supra) which leads the exponents of this view, the Madras High Court was concerned with the construction of this expression as used in s. 3 of the Opium Act. Similarly, the Full Bench decision of the Gujarat High Court in Sabuddin's case (supra) (the ratio of which has been followed by the Judgment tmder appeal), turns on an interpretation of this expression in the context of s. 56 of the Bombay Police Act.

p. 1080, margin C

On the other hand. in State of Mysore v. Kashambi and anr., (supra) which is a prominent exponent of the broad view, the construc'tion of s. 2(c) of the Act was directly in issue before the Mysore High Court. Therein, by a notification, the State Government conferred powers on all First Class Magistrates to try cases under the Act. The accused, Kashambi and Mohadinbi were being prosecuted under s. S(a) of the Act in the court of Judicial Magistrate First Class, Saundatti. The accused raised an objection that. the Magistrate had no jurisdiction to try the cases because the aforesaid notification was invalid and ineffective 'to confer the jurisdiction on him as it did not satisfy the requirement of s. 2(c) regarding "special empowerment". Hegde, J., who spoke for the Bench, expressly dissented from the view taken in Polubha Vajubha v. Tepu Buda (supra) and Mohammed Qasim v. Emperor (supra) and held that the language of s. 2(c) of the Act does not justify the contention that such a notification amounts to general conferment of power as opposed to special conferment of power as required bys. 2(c) and therefore enlarges the scope of that sectio"" In the opinion of the Bench, the word "specially" is -an adjective (adverb?) to the verb "empowered" and not an adjective to the noun "Magistrate" and that this word means "specifically" or "for a particular purpose''. The Bench did not accept the contention that the word "specially" conveys the idea of picking and choosing of the Magistrate or Magistrates for the purpose

p. 1080, margin E

(Sarkaria, J.) 1 081 of confer1iag the additional powers. It was emphasised that fhe conferment-of power under s. 2(c) of the Act is not made by having recourse to s. 39, Cr. Procedure Code.

p. 1081

In our opinion, the view taken by the Mysore High Court in Kashambi' s case is the correct one. It seems to be more in accord with the trend of the recent decisions of this Court, in which such an expression came up for ccJastruction. In this connection, the first case to be noticed is Sindhi Lohana Chaitliram v. State of Gujarat('). Therein the meaning of the expression ·'specially empowered" occurring in s. 6(1) of the Bombay Prevention of Gambling Act, 1887 came up for consideration. By a notification, dated January 22, 1955. the Saurashtra Govc1\1ment empowered specially certain Assistant Superintendents and Deputy Superintendents of Police, Porbander Division, Porbander. to authorise by issue of special warrants in each case, a pnlice officer not below the rank of Sub-Inspector of Police to do the various things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house, roon1 or place was suspected us being used as a conunon g'-'tn1in~ house. The appellant's house was raided by a Sub-Inspector of Police, and on the basis of incriminating evidence the appellant and six other>. were charged under ss. 4 and 6 of the Act. At the trial the accused contended that Shri Pandhya, the Deputy Superintendent of Porbander who issued the search \\'arrant, was not authorised to do so because the aforesaid •aotification did not specially empower Shri Pandhya within the contemplation of s. 6.

p. 1081, margin A

This Court expressed that in view of the principle embodied in s. 15 of the Bombay General Clauses Act, 1904 when 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. Judging by this test, the Court held that the Mtification, dated January 22, 1955, "specially empowered" Shri Pandhya, holder of the office of the Dy. Superintendent of Police, Porbander to issue lhe search warrant under s. 6. The Court noticed the conflict of judicial opinion on the question whether a notification empowerl.1g all Magistrates of certain class to try certain cases, can be said to empowered specially every Magistrate of that class to try those cases, but left fhat question open. However. it settled that a person can be specially empowered even by virtue of his office.

p. 1081, margin E

Again, in Abdul Husein Tayabali and ors. v. State of Gujarat and ors. ( decided on September 20, 1967, the construction of the expression "specially appointed" within the mearuag of s. 3 ( c) of the Land Acquisition Act, 1894 read with r. 4 of the Land Acqttisition (Company's) Rules, came up for consideration before this Court. By a notification, dated October 1, 1963, issued under s. 3(r,) of the Land Acquisition Act, the State Government au!horiscd all Special Land ·Acquisition Officers in the State to perfonn the functions of [1967] 3 S.C.R. 351. (2) [1968] I S.C.R. 5'7 Collectors under that Act within the area of their respective jurisdictions. Question arose whether that notification satisfied the l'equirements of s. 3(c) and had the effect of specially empowering all the Land Acquisition Officers as a class to perform the duties under the Act. Shela!, J., speaking for a Bench of three .Jearned Judges, answered this question in the affirmative a:.id made these apposite observations :

pp. 1081–1082, margin G

''In our view, these words (specially appointed) simply mean that ns such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be 'specially appointed', that is, appointed for the specific purpose of performing those functions. The word 'specially' has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against •a general appointment. The word "specially" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act. It qualifies the word "appointed" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector. It is the appointment therefore which is special and not the person from amongst several such officers. Besides sec. 15 of the General Clauses Act provides that where a Cilil!fal Act empowers an authority to appoint a person to perform a certain function, such power can be exercised either by name or by virtue of office." There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by bis name."

p. 1082, margin B

The 'above observations are ~" apt guide to the interpretation of the expression "specially empowered" in s. 2 ( c) of the Act with which we are concerned. Although the words ins. 3(c) of the Land Acquisition Act, the construction of which was considered in Abdul Husain's case, were "specially appointed", their connotation is the same as conveyed by the expressid,1 "specially authorised" or "specially empowered" (see Oxford Dictionary according to which the word "authorised" means "emppwered" "appointed"). Tn construing the expression "spedally empowered" in the instant case, therefore, we can safely adopt the reasoning in Abdul Husain's case. Thus considered, the term "specially" must be tak<la to have reference to the special purpose of the empowerment. Even according to Odord Dictionary, one sense of this word is "of special purpose''. It qualifies the word "empowered''. It is used in an attributh·e sense tn highlight the special nature of the power. It does not convey the sense of a contradistinction or contrast between "special" empowerment and "general" empowerment. All that this word signifies is the investment of some or a\1 the Magistrates of the First Class with powers which are 'special' and are not part of the 'ordinary' or 'additional' powers which can be conferred on a Magistrate of the First Oass under the Code of Criminal Procedure. fo short, the word "specialty" connotes th•at it is the empowerment which is special and not the person. Thus considered, special empowerment docs not necessarily involve selection of individuals by name or ex-officio from the Ma~is­ trates of the I st Class.

pp. 1082–1083, margin E

The fallacy in the narrow view stems from the undue stress it lays on the mode of empowerment at the cost of the special purpose of the empowerment, forgetting that the Act is a code by itself which creates new offences triables only by those Magistrates of the 1st Class who are specially empowered under s. 2(c) of the Act, and not under the Code of Criminal Procedure.

p. 1083, margin A

Be that as it may, s. 39 of the Code of Criminal Proce<.!urc, 1898 and s. 32 of the Code of Criminal Procedure, 1973, are coru:cmed with the mode of conferring power. "Power may be conferred on any person either by name or in virtue of his office", or "on classes of officials generally by their official title". The special mode or the general mode of conferring the power applies to the confermel.1t of power both for a general purpose or •a special purpose. The mode of conferring power is not to be confused with the purpose of th< power, as seems to have been done in the cases taking the narrow view.

p. 1083, margin B

The narrow view can be tested yet from another a"1gle. According to it, if a Magistrate of the I st Class is selected by name or by virtne of his office and invested with these powers to try offences under the Act, he would be "specially empowered''. If no such pick and ehose is made and the power is conferred on all the Magistrates of the same class, they would be "generally empowered". This distinction if taken to its logical and, breaks down, and exposes the inherent artificiality of the proposition. If the empowering of a Magistr;Uc of the First Class to try offences under this Act, by virtue of his office, satisfies the requirements of s. 2(c), it is not understood how the empowerment of a whole class of Magistrates of the First Class by the same mode becomes ultra vires the section.

p. 1083, margin D

In Abdul Hussain's case, the contention canvassed for the narrow view was considered from this aspect, also. It was observed :

p. 1083, margin F

" ... even if the meaning of the word 'specially' \\~re to be that which is canvassed (by the appellant), the Government could have issued separate notification for each of the Sp. L. A. Officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction. Instead of doi,1g th'Jl, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection. Such a notification would have the same force as a separate notification in respect of each individual Sp. L. A. Officer. Such

p. 1083, margin F

notification would mea:,1 that the Government thereby appoints each of the existing Sp. L. A. Officers to perform the functions of the Collector within their respective areas."

p. 1083, margin H

On parity of reasoning, it can be said that the empowerment of all the Magistrates of the First Class, in the State under one notificatioa, by virtue of their ollice to try offences under the Act in the area of their respective jurisdiction, must be held to be "special" and not "general".

p. 1084, margin A

It will not be out of place to mention here that Abdul Hussain's case was decided by this Court on September 20, 1967, that is, about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddz'n's case (supra), Consequently. the Bench did not have the advantage of the guidance furnished by Abdul Hussain's case.

p. 1084, margin F

Jn the light of the construction put by us on the expression "specially empowered" as used in s. 2( c) of the Act, we hold that by virtue of the State Government Notification dated July 22,· 1958, the Judicial Magistrate First Class Rajkot has the jur.isdiction to try the offences under the Act. Accordingly, we allow these appeoals, set aside the judgment of the High Court The cases will now go back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law. The cases, being very old, it is directed that they be disposed of on top-priority basis, with utmost expedition, if possible, within three months from today. V.P.S. Appeals allowed.

p. 1084, margin B