TaxTMI 
TaxTMI 
1943 (4) TMI 13
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....42, under Rule 132, Defence of India Rules, and sent in custody to the Sub-divisional Officer, who remanded them to hajat up to 17th September. On the 17th the police report had not been received, and the Magistrate postponed the case to the 25th, asking the investigating officer to produce the prosecution witnesses on the date fixed. Similar orders were passed on 25th and 28th September and on 3rd October. On 5th October, the Magistrate recorded this order: Police report received. The case is ready. To my tile. Two prosecution witnesses present. Examined and cross-examined two prosecution witnesses. Charge framed. Tomorrow for defence. 4. Next day he examined the accused and 1 some defence witnesses, and on the 7th he delivered his judgment, convicting the accused persons under Rule 56(4), Defence of India Rules, and sentencing them to rigorous imprisonment for two years and a fine of Rs. 500 each. The orders on the order-sheet up to and including the order of 3rd October were signed "N. Huda" over the initials "S.D.O." From 5th October onwards the orders were simply signed "N. Huda." The judgment was signed "N. Huda, Special Magistrate." 5. Special Magistrates are ....
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....ying in detail the offences which Special Magistrates could try. 10. Mr. Manuk's point is based upon the Full Bench decision of this Court in Banwari Gope v. Emperor A.I.R. 1943 Pat. 18. In this decision it was held that the Ordinance was not retrospective. It could not take away from the subject vested rights which had come-into existence before the Ordinance came into force. Where criminal proceedings had been initiated against any person before the Ordinance came into force, such person had thereby acquired vested rights including, inter alia, the right of appeal in case of conviction, and including the right to be tried in the ordinary criminal Courts under the ordinary procedure, which alone existed at the time the proceedings were initiated. The promulgation of the Ordinance could not, the Full Bench held, affect such rights, and the provisions of Section 26 of the Ordinance could not operate to bar interference by the High Court under Section 491, Criminal P.C., since the Ordinance having no application at all to such a case Section 26 itself could not apply to it. According to Mr. Manuk, the Full Bench further held that the taking of cognizance by a Magistrate of a c....
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.... generally presents an appearance of plausibility. There is a wide difference between the coming into force of the Ordinance and its coming into operation. The Ordinance became the law on 21st August when the Governor declared it to be in force in the province. What happened subsequently was merely the, setting up the machinery for its operation, and could not affect the legal position. The reason for the rule of construction that a statute shall not be held to operate retrospectively unless the language is compelling in that regard, is that it shocks the conscience for a new law to affect the subject adversely in respect of something already over and done with. That reason does not apply in a case like the present. After a law has come into existence, whether or not the machinery for its operation has been set up once that law is declared to be in force and the subjects of the province are put upon notice of that fact by official publication--no one can have any just grievance if his acts and rights thereafter are to be determined in accordance with that law. Not only was the Ordinance declared to be in force on 21st August, but on the 22nd Special Courts were constituted. They we....
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....try each particular case will depend upon a special order under Section 10 passed in that case. The order cannot be passed in each case until after the initiation of proceedings. Therefore, the position contemplated by Mr. Manuk must arise in every case, and simply because special orders are passed in each case instead of a general order, an alter, native provided for in Section 10, no Special Magistrate could ever have jurisdiction to try any case, for in every case a vested right of trial in the ordinary Courts would necessarily arise before the special order under Section 10 could be passed. This is surely a reductio ad absurdum of the argument, which is thereby shown to involve the proposition that in such a district the Ordinance comes into force separately for each particular case upon the date when the special order under Section 10 in respect of that case is passed by the District Magistrate. 16. There is a further ground for holding that Mr. Manuk's contention has no force. An examination of the Ordinance as a whole shows that it sets up new Courts and prescribes a new procedure for trial of cases in those Courts. The procedure it sets up is only for the trial of ca....
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....n the present instance, Mr. Huda passed orders not as Special Magistrate but as Sub-Divisional Officer up to the stage when on 5th October he said: "The case is ready. To my file," but the fact is quite irrelevant. His procedure was what the Ordinance contemplates, and he rightly acted as Sub-Divisional Officer while getting the case ready for trial, and rightly passed an order transferring the case for trial from himself as Sub-Divisional Officer to himself as Special Magistrate. We don't know and can't know at what stage he made up his mind that the case should be tried under the Ordinance. The Ordinance was in force on 21st August. He had been constituted Special Magistrate on 22nd August. His first order in this case was passed on 3rd September. He may well; have contemplated from the beginning the trial of the case under the Ordinance. Nevertheless, he quite rightly under Section 27 of the Ordinance passed his preliminary orders as Sub-Divisional Officer and the fact that he did so could give rise to no right of trial either in one set of Courts or in the other set of Courts. The procedure would be the same in either case. 19. This being the position, the question w....
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....dicial proceedings are commenced against him. 23. What is that point? There is no charm in the word "cognizance." It is nowhere defined in the Code of Criminal Procedure. It is a word of somewhat indefinite import. It is perhaps not always used in exactly the same sense. It is argued upon the basis of Emperor v. Sonrindra Mohan Chuckerbutty (10) 37 Cal. 412 that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. 24. That indeed expresses my own view. In my judgment, the word "cognizance" is used in the Code to indicate the point when a Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate. Cognizance is taken of cases, not of persons, and there seems to be nothing in theory to prevent a Magistrate from taking cognizance of a case even where the offenders are unknown. The fact that a Magistrate has taken cognizance does not necessarily mean that there will be judicial proceedi....
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....eet. And here again it seems that cognizance is something prior to and does not necessarily mean the commencement of judicial proceedings against any one. 30. It is also to be noted that Section 190 is the first Section under chap. 14-B which is headed "conditions requisite for initiation of proceedings," and the marginal note is "cognizance of offences by Magistrates." It may then clearly be held that the law regards the taking of cognizance as the first condition requisite for the initiation of proceedings. It is after he has first taken cognizance that the Magistrate initiates proceedings should be think that course proper. He need not, however, do so at all. Cognizance, in my view, is merely the mental decision of the Magistrate to take judicial notice of a case. This view of what the law regards as taking cognizance is in accord with the ordinary dictionary meaning of the word. "Cognizance" is defined as "knowledge or notice, judicial or private." 31. Reverting again to complaint cases, it is clear from the wording of the Code that it is only when the stage is reached of an order under Section 204, that is for issue of process, that proceedings before the Magistrate can ....
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....That is the point at which vested rights, such as a right of appeal or right of trial by jury, may accrue to a person proceeded against if the law as it stands at that date gives them to him. No doubt prior to that stage a person detained in custody may have certain rights. He may have a right to apply for bail, he may have a right to come up to the High Court for a writ of habeas corpus under Section 491. But these rights, however valuable they may be, are not rights appertaining to any pending judicial proceedings against him. 34. In a case of illegal detention, where Section 491 may be applicable, there might well be no question of any judicial proceedings. The mere fact that a man may have been put in peril does not make him a party to any judicial case. He may be merely a detenue, he may be illegally detained in private custody Section 491 refers to illegal or improper detention in public or private custody. The fact, therefore, that such rights as these may have accrued to a person cannot in themselves involve also the accrual of a vested right in any particular form and manner of trial, appeal, or punishment. It must be remembered that we are in these cases considering th....
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....-divisional Officers jurisdiction. In my judgment, in that case I said: This order was passed under conditions of stress and haste. In construing it is necessary to make allowance for this circumstance, and to take a fair and commonsense view of it. Reading it as a whole I have no doubt in my mind that what the District Magistrate meant was to empower the Sub-divisional Officers of Samastipur and Madhubani, like Mr. Bilgrami and Mr. Chakravarty at Sadr, to try all cases arising during the time of the disturbances. The District Magistrate by the order could not have meant merely to appoint the Sub-divisional Officers as Special Magistrates, because that had already been done by Government on 22nd August, and it is impossible to suppose that the District Magistrate merely meant unnecessarily to repeat the Government order; In para. 1 relating to the Sadr Courts he used the expression 'for all cases.' It seems to me clear that he meant that expression to apply to para. 2 of his order also. This construction finds support also in the fact that after referring to the Sub-divisional officers the order goes on to say that a Deputy Magistrate at Samastipur would t....
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....her expressly or by necessary intendment. Therefore, it continues in force, and the petitioners could be tried for an offence under K. 56 only in accordance with the provisions of the Act, that is to say, by a special tribunal or in the ordinary Courts. 39. Mr. Manuk has referred to a Calcutta case where a similar argument was put forward. That is the case of Santosh Kumar Bhatacharjee v. King-Emperor AIR1943Cal224 . There the argument was put in a slightly different form. It was pointed out that Section 72 of Schedule 9, Government of India Act 1935, tinder which the Ordinance was promulgated, lays down that the power of making ordinances under the Section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any ordinance made under the Section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act. Reliance was placed on the words "and may be controlled or superseded by any such Act" to support a contention that the ordinance must be regarded as controlled by the Defence of India Act 1939. 40. This argument was rejected by Derbyshire C.J., and Lodge J. on the....
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.... jurisdiction. It must have been enacted to shut out the possibilities of any contention that, unless and until special tribunals had been set up, no Court could try a person for offences under the Act. The Section merely means that the Defence of India Act does not necessarily take away the jurisdiction of the ordinary Courts. It could never mean to bar the Legislature in perpetuity from setting up other Courts, or suspending jurisdiction of the ordinary Courts. Section 14 merely preserves the jurisdiction of the ordinary Courts in certain circumstances, so far as the Defence of India Act itself is concerned, not so far as subsequent Acts are concerned. It indicates that the Defence of India Act (and that Act only) does not take away the ordinary Courts' jurisdiction, except in the manner specifically indicated. 44. Mr. Manuk meets this objection by saying that the ordinance does not repeal or suspend the Defence of India Act. The Ordinance does, however, constitute Special Courts, and in certain respects take away the jurisdiction of the ordinary Courts. The Defence of India Act, 1939, obviously could not pre-vent it from doing so, and if the provisions of the Ordinance ar....
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.... 56 to all District Magistrates within their respective jurisdictions. On this being brought to his notice, Mr. Manuk frankly abandoned this point. 48. I have now dealt with all the points put Jorward by Mr. Manuk. Mr. S.C. Chakarverty, however, stepped into the breach and argued that the whole Ordinance was ultra vires under Section 100, Sub-section (3), Government of India Act, which provides that: Subject to the two preceding sub-sections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List 2 in the said schedule (hereinafter called the 'Provincial Legislative List). 49. Mr. Chakravarty's contention is that the Ordinance essentially relates to matters in List 2, the Provincial Legislative List. Item 1 of that List is: Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power) ; the administration of justice; Constitution and organisation of all Courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the maintenance of ....
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....If I had to decide the matter, I should probably hold that in pith and substance the Ordinance comes under items 1 and 2 of the Provincial Legislative List, and, in particular constitution and organization of Courts, and jurisdiction and powers of Courts with respect to offences involving public order, a subject itself in List II and therefore, brought in by the words "with respect to any of the matters in this List," which occur in Item 2 of List II. It is noteworthy that item 15 of the Concurrent List is "jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this List." The words "with respect to any of the matters in this List" here again occur and will, in my judgment, operate to bring in the exclusion in Item I. of List III of offences against laws with respect to any of the matters specified in List II, e.g., public order. 53. However, it is unnecessary finally to decide this point, because even if the Ordinance essentially deals with matters in List ill, Mr. Chakravarty's argument must fail upon another ground. It ignores the provisions of Section 102, Government of India Act. I will not cumber this judgment by setting ....
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....only to the power of the Legislature, and not of the Governor-General to make Ordinances. That is not correct. But even if it were, it would make no difference, because Section 72 merely subjects the ordinance power to such restrictions as there may be upon the Legislature. Section 102 and the proclamation thereunder remove the restriction on the power of the Legislature upon which Mr. Chakravarty relies. Therefore upon the wording of Section 72 that restriction disappears also so far as the ordinance powers are concerned. The position is so clear that it is unnecessary to say anything further upon this matter, and it is unnecessary to consider to what extent in the absence of Section 102, the principles adumbrated in the cases of the Board of Commerce Act 1919 A.I.R. 1921 P.C. 205 and Fort Frances Pulp and Power Co. Ltd. v. Manitoba Free Press Co. Ltd. (1923) 1923 A.C. 695 by Lord Haldane, could be invoked in this country. 56. In the four cases under consideration all the points urged must fail, and the applications must be rejected. 57. Next come two more Samastipur cases (Criminal Revision Nos. 785 and 786 of 1942), which have been argued by Mr. G.P. Das. The petitioners i....
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....was added to the Ordinance. This Section 25A, inter alia, provides that the District Magistrate may transfer a case at any stage from one Special Magistrate within the district to another, and provides further that, notwithstanding anything contained in the Code, in the case of such transfer no rehearing will be necessary. This has been taken to mean that the Government realised there was a hiatus in the Ordinance as regards power of transfer. There was a hiatus, but it was in regard to transfer from a Special Magistrate, not transfer to one. The fact seems to have been that in Section 26 the law had over-reached itself. That Section provided, inter alia, that no other Court should have any authority to transfer any case from a Court constituted under the Ordinance. This Section was designed to prevent interference by other Courts with the proceedings of the Ordinance Courts, but its terms were so wide that its effect would obviously be that when once a Special Magistrate or a Special Judge had seisin of a case, then in no circumstances could any authority take it from him; an awkward state of affairs should be happen to be transferred, become ill, or go off his head. Hence some pr....
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....943 Pat. 18 the Full Bench held that the Court could interfere under Section 491 where the case was one to which the Ordinance as a whole, including Section 26, was not applicable. The point here however is not quite the same. The petitioner had no vested right of trial in the ordinary Courts. He could and can be tried under the Ordinance. It is merely a case where the particular Special Magistrate who tried him had not power to do so. Section 26 of the Ordinance expressly provides against interference by any other Court with the proceedings of a Court constituted under the Ordinance. There is an express reference to Section 491, and since only High Courts can act under Section 491, Section 26 must have been designed to exclude interference by all other Courts including the High Courts. 64. The position is however that Mr. Usman's proceedings were wholly void, being without jurisdiction. Under Section 530, Criminal P.C.: If any Magistrate, not being empowered by law in this behalf, does any of the following things, viz. (p) tries an offender, his proceedings shall be void. 65. Section 530 is in no way inconsistent with the provisions of the Ordinance, and its ope....
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.... Chatterji, signing himself "Sub-divisional Magistrate and Special Magistrate under Ordinance 2 of 1942." 67. The petitioners appealed to the Special Judge. The latter set aside the conviction, and sent back the case for retrial, after taking further evidence, as he held that the evidence adduced was quite insufficient to support the conviction. 68. Mr. Awadhesh Nandan Sahay points out that in the charge the trying Magistrate described himself as Sub-divisional Officer and at the examination of the accused as first class Magistrate, while in the decision he described himself in both capacities. He argued on this that they were really tried by Mr. Chatterji as Sub-divisional Officer. The sentence was one which he had as such no power to pass, nor had the Special Judge power to entertain the appeal and order a re-trial. 68. The case as presented before the Magistrate does seem to have been a very flimsy one, and whether the Special Judge was wise in directing a re-trial, and giving an opportunity for the prosecution to adduce fresh evidence may well be questioned. The question, however, is whether this Court has any jurisdiction to interfere. There can be no ground for inter....
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....l act under the provisions of B. 38. The answer is that he was, because the order authorised him to try offences punishable under Rule 38 read with such clauses as, amongst others, (6)(k) of Rule 34, and (6)(k) was mentioned in connexion with Rules 34 and 38 in the charge against the petitioners. It is true that 6(e) and 6(p) were not mentioned in the order, but the important thing is that Sub-rule (5) of Rule 38 was mentioned. Nothing further was needed. The reference to various clauses defining prejudicial acts was a mere superfluity, and was in any case merely illustrative. Even were it otherwise, reference to (k) in the charge would give the Special Magistrate jurisdiction, and interference by this Court would be prevented by Section 26 of the Ordinance. This application must therefore fail, and I Would discharge the rule. 73. The next two cases (Criminal Revisions Nos. 664 and 666 of 1942) were argued by Mr. Section C. Chakravarty. They are Samastipur cases. It is argued that cognizance was taken on 4th October the very day when the order under Section 10 was passed, but it has not been shown that it had been communicated. There is a short answer. The only order' passed....
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....by Mr. D.L. Nandkoolyar. The petitioners were arrested on 26th September. On 27th September Mr. Huda took the case to his own file as Special Magistrate, and on 28th September he convicted the petitioners. Thus, the petitioners were convicted before 4th October. For the reasons already stated, it must be held that the trial and conviction by a Special Magistrate was in the circumstances without jurisdiction, and that this Court can and should interfere under Section 491 of the Code. I would accordingly make the rule absolute, allow the application, and direct under Section 491 that the petitioners must be forthwith released, or brought: to trial according to law. 77. The next case (criminal Revision No. 72 of, 1943) comes from the Bihar Sub-division of the Patna District. On 24th September a charge sheet was received against the petitioners, whereupon the Sub-divisional Officer passed an order: "To Second Officer for disposal as Special Magistrate." The latter tried, and on 2nd October convicted the petitioner under Section 395, Penal Code, and imposed sentences of six or four years' rigorous imprisonment. In this case there are two orders under Section 10, which must be con....
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....nder Section 10 by the District Magistrate. This being so, the conviction of the petitioners by the Special Magistrate was without jurisdiction. It is quite true that in this particular instance it was the Sub-divisional Officer who actually selected the case for trial by a Special Magistrate, and directed the Second Officer to try it as such. That, however, makes the position worse, not better. I would accordingly allow this application, make the rule absolute, and under Section 491 direct that the petitioners must forthwith be released, or brought to trial in accordance with law. 81. I now come to a batch of cases argued by Mr. M.N. Pal, namely, Criminal Revisions Nos. 670, 718, 752 and 802 of 1942 and 71 of 1943. 82. Mr. M.N. Pal has in the first instance argued and in support of his argument he has treated us to a most learned and painstaking discussion--that we should hold gene-rally that this Court has the power to issue writs of certiorari, and accordingly to call up the proceedings of Special Magistrates under the Ordinance to this Court for examination and, if necessary, for quashing. Interesting as it would be to follow Mr. M.N. Pal into a detailed examination of th....
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....cil, it gave to the High Court to be established in each Presidency a power to exercise all jurisdiction whatsoever in any manner vested in any of the Courts in the same presidency at the time of the abolition of those Courts. 85. In this manner the power to issue the writ descended to the Calcutta High Court; but it was never similarly conferred upon the Patna High Court as successor of the Calcutta High Court. The Patna High Court, like other High Courts in India, is a creature of statute. We must not make the mistake of assuming that there is any common law power of certiorari as opposed to a statutory power. The powers of the Patna High Court are those conferred upon it by its Letters Patent, or by any subsequent legislation. I have examined the Letters Patent most carefully to ascertain if there is anything therein to support the argument that it inherited the power of certiorari from the Calcutta High Court. Mr. Pal sought to rely upon Clause 15 of the Letters Patent, but that merely conferred ordinary original criminal jurisdiction over all such persons as had formerly been subject to the similar jurisdiction of the Calcutta High Court, within the province of Bihar and Or....
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....rative portion of the Letters Patent, there is nothing to show that the Patna High Court was invested with the powers which were formerly possessed by the Calcutta High Court. In my opinion, these recitals are no more than mere historical allusions to certain provisions of the High Courts Act of 1861 which was enacted just before the establishment of the High Court of Calcutta, and of the two successive Letters Patent under which the Calcutta High Court was established and its powers defined. In fact in the recitals there is not merely a reference to the Calcutta High Court but also a reference to the establishment of the High Court at Allahabad in the year 1866 and this is quite enough to show that the allusions were merely historical. Besides the Letters Patent of the Patna High Court clearly define the civil, criminal, admiralty, testamentary, matrimonial and other jurisdictions of the High Court and if it was intended that the Patna High Court should possess the power of issuing prerogative writs similar to those possessed by the Calcutta High Court and the High Courts of Bombay and Madras, there seems to be no reason why this could not have been provided by an express clause t....
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.... procedure as in India, their Lordships see no reason for narrowing the express words of the Indian Act.... Even were it to be said that the order was of that quasi judicial kind to which certiorari has sometimes been applied in England or in India, the Press Act may quite reasonably have intended to take it away, and there is no reason why full effect should not be given to its language. 92. Upon this reasoning full effect must equally be given to the words of Section 26 of the Ordinance, which are perfectly clear and definite and include the words: "no Court shall...have any jurisdiction of any kind in respect of any proceedings of any such Court." Mr. Pal has not challenged the competence of the Indian Legislature to enact a provision like this. He could not well do so having regard to the decision of the Full Bench of this Court, which is binding upon us, in the case of Sheonandan Prasad Singh v. King-Emperor A.I.R. 1918 Pat. 103. 93. Lastly, however, Mr. Pal relies upon Colonial Bank of Australasia v. Willan (1874) L.R. 5 P.C. 417, as paraphrased in Halsbury, volume already cited, page 862, para. 1458: Although certiorari is taken away, it may be grante....
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....n both cases everything was concluded before 4th October. Having regard to the view of the majority of this Full Bench with regard to the order of 31st August it must be held that the trial was without jurisdiction. I would, therefore, allow both these applications, make the rules absolute, and direct under Section 491 of the Code that the petitioners must be forthwith released, or brought to trial in accordance with law. For convenience of reference I now summarise the decision of the Court. Out of the 23 applications before us the following are successful: 99. Numbers 669, 701, 707, 753 of 1942, 71, 72 of 1943, while the remainder, namely the following, fail: of 1942 Nos. 654, 655, 662, 663, 664, 666, 670, 715, 716, 717, 718, 752, 770, 785, 786, 802; of 1943 No. 73. Saiyid Fazl Ali, C.J. 100. These are a number of applications arising out of convictions by Special Magistrates constituted under Ordinance 2 of 1942. Owing to the number of such applications that are coming before the Court and the fact that many points keep arising over and over again, I thought it desirable that there should be, so far as this Court is concerned, an authoritative decision once and fo....
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....; * * 102. The Magistrate remanded the petitioners to hajat on that day and passed no further orders. On 17th September 1942, however, he recorded the following order: Police report not received. Takid and put up on 25th September 1942. Ask the I/O to produce P.Ws. on 25th September 1942 and issue production warrant for the accused for the date fixed. The police report was not received until 5th October 1942 and in the meantime the Magistrate passed orders on 28th September and 3rd October 1942 which are almost in the same terms as his order of 17th September 1942. On 5th October after the police report was received he noted in the order-sheet that the case was ready and then proceeded to try it and after examining some prosecution witnesses he framed a charge against the petitioners. On 6th October he examined the petitioners and also recorded the statements of certain defence witnesses and on 7th October he delivered his judgment convicting and sentencing the petitioners as aforesaid. 103. On these facts two principal po....
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....he powers of a Sessions Judge, Additional Sessions Judge, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, District Magistrate or Additional District Magistrate. Sub-section (3) makes some further provisions as to the qualification of the members of the tribunal and Section 9 provides that the Provincial Government may by general or special order direct that the Special Tribunal shall try any offence under any rule made under Section 2 of the Act as well as other offences of a particular description. Sections 10 to 13 are provisions as to the procedure to be followed by the Special Tribunal and the powers to be exercised by it. Section u which is the first Section in chap, IV states that save as otherwise expressly provided by or under this Act the ordinary criminal and civil Courts shall continue to exercise jurisdiction. In pressing his contention, Mr. Manuk lays special stress on the fact that the only qualification which the Ordinance requires a Special Magistrate to possess is that he should have exercised the powers of a First Class Magistrate for at least two years which falls far short of the qualifications of the member of the Special Tribunal as set ou....
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....makes similar provisions as regards the jurisdiction of the Special Magistrates. Both Sections 5 and 10 are couched in very general terms and there is nothing in either of these Sections to justify the view that the offences under the Defence of India Rules were intended to be placed outside the jurisdiction of the Special Criminal Courts to be constituted under the Ordinance. These offences were triable by the ordinary criminal Courts on the date when the Ordinance came into force and as the Ordinance imposes no limits upon the power to be exercised by the Provincial Government or its delegates under Section 10, I do not see how they can be held to be debarred from including the offences under the Defence of India Rules in the order issued under that section. The force of Mr. Manuk's argument lies in the emphasis which is laid therein upon the anomaly of a trial by a Special Magistrate of offences for the trial of which the Defence of India Act contemplates the constitution of a Special Tribunal of three highly qualified persons, but that is merely an argument directed against the policy of the new law which is a question with which we are not primarily concerned. What we are ....
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....n emphasised in these two cases is that though a new Act which relates merely to a matter of procedure will generally operate retrospectively, yet an Act which touches a right in existence at the passing of the Act cannot affect that right, unless it is made retrospective in operation either expressly or by necessary intendment. In both these cases it was held that a right of appeal is one of the rights which cannot be affected by new legislation unless expressly taken away and this right of appeal accrues at the date of the suit, even though the filing of the appeal might on that date have been in the nature of a mere remote contingency. A question then arose as to when the right of appeal is acquired by an accused person and it was pointed out in A.I.R. 1943 Pat. 18 that that right must be conceded to him at the date when the criminal proceedings are instituted against him. The final conclusion which was arrived at after an examination of the various provisions of the Code of Criminal Procedure was expressed in these terms: There can be no doubt that where a Magistrate takes cognizance of an offence upon complaint the proceeding before him is commenced as soon as the pro....
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....legal proceeding was started it could not be said definitely that the petitioners would have any right of appeal or otherwise. All that had happened was that the police had received certain information against the petitioners and had started an investigation. It is obvious that until the police investigation was completed and a charge-sheet was submitted against the petitioners it was premature to say whether the petitioners would be placed on trial or whether the police would send up the final report stating that the case against the petitioners had not been made out. The question of procedure or the right of appeal could have arisen only after the submission of a charge-sheet and after the accused had been placed on trial. Until then it could not be said whether the accused would be tried by a Magistrate holding first class powers or second class powers or whether they were to be tried by a Magistrate empowered to try summary cases, or by a Court of Session or they would be tried at all. 109. Again in A.I.R. 1943 Pat. 18 it was stated that: When cognizance is taken upon a charge-sheet the proceeding must be deemed to commence as soon as the Magistrate makes u....
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....d therefore it becomes unnecessary to issue a process under Section 204 to procure the attendance of the accused. In those cases, however, where one or more of the accused persons are found to be absconding, there is nothing to prevent the Magistrate from issuing a summons or warrant to secure his or their attendance. Thus, a proceeding must be deemed to commence when either a process is issued or the accused being present in Court for trial he can be proceeded against forthwith. This view is, I think, supported to some extent by the decision of Jenkins C.J. in (11) 38 Cal. 880 wherein he cites with approval the following observation of Cotton L.J. in (1885) 14 Q.B.D. 648 which was also cited by me in A.I.R. 1943 Pat. 18. "How can it be said that the prosecution commenced before a person is summoned to answer the complaint?" The case in which Jenkins C.J. expressed this view appears to have been relied on before the Privy Council in 571. A. h ill1 and their Lordships referring to that case observed as follows: It may quite well be that a prosecution only commences after a summons is issued, and that before that stage is reached a complainant cannot be said to have dropped ....
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....e has decided to hold an enquiry under Section 202, legal proceedings against the accused can be said to have commenced. Now, if the action taken by the Magistrate under Section 204 marks the commencement of the proceedings, then strictly speaking there are no proceedings against the accused until such action is taken. But in my opinion after making due allowances for a special group of cases the statement that there is a criminal case against the accused as soon as the Magistrate has taken cognizance may be found to be a useful test in a large majority of cases. It is to be noted that Section 190 occurs in part B of chap. 15 which is headed "conditions requisite for initiation of proceedings." Section 190 is not the only Section in this part, but there are other Sections, viz., 195, 196, 196A, 196B, 197, 198 and 199 which state that a Court can take cognizance of certain offences only upon a complaint made by certain specified persons. The heading of Part B which is "condition requisite for initiation of proceedings" shows that there is an intimate connexion between cognizance and initiation of proceedings and the importance of the cognizance test has therefore been emphasised in ....
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....emand order from the nearest Magistrate under Section 167, Criminal P.C., and may take a person before a Magistrate having jurisdiction in the case under Section 60 on arrest, but the time which I think is really material for accrual of right as to the mode of trial is when the investigation is made and the challan produced in Court under Section 170, Criminal P.C., and I do not think it is necessary to enter into a discussion of case law as to the point of time when cognizance has been held to be taken in particular cases. 118. Again in Emperor v. Sajiwan Mahton (42) 23 P.L.T. 684 Rowland J. referring to Section 167, Criminal P.C., observed as follows: The Section itself shows that production under this Section need not be before a Magistrate having jurisdiction to try the case and all that can be done under the Section is to authorise detention of the accused. This does not amount to taking cognizance of a case or, in my opinion, to the institution of judicial proceedings. 119. In all these cases "taking cognizance" has been described as the step which marks the initiation of criminal proceedings, but strictly speaking cognizance is merely a condition requisite for....
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.... the present cases that it was not meant to be an order under Section 10, it seems to me even then that these petitions must fail on the ground that the legal proceedings against the accused did not commence until 5th October 1942, that is to say until after the date on which the District Magistrate had passed an order which was undoubtedly an order under Section 10. 121. As already noticed, on 3rd September 1942 when the petitioners were sent up under custody to the Sub-divisional Officer by the Sub-Inspector of Rossera, all that the Sub-Inspector stated in his report of that date was that these persons would be prosecuted. There was no statement as to the circumstances under which the alleged offence had been committed or the actual acts done by the accused persons. It is clear that on such report the Magistrate could not take cognizance of the offence and he could not take any step against the accused until a complete police report was received. That being so, on 17th September 1942 as well as on several subsequent dates he urged the police to send the report. The learned Counsel for the petitioners lays great emphasis on the fact that in several order sheets it is noted that....
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....e like restrictions as the power of the Indian Legislature to make laws; and any Ordinance made under this Section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act. 124. Mr. Chakravarty lays stress on the words which have been italicized and contends that the power of the Governor. General to issue an Ordinance is subject to the restriction which has been imposed on the legislative power of the Federal Legislature by Section 100, Sub-clause (3) which provides that subject to the two preceding sub-sections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a province or any part thereof with respect to any of the matters enumerated in List 2 in the said schedule (hereinafter called the 'Provincial Legislative List'). List 1 of Schedule 7 is called the Federal Legislative List and Section 100, Sub-section (1) provides that Federal Legislature has and the Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in this List. Item 53 of this List is "Jurisdiction and powers of all Courts except the Fed....
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....3 of the Federal Legislative List and item 15 of the Concurrent Legislative List which deal with, the jurisdiction and power of all Courts except the Federal Court have a limited scope on account of the qualifying words "with respect to any of the matters in this List." Thus, it is contended that the Federal Legislature or any legislative authority having the same power as the Federal Legislature have no jurisdiction to constitute or organise Special Courts for dealing with offences within the provinces and if they do so, it will be an encroachment on an occupied field. To meet this argument, the learned Advocate-General has adopted in the first instance the view expressed by Iqbal Ahmad C.J. in Salig Ram v. Emperor AIR1943All26 which is to the effect that the constitution of new Courts is a matter which is included in item 2 of the Concurrent Legislative List. That item, as I have already said, is criminal procedure including all matter included in the Code at the date of the passing of this Act. It is pointed out that part II of the Code deals with "constitution and powers of criminal Courts" and this subject is comprehensive enough to include the constitution of Special Courts. ....
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....s-shall be construed as references to the Indian Legislature and laws of the Indian Legislature, and references in those provisions to Federal taxes shall be construed as references to taxes imposed by laws of the Indian Legislature. 127. It follows therefore that during the transitional period the words "Federal Legislature" which occur in Section 102 must be read as meaning the Indian Legislature and Section 72 (of Schedule 9) which provides that an emergency ordinance promulgated by the Governor-General shall have the like force of law as an Act passed by the Indian Legislature is to be read along with this provision. Reference may also be made to Section 811, Clause (6), which provides as follows: Any reference in this Act to Federal Acts or laws or Provincial Acts or laws, or to Acts or laws of the Federal or a Provincial Legislature, shall be construed as including a reference to an ordinance made g by the Governor-General or a Governor General's Act or, as the case may be, to an ordinance made by a Governor or a Governor's Act. 128. Section 72 of Schedule 9 which has already been quoted must therefore be read along with these provisions and the followi....
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....to the next case, I wish to add a few words about the Full Bench decisions of this Court in A.I.R. 1943 Pat. 24 and A.I.R. 1943 Pat. 18. From the judgment delivered in the first case, it will appear that one of the points raised before the Full Bench was that the Ordinance, even if intra vires, could affect those cases only in which the offence is alleged to have been committed after the Ordinance came into operation and because the offences in the cases which were before the Bench were alleged to have been committed prior to that date, it did not affect the right of the accused to be tried under the normal procedure by the Courts which would have tried the offences in question under the Code of Criminal Procedure. This argument was definitely overruled and it was held that the Ordinance applied even to those cases where the date of the alleged offence was prior to the date when the Ordinance came into force. In dealing with this point, the Bombay and Allahabad High Courts have observed that a person by committing an offence cannot acquire any vested rights and must submit himself to the machinery of justice as it exists on the date he stands his trial. This reasoning has been crit....
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....do not think that even the learned Judges of the Bombay High Court could have meant to go so far as to hold that the Ordinance should be applied even to those cases where the actual trial had commenced before the Ordinance came into force and was proceeding according to the ordinary law of procedure at the time it came into force. If this cannot be held, then the Ordinance is not retrospective in the proper sense of the term and if it is not retrospective then in determining the stage at which it becomes applicable we are bound to follow the decision of the Privy Council in Colonial Sugar Refining Co. v. Irving (1905) 1905 A.C. 369 which has been consistently followed in a long line of cases in this country. Criminal Revision No. 73 of 1943. 132. The petitioners in this case are four in number and they have been convicted by Mr. M. Usman, Special Magistrate of Samastipur, for having committed an offence under Section 38 read with Section 34 of the Defence of India Rules and have been sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of Rs. 100 each. These four persons were sent up in custody to the Sub-divisional Officer of Samastipur on 6th October 1....
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....4. On reading the Ordinance as a whole, it is quite clear that though the trial under the Ordinance is to be governed by such rules of procedure as are laid down therein, every* thing which happens in the case before the trial begins is to be governed by the Criminal Procedure Code. Thus those parts of the Code which relate to giving information to the police and their power to investigate offences remain unaffected by the Ordinance. Similarly, the Magistrates' power to receive the complaint or the charge-sheet, to summon the accused, and to order an inquiry under Section 202 remain equally unaffected. In the present case the Sub-divisional Magistrate had transferred the case to Mr. Usman under Section 192, Criminal P.C., which specifically provides that a Sub-divisional Magistrate g may transfer a case of which he has taken cognizance for inquiry or trial to any Magistrate subordinate to him. The Ordinance does not affect this power either expressly or by implication; on the other hand, the words of Section 27 are wide enough to suggest that Section 192 as well as a number of other provisions, specially those relating to matters which precede the commencement of a trial, were ....
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....t therefore be dismissed. Criminal Revisions Nos. 701, 707 and 753. 136. The petitioners in Criminal Revision No. 701 were sent up by the police under custody to Mr. Hoda, the Sub-divisional Magistrate of Samastipur who was also a Special Magistrate under the Ordinance, on 27th September 1942. On 28th September the learned Magistrate noted in the order sheet: "to my file" and proceeded with the trial and on the same day he convicted the petitioners under Section 56(4), Defence of India Rules, and sentenced them to undergo rigorous imprisonment for 18 months and to pay a fine of Rs. 200 each. The petitioner Pasupati Tewari in criminal Revision No. 707 was sent up by the police on 9th September 1942 and on 10th September 1942 Mr. Hoda made the following note in the order sheet: To my file. I will try the case as Special Magistrate. Five prosecution witnesses present. Examined in chief five prosecution witnesses. Charge under Rule 56(4), D.I. Rules, framed against the accused who pleads not guilty. Cross-examined P. Ws. and discharged them. Examined the accused. The accused had filed a petition stating that adjournment be given for adducing defence. I am not satisfied f....
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.... district of Darbhangha, and whereas under Section 9 of the said Ordinance the said Government have invested certain Magistrates in this district with powers of a Special Magistrate to try such offences or classes of offences or such cases or classes of cases the Provincial Government or a servant of the Crown empowered by the Provincial Government in this behalf, may, in general or special order in writing direct, I.R.N. Lines, I.C.S., District Magistrate of Darbhanga in exercise of the powers conferred on me as a servant of the Crown under Sections 5 and 10 of the said Ordinance do hereby by a general order direct as follows: (a) All offences mentioned in Schedule (A) to this order will be tried by the Special Judge of this district, (b) All offences mentioned in Schedule (B) to this order will be tried by the Special Magistrates in this district. It should also further be noted that the Special Magistrates shall try the offences mentioned in Schedule (B) committed in the jurisdiction of the subdivision where they are ordinarily posted, unless otherwise directed by me by an order in writing. 140. Then follow two long schedules. Schedule (A) is headed "Offences triable....
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.... behalf of the petitioner is a serious one and cannot be lightly brushed aside. The order of 31st August could not have been intended to mean that all criminal cases without any exception were to be tried by the Special Magistrates under the Ordinance firstly because the language of the order and especially used in the second part of it which relates to Samastipur sub-division is inept and not quite clear and secondly because Section 10 clearly implies that offences punishable with death cannot be tried by Special Magistrates. There is no such exception made in this order, and if the interpretation which is sought to be put on it is correct, then we must hold that the District Magistrate had directed the Special Magistrates to try even offences punishable with death. I do not, however, see any justification for putting such a construction upon the order as would constrain us to hold that the District Magistrate had directed something which he had no power to direct and that he had acted g without due care. In the order of 4th October it is definitely stated that it was issued by the District Magistrate under Sections 5 and 10 by virtue of the power vested in him by the Government o....
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....he petitioners should be released at once or brought to trial in accordance with law. Criminal Revisions Nos. 71, 670, 718, 752 and 802. 143. The facts of these cases are fully set out in the judgment of my brother Meredith and I entirely agree with the order proposed by him in the individual cases of this group. Out of deference, however, to Mr. Pal, counsel for the petitioners, I feel bound to deal with one of the points raised by him which is undoubtedly an important point and 1 which has been urged by him with unusual ability and learning. The learned advocate has referred us to the Letters Patents of the Calcutta and Patna High Courts as well as to a number of authorities and statutes for the purpose of showing that the Calcutta High Court always had and still has the power of issuing a writ of certiorari like the old Supreme Court and that the Patna High Court must be deemed to have inherited those powers from the Calcutta High Court at the time when it was created to exercise jurisdiction over part of the territory which was formerly under the jurisdiction and that the Patna High Court must be held to possess the power to issue a writ of certiorari. Mr. Pal has cited a....
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....in provisions of the High Courts Act of 1861 which was enacted just before the establishment of the High Court of Calcutta, and of the two successive Letters Patent under which the Calcutta High Court was established and its powers defined. In fact in the recital there is not merely a reference to the Calcutta High Court, but also a reference to the establishment of the High Court at Allahabad in the year 1866 and this is quite enough to show that the allusions were merely historical. Besides, the Letters Patent of the Patna High Court clearly define the civil, criminal, admiralty, testamentary, matrimonial and other jurisdiction of the High Court and if it was intended that the Patna High Court should possess the power of issuing prerogative writs similar to those possessed by the Calcutta High Court and the High Courts of Bombay and Madras, there seems to be no reason why this could not have been provided by an express clause to that effect. 146. The reasons given in this passage not only cover the writ of mandamus, but also other prerogative writs including the writ of certiorari and the reference to the observation made by the Privy Council suggesting that it was at least de....
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....habeas corpus and (5) to have any jurisdiction of any kind in respect of any proceedings under this Act. It is contended for the petitioner that exclusion of interference under this Section though extensive is not exhaustive. The words "or have any jurisdiction of any kind in respect of any proceedings under this Act" have been the subject of much discussion in the hearing of this rule. A possible construction of these words has been suggested to be in the nature of ejusdem generis and that the words under notice should be construed to limit the exclusion to powers of such character as are enumerated in the rest of the section. This might have been a possible view if the concluding passage in the Section were less unambiguous than it is. The use of the word "any" in the three places in this passage governing jurisdiction and character of jurisdiction with reference to all proceedings under the Act leaves no room to doubt that the framers of this Act intended the Section and have in fact so worded it as to be exhaustive. 148. In view of this decision which is binding upon us no further question arises, but I think I should state that even apart from what was held in that....
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....cultural Debtors Act should be interpreted as not including the High Court. In my opinion that case can be of no help to us here, because Section 26 contains a reference to Section 491, Criminal P.C., and an order under that Section can be made only by the High Court. It follows therefore that the expression "Court" as used in Section 26 must include the High Court. Mr. Pal contended that the expression "Court" may include Courts like the Chief Court of Oudh or the Judicial Commissioners of Sind who have also the power to make an order under Section 491 but, in my opinion, there can be no justification for this view. In my judgment, therefore, this Court -cannot issue a writ of certiorari in those cases which properly fall within the Ordinance. As to the other matters arising in these cases I am of the same opinion as my brother Meredith, and I agree with the order which he proposes to make in regard to them in his judgment. 150. Criminal Revisions Nos. 785, 786, 669, 717, 664, 666, 655, 715, 716, 72: So far as these revisions are concerned I agree with the conclusions of my brother Meredith as well as with the orders proposed by him. Manohar Lall, J. 151. I have had the a....