Full Judgment Text
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PETITIONER:
STATE OF WEST BENGAL
Vs.
RESPONDENT:
HEMANT KUMAR BHATTACHARJEE AND OTHERS
DATE OF JUDGMENT:
27/11/1962
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
IMAM, SYED JAFFER
SUBBARAO, K.
MUDHOLKAR, J.R.
CITATION:
1966 AIR 1061 1963 SCR Supl. (2) 542
ACT:
Criminal Trial-jurisdiction-West Bengal Criminal Law
Amendment (Special Courts) Act, Act XII of 1952, s. 12.
HEADNOTE:
A charge sheet was placed on 19-1-1951 before the Chief
Presidency Magistrate, Calcutta, against the 1st respondent
and others under s. 120-B read with s. 409 of the Indian
Penal Code and s . 5 (2) of the Prevention of Corruption
Act. By an order of the Government the case was allotted to
the Special judge under the West Bengal Criminal Law
Amendment Act. At the instance of the respondents, the
Calcutta High Court quashed the allotment on 4-4-1952 on the
ground that s. 4 (1) of the Act which enabled the Government
to allot the case was unconstitutional. The Act was amended
by an Ordinance and later the Ordinance was replaced by the
West Bengal Act 12 of 1932. On the promulgation of the
Ordinance the charge sheets against the respondents were
refiled in the Court of the Special judge. This was again
challenged and the High Court held that as the summons
issued by the Special judge on the refiled charge sheet
lapsed with the Ordinance and as neither the Act nor the
Ordinance made a provision to save the proceedings
instituted under the Ordinance, there could be no further
proceedings against the respondents. The Government filed a
fresh charge sheet on 18-6- 1953 against the respondents.
The respondents questioned the jurisdiction of the Special
judge on the ground that by reason of s. 12 of the Act of
1952 it was the Chief Presidency Magistrate alone who had
jurisdiction over the case and that could not be legally
allotted to the Special judge. The Special judge having
over-ruled the objection, the matter was again taken up to
the High Court in revision. The High Court dismissed the
Revision Petition and this Court also declined to grant
special leave at that stage. The respondents, again raised
an objection before the Special Judge who this time upheld
the objection and discharged the respondents. The
Government without questioning the order of the Special
Judge filed a charge sheet before the Chief Presidents
Magistrate who issued process against the respondents. he
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first respondent again challenged this by way of a
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revision in the High Court. On 19-12-56 the High Court set
aside the order of the Chief Presidency Magistrate on the
ground that the effect of the earlier order of the High
Court dated 24-3-1953 was to uphold the jurisdiction of the
Special judge and therefore the Chief Presidency Magistrate
could not try the case. The Government filed a fresh charge
sheet in the Court of the Special Judge to which the first
respondent objected again and took it before the High Court
for revision the High Court held that by reason of s. 12 of
the Act, it was the Chief Presidency Magistrate who had
jurisdiction and not the Special judge.
Held, that the decision of the High Court regarding the
unconstitutionality of s. 4 (1) of the first Act was binding
between the parties and its correctness could not be
collaterally or incidentally challenged there not having
been an appeal taken from that decision.
Held, further, that though the effect of quashing of the
allotment by the High Court was to leave the charge sheet
pending before the Chief Presidency Magistrate, the effect
of the subsequent proceed resulting in the decision of the
High Court date the December, 19, 1956, was that the Special
judge had jurisdiction over the case and this decision bound
the parties.
Held, further, that the fresh charge sheet filed came within
the prohibition of s. 12 and it could not be considered to
be the initiation of a new proceeding.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 207 of
1959. Appeal by special leave from the judgment and order
dated May 9, 1958 of the Calcutta High Court in Criminal
Revision No. 1128 of 1957.
H.P. Khanna and R. IV. Sachthey, for the appellant.
The Respondent in person.
1962. November 27. The judgment of the Court was delivered
by
AYYANGAR,J.-This is an appeal by special leave preferred by
the State of west Bengal against
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the judgment of the High Court of Calcutta dated 9.5.1958 in
Criminal Revision Case No. 1128 of 1957.
The three respondents are alleged to have committed the
offences with which they are charged in September 1950 and
though 12 years have passed by since then no step has been
taken beyond the issue of notices to them. This delay has
been caused by conflicting views which have been entertained
from time to time about the Court having jurisdiction to try
the respondents-whether it is the Court of the Chief
Presidency Magistrate, Calcutta, or the judge of the Special
Court constituted under the West Bengal Criminal Law
Amendment (Special Courts) Act, 1949. The judgment of the
High Court now under appeal has held that the judge of the
Special Court had no jurisdiction to proceed with the- trial
but that the Chief Presidency Magistrate before whom a
charge-sheet in respect of the offences alleged against the
respondents had been laid in January 1951 had alone
jurisdiction to try the case. The State which has come up
in appeal against this order contends that on a construction
of the relevant statutes and other matters to which we shall
refer, it was the Special judge who had the jurisdiction to
try the case.
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To appreciate the contentions raised in the appeal it would
be necessary to state at least in broad outline the several
stages of this proceeding.
The first respondent was at the relevant date, which was
some time towards the latter part of 1950, the Sub
Postmaster in a post office in the town of Calcutta,
received information that in certain post offices in
Calcutta, including that in which the first respondent was
the Sub- Postmaster, systematic misappropriation of
Government monies was taking place by, inter alia, the
affixing of used postage
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stamps. The police devised ’a, plan. by, which they had a
foot constable appointed, as a, Packer in the Sub Post
Officer in order to watch the happenings there, and
thereafter, on information furnished by him a raid was
conducted in September 1950 and the first respondent as well
as respondents 2 and 3 who were respectively the Money Order
clerk and the Registration clerk in the said Post Office
were arrested.
It is not necessary to set out the details of the charges
against the accused except to state that they included,
offences under s.409 and, s.120-B/409 of the Indian Penal
Code, but we shall proceed to narrate briefly the matters
that transpired which have contributed to keep the e
proceedings pending these 12 years. After the police
completed the investigation a charge-sheet was submitted on
16-1-1951 to the Chief Presidency Magistrate, Calcutta,
charging the three: accused with offences under s.120-.B
read with s.409 of the Indian Penal Code etc. and s.5(2) of
the Prevention of Corruption Act. The case was registered
in his Court as Crime Case No. 136 of 1951 and the
Magistrate took cognizance of the offence but before he
proceeded any further a notification was issued by the
Government of West Bengal on 1-2-1959 under s.4(1) of the
West Bengal Criminal Law Amendment (Special Courts) Act,
1949 (which for convenience we shall refer to as the Act),
allotting the case for trial to the Special judge presiding
over the Special Court at Alipore. When the Magistrate was
informed of this allotment, he passed an order an 16-2-1951
in these terms
"Under Government Notification dated 1-2-1951 this case has
been’ allotted to the Special judge, Alipore. The accused
are, to appear before him on 5-3-1951 at 10-30
A.M. Send this ;record to, the Special judge
in the meantime."
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Before the Special judge took ’any step in proceeding with
the case, the first respondent made an application before
the High Court under Art. 226 of the Constitution impugning
the constitutional validity of s.4(1) of the Act on the
ground that it was violative of Art. 14 of the Constitution
and that for this reason the Special judge had no
jurisdiction to hear the case, but that the case had to be
disposed of by the regular Criminal Courts. This petition
as well as certain others which raised the same point were
heard by a Full Bench of the Court and by judgment dated
4-4-1952 the Writ Petition filed by the first respondent was
allowed and s.4(1) of the Act was struck down as
unconstitutional. The learned judges held that the Special
judge had no jurisdiction to try the case and they directed
: "That the accused be held as under-trial prisoners pending
a retrial according to law".
The West Bengal Government thereupon amended the enactment
seeking to bring it in accordance with the Constitution and
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for that purpose Ordinance 8 of 1952 was promulgated on
April 9, 1952 that being also the date on which it was to
commence to operate. Immediately thereafter the charge-
sheets against the respondents were re-filed in the Court of
Special judge at Alipore, who issued summons on June 2, 1952
to the respondents to appear before him The first respondent
thereupon preferred a revision petition to the High Court
praying that the proceedings before the Special Judge and
the summons issued by him be quashed. It is unnecessary to
state the grounds of this petition, but what is of relevance
for the present purpose is that before the petition came on
for hearing the Ordinance lapsed, and was moreover replaced
by West Bengal Act 12 of 1952 which reenacted the provisions
of the Ordinance and was to come into force on the expiry
of the Ordinance. Neither the Ordinance nor the permanent
legislation which replaced
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it contained any provision providing that on the lapse of
the Ordinance anything done or any action taken or commenced
in the exercise of powers conferred by the Ordinance shall
continue in force after its expiry. Besides the negative
feature .just now-pointed out, Act 12 of 1952 further
contained a provision in s. 1 2 reading :
"Section .12. Pending proceedings in other courts not to be
affected :-
Nothing in this Act shall apply to any proceedings pending
on the date of the commencement of the West Bengal Criminal
Law Amendment (Special Courts) Amending Ordinance, 1952, in
any court other than a Special Court. "
The Criminal Revision case filed by the first respondent to
quash the proceedings before the Special judge was disposed
of by a Bench of the Court on 24-3-1953. The
learned .judges held that in the absence of a provision in
the Ordinance (8 of 1952) or in the Act replacing it (Act 12
of 1952) to keep alive things done or action taken or
proceedings had in exercise of powers conferred by or under
the Ordinance, there was a’ termination of proceedings
commenced under the Ordinance, and so the summons issued by
the Special judge on 2-6-1952 during the pendency of the
Ordinance as also the proceedings before him were held to
have become dead on the expiry of the Ordinance and so were
liable to be quashed. Either because of the view which they
entertained on the point just now mentioned and that was
considered sufficient to dispose of the case, or because
their attention was not drawn to the terms of s.12 of Act
XII of 1952, the learned Judges did not pronounce upon the
effect of that provision on the jurisdiction of the Special
judge.
Following this order by the High Court the Government again
allotted the case to the Special
548
Court and afresh charge-sheet was submitted to the Court on
18-6-1953 against the accused. The first respondent again
questioned the jurisdiction of the Special judge and
invoked the revisional powers of the High Court, . The
precise points that he urged on this occasion in support of
this petition are not very clear but nothing turns on them
because the revision was withdrawn and was dismissed by an
order dated 24-5-1.954.
When, however, after the termination of the revision before
the High Court the Special judge issued notice to the
accused and commenced proceedings,; the first respondent
filed a petition before him questioning his Jurisdiction to
try the case on the ground that by reason of the provision
contained in s. 12 of Act XII of 1952, it was the Chief
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Presidency Magistrate alone that had jurisdiction over the
case and that it could not legally be allotted by the State
Government to the Special judge for trial. The Special
judge over-ruled this objection and dismissed’ the petition.
The respondent challenged this order by a Criminal Revision
Petition filed in the High Court. This Petition was
dismissed on 12-1-1956. Several points were urged before
the learned judges which have been dealt with in the
judgment, but what is relevant to the present context is the
one relating to the applicability of s. 12 to the facts of
the present; case . The learned judges held that s. 12 did
not bar the jurisdiction of the Special Court because those
;proceedings had been initiated long after 9-4.1952 by the
allotment by the State Government notified in the Gazette in
December 1952 and the fresh charge sheet filed in pursuance
thereof on 18-6-1953. In this connection, the learned
judges pointed out that the original allotment to the
Special judge in February 1951 had been quashed by the
High Court by its order dated 4-4-1952 with the result that
On the day the Ordinance came into force (9-4-1952) there
was no proceeding pending
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before the special judge and that the proceedings
subsequently initiated by, allotment and charge-sheeet were
fresh proceedings which were not hit by the terms of s. 12.
Against this order :of the High Court the first respondent
filed a petition, for special leave to appeal to this Court
urging, inter. alia, that the construction by the High Court
of s. 12 the Act of 1952 was erroneous but,this Court
dismissed.the petition stating that it did not feel called
upon to interfere at that stage and adding,: "The petition
dismissed without prejudice to the petitioners raising this
point in a proper Court at a proper time."
Purporting apparently to act, on the observations of this
Court in dismissing the, petition the respondents objected
to the jurisdiction of the Special judge as being barred by
S. 12 when the matter went back again to him and filed a
formal petition......... raising the objection. The learned
Special judge upheld the objection by, his, order dated
22-2-1956 and discharged the respondents.
The Government were apparently not inclined to question the
correctness of this order and they did not move the High;
Court in that behalf. Thereafter, a charge-sheet was
presented to the Chief Presidency Magistrate which could
only be on, the, basis that the Government accepted the
position that when the ,allotment to the Special judge and
his assumption of jurisdiction was quashed, by; the High
Court on 4-4-1952, the proceedings initiated before the
Chief Presidency Magistrate by a complaint filed on 16-1-
1951 continued to be pending before him. When the Chief
Presidency Magistrate directed the issue of process against
the respondents to take their ’trial before his Court, the
first respondent filed a revision to the High Court
objecting to, his jurisdiction. The revision petition was
disposed of by the High Court
550
on 19-12-1956 by the petition being allowed. The reason for
the decision can be gathered from the following passage in
the judgment of Das Gupta, J., (as he then was) :
But for the decision of this Court on 24-3-1953, I would
have no hesitation in holding that the consequence of ’S. 12
of the Act was that the different allotments whether to Mr.
J. C. Lodh’s Court or to Mr B. C. Ghose’s Court were wrong
and neither of these Courts had any jurisdiction in the
matter, so that the correct position in law would be that
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the case was still pending in the Chief Presidency
Magistrate’s Court, the position that was reached after this
Court’s order passed on April 4, 1952. 1 cannot see any way
however of escaping from the conclusion that by its decision
of the arch 24, 1953, this Court must be taken to have held
that Sri J. C. Lodh (Special judge) had jurisdiction in the
matter. It seems clear that the effect of s. 12 of the Act
was not raised before the Court and the argument proceeded
on the basis that Mr. Lodh’s Court had jurisdiction, the
only point being whether having had jurisdiction under the
Ordinance, the jurisdiction continued after the Ordinance
came to an end and the Act took its place."
The Rule was accordingly made absolute and the order of the
Chief Presidency Magistrate directing the issue of process
against the respondents was set aside.
Thereafter, the Government again took action under s. 4 of
the Act by alloting the case to a Special judge and a fresh
charge-sheet was filed in that Court. The respondents again
objected to the jurisdiction of the Special Court. That
objection being over-ruled
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the matter was for the sixth time brought up to the High
Court by a Criminal Revision Petition. The learned judges
of the High Court accepted the petition and quashed the
orders of the Special judge-and held that by reason of the
order of the High Court dated 4-4-1952 quashing the
allotment as well as the charge-sheet filed before the
special judge, the proceedings were pending before the Chief
Presidency Magistrate on 9.4.52. The reasoning of the
learned judges was identical with that which Das Gupta, J.,
was inclined to take of the effect of S. 12 to the facts
of the case, but which he considered he was precluded from
giving effect to, by reason of an earlier judgment of the
Court. It is the correctness of this order of the High
Court that is challenged by the State in this appeal.
Learned counsel for the appellant principally urged before
us four grounds:
(1)Properly understood, the legal effect of the order of
the High Court dated 4-4-1952 was not to revive the
proceedings in the court of the Chief Presidency Magistrate,
so as to be pending there on 9-4-52.
(2)The order of the High Court dated 4-4-52 quashing the
proceedings before the Special judge on the ground that s. 4
was unconstitutional as violative of s. 14 of the
Constitution was wrong since the law as there laid down has
been disapproved by this Court in its decision in Kedar Nath
Bajoria v. The State of West Bengal (1)
(3)That there was not identity between the proceedings ’
initiated before the Chief Presidency Magistrate by the
complaint and charge-sheet in January, 1951, and the
proceedings before the special judge which have been
directed to be quashed by the learned judges of the high
court and in consequence of s.12 , have been wrongly applied
by the learned judges.
(11 (1954) S.C.R. 30.
552
(4) That the earlier : decisions; of the High Court dated
12-1-56 and 19-12-1956 were correct and besides bound ;the
Court and so should have been followed.
Before proceeding, with,, ’these arguments ,in detail, we
can dispose of the; second contention very shortly. This
argument procceds on, a. fundamental misconception as it
seeks to equate an incorrect decision with a decision
rendered; without jurisdiction. A wrong decision by a court
having jurisdiction is as much binding between the parties
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as a right one and may be superseded only by appeals to
higher tribunals or other procedure like review which the
law provides. The learned judges of the High Court who
rendered the decision on 4-4-52 had ample jurisdiction to
decide the case and the fact that their was On was on the
merits erroneous as seen from the later judgment of this
Court, does not render it any the less final and binding
between the parties before the Court. There is, thus, no
substance in this contention. The decision of the High
Court dated 4-4-52 bound the parties and its legal effect
remained the same whether the reasons for the decision be
sound or not.
The other points urged by the learned counsel maybe
considered under two heads:--
1.What is the effect of the order of the High Court dated
4.4-52 ? By quashing the proceedings before the special
judge, did it or did it riot automatically re-invest the
Chief Presidency Magistrate with jurisdiction- over the case
and the offence of which he had taken cognizance ? If it has
this result, then on the terms of s. 12, the special judge
would have no Jurisdiction, unless ’by reason of later
decisions binding, on the parties, effect cannot be given to
this position.
2.Are the present proceedings which have been initiated by
an order of allotment passed by
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Government in respect of which a charge-sheet was filed on
18-6-63 hit by the terms of s. 12 ?
So far as the first point is concerned, we are in entire
agreement with the view that Das Gupta,J., was inclined to
take and to which he would have given effect but for the
earlier decision of that Court in April, 1953. With
reference to this matter, it would be convenient if the
effect of the order dated 4-4-52 was considered first and
then the further question as to whether the later decisions
of the High Court preclude effect being given to that
construction of the order which we are disposed to take.
The position stands thus :
A charge-sheet was filed by the police before the Chief
Presidency Magistrate who had jurisdiction to entertain the
complaint and proceed with the enquiry and trial. He took
cognizance of the offence and thus became seized of the
proceedings. It was at that stage that the Government
issued the notification under s. 4 of the Act allotting the
case to the Special judge at Alipore and directed a trial by
him. That order of allotment and transfer of the
proceedings was held to be unconstitutional by the High
Court and that decision has become final with the parties.
The result would therefore be as if there had never been any
allotment of the case to the Special judge and therefore
there had been no assumption of jurisdiction by him, the
allotment being non est. It is true that when the Chief
Presidency Magistrate was appraised of the notification of
the Government., alloting the case to the Special judge, he
directed by his order dated 16-2-51 a despatch of the
records from his court to that of the Special Judge. That
was obviously merely a ministerial or a mechanical order
giving effect to an order of Government which did not exist
in the eye of the law and that order cannot have any
significance or effect on his previously
554
existing jurisdiction over the case. When the order under
s. 4 of the Act was quashed by the High Court on 4-4-52 its
effect in law was, we are satisfied to restore the position
as it was before the allotment, namely, the revival of the
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jurisdiction of the Chief Presidency Magistrate over the
case of which he had in compliance with law taken
cognizance. It appears to us to be clear therefore that on
the terms of s. 12. the proceeding against the respondent
was pending in the court of the Chief Presidency Magistrate
on 9-4-52, the date of the commencement of the Ordinance.
The question next to be considered is whether any of the
proceedings which took place subsequent to the order of the
High Court dated 4-4-52 affect this situation. The
allotment to the special judge, in May, 1952, during the
continuance of the Ordinance having been set aside by the
High Court by its order dated 24-3-1953 on the ground that
on its strength the proceedings could not be continued after
the lapse of the Ordinance, left the position as it was
before that allotment. Next we have the allotment in
December, 1952, and a fresh charge sheet on its basis before
the special judge on 18-6-53. No doubt the legality of this
allotment was upheld by the High Court by its order dated
12-1-1956 when the learned judges declined to quash the
proceedings before the special judge and that judgment has
become final. As against this however it must be pointed
out that this judgment of the High Court was brought up by
special leave and we have already extracted the observations
of this Court in dismissing the petition for special leave
which appear to favour the view that the respondents were at
liberty to raise again objections to the jurisdiction of the
Special judge. No doubt if the respondents had to rely on
these observations alone, the plea that the judgment of the
High Court continued to bind the parties to the proceedings
by reason of the
555
dismissal of the petition for leave under Art. 136, would be
available to the State. But the matter does not rest here.
The first respondent notwithstanding the judgment of the
High Court, but apparently encouraged by the observations of
this Court while dismissing his Special leave petition,
raised an objection before the Special judge to his
jurisdiction based on s.12 of the Act and that judge upheld
it and directed the discharge of the accused indicating as
well that the inquiry into and trial for the offences should
be by the Chief Presidency Magistrate. This order of the
Special judge dated 22-2-56 was accepted by the State by not
challenging it in revision before the High Court and
consequently it must be held that this later order
supersedes the High Court’s order dated 12-1-56.
We have next to consider the situation arising from the
quashing by the High Court by its order dated 19-12-56
of the proceedings before the Presidency Magistrate when he
attempted to exercise jurisdiction over the case acceding to
the prayer of the State that the proceedings before him be
revised, and it is this which in our opinion is crucial for
the disposal of this appeal. Das Gupta, J., who spoke for
the Court recorded two findings. (1) That unhampered by
previous decisions he would have held that the case was
pending before the Chief Presidency Magistrate on 9-4-52 so
as to exclude because of s. 12 of the Act, jurisdiction to
try being vested in the Special Court ; (2) that the
previous decision of the Court dated 24-3-53 precluded him
from giving effect to this opinion, since that decision had
impliedly if not expressly decided that the Special Court
had jurisdiction over the case. Giving effect to the
previous decision the Court quashed the proceedings before
the Magistrate.
From what we have stated earlier, as regards the effect of
the decision dated 24-3-53, it would be
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556
seen that the learned judges had not in their order dated
19-12-56 taken into account the events which transpired
after the order of the High Court dated 24-3-53, and in
particular the effect as between the parties of the order.
of. the Special judge dated 22-2-56 upholding an objection
to his jurisdiction, becoming final by no challenge being
made to it by the State. Properly viewed that nullified the
effect of the earlier decisions of :the High Court taking
expressly or impliedly the view that the special judge had
jurisdiction over the case. But what is relevant to the
present purpose is not whether the opinion expressed in the
decision of the High ’Court dated 19-12-56 is correct or
otherwise, but whether it does not constitute a binding
adjudication between the parties as to the forum, in which
the trial could competently take place. No doubt the
learned judges added in their judgment that they expressed
"no opinion on the question whether it was still possible
for the State to institute legal proceedings against the
petitioner on the facts alleged But this in our
opinion does not detract from the express statement
that the effect of the previous decision of 1953 was that
the proceedings were pending before the special judge
subsequent to 9-4-52. The position that emerges therefore
is that though the effect of the order of the High Court
dated 4-4-52 was to leave the proceedings against the
accused pending before the Chief Presidency Magistrate, , so
as to attract the ban enacted by s. 12 of the Act, still by
the decision of the High Court dated 1-9-12-1956 which is
binding as between the parties, the special court had been
held to have jurisdiction over the case, sec. 12 being held
not to be in the :way, There is thus no escape from the
position that effect has to be given to this state of
affairs and that the respondent, can derive, no advantage by
canvassing before us the correct result of the order of the
High Court dated 4-4-1952 unhampered by the subsequent
decisions which are
557
binding on him. We, therefore, reach the conclusion, that
the special court must be deemed to have jurisdiction over
the case, and that the learned judges whose. judgment is now
under appeal were in error in reversing’ the order of the
Special judge.
In this, view it would not be necessary to consider the
other submission of the learned Counsel for, the State but
as the same was pressed before us with earnestness we shall
express-our opinion on it. We need hardly add that this
discussion is on the basis that the effect of the order of
the High Court dated 19-12-56 may be put aside.
The second point urged by learned Counsel for the State may
be formulated thus:
Assume, that a proceeding was pending in the court of the
Chief Presidency Magistrate on 9-4-52. That however does
not preclude the State Government . from initiating fresh
proceedings in respect of the same offences against the
accused and allotting that case for trial to the Special
judge under s. 4 (2) and from filing a fresh charge sheet
based thereon. It was this that was done when the present
proceedings were initiated on 23-7-57 after the failure of
the proceedings before the Chief Presidency magistrate by
reason of the order of the High
A point in this, form was not urged before the High Court
but we do not consider that the appellant is precluded from
raising it before us. We however consider that it cannot
prevail. There is no dispute that the charge against the
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accused is in respect of the same offences regarding which
proceedings were initiated before the Chief Presidency
Magistrate in January 1951. West Bengal Act XII of 1952
enacted a new s, 4 in the parent Act of 1949 and by
558
the second sub-s. enabled the State Government to effect a
distribution amongst the Special Courts of cases falling
within the Schedule, such cases to be tried by the Special
Courts. This is the provision under which the allotment to
the Special judge has been made in July 1957. But s. 12
however enacts that nothing in the Act shall apply to any
proceedings pending on the date of the commencement of the
ordinance, i.e., on 9-4-52. If effect has to be given to
the prohibition contained in s. 12, it must necessarily be-
held that where a proceeding is pending on 9-4-52, there
cannot be an allotment of that case to a Special judge under
s. 4. We consider that to hold that there could be an
allotment of a case in respect of an offence for which a
complaint before a Magistrate is pending on 9-4-52, would be
a plain evasion of the bar contained in s. 12. The manifest
object of s. 12 appears. to be that where a proceeding is
pending in the ordinary courts the power of the Government
to allot the trial for that offence to a special court
constituted under s. 2 of the Amending Act and the allotment
to the judge of that court under sec. 4 shall not be
effected, but that those proceedings shall continue and be
concluded before the ordinary courts. We consider that to
accede to the arguments that notwithstanding the prohibition
enacted in s. 12 the State Government could still allot a
case which deals with the same offence, arising out of
identical facts against the same accused to a Special judge
would be a patent infringement of the terms of s. 12 and in
derogation of the protection which that provision was meant
to confer. The mere fact that a different number is given
to the allotment or it is effected on a later date is wholly
irrelevant for considering whether there is or is not a
substantial identity between the proceedings which were
pending before the Chief Presidency Magistrate on 9-4-52 and
the case which was the subject of future allotment. It was
not in dispute that the case allotted to the special court
related to the same
559
occurrence, charged the same accused with substantially the
same offences as were involved in the proceedings in the
case before the Magistrate. The appellant therefore gains
no advantage by a fresh allotment in July 1957 or the
earlier allotments on which reliance was placed. It is
precisely such an allotment that is within the prohibition
in s. 12 and the protection which that section affords is
not to be nullified by considering the fresh allotment a,%
the initiation of a fresh proceeding. This point has
therefore no substance and is rejected.
The result is that. the appeal is allowed and the order of
the High Court set aside.
We hope that with the decision of this Court, there will be
an end to the objections as to forum and the case will be
proceeded with expeditiously by the judge of the Special
Court we have held has jurisdiction to proceed with the
matter.
Appeal allowed.
560