Ajit Kumar P Alit v. State of West Bengal

Judgment

original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf." "194. (1). The High Court may take cognizance of any offence upon a commitment made to it in manner hereinafter provided. 'Nothing herein contained shall be deemed to affect the provisions of any letters patent or law by which a High Court is constituted or continued, or any other provision of this Code.' (2). (a). Notwithstanding anything in thi~ Code contained, the Advocate-General may, with the previous sanction of the State Government, exhibit to the High Court, against person~ subject to the jurisdiction of the High Co1:1rt, mformations for all purposes for w~1c~ . Her Majesty's Attorney-General may e.xh1b1t m~or­ mations on behalf of the Crown m the High Ccurt of justice in England. (b) ......................................................... . (c) ....... .'. ................................................ .

(d) ...................................................... . ,, A perusal of these would show that proceedings .may be initiated and cognizance of an offence taken. either directly or upon transfer of a case or by commitment, or on information filed by the Advocate-.General. Direct cognizance can be taken only by certam classes of Magistrates specified in s. 190(1). It should be noticed that the application of this section is limited to Presidency Magistrates, District Magistrates, Subdivisional Magistrates and other Magistrates specially empowered in that behalf and it is common ground that the judge of the Special Court appointed under s. 2 of the Act is not within the class of Magistrates designated by s. 190(1) and hence there can be no question of such a judge having to comply with its requirements before he can "take cognizance of an offence."

Nor is it the contention of the appellant that such Court -is a Sessions Court or a High Court as to require an order of committal by a Magistrate as a precondition for the emergence of its jurisdiction to proceed judicially with the matter. It is thus clear that there is no statutory requirement under the Criminal Procedure Code as to the class or character of material that must be before a special judge before he can assume and exercise jurisdictio?- over a cas~. It was common ground that the s~me is not a reqmrement of the Special Courts Act either. Ajit Kumar Palit State of Wut Beng- Ayyangar, J, Ajit Kumor Pu lit 'ate of West Bengal Ayyangnr, J. There were however certain matters which were relied on as pointing to a different inference to which we shall immediately refer. In the first place it was urged that s.

5( 1) of the Act merely precluded an objection being taken to the jurisdiction of the Special Court by reason of their being no commitment, but did not positively provide whether or not other material was necessary before cognizance could be taken of the offence besides, of course, the order of allotment under s. 4(2). In other words, the argument was that the order of allotment was not either expressly or by necessary implication to be equated to a committal order under s. 193(1). This contention was sought to be reinforced by reference to the language employed ins. 5(2) of the Act whereunder the special court was not constituted "a court of session" but was only deemed to be one such indicating, as it were, that it was not that in truth. We consider that this submission totally lacks substance. We are unable to draw the inference which learned Counsel for the appellant does from the word "deemed" in s. 5(2) of the Act.

The fact is that the words "court of session" have a well-understood meaning and significance in the hierarchy of courts under the Code of Criminal Procedure and the Special Court is constituted not such a court but as it is being vested with the powers of a sessions court though with modifications, the word "deemed" is used. If the special court is "deemed" to be a court of session, a doubt might arise as to whether the provision in s. 193(1) of the Code is or is not inconsistent with the Act (vide s. 5(2) of the Act), and hence to clear the position s. 5(1) enacts, so to say, that notwithstanding that a special court is "deemed" to be court of session, section 193(1) does not apply to it and that an initial cognizance by a Magistrate followed by an order of commitment is not necessary for cognizance being taken by the Special Judge. Ifs. 190 (1) ands. 193 (1) of the Code do not apply, the next question that calls for consideration 1 S.C.R. 5UPREME COURT REPORTS is what more besides the order of the State Government u/s 4(2) of the Act is needed to vest that court with jurisdiction to proceed.

It was suggested that s. 5 (1) of the Act might at the best obviate the necessity for an order of commitment but that it did not on that account negative the need for some proper material on the basis of which alone "cognizance" may be taken and it was further submitted that in the case of a Judge of a Special Court cognizance of a case was different from jurisdiction to conduct the trial, the former being dependent on the existence of material which alone invested the court or judge with jurisdiction, so to speak, to initiate the proceedings. Throughout the arguments of the· learned Counsel for the appellant there was an underlying assumption that jurisdiction to proceed with the trial of the case was different from "Cognizance" which was some technical requisite necessary to invest the Judge or Magistrate with jurisdiction and that in the absence of proper material for cognizance being taken he was incompetent to proceed with the trial of the case allotted to him.

Much of the arguments on this head was based on a passage in the judgment of this court in Bhajahari Mondal v. The St,a,te of West Bengal(') which dealt with the Act. That passage runs : "The crucial date for the purpose of determining the jurisdiction of the Court would be the date when the Court received the record and took cognizance of the case and took any step in aid of the progress of the case and not when the evidence of the witnesses began to be recorded. Under s. 4 of West Bengal Act (W. B. Act XXI 1949) as amended by. the Act of 1952 the jurisdiction of the Court anses when the notification is issued distributing the case to a particular special court giving (I) (1959] S.C.R. 1276. AJit Kumar Palit State of West Btnga' Ayyangar, J. Ajit Kumar Polit State of West Bengal Ay;·ongar, J. the name of the 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 any of these elements the special Court would have no jurisdiction." It was stressed that reference was here made to two matters as necessary to confe~ jurisdiction on the special court : ( 1) The issue of notification under s. 4 (2) of the Act., (2) Receipt of the record and "the taking cognizance of the case" and the taking of a step in aid of the progress of the case and it was urged that the latter requirement brought in really the substance of s. 190 (1) of the Criminal Procedure Code. We are satisfied that these observations were not meant to suggest that the jurisdiction of the Special Judge to proceed with the trial of a case duly alloted to him did not spring wholly from the allotment which really was a substitute for a commitment under s. 193 (1) of the Code, but depended in part at least on the existence of other material of a nature prescribed by statute disclosing the commission of an offence.

Our reading is further strengthened by the fact that in a later portion of the same judgment when dealing with the applicability to the special judge of the curative provision ins. 529 of the Code reading: "If any .Magistrate not empowered by law to do any of the following things, namely : (e) to take cognizance of an offence under s. 190, s11b-section (1), clause (a) or clause (b) ; erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered." It was specifically pointed out that the provision which is applicable to Magistrates designated in s. 190 ( 1) is not applicable to the special judge who does not take cognizance in that manner. The provisions of s.

190 (1) being obviously, and on its own terms, inapplicable, the next question to be considered is whether it is the requirement of any principle of general jurisprudence that there should be some additional material to entitle the Court to take cognizance of the offence. The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely meansbecome aware of and when used with reference to a Court or Judge, t<J take notice of judicially. It was stated in Gopal 1lfarwari v. Emperor (1) by the· learned Judges of the Patna High Court in a passage quoted with approval by this Court in R. R. Chari v. State of U ttar Pradesh (') that the word, 'cognizance' was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of i.nddiF1ite import, and i~ not perhaps always used in exactly the same sense. As observed in Emperor v. SO'Urindra Mohan Ohuckerbu.tty(').

"taking cognizance does not involve any formal action ; or indeed action of any liind, but occurs as soon as a l'vfagistrate, as such, applies his mind to the suspected commission of an offence." Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutorv requirement must be fulfilled. Thus, a sessions jud.i;:e cannot exercise that original jurisdiction which magistrates specified in s. 190(1) can, but the material on which alone he can apply his judicial mind and proceed under the Code is an order of commitment. But statutory provision (I) A.I.R. 11913\ Pat. 245. (2) [1951J S.C.R. 312, 320. (3) (1910) I.L.R. 37 Cal. 412, 416. A.jit Jrumar Polit Stat14 W ut Bmg.,. AYJtJntar, J. 1962 - Ajit Kumar Pa!it ~!ate of West Bengal apart, there is no set material which must exist before the judicial mind can operate.

It appears to us therefore that as soon as a special judge receives the orders of allotment of the case passed by the State Government it becomes vested with jurisdiction to try Ayyangar1 J. the case and when it . receives the record from the Government it can apply its mind and issue notice to the accused and thus start the trial of the proceedings assigned to it by the State Government. Some little point was made of the words "otherwise than on a police report" occuring at the end of s. 5(1) of the Act. In our opinion, nothing turns on them. These words were not there in the Act as originally enacted in 1949, but were introduced by an amendment effected by W. B. Act 26 of 1956. In 1949 at the date of the original enactment there were not two procedures prescribed for being followed by magistrates taking cognizance under the different clauses of s. 190(1) of the Code. But the Criminal Procedure Code was amended by Act 26 of 1955 when s.

251A was introduced and under this new provision a special procedure was introduced for the trial of cases of which cognizance was taken on a police report (s. 190(l)(b)). The amendment of the Act by the inclusion of those words was merely to ensure the inapplicability of s. 251-A to the procedure to be followed in special courts and has obviously no further significance. The next point for consideration is the effect of the amendment of 1960 on the jurisdiction of the special court to deal with the ca~e of the appellant. Learned Counsel for the appellant addressed an elaborate argument on it but in substance the contention was that the amending Act was in essence declaratory since it had accepted the correctness of one of two interpretations which had been placed upon s. 5(1) of the Act as it originally stood.

He therefore invited us to hold that the Legislature had thereby intended I S.C.R. that that interpretation should govern the provision from the date when the Act wa~ originally enacted. Before considering this point it is necessary to put aside certain matters : (1) It was not contended that there were any express words in the amending Act which made it retrospective or retroactive to operate from the commencement of the Act, (2) The amendment relating to, as it is, obviously a matter of procedure would have applied to pending proceedings, but it was not suggested that there was anything in the amending Act invalidating proceedings commenced without reference to the amended provisions ; in other words, the special judge having validly acquired jurisdiction to proceed with the trial of the case allotted to 'him, there was nothing in the amending Act to deprive him of that jurisdiction.

It is in the background of these considerations which the learned Counsel did not dispute, that his submissions have to be considered. Learned Counsel referred us to a very considerable number of decisions on the interpretation of statutes, but we have not found them of assistance or even relevance. The amending Act does not purport to be declaratory but seeks in terms to carry out an amendment, in other words, to effect a change. The mere fact that the change effected conforms to a particular interpretation which the words which previously existed might bear and which found acceptance at the hands of the courts in a few cases, is, in our opinion, a wholly insufficient foundation to base an argument that it is declaratory and further that it must be taken to have declared the la~ froi;i the commencei:nent of the parent Act so as to invalidate :>.II proceedmp-s validly taken on a proper construction of the law as it then stood.

We find therefore that there is no substance in the argument regarding the effect of the amending Act upon which reliance is placed for the purpose of Ajit Kumar Pali• State of West Brn~ 1yyangar, J. .Ajit Ii umar Pa/it 'late of Wtst Bmgal A.1,,angar, J, No1lf111her, a. impug11ing the jurisdiction of the special court and we have no hesitation in repelling that argument . The result is that the appeal fails and is dismissed. Appeal dismissed. CHIMANDAS BAGOMAL SINDHI ti. JOGESHWAR AND ANOTHER I (P. B. GAJENDRAGADKAR, J\.. N. WANCHOO, K .. c. DAS GUPTA and j. c. SHAH, JJ.) Letting of Houses and Rent Control-Provisions for oollection of information and letting of accomodation-Construction of-Displaced person-Meaning-Central Provinces and Berar- Letting of Houses and Rent Control Order, 1949, els. 22, 23, 24, 24A, 13, 2(2).

The respondent had let out his house to a firm against whom he obtained permission from the Rent Control Authority to terminate the tenancy on the ground of arrears of rent. Meanwhile, the tenant intimated to the respondent by telegram that he had vacated the premises, but prior to the receipt of the telegram, the appellant had applied to the Additional Deputy Commissioner that since the premises were likely to fall vacant, they should be allotted to him as he was a displaced person, and provisional allotment was made in his favour and he continued to be in possession since then. The respondent then moved for the cancellation of the said allotment on the ground that he needed the premises for his own use, but the allotment was confirmed in favour of the appellant by the Additional Deputy Commissioner.

The respondent then filed a writ petition in the High Court for cancellation of the said order, which was set aside and the case was remanded for disposal in accordance with law ; against this the appellant filed a Letters Patent Appeal. On remand the earlier order was confirmed by the Additional Deputy Commissioner, against which the respondent filed another writ petition in the High Court. The Letters