# JAGANNATH SONU PARKAR v. STATE OF MAHARASHTRA

- **Citation:** [1963] Supp. 1 S.C.R. 573
- **Court:** Supreme Court of India
- **Decided:** 1961-12-29
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. W Anohoo, K. C. Das Gupta, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagannath-sonu-parkar-v-state-of-maharashtra-2730
- **Pages:** 13

## Headnote

Criminal Trial-Special Judicial Magistrates-Notification constituting and conferring pawas on-Change In venue of
trial and appealr-If discriminatory-Notification dated December 29, 1961, of Bombay Government-Gode of Criminal Procedure, 1898 (Act V of 1898), s. 14-Bombay Separation of Judicial and ExecutiQe FunctioM Act, 1961 (Bom. 23 of 1961)-
CoMfitution af India, Art. U.
Section 14 of the Code of Criminal Procedure, as amended
by Bombay Act 23 of 1951 , empowered the State Government
to appoint a qualified person as
a special Magistrate and to
confer upon him powers conferrable upon a Judicial Magistrate
in respect of a particular case or a particular class or classes of
cases or in regard to cases generally in any local area.
By a
notification dated December 29, 1961, the Government appointed Mr. G to be a Special .Judicial Magistrate for the area
comprising Greater Bombay and Ratnagiri District and conferred upon him all the powers of a Presidency Magistrate in respect of the trial of the Deogad Gold Seizure case, The petitioners, who are accused in the case, moved the Supreme Court
for a writ of certiorari for quashing the notification on the
ground that the notification and the amended s.14 infringed
Art. 14 of the Constitution.
Hdd, that the amended s. 14 does not offend Art. 14 and
is valid.
There is substantially no
difference
between the
powers conferrable by the unamended and by the amended
s. 14.
M. K. Gopalrtn v. 8tate of Madhya Prade-'h, [1955] 1
S.O.R. 168, relied on.
HeUl, further that the notification constituting a Special
Magistrate for the trial of the petiti,mers was not discriminatory.
Amended s. 14 contemplates both a case which is pending and
one which may be instituted after the date of the constitution
of the Special Magistrate. The constitution of a Special Magistrate does not amount directly or indirectly to a transfer of any
1962
Octob1r, 1 J.
1962
J "t'n ruzth Som1
Ptirkar
v.
'tale hf Maharashtra
i h•h, J.
574 SUPREME COURT REPORTS [I963]SUPP,
case.
The fact that Mr. G may hold the trial at Jk,mbay and
not at Deogad while other similarly >ituated would he tried at
Deogod may result in inconvenience to the petitioner. but this
could not sustain the plea of discrimination. The charge
against the petitioners is in respect of conspiracy at Bombay,
Deogad and other places and the petitioners could have been
lawfully tried at Bombay. The notification constituted a
Special Magistrate and conferred jurisdiction on him both over
the place where the petitioners are alleged to have conspired
and the place where the offences are alle!J'ed to have been actually committed. It did not amount to discrimination that from
the judgment of the Special Magistrate an appeal would lie to
the High Court while if the petitioners were tried by a Magistrate at Deogad, an appeal would lie to the Sessions Judge and
then a revision would lie to the High Court. The difference of
the venut results from the nature of the jurisdiction exercised
by the Magistrate trying the case and not from any unequal
dealing by the notification.
01'!18TN.tL Ju1tT~llIOTION: Writ Petition No. 65
of HHl2.
Petition m1der Art. 32 of the Constitution of
India for the enforcement of Fundamental Rights.
A. S. R. Chari, R. K. Garg and K. R. Oha11dhri, far the petitioners.
N. S. Bindra and R. H. Dh~b11r, for the respGR·
den.ts.
1962. October 11. The Judgment of the Court
was delivered by
SH.tH, J.-Being in possession of evidence that
the petitioners and others w~re concerned in the
commission of offences of conspiracy to smuggle gold
from foreign countries into the port of D~?gad in the
District of Ratnagiri, contrary to the provisions of the
Sea Customs Act~ and the Foreien Exchange Regulation Act, P. N. Kalyankar, Sub-Inspector.~f Customs
and Central Excise,
arrested the peut10ners and
produced them before the Judicial Magistrate F Class,
•
1 S.C.R.
SUPREME COURT REPORTS
575
Deogad. On December 29, 1961, the Government
of Maharashtra promulgated
a noti

## Text

I S.C.R.
SUPREME COURT REPORTS
573
JAGANNATH SONU PARKAR
v.
STATE OF MAHARASHTRA
(B. P. SINHA, C.J,, P. B. GAJENDRAGADKAR, K. N.
W ANOHOO, K. C. DAS GUPTA and J. C. SHAH, JJ.)
Criminal Trial-Special Judicial Magistrates-Notification constituting and conferring pawas on-Change In venue of
trial and appealr-If discriminatory-Notification dated December 29, 1961, of Bombay Government-Gode of Criminal Procedure, 1898 (Act V of 1898), s. 14-Bombay Separation of Judicial and ExecutiQe FunctioM Act, 1961 (Bom. 23 of 1961)-
CoMfitution af India, Art. U.
Section 14 of the Code of Criminal Procedure, as amended
by Bombay Act 23 of 1951 , empowered the State Government
to appoint a qualified person as
a special Magistrate and to
confer upon him powers conferrable upon a Judicial Magistrate
in respect of a particular case or a particular class or classes of
cases or in regard to cases generally in any local area.
By a
notification dated December 29, 1961, the Government appointed Mr. G to be a Special .Judicial Magistrate for the area
comprising Greater Bombay and Ratnagiri District and conferred upon him all the powers of a Presidency Magistrate in respect of the trial of the Deogad Gold Seizure case, The petitioners, who are accused in the case, moved the Supreme Court
for a writ of certiorari for quashing the notification on the
ground that the notification and the amended s.14 infringed
Art. 14 of the Constitution.
Hdd, that the amended s. 14 does not offend Art. 14 and
is valid.
There is substantially no
difference
between the
powers conferrable by the unamended and by the amended
s. 14.
M. K. Gopalrtn v. 8tate of Madhya Prade-'h, [1955] 1
S.O.R. 168, relied on.
HeUl, further that the notification constituting a Special
Magistrate for the trial of the petiti,mers was not discriminatory.
Amended s. 14 contemplates both a case which is pending and
one which may be instituted after the date of the constitution
of the Special Magistrate. The constitution of a Special Magistrate does not amount directly or indirectly to a transfer of any
1962
Octob1r, 1 J.
1962
J "t'n ruzth Som1
Ptirkar
v.
'tale hf Maharashtra
i h•h, J.
574 SUPREME COURT REPORTS [I963]SUPP,
case.
The fact that Mr. G may hold the trial at Jk,mbay and
not at Deogad while other similarly >ituated would he tried at
Deogod may result in inconvenience to the petitioner. but this
could not sustain the plea of discrimination. The charge
against the petitioners is in respect of conspiracy at Bombay,
Deogad and other places and the petitioners could have been
lawfully tried at Bombay. The notification constituted a
Special Magistrate and conferred jurisdiction on him both over
the place where the petitioners are alleged to have conspired
and the place where the offences are alle!J'ed to have been actually committed. It did not amount to discrimination that from
the judgment of the Special Magistrate an appeal would lie to
the High Court while if the petitioners were tried by a Magistrate at Deogad, an appeal would lie to the Sessions Judge and
then a revision would lie to the High Court. The difference of
the venut results from the nature of the jurisdiction exercised
by the Magistrate trying the case and not from any unequal
dealing by the notification.
01'!18TN.tL Ju1tT~llIOTION: Writ Petition No. 65
of HHl2.
Petition m1der Art. 32 of the Constitution of
India for the enforcement of Fundamental Rights.
A. S. R. Chari, R. K. Garg and K. R. Oha11dhri, far the petitioners.
N. S. Bindra and R. H. Dh~b11r, for the respGR·
den.ts.
1962. October 11. The Judgment of the Court
was delivered by
SH.tH, J.-Being in possession of evidence that
the petitioners and others w~re concerned in the
commission of offences of conspiracy to smuggle gold
from foreign countries into the port of D~?gad in the
District of Ratnagiri, contrary to the provisions of the
Sea Customs Act~ and the Foreien Exchange Regulation Act, P. N. Kalyankar, Sub-Inspector.~f Customs
and Central Excise,
arrested the peut10ners and
produced them before the Judicial Magistrate F Class,
•
1 S.C.R.
SUPREME COURT REPORTS
575
Deogad. On December 29, 1961, the Government
of Maharashtra promulgated
a notification
m
exercise of the powers conferred by s. 14 of the
Code of Criminal Procedure, 1898 (as amended by
Bombay Act XXIII of 1951 in its application to the
State of Maharashtra) appointing Mr. V. M. Gehani
to be a Special Judicial Magistrate having jurisdiction over the area comprising Greater Bombay and
Ratnagiri District, and conferred upon him all the
powers of a Presidency Magistrate in respect of the
trial in the case involving the seizure of approximately
49,990 tolas of foreign gold and known as the 'Deogad
Gold Seizure Case.'
On January 10, 1962, the Government of
Maharashtra gave consent in writing as required by
s. 196-A sub-section (2) of the Code of Criminal
Procedure to the institution ·of criminal proceedings
against the petitioners and eight others for offences
punishable "under s. 120B of the Indian Penal Code,
1860 read with s.167(81) of the Sea Customs Act, 1878
(as amended) ands. 120B of the Indian Penal Code
read withs. 167(81) of the Sea Customs Act, 1878 (as
amended) and s. 8(1) of the Foreign Exchange
Regulation Act, 1947 (as amended) ands. 120B of
the· Indian Penal
Code reads. 8(1) with and
s. 23 of the Foreign Exchange Regulation Act, 1947
(as amended)". Thereafter H. R. Jokhi, Assistant
Collector of Customs & Central Excise, Marine &
Prevention Division, Collectorate of Central Excise
Bombay instituted a complaint in the Court of the
Special Magistrate appointed under the Notification
dated December 29, 1961, against 16 persons (including the petitioners) alleging that they were parties to
a conspiracy at Bombay, Janjira, Dabhol and
Deogad (the latter three places being in the District
of Ratnagiri) and other places to smuggle large
quantities of gold into India, with a view to evade
or attempt to evade payment of duty thereon and to
\:Vac\e or attempt to evade the prohibitiop aμq
1962
J 1igannath S11nu
Parkar
v.
State of MaharashtrtJ
Shch. J.
''•tllnn1th S11Ju.
Parker
v
t1 of Mahar1shtr1
57l5 SUPREME COURT REPORTS [1963] SUPP·
retrictions in force relating thereto during the period
from about Oc~ober lg59 to tile end of April 1961
or thereabout m breach of the provisions of the
Sea Cu~toms Act, 1878 and the Foreign Exchange
Regulat10n Act, 194 7, and that the said persons had in
pursuance of the "conspiracy and with continuing
purpose and design" in or about the month of April
1961 acquired or were concerned in importing and
acquiring possession, contrary to the Sea Customs Act
and the Foreign Exchange Regulation Act, gold
totalling 49,990 tolas valued at over Rs. 70,00,000/-.
The petitioners applied to the Special Magistrate
that they be tried at Deogad or at Ratangiri the
headquarters of the District, for they were permanent residents of Deogad carrying on their respective
occupations at Dcogad, that they had already made
their individual arrangements for their defence at
Deogad and that it would be just and convenient
that their trial should take place in the District of
Ratnagiri..
The Magistrate rejected their application. The petitioners then moved the High Court
of Judicature at Bombay praying for an order that
the case against the petitioners be transferred for trial
to the court of some judicial Magistrate at Deogad or
at Ratnagiri competent to try the case : in the alternative the petitioners prayed that the Special
Magistrate Mr. Gehani be directed to try the said
case either at Deogad or at Ratnagiri at which place
all ·'facilities' were available. The High Court
dismissed their application. The petitioners then
moved this Court under Art. 32 of the Constitution
for a writ of certiorari or other appropriate writ or
direction quashing the Notification dated December
29, 1961, issued by the Government of Maharashtra
or in the alternative declaring s. 14 of the Code of
Criminal Procedure as amended by the Bombay Act
23 of 1951 ·ultra vire1 and void aml for an ordrr
that the case be heard at Deogad or at Ratnagiri in
the State of .Maharashtra by any Magistrate compe·
tent to enquire into or try the case.
By this petition
I S.C.R.
SUPREME COURT REPORTS 577
the petitioners submitted thats. 14 of the Code of
Criminal Procedure as amended by the Bombay
Legislature by Act 23 of 1951 and the Notification
dateci December 29, 1961, issued by the Government
of Maharashtra appointing Mr. Gehani as Special
Judicial Magistrate and investing him with the
powers of a Presidency Magistrate, infringed Art. l4
of the Constitution.
Sub-section (1) of s. 14 of the Code as amended,
in so far as it is material, provides :
"14. Specwl
Magistraws.-(l) The State
Government may, in consultation with the
High Court, confer upon any person who
holds or has held any judicial post under
the Union or a State, or possesses such
other qualifications as may, in consultation
with the High Court, be specified .in this
behalf by the State Government by notification in the Official Gazette, all or any
of the powers conferred or conferrable by
or under this Code on a Judicial Magistrate
in respect to particular cases or to a particular class or classes of cases, or in regard
to cases generally in any local area."
Bys. 6-A which was also added by Bombay Act 23 of
1951 in the Code, constitution of different classes of
Judicial Magistrates was provided, and under that
head were included Presidency Magistrates. The
State Government was, under the amended Code,
competent to appoint a person with the requisite
qualfications a SpecialiMagistrate and to confer upon
kim the powers conferred or conferrable under the
Code on a Judicial Magistrate in respect of a particular case or a particular class or classes of
cases or in regard to cases generally in any
local area. Section 14 of the Code of Criminal
Procedure as originally enacted prohibited
tq~
u•2
Ja1....ih s,.
v.
State of Malw.sh,
Shah, J.
i•t"nath S.nu
v.
""all 1f Maharashtra
SW, J.
578 SUPREME COURT REPORTS [1963] SUPP.
appointment of a Special Magistrate to functioa
in any local area within the Presidency towns, but
that limitation upon the power of the State Government has, by the amendment made by Bombay Act
23 of 1951, been removed, and it is now open to the
Government of Maharashtra to constitue a Special
Judicial Magistrate with power to function in any
local area including Greater Bombay. The expression
'local area' includes any part of a State, and it may
cover more than one District. The Government of
Maharashtra therefore could appoint Mr. Gehani a
Special Judicial Magistrate, having jurisdiction over
Greater Bombay and the District of Ratnagiri and
could confer upon him the powers of a Pre£idency
Magistrate in respect of the trial of the case known
as the Deogad Gold Seizure Case.
In M. K. Gopalan v. The State af Madhya
Pradesh.(') the validity of s. 14 of the Code of Criminal Procedure 1898 (V of 1898) was challenged on
the plea that it was void because it infringed the
fundamental right of equality before the law guaranteed by Art. 14 of the Constitution. This Court held
that a law vesting discretion in an authority to appoint
a Special Magistrate under s. 14 of the Code of Criminal Procedure to try cases entirely under the normal
procedure cannot he regarded as discriminatory and
is not hit by Art. 14 of the Qonstitution. There is
substantially no difference between the powers conferrable by s. 14 of the Code as originally enacted
ands. 14 as amended by Bombay Act 23 of 1951.
Apart from certain procedural matters such as consultation with the High Court before entrustment of the
said powers, the only difference made by the Bombay
Act is that a Special Magistrate may be appointed
even in respect of a Presidency .town. Section" 14
contemplates that a Special 'l\1agistrate may be
entrusted with powers which are conferrable by or
under the Code on a Judicial Magistrate. A Presidency Magistrate being a Judicial Magistrate under
(I) [1955) I&. C. R.,Ui8.
•
1 S.C.R. SUPREME COURT REPORTS
579
s. 6-A as added by the Bombay Legislature, powers
co11ferrable on a Presidency Magistrate may lawfully
he conferred upon a Special Judicial \1ar,istrate who
has been appointed for the Presidency town with or
without any additional locality. Section 20 of the
Code of Criminal Procedure provides that every
Presidency Magistrate shall exercise jurisdiction in all
places within the presidency-town for which he is
appointed, and within the limits of the port of such
town and of any navigable river or channel leading
thereto, as such limits are defined under the law for
the time being in force for the regulation of ports and
port-dues. There is, however, nothing in this section
which detracts from the authority which may be
exercised by the State Government under s. 14 to
appoint a Special Judicial Magistrate in respect of a
Presidency Town nor is there any prohibition against
the investiture of powers of a Presidency Magistrate
upon such Magistrate in respect of a locality outside
the Presidency town so long as he has jurisdiction abo
over a Presidency Town.
On the principle of M. K.
Gopa/,an's ca&e (1), s. 14 of the Code of Criminal
Procedure, as amended, cannot be regarded as infri•ginir Art. 14 of the Constitution.
Validity of the Notification issued by the
Government of Maharashtra directing the trial by
Mr. Gehani who had jurisdiction both over the
Greater Bombay area and the District of Ratnagiri
may now be considered. Relying upon the judgment
of this Court in Bidi Sup-,ly Com.,any v. The Union
of India (2), it was submitted that the impugned
Notification was unauthorised. That was a case
where an assessee who was ordinarily assessed to
income-tax by Officers within the town of Calcutta
was informed by letter dated January 25, 1955, in
pursuance of s. 5 (7-A) of the Income-tax Act, 1922
1XI of 1922) as amended by Act XL of 1940 the
assessment records of the assessee were transferred
from the Income-tax Officer, Calcutta to the Income-
(1) [1955] 1 S. C. R. 168.
(2) (1956] 8. C. B.. ~7,
1962
!•11111 .. thS...
l'•kllf'
v.
Stitt•/ Malt.rash 1r
Shah,/.
1962
I a1annatk Sonu
Parkar
v.
Stdt1 of Molrarashtra
Shah, J.
580 SUPREME COURT REPORTS [1963] SUPP.
tax Officer, Special Circle, Ranchi in the State of
Bihar and that he do correspond in future regarding
the assessment proceedings with that Income-tax
officer. The assessee had received no previous notice
of the intention of the Income-tax authorities to
transfer the assessment proceedings from Calcutta to
Ranchi, nor had he any opportunity to make any
representation against the said decision. The assessee
challenged by a petition to this Court the validity of
the order of transfer contending that it violated the
equal protection clause of the Constitution. Section 64
of the Income-tax Act provides for the normal place
of assessment of assesses.
By sub-section (1) it provides that where an assessee carries on a business,
profession or vocation at any place, he shall be
assessed by the Income-tax Officer of the area in
which that place is situate, or, where the business,
profession or vocation is carried on in more places
than one, by the Income-tax Officer of the area in
which the principal place of his business, profession
or vocation is situate. In all other cases, an assessee
shall be assessed by the Income-tax Officer of the
area in which he reRides. By sub-section (5) of s. 64
it is provided, inter alia, that the provisions of sub-s.
(1) and (2) shall not apply where by any direction
given or any distribution or allocation of work made
by the Commissioner of Income-tax under sub-s. (5)
of section 5, or in consequence of any .transfer made
under sub-s. (7 A) of s. 5, a particular Income-tax
Officer has been charged with the function of assessing
that assessee.
This Court held in the Bidi Supply
Company's case (1) that sub-s. 5 (7 A) of s. 5 as it stood
at the material time contemplated transfer of a
pending case for a particular year. It was observed
that "the provision that such a transfer may be
made 'at any stage of the proceedings' obviously
postulates proceedings actually pending, and 'stage'
refers to a point in between the commencement and
the tennination of those proceedings.
Further the
provision that such transfer shall not render necessary
(I) [19'6) S. 0. R. 2611
•
1 S.C.R. SUPREME COURT REPORTS
581
the reissue of notice already issued by the Incometax Officer from wh0m the case is transferred quite
clearly indicates that the transfer contemplated by
the sub-section is the transfer of a particular case
actually pending before an income-tax Officer of one
place to the Income-tax Officer of another place."
The decision of the Court turned on the meaning of
the word 'case' used in sub-s. 5(7 A) as enacted by
the Income-tax Act Amendment Act, 1940 and this
Court held that the expression 'case' meant an assessment case of a particular year.
After this decision
the Legislature intervened and by the Income-tax
Amendment Act 26 of 1956 it added an explanation
that the word 'case' in relation to any person whose
name is specified in the order of transfer means all
proceedings under the Income-tax Act in respect of
any year which may be pending on the date of the
transfer, and includes all proceedings under this Act
which may be commenced after the date of the
transfer in respect of aey year. The principle of the
case in Bidi Supply Company (1) has no relevance in
considering the validity of the Notification issued
under s. 14 of the Code of Criminal Procedure as
amended by the Bombay Act 23 of 1951. The
assessee in the . Bidi Supply Campany's case (')
obtained the benefit of a lacuna in the provisions of
the Indian Income-tax Act, there being apart from
a provision for transfer of a pending case, no general
power to transfer future assessment proceedings. A
Notification under s. 14 of the Code of Criminal
Procedure is an order constituting a Special Magistrate with jurisdiction over a certain local area and
with powers which are normally exercisable by a
Judicial Magistrate. The constitution of a Special
Magistrate does not amount either directly or indirectly to a transfer of any 'case': nor are there any such
considerations present in that order as were pointed
out by this Court in the Bidi Suppl,y Company's
cast (1) relating to the meaning of the word 'case'
used in the Income-tax Act, as would compel us to
(I) (1956) S, C. ll. 267,
1962
Jagannath Solf.u
Parkar
v.
Slal1 of Maharashtr•
Shah, J.
1Ji2
Jagannath Stnu
P5rkcr
v.
St«te of Mc harashtra
Sh.Ji, J.
582 SUPREME COURT REPORTS [1963] St:JPP.
hold that a 'case' within the meaning of s. 14 means
a pending case only. Under s. 14 the State Government is competent to appoint a special Judicial
Magistrate in respect of 'any particular case or a
particular class or classes of cases or in regard to
cases generally in any local area'. The words used
in s. 14 must mean a case which is either pending or
which may be instituted after the date of the co.11s!itution of the Special Magistrate.
·
It was then submitted that the Notification
appeinting a Special Magistrate, for 1rial of the
intended complaint against the petitioners, having
regard to the circumstances of this case, a.11d conferring upon him the powers of a Presidency Magistrate
operated discriminatively against the petitioners, for,
it was said, other persons similarly situated as the
petitioners were ordinarily liable to be tried by the
Magistrate within whose jurisdiction the offence was
alleged to be committed, and could not be required
to go to a distance of more than three hundred miles
from their normal place of residence to defend themselves.
It was urged that Mr. Gehani being a
Presidency Magistrate for the trial of the case against
the petitioners and others he would be sitting in
Bombay where he normally functions, and it would
result in great inconvenience to the petitioners to be
called upon to attend the sittings of the Court in
Bombay specially when there are Magistrates available in Deogad who are competent to hear and decide
the case against the petitioners. By the Notification
Mr. Gehani has been invested with the powers ov\!r
Greater Bombay and Ratnaglri District. His jurisdiction therefore extends over the whole of the
Greater Bombay area and the District of Ratnagiri.
There is no provision in the Code of Criminal Procedure which enjoins upon a Magistrate the duty to
hold his sitting in any particular place. Under
s. 9(2) 11f the Code !if Criminal Pr'lcedure the State
GovcrBIIlent is requir~ to direct at what place or
'
1 S.G.R.
SUPREME COURT Rfil'ORTS
ai3
places the Court of Session shall ordinarily hold its
sitting, but if, in any particular case, the Court of
Session is of opinion that it will tend to the general
convenience of the parties and witnesses to hold its
sitting at any other place in the sessions division, it may
with the consent of the prosecution and the accused, sit
at that place for the disposal of the case or the examination of any witness or witnesses therein. There is,
however, no similar provision in respect of the sittings
to be held by Magistrates. The Special Judicial Magi~
trate Mr. Gehani having the power therefore to sit at
any place within his local area as defined by the terms
of his appointment, this Court cannot speculate as to
what place Mr. Gehani will function in the exercise
of his jurisdiction. The question is one for his
discretion. It may be remembered that the petitioners
had moved the High Court of Bombay asking for the
transfer of the case from the Court of Mr. Gehani
to any Magistrate functioning in the District of
Ratnagiri, because of the alleged ground of inconvenience, and that application was rejected by the
High Court. It cannot be now urged by the petitioners that the trial at Bombav is inconvenient to
them and may prejudice a fair trial. It is true that
under the Code of Criminal Procedure "every offence
shall ordinarily be enquired into and tried by a
Magistrate of the local area in whose jurisdiction it
was committed", but the charge in this case against
the accused is in respect of a conspiracy at Bombay,
Deogad, Dabhol, Janjira and other places to commit
offences under the Sea Customs Act and the Foreign
Exchange Regulation Act and also of commission in
pursuance of the conspiracy of substantive offences
under those Acts. It is the prosecution case that
importation of gold contrary to law took place in the
area of Deogad port whereas the offenders conspired
at different places including Bombay. By designating a Special Magistrate who would have jurisdiction
lteth over the place where the offenders are alleged
oo have conspired and the place where eifeaca1 were
JH2
J agt111n•th $1111.1
Park•r
••
State of M.Jiu.,htr
Sh•h, J.
1162
Jagannath Sonu
v.
2te of J\faharashtra
Shah, J.
584 SUPREME COURT REPORTS [1963] SUPP.
actually committed, the State has taken care to see
that the trial of the case is held by a M;agistrate who
has territorial jurisdiction in both areas.
It is not
suggested that the Notification was issued fur any
ulterior purpose. The State has having regard to
the special circumstances constituted a Special Magistrate, as ir was entitled to, and the Notification does
and even suggest the place where the Magistrate is to
hold his sittings.
The ground of inconvenience in
support of the plea of discrimination cannot therefore
be sustained.
It is urged that against the order of conviction
which may be passed by Mr. Gehani wi10 is invested
with the powers of a Presidency Magistrate an appeal
would lie only to the High Court whereas if the case
were tried before a Magistrate of Ratnagiri District
an appeal would lie to the Court of Session and a
further revision application to the High Court. This
it was pointed out made a substantial difference of
procedure between persons similarly situated. It is
true that if the complaint was filed in the Court of
Magistrate having jurisdiction over Deogad alone, as
it could lawfully be filed, an appeal would, against
an order of conviction, lie to the Court of Session,
Ratnagiri and an application in the exercise of
revisional jurisdiction to the High Court from the
order of the Court of Session.
But it is difficult to
hold that this amounts to any discrimination. Apart
from the fact tllat the trial by a special Magistrate
and an appeal directly to the High Court against the
order of the Magistrate may be regarded normally as
more advantageous to the accused persons, the distinction between Courts to which the appeal may lie
arises out of the constitution of the Special Magistrate
and not any special procedure evolved by the Notification.
On the allegation made in the complaint,
the complainant could lawfully institute proceedings in
tl1': Court of a Presidency Magistrate at Bombay or of
any competent Magistrate in the District ofRatnagiri.
•
l S.C.R.
SUPREME COURT REPORTS
585
Such Magistrates would by virtue of s. 182 of the
Code of Criminal Procedure entertain the complaint
:i.nd appeals from orders of conviction recorded by
them would lie to the High Court, or the Court of
Session, according as the Magistrate, trying the
case was a Presidency Magistrate, or a Judicial
Magistrate of the First Class. The difference of the
venue results from the nature of. the jurisdiction
exercised by the Magistrate trying the case, and not
from any unequal dealing by the executive constituting the Courts of the Magistrates. It is because
powers exercisable by a Presidency Magistrate are
conferred upon the Special Magistrate, as they may
lawfully be conferred, that the incidental right of
appeal which is prescribed by the statute is exercisable in the High Court, and not in the Court of
Session. We do not think that there is any discrimination practised by the Notification constituting a
Special Magistrate for the trial of the case against the
petitioners and others.
The petition therefore fails and is dismis~ed.
Petitian dismissed.
196.i
Ja1ann11th Sonu
Parkar
v.
Statt of Mahatash
Shah, J.