Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10
PETITIONER:
SUPDT. & REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL
Vs.
RESPONDENT:
USHA RANJAN ROY CHOUDHURY & ANR.
DATE OF JUDGMENT21/05/1986
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1986 AIR 1655 1986 SCR (3) 113
1986 SCC Supl. 190 JT 1986 363
1986 SCALE (1)931
ACT:
Criminal Courts and Court Martial (Adjustment of
Jurisdiction) Rules, 1952, Rules 3 and 4-Offences falling
within purview of section 52 of Army Act, 1950-Trial by
Magistrate-Procedure to be followed-’Special Judge’, whether
deemed to be a Magistrate.
Criminal Law (Amendment) Act, 1952. Section 8(3A).
’Special Judge’-Whether deemed to be a Magistrate for Trial
of offences under section 52 of the Army Act, 1950.
HEADNOTE:
The three respondents-accused were charged with
offences which fell within the scope of section 52 of the
Army Act of 1950. The ordinary criminal court and the Court
Martial both had concurrent jurisdiction to try the said
offences. They were tried by the Judge presiding over the
Fourth Addl. Special Court, Calcutta. The learned Trial
Judge, while convicting one of the respondents and
acquitting the remaining two, failed to follow the procedure
prescribed by the Criminal Courts and Court Martial
(Adjustment of Jurisdiction) Rules, 1952 framed under
Section 549(1) of the Code of Criminal Procedure of 1898.
The High Court, in appeal, took the view that the
learned Judge presiding over the Special Court had acted
without jurisdiction in taking cognizance of the case and
proceeding with the trial of three Army officers resulting
in the conviction of one of them, and the acquittal of the
remaining two and quashed the proceedings.
Dismissing the appeals, by the State,
^
HELD: 1. The High Court was right in allowing the
appeal of the officer who was convicted and dismissing the
appeal of the State calling into question the acquittal of
the remaining two. However, the acquittal rendered by the
High Court is on the ground of lack of jurisdiction on
114
the part of the learned Special Judge who tried the case in
the Special Court and not on merits. The expression
’acquitted’ has been employed by the High Court though it
was sufficient to say no more than this, ’that the order of
conviction and sentence was without jurisdiction and was
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10
therefore being quashed’. In the eye of law, it is not an
acquittal since it is not on merits. It is, therefore, for
the competent authority to decide whether or not to subject
the accused to a fresh trial after following the procedure
prescribed by the Rules. [125D-F]
2.1 In order to avoid any conflict of jurisdiction
between the criminal court and the court martial in regard
to offenders who are charged with having committed offences
which fall under the purview of Section 52 of the Army Act,
1950, Section 549(1) of Cr.P.C. provides that Central
Government may make Rules consistent with Cr.P.C. and the
Army Act. In pursuance of this provision contained in
Section 549(1), Cr.P.C., the Central Government has framed
Rules known as Criminal Courts and Court Martial (Adjustment
of Jurisdiction) Rules 1952. [117H; 118A-B]
2.2 Rule 3 of the Rules requires that when a person
subject to military, Naval or Air Force law is brought
before a Magistrate on accusation of an offence for which he
is liable to be tried by Court Martial also, the magistrate
shall not proceed with the case unless he is requested to do
so by the appropriate military authority. A combined reading
of rules 3 and 4 shows that in case the Magistrate is of the
opinion that he should proceed with the case without there
being any such request from the appropriate military
authority, the concerned Magistrate is enjoined to give
notice to the commanding officer in this behalf. Till the
expiry of seven days from the service of such notice on the
commanding officer, the Magistrate is prohibited from making
any order of conviction or acquittal or framing any charges
or committing the accused. Therefore, the ordinary criminal
court would have no jurisdiction to take cognizance of the
case and to try the accused in a matter where the procedure
prescribed by the Rules has not been complied with. The
initial lack of jurisdiction to take cognizance and try the
case would, of logical necessity, vitiate the trial and the
order of conviction and sentence would be liable to be
quashed as a result thereof. [118B-F]
In the instant case, admittedly the procedure
prescribed by the Rules was not followed. Under the
circumstances it is futile to contend that the Army
authorities had voluntarily abandoned their option to try
the accused person in the court martial. There is no
substance in the plea and it has been rightly repelled by
the High Court.[123D-E]
115
Delhi Police Establishment, New Delhi v. Lt. Col. S.K.
Loraiya. [1973] (1)SCR 1010 relied upon.
Major E.G. Barsay v. The State of Bombay [1962] (2) SCR
195 referred.
3.1 Section 13 of the West Bengal Criminal Law
Amendment (Special Courts) Act, 1949 in terms accords
recognition to the applicability of the Criminal Law
(Amendment) Act of 1952 enacted by the Parliament except and
save some of the sections, namely, sections 6,7,8,9 and 10
thereof which, as provided in Section 13, shall not apply
and shall be never deemed to have applied to West Bengal. It
is implicit in Section 13 of the West Bengal Act that the
Central Act, namely, Criminal Law (Amendment) Act of 1952 is
applicable to the State of West Bengal except and save the
aforesaid five sections. There can be no doubt or debate
about this position having regard to the fact that criminal
law is a subject which falls under the concurrent list and
the Criminal Law (Amendment) Act of 1952 enacted by the
Parliament is applicable subject to inconsistency, if any,
between the said Act and the West Bengal Act. Moreover, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10
West Bengal Act does not contain any provision pertaining to
personnel governed by the Army Act. It is altogether silent
in regard to the matter pertaining to the procedure to be
followed in regard to Army personnel from the perspective of
Section 549 Cr.P.C. and the rules framed under the authority
thereof. There is thus no conflict between the Criminal Law
(Amendment) Act of 1952 and the West Bengal Act in so far as
this matter is concerned. Such being the position the
provision contained in Criminal Law (Amendment) Act of 1952
with a special eye on the procedure to be followed in
Section 8(3A) and Section 11 of the Criminal Law (Amendment)
Act of 1952 will operate in this sphere without any let or
hindrance. And inasmuch as Section 8(3A) in terms provides
that the provision of Section 549 Cr.P.C. shall so for as
may be applied to the proceeding before the Special Judge
and that for the purposes of that provision a Special Judge
shall be deemed to be a Magistrate, the said provisions
remain fully alive and unaffected by the West Bengal Act.
[124C-H; 125A]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
170 and 171 of 1977
From the Judgment and Order dated 29th May, 1975 of the
Calcutta High Court in Criminal Appeal No. 308 of 1972 and
Govt. Appeal No. 5 of 1973.
116
D.P. Mukherjee and G.S. Chatterjee for the Appellant.
Rathin Dass and Pankaj Kalra for the Respondents.
The Judgment of the Court was delivered by
THAKKAR, J. The validity of the trial of three Army
Officers is in question.
The High Court has taken the view that the learned
Judge presiding over the Special Court had acted without
jurisdiction in taking cognizance of the case and proceeding
with the trial of three Army Officers resulting in the
conviction of one of them, and the acquittal of the
remaining two and has quashed the proceedings. The question
which calls for determination in these two allied appeals by
special leave preferred by the State of West Bengal is
whether the High Court was right in doing so.
The following facts are not in dispute:
(1) Three accused persons who were tried by the
Judge presiding over the Fourth Addl. Special
Court, Calcutta (hereinafter referred to as
the learned Trial Judge for the sake of
brevity) were Army Officers. They were
charged with offences in respect of which the
ordinary Criminal Court and the Court Martial
both had concurrent jurisdiction.
(2) The Learned Trial Judge had failed to follow
the procedure prescribed by the Criminal
Courts and Court Martial (Adjustment of
Jurisdiction) Rules, 1952 (referred to as
Rules hereinafter) framed under Section 549
(1) of the Code of Criminal Procedure of 1898
(Cr.P.C.)
The following contentions were urged before the High
Court on behalf of the State with a view to substantiate the
contention that the learned Trial Judge had jurisdiction to
take cognizance of the case and that the trial was not null
and void notwithstanding the fact that the procedure
prescribed by the Rules had not been followed.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10
(1) The rules framed under Section 549(1) of
Cr.P.C.
117
were not attracted inasmuch as the rules
applied to Magistrates and not to a Judge
presiding over a Special Court.
(2) Having regard to the provision contained in
section 122 of the Army Act, 1950, which
prescribes a period of limitation of three
years, which period had already elapsed
during the pendency of the proceedings in the
High Court, the Court Martial would have no
jurisdiction to try the accused and that the
trial held by the learned Trial Judge could
not be said to have been vitiated in view of
this circumstance.
(3) In view of a letter addressed by the
Brigadier of the Division concerned to the
Police Officer for investigating the
offences, it can be said by necessary
implication that the Army authorities had
opted for the trial of the case by the
ordinary Civil Court.
The High Court repelled all the three contentions,
allowed the appeal of the officer who was convicted, and
dismissed the appeal of the State calling into question the
acquittal of the remaining two.
Besides reiterating the same three contentions before
this Court, learned counsel for the appellant has raised a
new point which was not urged before the High Court. We
propose to deal with the submissions which were urged in the
High Court before coming to grips with the new point sought
to be raised by the learned counsel for the appellant State.
For a proper appreciation of the first point, a quick
look at the statutory provisions and the position emerging
therefrom is called for. In regard to the offences which
fall within the purview of Section 70 of the Army Act of
1950, an offender can be tried only by Court Martial whereas
in regard to offences falling within the purview of Section
52 of the said Act, the offences can be tried both by the
ordinary criminal court as also by the Court Martial both of
which have concurrent jurisdiction. The offences with which
the concerned accused were charged before the learned Trial
Judge were offences which fell within the scope of Section
52 of the Army Act of 1950 and accordingly the ordinary
criminal court as also the Court Martial had concurrent
jurisdiction. In order to avoid any conflict of jurisdiction
between the
118
criminal court and the court martial in regard to offenders
who are charged with having committed offences which fall
under the purview of Section 52 of the Army Act, 1950,
Section 549(1)1 of Cr. P.C. provides that Central Government
may make Rules consistent with Cr. P.C. and the Army Act. In
pursuance of this provision contained in Section 549(1) Cr.
P.C. the Central Government has framed Rules known as
Criminal Courts and Court Martial (Adjustment of
Jurisdiction) Rules, 1952. Rule 3 of the said Rules requires
that when person subject to military, Naval or Air Force law
is brought before a Magistrate on accusation of an offence
for which he is liable to be tried by Court Martial also the
magistrate shall not proceed with the case unless he is
requested to do so by the appropriate military authority. On
a combined reading of rules 3 and 4/2, it is evident that in
case the Megistrate is of the opinion that he should proceed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10
with the case without there being any such request from the
appropriate military authority, the concerned Magistrate is
enjoined to give notice to the commanding officer in this
behalf. Till the expiry of seven days from the service of
such notice on the commanding officer, the Magistrate is
prohibited from making any order of conviction or acquittal
or framing any charges or committing the accused.
1 "The Central Government may make rules, consistant
with this Code and the Army Act, the Naval Discipline Act
and the Indian Navy (Discipline) Act, 1934 and the Air Force
Act and any similar law for the time being in force, as to
the cases in which persons subject to military, naval or
air-force law shall be tried by a Court to which this Code
applies, or by court-martial; and when any person is brought
before a Magistrate and charged with an offence for which he
is liable to be tried either by a Court to which this Code
applies, or by a court-martial, such Magistrate shall have
regard to such rules, and shall in proper cases deliver him,
together with a statement of the offence of which he is
accused, to the commanding officer of the regiment, corps,
ship or detachment to which he belongs, or to the commanding
officer of the nearest military, naval, or air-force
station, as the case may be for the purpose of being tried
by the Court-Martial."
________________________________
2. "3. Where a person subject to military, naval or Air
Force law is brought before a Magistrate and charged with an
offence for which he is liable to be tried by a court-
martial, such magistrate shall not proceed to try such
person or to issue orders for his case to be referred to a
Bench, or to inquire with a view to his commitment for trial
by the Court of Sessions or the High Court for any offence
triable by such Court, unless
(a) he is of opinion, for reasons to be recorded,
that he should so proceed without being moved
thereto by competent military, naval or Air Force
Authority, or
(b) he is moved thereto by such authority.
119
It is in the background of these provisions that the High
Court has taken the view that compliance with the procedure
prescribed by the Rules is a mandatory requirement and that
any proceedings undertaken by the learned Trial Judge
without compliance with the aforesaid mandatory procedure
would vitiate the trial before the ordinary criminal court
and the entire proceedings would be rendered null and void.
Faced with this situation, counsel for the State contended
before the High Court that the procedure embodied in Section
549(1) of the Cr. P.C. and Rules framed thereunder were
applicable only to the court presided over by a magistrate
and not to a Judge presiding over a Special Court. This
contention was negatived by the High Court. And it has now
been reiterated before us, it being an admitted position
that the prescribed procedure has not been followed by the
learned trial judge in the case giving rise to the present
appeals. This argument was possibly inspired by a point
debated in Major E.G. Barsay v. The State of Bombay. [1962]
(2) S.C.R. 195. The view was taken therein that inasmuch as
the aforesaid Rules refer to a Magistrate the Rules were not
attracted with regard to a trial before a Special Judge. It
was presumably on accout of this decision that the Criminal
Law (Amendment) Act of 1952 was amended by incorporating
Sections 8 (3A) and 11, reading as under:
Section 8(3A): In particular, and without prejudice to the
generality of the provisions contained in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10
sub-section (3), the provisions of Sections
350 and 549 of the Code of Criminal
Procedure, 1898 shall, so far as may be,
apply to the proceedings before a Special
Judge, and for the purposes of the said
provisions a Special Judge shall be deemed to
be a Magistrate.
Section 11: Military, naval and air force laws not to be
affected-
4. Before proceeding under clause (a) of rule 3 the
Magistrate shall give written notice to the
Commanding Officer of the accused and until the
expiry of a period of seven days from the date of
the service of such notice he shall not
(a) Convict or acquit the accused under sections
243, 245, 247 or 248 of the Code of Criminal
Procedure, 1898(V of 1898), or hear him in
his defence under section 244 of the said
Code, or
(b) frame in writing a charge against the accused
under section 254 of the said Code; or
(c) make an order committing the accused for
trial by the High Court or the Court of
Sessions under section 213 of the said Code."
120
(1) Nothing in this Act shall affect the
jurisdiction exercisable by, or the procedure
applicable to, any Court or other authority
under any military, naval or air-force law.
This amendement was effected by virtue of Central Act XXII
of 1966. Having regard to the provision contained in Section
8 (3A) of the Criminal Law (Amendment) Act of 1952 as it now
stands it is clear that a Sepcial Judge is deemed to be a
Megistrate for the purposes of the Rules framed under
Section 549 (1) of the Code of Criminal Procedure with the
end in view to eschew the conflict between Court Martial on
the one hand and the ordinary criminal courts on the other.
The High Court was therefore perfectly justified in
repelling this contention urged on behalf of the appellant
State, albeit on a reasoning which is somewhat obscure.
Confronted by this situation counsel for the appellant State
has raised a new point to which a reference was made in the
earlier part of the judgment. The new point which has been
so raised is that Sections 8(3A) and 11 quoted hereinabove
which were incorporated by Central Act 11 of 1958 as further
amended by Central Act XXII of 1966 were not applicable to
the State of West Bengal from where the matter giving rise
to the present appeals stems. Since no such argument was
advanced before the High Court, initially, we were reluctant
to permit counsel to raise this new point. But having regard
to the fact that it goes to the root of the matter we have
permitted counsel to urge this contention. We will however
deal with it after exhausting all the points which were
urged before the High Court.
The next point which was unsuccessfully urged before
the High Court was in the context of Section 122 of the Army
Act of 1950 which prescribes a period of limitation of three
years. The High Court did not accede to the submission in
this behalf having regard to the law enunciated by this
Court in Delhi Police Establishment, New Delhi v. Lt. Col.
Loraiya. [1973] (1) S.C.R. 1010. We are of the opinion that
the High Court was right. This Court in the aforesaid case
has taken the view to the effect that the question being
essentially one of the initial jurisdiction of the ordinary
criminal court on the one hand and the court-martial on the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10
other, unless the procedure prescribed by the rules is
complied with the ordinary criminal court would not have
initial jurisdiction in regard to the matter, as is evident
from the following passage:
"It is an admitted fact in this case that the
procedure speci-
121
fied in rule 3 was not followed by the Special
Judge, Gauhati before framing charges against the
respondent. Section 549 (1) Cr. P.C. and rule 3
are mandatory. Accordingly the charges framed by
the Special Judge against the respondent cannot
survive. But counsel for the appellant has urged
before us that in the particular circumstances of
this case the respondent is not ’Iiable to be
tried’ by a Court-martial.
Section 122 (1) of the Army Act, 1950, provides
that no trial by court-martial of any person
subject to the Army Act for any offence shall be
commenced after the expiry of the period of three
years from the date of the offence. The offences
are alleged to have been committed by the
respondent in November-December, 1962. So more
than three years have expired from the alleged
commission of the offence. It is claimed that
having regard to Sec. 122(1), the respondent is
not liable to be tried by court-martial.
This argument is built on the phrase "is liable to
be tried either by the court to which this Code
applies or by a Court-martial" in section 549(1).
According to counsel for the appellant this phrase
cannotes that the ordinary criminal court as well
as the court-martial should not only have
concurrent initial jurisdiction to take cognizance
of the case but should also retain jurisdiction to
try him up to the last stage of conviction or
acquittal. We are unable to accept this
construction of the phrase.
As regards the trial of offences committed by Army
men, the Army Act draws a threefold scheme.
Certain offences enumerated in the Army Act are
exclusively triable by a Court-martial; certain
other offences are exclusively triable by the
ordinary criminal courts; and certain other
offences are triable both by the ordinary criminal
court and the court-martial. In respect of the
last category both the Courts have concurrent
jurisdiction. Section 549 (1) Cr. P.C. is designed
to avoid the conflict of jurisdiction in respect
of the last category of offences. The clauase "for
which he is liable to be tried either by the Court
to which this Code applies or by a court-martial"
in our view, qualifies the preceding clause "when
any person is charged
122
with an offence" in s. 549 (1). Accordingly the
phrase "is liable to be tried either by a court to
which this Code applies or a court-martial"
imports that the offence for which the accused is
to be tried should be an offence of which
cognizance can be taken by an ordinary criminal
court as well as a court-martial. In our opinion,
the phrase is intended to refer to the initial
jurisdiction of the two courts to take cognizance
of the case and not to their jurisdiction to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10
decide it on merits. It is admitted that both the
ordinary criminal court and the court-martial have
concurrent jurisdiction with respect to the
offences for which the respondent has been charged
by the Special Judge. So, s. 549 and the rules
made thereunder are attracted to the case at hand"
Having regard to the enunciation of law to this effect
it is evident that the ordinary criminal court would have no
jurisdiction to take cognizance of the case and to try the
accused in a matter where the procedure prescribed by the
Rules has not been complied with. The initial lack of
jurisdiction to take cognizance and try the case would of
logical necessity vitiate the trial and the order of
conviction and sentence would be liable to be quashed as a
result thereof. We are therefore unable to accede to the
submission urged on behalf of the appellant State that even
if the rules are applicable, having regard the fact that
more than three years have expired from the date of the
commission of the alleged offence, the trial is not
vitiated.
The last contention raised before the High Court was
that having regard to the fact that the investigation which
preceded the lodging of the complaint before the learned
Trial Judge was commenced in pursuance of a letter written
by the Brigadier of the Division, which contained a request
for investigation by the Police into alleged offences, it
can be said that the Army authorities had opted for the
trial of the accused person by the ordinary criminal court.
The argument was that by necessary implication this would
follow as a logical corollary. The High Court brushed aside
this contention as untenable, taking into account the
contents of the letter in question. The said letter was in
the following terms:
"Dear Sir,
(1) Please refer to Memo No. 8940 dated August 28,
1963
123
from Shri R.K. Bhattacharyya, Superintendent of
Police, D.E.B., Darjeeling.
(2) At appendix ’A’ please find a copy of the
investigation that had been carried by us. We
request you to take over the case and submit your
detailed report to us at your earliest
convenience."
The High Court relied on the fact that the Army had called
for a detailed report by the Police which would show that
the Army authorities had not taken any such decision either
expressly or by necessary implication. Counsel for the
appellant has not been able to press this point with any
vigour for the obvious reason that it relates to the stage
of investigation preceding the complaint. The question
regarding exercise of jurisdiction by the court-martial
would arise only after the investigation was completed and
the police report was available. What is more, it is only
after the prescribed procedure under Rules 3 and 4 of the
Rules is resorted to by the ordinary criminal court that the
question of exercising an option can arise. In the present
matter, admittedly the procedure prescribed by the Rules was
not followed. Under the circumstances it is futile to
contend that the Army authorities had voluntarily abandoned
their option to try the accused person in the court-martial.
There is no substance in the plea and it has been rightly
repelled by the High Court.
At long last, we come to the last point, the point
which was not urged before the High Court but which we have
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10
permitted the learned counsel for the State to raise before
us. It is argued that the Criminal Law (Amendment) Act of
1952 was not applicable to the State of West Bengal inasmuch
as the State of West Bengal had enacted an Act of its own
known as West Bengal Criminal Law Amendment (Special Courts)
Act, 1949 which was in operation throughout the whole of
West Bengal. No doubt it is true that Criminal Law is a
subject which falls within the scope of Entry 1 of List III
(concurrent list) embodies in 7th Schedule to the
Constitution of India. The Union Government as well as the
State Government both can therefore legislate in regard to
criminal law. The contention that the Criminal Law
(Amendment) Act, 1952 enacted by the Parliament of India is
not applicable to the State of West Bengal is altogether
misconceived. It is necessary to advert to the legislative
history for a proper appreciation of the point at issue. In
1938 the Government of India had enacted the Criminal Law
(Amendment) Act of 1938. In 1949 the State of West Bengal
124
introduced the State legislation being the West Bengal
Criminal Law Amendment (Sepcial Courts) Act, 1949 (West
Bengal Act). This Act was further amended after the
enforcement of the Constitution of India by incorporating
Section 13 in 1953-3. The said Section 13 has great
significance from the stand point of the present argument:
"Certain Sections of Act XLVI of 1952, not to
apply to West Bengal:
13. Sections 6, 7, 8, 9 and 10 of the Criminal Law
Amendment Act, 1952 shall not apply and shall be
deemed never to have applied to West Bengal."
It will thus be seen that Section 13 of the West Bengal Act
in terms accords recognition to the applicability of the
Criminal Law (Amendment) Act of 1952 except and save some of
the sections namely sections, 6, 7, 8, 9 and 10 thereof
which as provided in Section 13 shall not apply and shall be
never deemed to have applied to West Bengal. It is implicit
in Section 13 of the West Bengal Act that the Central Act
namely Criminal Law (Amendment) Act of 1952 is applicable to
the State of West Bengal except and save the aforesaid five
sections. There can be no doubt or debate about this
position having regard to the fact that criminal law is a
subject which falls under the concurrent list and the
Criminal Law (Amendment) Act of 1952 enacted by the
Parliament is applicable subject to inconsistency, if any,
between the said Act and the West Bengal Act. So far as the
coverage of the present point is concerned, there is no such
inconsistency. The West Bengal Act does not contain any
provisions pertaining to personnel governed by the Army Act.
It is altogether silent in regard to the matter pertaining
to the procedure to be followed in regard to Army personnel
from the perspective of Section 549 Cr. P.C. and the rules
framed under the authority thereof. There is thus no
conflict between the Criminal Law (Amendment) Act of 1952
and the West Bengal Act in so far as this matter is
concerned. Such being the position the provisions contained
in Criminal Law (Amendment) Act of 1952 with a special eye
on the procedure to be followed in Section 8(3A) and Section
11 of the Criminal Law (Amendment) Act of 1952 will operate
in this sphere without any let or hindrance. And inasmuch as
Section 8(3A) in terms provides that the provision of
Section 549 Cr. P.C. shall so far as may be applied to the
proceeding before the Special Judge
3. This section was added by Section 3 of the West Bengal
Criminal Law Amendment (Special Courts) Amending Act of 1953
(West Bengal Act of 1953).
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
125
and that for the purposes of that provision a Special Judge
shall be deemed to be a Magistrate, the said provisions
remain fully alive and uneffected by the West Bengal Act. In
view of this provision the procedure prescribed by Section
549 Cr. P.C. read with the rules framed thereunder which
have been quoted in the earlier part of the judgment will be
applicable to a proceeding before a Special Judge in West
Bengal as well. In so far as the Army personnel are
concerned therefore the law governing them and the procedure
required to be followed in their case would be the same in
West Bengal as elsewhere in India as it should be. It may
incidentally be mentioned that in the West Bengal Act also
the Judge presiding over the Special Court is called a
Special Judge (vide Schedule to the West Bengal Act). He
would therefore deemed to be a Magistrate for the Purposes
of the Rules in view of Section 8(3A) of the Criminal Law
(Amendment) Act of 1952. The mandatory procedure prescribed
by the Rules is accordingly obligatory even in respect of
proceedings before a Special Court under the West Bengal
Act. There is thus no substance in this point. We are of the
opinion that this feeble and faint-hearted attempt is born
out of desperation and deserves no more consideration. We
have therefore no hesitation in negativing this plea. No
other point has been urged. The appeal must therefore fail.
But before we write ’finis’ it may be made clear that the
acquittal rendered by the High Court is on the ground of
lack of jurisdiction on the part of the learned Special
Judge who tried the case in the Special Court and not on
merits. The expression ’acquitted’ has been employed by the
High Court though it was sufficient to say no more than
this, that the order of conviction and sentence was without
jurisdiction and was therefore being quashed. In the eye of
law, it is not an acquittal since it is not on merits. It is
thereore for the competent authority to decide whether or
not to subject the accused to a fresh trial after following
the procedure prescribed by the Rules. With these
observations, we dismiss the appeal.
M.L.A. Appeal dismissd.
126