# [1959] 1 S.C.R. 1276

- **Citation:** [1959] 1 S.C.R. 1276
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Crit11inal Appeal No. 29 of 1956
- **Bench:** Jafer Ima.'.11, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1959-1-s-c-r-1276-1531
- **Pages:** 11

## Headnote

Special Judges jurisdiclio11 of-Convicting of offc11ce 11ot"spccific11Uy cmpo;oercd lo try-Defect of j11risdictio11, if curable-West
Bc11gal Criminal Law Amendment (Special Courls) Act, 1919 (W. B.
XXI of r949), s. 4(2). Schedule-Criminal Law Amendment Act,
1952 (X l.V I of 1952)--Cude of Criminal Procedure
(V of 1898),
s. 529(c)-l11dia11 Penal Code (X LV of 1860). ss. II6, 161 and
165A.
On September 6, 1952, the appellant, who was being tried by
an Assistant Sessions Judge and a jury, was caught while giving
a hribc to one of the jurors.
By a notification elated Kovembcr
27, 19)2, the Government of West Bengal, acting under s. 4(2).of
the West Bengal Criminal Law Amendment (Special Courts) Act,
1949, entrusted the case against the appellant under s. 161/116
Indian Penal Code to the Special Judge, Burdwan, for trial.
Before this date as a result of the introduction of s. l65A in the
Indian }Jcnal Corle by the Cri1ninal La\v Amen<ln1ent .·\ct, i952,
providing for punishment for ahctment of offen<iCS under ss. 161
and 165, ahetment of s. 161 had ceasccl to be au ofience unc1er
s. l6(II6 though it was an offeuce specified in the Schedule to
the West 13eugal Act.
The records were reccind by the Special
Judge 011 December 23, 1952,.a:-td he took cognizance of the case.
On February rn, 1954. a charge under s. 165-A Indian Penal
Code was framecl by the Special Judge anc! on June 7, 1954, the
appellant \Va9' con,·icted under s. 165-A and sentenced to rigorous
imprisonment for six months. An appeal to the High Court of
Calcutta was dismissed. The appellant obtained special lea\'e
and appealed.
Hdd, that the special Judge had no jurisdiction to try and
convict the appellant for the ofience under s. 1G5A l11clia11 Penal
Code as \Vhcn the case \Vas distributed to the Special Judge
s. 1°65A \Vas not one of the offenr,es spccihed in the Sc!)cctulc of
the \\'est H~ngal Act.
'!"he case \vhich \vas distributed to the
Special Judge \\'as oue under s. 1h1f116 Indian Penal Code, an
offence \vhich \Vas non-existent at that time. Section r651\
cannot be deemed to ha\'e heen specified in the Schedule merely
because al>ttment of the offences u11dtr ss. 161, 162, 163 and i65
Indian Penal Code \\'as specifically mentioned in the Schedule .
The offence under s. 165,\ is a distinct offence.
It is not rnerely
a rcstate1nent of the offence of abetmcnt under s. 116; it comprises also al;etn1eiit under s. 109 and provides for au enhanced
pe~alty .•
•
This defect of jurisdiction could not be .cured by•'- 529(e) of
the Co<le of Criminal Procedure.
Section 529(e) applied to
. .
•
•
k
•
•
•
S.C.R.
SUPREME COURT REPORTS
t277
Magistrates and "i)uld not apply to Special Judges whose jurisI958
diction arose not on their taking cognizance under s. rgo of the
Code but on the case for offences'spe~ified in the Schedule being Bhajahari Monda/
distributed to them by the State Government by a proper
v.
notification.
The State of West
CRIMINAL
APPELLATE
JURISDICTION:
Crit11inal
Appeal No. 29 of 1956.
Bengal
";
Appeal from the judgment and order dated August
24, 1955, of the Calcutta High Court, in Criminal
Appeal No. 196 of 1954, arising out of the judgment
and order dated June 7, 1954, of the Court of the
Judge, Special Court, Burdwan, in Special Court case
No. 10 of 1952.
8. 0. Issacs and 8. N. Mukherjee, for the appellant.
13. Sen and P. K. Bose, for the respondent.
1958. September 11.
The Judgment of the Court
was delivered by
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.
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

## Text

Septunbtr II.
•
I
•
1276
SUPREME COURT REPORTS
[1959]
BHAJAHARI MOXDAL •
•
fl.
THE STATE OF WEST BE~GAL
(JAFER IMA.'.11 and J. L. KAPUR JJ.)
Special Judges jurisdiclio11 of-Convicting of offc11ce 11ot"spccific11Uy cmpo;oercd lo try-Defect of j11risdictio11, if curable-West
Bc11gal Criminal Law Amendment (Special Courls) Act, 1919 (W. B.
XXI of r949), s. 4(2). Schedule-Criminal Law Amendment Act,
1952 (X l.V I of 1952)--Cude of Criminal Procedure
(V of 1898),
s. 529(c)-l11dia11 Penal Code (X LV of 1860). ss. II6, 161 and
165A.
On September 6, 1952, the appellant, who was being tried by
an Assistant Sessions Judge and a jury, was caught while giving
a hribc to one of the jurors.
By a notification elated Kovembcr
27, 19)2, the Government of West Bengal, acting under s. 4(2).of
the West Bengal Criminal Law Amendment (Special Courts) Act,
1949, entrusted the case against the appellant under s. 161/116
Indian Penal Code to the Special Judge, Burdwan, for trial.
Before this date as a result of the introduction of s. l65A in the
Indian }Jcnal Corle by the Cri1ninal La\v Amen<ln1ent .·\ct, i952,
providing for punishment for ahctment of offen<iCS under ss. 161
and 165, ahetment of s. 161 had ceasccl to be au ofience unc1er
s. l6(II6 though it was an offeuce specified in the Schedule to
the West 13eugal Act.
The records were reccind by the Special
Judge 011 December 23, 1952,.a:-td he took cognizance of the case.
On February rn, 1954. a charge under s. 165-A Indian Penal
Code was framecl by the Special Judge anc! on June 7, 1954, the
appellant \Va9' con,·icted under s. 165-A and sentenced to rigorous
imprisonment for six months. An appeal to the High Court of
Calcutta was dismissed. The appellant obtained special lea\'e
and appealed.
Hdd, that the special Judge had no jurisdiction to try and
convict the appellant for the ofience under s. 1G5A l11clia11 Penal
Code as \Vhcn the case \Vas distributed to the Special Judge
s. 1°65A \Vas not one of the offenr,es spccihed in the Sc!)cctulc of
the \\'est H~ngal Act.
'!"he case \vhich \vas distributed to the
Special Judge \\'as oue under s. 1h1f116 Indian Penal Code, an
offence \vhich \Vas non-existent at that time. Section r651\
cannot be deemed to ha\'e heen specified in the Schedule merely
because al>ttment of the offences u11dtr ss. 161, 162, 163 and i65
Indian Penal Code \\'as specifically mentioned in the Schedule .
The offence under s. 165,\ is a distinct offence.
It is not rnerely
a rcstate1nent of the offence of abetmcnt under s. 116; it comprises also al;etn1eiit under s. 109 and provides for au enhanced
pe~alty .•
•
This defect of jurisdiction could not be .cured by•'- 529(e) of
the Co<le of Criminal Procedure.
Section 529(e) applied to
. .
•
•
k
•
•
•
S.C.R.
SUPREME COURT REPORTS
t277
Magistrates and "i)uld not apply to Special Judges whose jurisI958
diction arose not on their taking cognizance under s. rgo of the
Code but on the case for offences'spe~ified in the Schedule being Bhajahari Monda/
distributed to them by the State Government by a proper
v.
notification.
The State of West
CRIMINAL
APPELLATE
JURISDICTION:
Crit11inal
Appeal No. 29 of 1956.
Bengal
";
Appeal from the judgment and order dated August
24, 1955, of the Calcutta High Court, in Criminal
Appeal No. 196 of 1954, arising out of the judgment
and order dated June 7, 1954, of the Court of the
Judge, Special Court, Burdwan, in Special Court case
No. 10 of 1952.
8. 0. Issacs and 8. N. Mukherjee, for the appellant.
13. Sen and P. K. Bose, for the respondent.
1958. September 11.
The Judgment of the Court
was delivered by
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.
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 •
•
Kapur] .
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1278
SUPREME COURT REPORTS
[1959]
r958
was made by the police officer in cmrge Burd wan
Bh . h-. 11
d . police station which rcimltfd in the case being sent to
•Je .,'. ' '" "the Special Judge, BurUwan. On .November 27, 1952,
Th• 5,.;; of w"' the Government issued the following notification Xo.
Brngal
6603J under s. 4(2) of the West Bengal Criminal Law
Amendment. (Special Courts) Act, 1949 (W. B. X.XI of
K•tu• J.
1949):
•
"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:-
.....................................................................
(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 SS. 161/116 of the
Indian Penal Code.
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 conviction the·a.ppella.nt took a.n appeal to the High Court of
I.
• Calcutta. which \\:as dismissed. It held that the appcl-
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S.C.R.
SUPREME COURT REPORTS
1279
!ant had rig~ly been convicted under s. 165A and
r9j8
that the Special Court h,ad • jurisdiction to try the Bh . 1-.
M
d 1
offence under that section fro:th July 28, 1952, to May
•;a •a~.
0
" a
9, 1953, under s. 7 of the Central Act (XLVI of 1952) The State of west
and from May 9, 1953, under the West Bengal Act
Bengal
(W. B. XV of 1953). It also held that any deiect in
the taking of cognizance was curable under s. ~9
Kap,., f
(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.
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 GovernorGenerTl,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'
•
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SUPREME COURT REPORTS
[1959]
1958
,Judges.
Section 4 provided for allotm~nt of ca8es for
Bh . h
. "
d 1 trial to the various Special if u<lges and also authorised
•Ja •:'. · °'' " the Provincial GoYernm~nt to transfer any case from
Th• Stat, 01 lfot one Special ,Judge to another and to make modifi-
"'"C"'
cations in the description of c1iscs (whether in the
name •Of the accused or in the charges preferred.or in
Kapio J.
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 :
(1) "An offence punish>LblP under ss. 161, 162, 163
ors. 165 of the Indian Penal Code .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
~ ....... .
(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 ".
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.
' S. 16.5A. "\\rhoever abets any offence punishable
oUnclcr section 161 or section 165, whe.thcr or ~10t th11,t
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I
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S.C.R.
SUPREME COURT REPORTS
1281
"offence is com:8:J.itted in consequence of the abetment,
I958
shall be punished with impriscmment of either descrip- Bh . h-. M
d 1
.
.
• d
h
aya ari
on a
tion for a term w hwh may ex ten . to t ree years, or
v.
with fine or with both".
The State of West
By s. 6 the State Government were authorised by
Bengal
notification to appoint Special Judges for variou~ areas
to try the following offences :
Kapu' J.
(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);
(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:
" 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".
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
•
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•
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1282
SUPRE!\'lE COURT REPORTS
(1959]
i9.s8
of 1949).
This substituted section 11.uthorised the
---\/
St:Lte Government t-0 c•mstitute Special Courts and to
lihaj"'"~. ,. ondal appoint Special Judges' to preside o,·er such court.s
Tht 5,,.,, of Wtst which had jurisdiction throughout \Yest Bengal. By
Ben~al
s. 5, the following was substituted in place of s. 4 of the
West •Bengal Act XXI of 1949:
•
Kap"' 1-
"(I) Notwithstanding anything contained in the
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:
Provided that when trying any case, a Special
Court may also try any offence other than an offence
specified in the Schedule, with which the accused may
under the Code of Criminal Procedure, 1898, he charged at the same trial.
•
(2) The distribution amongst Special Courts of
cases involving offences specified in the Schedule,
to be tried by them shall be made by the St.ale Govel'llment ".
The Schedule unde1· the West Bengal Act (\V.B.
XXI of 1949) was also amended by the insertion cif
s. 164 Indian Pen.al Code
on!~-. The West Bengal
Act XXI of 1949 was further amended bv the \Vest
Bengal Criminal Law Amendment
(Sp~eial Courts)
Amending Act, 1953 (Act XV of 1953). It. received the
assent of th'IJ Ptesident and came into force on May 9,
1953.
Thi~ Act added s, J6;iA, ln<lian Penal Code
in item No, I of the Sched11le of the 1949 West Bengal
Act.
The result of these various enactments, Central as
well as State wao the creation of Special Cou'rts to try
otfence.q which were specified in the case of West
Bengal (W. B. XXI of 1949) in the Schedule and in
the case of Central Act in t.he body of the Act itself.
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 State
Government alone.
Cnder the Central Act (X l:vr of
1952) also the St.ate Government was authorised to
appoint Sptocial •J udgcs ancl the offences specified in
• the Act were triable by such Judges as stated in s. 7(2)
of the Act.
The procedure to be 'followed by the
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S.C.R.
SUPREME COURT REPORTS
1283
Special Judgel was that prescribed for the trial of
z95B
warrant cases. Therefore iihe :jurisdiction of Special Rh . h
. M
d 1
,
. S
a1a ari
on a
Judges appomted under this
tate enactment to try
v.
cases relating to offences specified in the Schedule Th• State of West
arose only when they were allotted to them. By the
Bengal
West 'Bengal Amending Act of 1952 (W. B. XII of
1952) in place of" Special Judges" the words "Special
Kapur f.
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.
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 •
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1284
SUPREME COUHT l~EPORTS
[1959]
i958
also comprises abetment under s. 109 of the Code and
. -.
provides an enhanced 11enalty of three yea.rs imprisonBh•;ahan .Honda/ ment instead of l/4th of three years imposeable under
The Sta~· of West s. 116. It further attra.cts the application of s. 4 (2)
B•ngal
of the Prevention of Corruption Act (II of 1947) as subsequently amended. It cannot Le said therefort! that
Kapu, J.
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.
•
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 t-0 try the case as the offence under s. 165A was
not in the Schedule of the West Bengal Act, 1949, as
amended in 1952.
·
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 :
•
'
"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
•
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S.C.R.
SUPREME COURT REPORTS
1285
and from 9th J\by, 1953, under the •\V. B. Act XV of
z958,
1953 ".
.
.
•
. --,.,,,.- ..
•
.
,
.
Bha;ahari M andalAs already stated the case wb'ich was distributed to
..
the Special Judge was one under s. 161/116, Indian TheSta;;ofWesi:
Penal Code an offence not then existing in the Code
Bengal
and ass. 165A was not in the Schedule as an og'ence
triable by a Special Judge it could not be held that
J(apur J.
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 :
" 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".
But that with respect, is an erroneous application pf
s. 529 of the Code of Criminal Procedure which prov~M: "
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1286
SUPREME COURT REPORTS
[1959)
z9J8
"If any Magistrate not empoweredo by law t-0 do
13, . ,_ . M 4 1 any of the following thi.ng11, namely:
11a;anari
on a
•
v.
. ................................................................ .
Thi Slat~ of TV1sl
B1ngal
(e) to take cognizance of an offence under section
190, Sllb-section (1), clause (a.) or clause (b);
K•pur j.
•
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
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.
•
·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.
We would accordingly a.How the appeal and set
a.side the conviction of the appellant under s. 165A,
I. P. C., and the sentence imposed thereunder ..
Appeal allowed .
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