Ajit Kumar Palit vs State of West Bengal
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 188 of 1961
Decision Date: 7 November 1962
Coram: N. Rajagopala Ayyangar, Syed Jaffer Imam, J.R. Mudholkar
In the case of Ajit Kumar Palit versus the State of West Bengal, decided on 7 November 1962, the Supreme Court of India issued its judgment. The judgment was written by Justice N Rajagopala Ayyangar, who sat on the bench together with Justice Syed Jaffer Imam and Justice J R Mudholkar. The petitioner was Ajit Kumar Palit and the respondent was the State of West Bengal. The judgment date was 07 November 1962 and the bench composition is recorded as Justice N Rajagopala Ayyangar, Justice Syed Jaffer Imam and Justice J R Mudholkar. The decision is reported in 1963 AIR 765 and 1963 SCR Supplement (1) 953 and is also cited in later reports as RF 1966 SC 69 and R 1978 SC 188 at pages 7 and 10. The dispute concerned the procedure for taking cognizance of offences by a Special Court under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, sections 4 and 5, as amended by the West Bengal Criminal Law Amendment (Special Courts) (Amending) Act, 1960, section 2. In 1958 the police lodged a report before the Chief Presidency Magistrate charging the appellant and others with offences under sections 120‑B, 409 and 477 of the Indian Penal Code. On 1 June 1959 the State Government issued an order under section 4(2) of the 1949 Act assigning the case to a Special Court. Section 5(1) of the same Act stipulated that a Special Court could take cognizance of offences without the accused being committed to it for trial. Following a petition by the investigating officer, the Special Court took cognizance of the case and issued process against the accused. The appellant argued that the Special Court should be able to take cognizance only in accordance with section 190(1) of the Code of Criminal Procedure and not merely on the basis of the allocation of the case to it or on the police complaint. The Court held that the Special Court acquired the authority to take cognizance as soon as it received the order allocating the case, and that it was therefore vested with jurisdiction to consider the matter and to issue process as soon as it received the case records. The Court observed that the provisions of section 190(1) of the Code were inapplicable to a Special Court because, although a Special Court is deemed to be a court of session, section 5(1) of the Act expressly excluded the necessity of a commitment order for cognizance, rendering section 193(1) of the Code inapplicable. The Court referred to the decision in Bhajahari Mondal v. State of West Bengal, [1959] SCR 1276 for explanation. The Court further noted that the amendment made by the 1960 Amending Act to section 5(1) clarified that a Special Court may take cognizance of offences in the manner prescribed in sections 190(1)(a) and (b) of the Code without a commitment order, and that the amendment did not disturb the cognizance already taken by the Special Judge. The amendment was described as effecting a change in the law rather than merely declaring the existing law. This judgment formed part of the criminal appellate jurisdiction in Criminal Appeal No. 188 of 1961, an appeal by special leave from the judgment and order dated 8 June 1961 of the Calcutta High Court in Criminal Revision No. 1557 of 1959.
The Court considered the judgment and order dated 8 June 1961 issued by the Calcutta High Court in Criminal Revision No 1557 of 1959. Counsel for the appellant comprised P K Chakravarti, Amiyalal Chatterjee and P K Mukherjee, while counsel for the respondents were B Sen, P K Chatterjee and P K Bose. The judgment was rendered on 7 November 1962 and delivered by Justice Ayyangar. This appeal was presented for the purpose of determining the correct interpretation of sections 4 and 5 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, hereinafter referred to as the Act.
The preamble of the Act declares that it was enacted to ensure the speedy trial of the offences listed in the Schedule annexed to the statute. Section 2 empowers the State Government to establish, by notification in the Official Gazette, one or more Special Courts. Section 4 imposes a mandatory jurisdictional rule, stating that, notwithstanding any provision of the Code of Criminal Procedure, 1898, or any other law, the offences specified in the Schedule shall be tried exclusively by Special Courts. The second clause of section 4 further provides that the allocation of cases involving Schedule offences among the Special Courts shall be effected by the State Government.
Section 5 delineates the procedural framework for Special Courts. Sub‑section (1) authorises a Special Court to take cognizance of an offence without the accused being committed to that Court for trial. In conducting the trial, the Special Court must follow the procedure laid down in the Code of Criminal Procedure, 1898, which governs the trial of warrant cases by Magistrates when such cases are instituted otherwise than on a police report. Sub‑section (2) stipulates that, except as expressly provided in sub‑section (1) or sub‑section (1)(a), the provisions of the Code of Criminal Procedure, 1898, shall apply to Special Court proceedings to the extent that they are not inconsistent with the Act. For the purpose of applying those provisions, a Special Court is deemed to be a Court of Session trying cases without a jury, and any person conducting a prosecution before a Special Court is deemed to be a Public Prosecutor.
The Schedule referred to in the preamble and in section 4 enumerates the offences that may be tried solely before Special Courts. The factual background giving rise to this appeal is as follows. In February 1958, the police lodged a report before the Chief Presidency Magistrate at Calcutta, charging ten persons, including the appellant, with offences punishable under section 120‑B read with sections 409 and 477 of the Indian Penal Code. Subsequently, the State Government issued an order dated 1 June 1959, published in the Official Gazette, assigning the said case to the Calcutta Additional Special Court pursuant to section 4(2) of the Act. The notification specified the names and descriptions of the accused and identified the exact offences for which they were charged.
Subsequent to the earlier notification, certain amendments were introduced, but those changes did not affect the matters under consideration. On 26 September 1959 the Investigating Officer of the Enforcement Branch in Calcutta submitted a petition before the Special Judge, requesting that the Judge take cognizance of the case that had been allotted to him, issue process against the accused, and make such further orders as he deemed just. On the very same day the Additional Special Judge exercised his authority to take cognizance of the alleged offences and issued notices to the accused persons, fixing a date on which they were required to appear before the Court.
After receiving the notice, the appellant filed an application before the Special Judge, contending that the initiation of the proceedings on the basis of the petition filed by the Investigating Branch was neither proper nor lawful, and that therefore the Special Judge alone should proceed with the matter. The Additional Special Judge dismissed the appellant’s application. Consequently, the appellant approached the Calcutta High Court by way of a revision, raising the same argument that the Special Judge could not acquire jurisdiction to take cognizance of the offence merely on a police complaint and therefore lacked the authority to conduct the trial.
It is necessary to note that two earlier decisions of the Calcutta High Court had held that a Special Judge did not obtain jurisdiction to try a case simply because a case had been allotted to him under section 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, as published in the Gazette. Those decisions required compliance with section 190(1) of the Criminal Procedure Code and emphasized, in light of the concluding words of section 5(1) of the Act, that cognizance had to be taken “otherwise than on a police report.” The learned judges in those cases distinguished between the act of taking cognizance and having jurisdiction to proceed with trial, concluding that without material presented in the proper statutory form a Special Judge could not take cognizance, notwithstanding the government’s allotment, and therefore was incompetent to conduct the trial.
The Division Bench hearing the present revision expressed doubts about the correctness of those two earlier rulings and therefore referred the questions to a Full Bench for consideration. The questions referred were: (1) whether a Special Judge appointed under the 1949 Act, to whom a case has been allotted by notification under section 4(2), must obtain a complaint petition in order to take cognizance of the case, or whether cognizance arises simply upon receipt of the government notification and the magistrate’s record of charge, together with the Judge’s consideration of the facts; and (2) a second question concerning the earlier decisions, the precise wording of which follows in the succeeding portion of the judgment.
In that proceeding the Full Bench specifically referred to the two earlier decisions and questioned whether those decisions had been correctly decided. By a majority, the learned members of the Full Bench answered the questions as follows: “A Special Court is said to have taken cognizance when on receiving the Government Notification of the allotment or distribution of the case and the records of the case, it applies its mind to the facts of the case and takes some steps for proceeding under the subsequent sections of Chapter Twenty‑One of the Code.” The Bench then answered the second question by declaring that the earlier decisions that had been cited were in fact incorrect. After the order directing reference to the Full Bench but before the hearing of that reference, the West Bengal Legislature passed Act XXIV of 1960, known as the West Bengal Criminal Law Amendment (Special Courts) (Amending) Act, 1960. Section 2 of that enactment altered Section 5 of the Special Courts Act so that, after amendment, Section 5 read: “S. 5 (1). A Special Court may take cognizance of offenses in the manner laid down in clauses (a) and (b) of sub‑section (1) of 8. 190 of the Criminal Procedure Code, 1898, without the accused being committed to his Court for trial, and in trying accused persons ……” (the italicised portion being the newly added words). One of the points raised before the Full Bench concerned whether this newly inserted provision applied to the present proceedings. The learned judges observed that, although a procedural amendment would ordinarily apply to pending proceedings, it did not, in the absence of a specific saving clause, invalidate proceedings that had already been commenced. Consequently, they held that the validity of the proceedings before the Special Judge and his jurisdiction to try the accused were to be determined solely by the law as it existed before the amendment. Following the Full Bench’s opinion, the revision petition filed by the appellant was dismissed. The appellant, who now appears before this Court by way of special leave, challenges the correctness of the Full Bench’s answers on these points.
The Court now turned to the principal issue, namely the jurisdiction of a Special Judge to take cognizance of an offence without complying with the procedure prescribed by Section 190(1) of the Criminal Procedure Code. To appreciate the scope of Section 190(1), it is necessary to note that this provision is the first of a series of sections contained in Part B of Chapter Fifteen, which comprises Sections 190 to 199 and deals with the statutory conditions required for the initiation of criminal proceedings. The sections from 190 to 194 form a cohesive group, and it is sufficient for the present analysis to focus on them. Section 190 reads: “190. (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub‑divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence—(a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police‑officer; (c) upon information received from any person other than a police‑officer, or upon his own knowledge or suspicion, that such offence has been committed.” The provision therefore sets out the modes by which a magistrate may lawfully take cognizance, and any departure from these prescribed modes must be examined in light of the statutory language and the legislative intent behind the amendment.
In the statutory framework, section 190(1) authorized certain magistrates to take cognizance of an offence in three different ways. First, a magistrate could act upon receiving a complaint that set out facts constituting the offence. Second, the magistrate could act upon a written report of such facts made by a police officer. Third, the magistrate could act upon information received from any person who was not a police officer, or upon his own knowledge or suspicion that the offence had been committed. Sub‑sections 2 and 3 of the same provision were left blank in the text. Following this, section 191 prescribed that when a magistrate took cognizance of an offence under clause (c) of subsection (1), the accused must be informed, before any evidence was taken, that he was entitled to have the case tried by another court. If the accused, or any of the accused when there were several, objected to being tried by that magistrate, the case was to be committed to the Court of Session or transferred to another magistrate instead of being tried by the original magistrate. Section 192(1) provided that any Chief Presidency Magistrate, District Magistrate or Sub‑divisional Magistrate could transfer any case of which he had taken cognizance, whether for inquiry or trial, to any magistrate subordinate to him. Section 192(2) allowed a District Magistrate to empower a first‑class magistrate, who had taken cognizance of a case, to transfer it for inquiry or trial to any other specified magistrate in the district who was competent under the Code to try the accused or to commit the accused for trial, and the designated magistrate could then dispose of the case accordingly.
Section 193(1) stated that, except as expressly provided by the Code or any other law in force, no Court of Session could take cognizance of an offence as a court of original jurisdiction unless the accused had been committed to it by a magistrate duly empowered for that purpose. Section 194(1) gave the High Court the power to take cognizance of any offence upon a commitment made in the manner later prescribed. The provision further clarified that nothing therein should be deemed to affect any letters patent, any law constituting or continuing the High Court, or any other provision of the Code. Sub‑section 2(a) allowed the Advocate‑General, with prior sanction of the State Government, to exhibit to the High Court informations against persons subject to its jurisdiction for all purposes for which Her Majesty’s Attorney‑General could exhibit informations on behalf of the Crown in the High Court of Justice in England. Sub‑sections 2(b), (c) and (d) were left blank. A review of these sections indicated that criminal proceedings could be initiated and cognizance taken either directly by a magistrate, by transfer of a case through commitment, or on the basis of informations filed by the Advocate‑General. Direct cognizance was limited to the classes of magistrates specified in section 190(1), namely Presidency Magistrates, District Magistrates, Sub‑divisional Magistrates and other magistrates specially empowered for that purpose. It was noted that the judge of the Special Court appointed under section 2 of the Act did not fall within the class of magistrates designated by section 190(1).
In this case, the Court observed that the judge of the Special Court did not belong to the class of magistrates identified in section 190(1), and therefore there was no requirement for such a judge to satisfy the conditions laid down in that provision before he could take cognizance of an offence. The appellant did not argue that the Special Court should be treated as a Sessions Court or a High Court, which would otherwise demand a committal order by a magistrate as a prerequisite for the court to acquire jurisdiction to hear the matter. Consequently, the Court found that the Criminal Procedure Code imposed no statutory obligation concerning the type or nature of material that must be placed before a special judge for him to assume and exercise jurisdiction over a case, and the same conclusion was unanimously accepted as applying under the Special Courts Act. Nonetheless, certain points were raised by counsel that appeared to suggest a different inference, and the Court examined those arguments. Firstly, it was urged that section 5(1) of the Act merely barred an objection to the Special Court’s jurisdiction on the ground that there was no commitment, but did not expressly stipulate that any additional material, other than the order of allotment made under section 4(2), was required before the court could take cognizance of the offence. In other words, the argument contended that the order of allotment was not, either expressly or by necessary implication, equivalent to a committal order under section 193(1). This line of reasoning was reinforced by citing the language of section 5(2), which states that the Special Court was not constituted as a court of session but was only “deemed” to be one, suggesting that it was not, in truth, a court of session. The Court considered this submission to be devoid of merit and was unable to draw the inference that counsel sought from the word “deemed” in section 5(2). The Court noted that the expression “court of session” has a well‑understood meaning and significance within the hierarchy of courts under the Code of Criminal Procedure, and that the Special Court, although not a court of session, is vested with powers akin to those of a sessions court, the term “deemed” being employed to describe this legal construction. Even if the Special Court is deemed a court of session, a question could arise as to whether section 193(1) of the Code is inconsistent with the provisions of the Act; however, section 5(1) clarifies that notwithstanding the deeming, section 193(1) does not apply to the Special Court, and therefore an initial cognizance by a magistrate followed by a committal order is not a prerequisite for the Special Court judge to take cognizance. Thus, if sections 190(1) and 193(1) of the Code do not apply, the …
The next issue requiring examination was what, in addition to the order of the State Government made under section 4(2) of the Act, must be present in order to vest the special court with the authority to proceed. It was argued that section 5(1) of the Act might, at most, remove the need for a formal order of commitment, but that it did not, by that very fact, eliminate the necessity for some proper material on the basis of which “cognizance” could be taken. Further, it was submitted that in the context of a special court the notion of cognizance of a case was distinct from the jurisdiction to conduct the trial; the former depended upon the existence of material which alone conferred, so to speak, the jurisdiction upon the court or judge to initiate the proceedings. Throughout the submissions of counsel for the appellant there was an underlying assumption that the power to proceed with the trial of a case was separate from “cognizance”, which was portrayed as a technical prerequisite required to invest a judge or magistrate with jurisdiction. Accordingly, it was contended that in the absence of the proper material necessary for taking cognizance, the judge would be incompetent to conduct the trial of the case assigned to him. A large portion of the argument on this point relied upon a passage from the Court’s own judgment in Bhajahari Mondal v. The State of West Bengal (1), which dealt with the same Act. The passage stated: “The crucial date for the purpose of determining the jurisdiction of the Court would be the date when the Court received the record and took cognizance of the case and took any step in aid of the progress of the case and not when the evidence of the witnesses began to be recorded. Under section 4 of the West Bengal Act (W. B. Act XXI 1949) as amended by the Act of 1952, the jurisdiction of the Court arises when the notification is issued distributing the case to a particular special court giving the name of the accused and mentioning the charge or charges against him which must be under one of the offences specified in the Schedule. In the absence of any of these elements the special Court would have no jurisdiction.” The Court emphasized that the passage referred to two matters as essential to confer jurisdiction on the special court: (1) the issue of a notification under section 4(2) of the Act; and (2) the receipt of the record together with the taking of cognizance of the case and a step in aid of its progress. It was further urged that the latter requirement essentially incorporated the substance of section 190(1) of the Criminal Procedure Code. The Court was satisfied that these observations were not intended to imply that the jurisdiction of the special judge to try a case properly allotted to him did not arise wholly from the allotment, which in effect functioned as a substitute for a commitment under the Code.
In this judgment the Court examined section 193(1) of the Code and observed that the jurisdiction of a special judge did not spring solely from that provision; it also depended, at least in part, on the existence of other material of a nature prescribed by statute that disclosed the commission of an offence. The Court’s interpretation was reinforced by a later portion of the same judgment in which it considered the applicability of the curative provision contained in section 529 of the Code. The Court quoted the provision, stating: “If any Magistrate not empowered by law to do any of the following things, namely: (e) to take cognizance of an offence under section 190, sub‑section (1), clause (a) or clause (b); erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.” The Court then specifically pointed out that the provision which is applicable to magistrates designated under section 190(1) is not applicable to the special judge, because the special judge does not take cognizance in the manner contemplated by that provision. Since the provisions of section 190(1) are plainly and on their own terms inapplicable to the special judge, the Court turned to the question of whether any principle of general jurisprudence requires some additional material to entitle a court to take cognizance of an offence.
The Court explained that the word “cognizance” carries no esoteric or mystic significance in criminal law or procedure; it merely means to become aware of, and, when used with reference to a court or judge, to take judicial notice. The Court cited the observations made in Gopal Marwari v. Emperor, as quoted with approval by this Court in R. R. Chari v. State of Uttar Pradesh, that the term “cognizance” in the Code indicates the point at which a magistrate or judge takes judicial notice of an offence and that the expression is of indefinite import and is not always used in exactly the same sense. Further, the Court referred to the ruling in Emperor v. Sourindra Mohan Chuckerbutty, which held 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.” The Court observed that where a statute prescribes the materials on which the judicial mind must operate before any step is taken, the statutory requirement must of course be fulfilled. Consequently, a sessions judge cannot exercise the original jurisdiction that magistrates specified in section 190(1) may exercise, because the material on which a sessions judge may apply his judicial mind and proceed under the Code is limited to an order of commitment.
Aside from the statutory provisions cited—namely, (1) A.I.R. (1943) Pat. 245; (2) [1951] S.C.R. 312, 320; and (3) (1910) I.L.R. 37 Cal. 412, 416—there is no set material that must exist before the judicial mind can operate. The Court therefore concluded that as soon as a special judge receives the order of allotment of the case passed by the State Government, the special judge becomes vested with jurisdiction to try the case.
When the special judge received the record from the Government, it was able to apply its mind, issue a notice to the accused, and thereby commence the trial of the proceedings that had been assigned to it by the State Government. A minor point was raised concerning the phrase “otherwise than on a police report” that appeared at the end of section 5(1) of the Act. The Court observed that this phrase did not affect the outcome. Those words were absent from the Act as originally enacted in 1949 and had been inserted only by an amendment effected through West Bengal Act 26 of 1956. At the time of the original enactment in 1949, the statute did not prescribe two separate procedures for magistrates taking cognizance under the different clauses of section 190(1) of the Code. However, the Criminal Procedure Code was later amended by Act 26 of 1955 when section 251‑A was introduced, creating a special procedure for the trial of cases in which cognizance was taken on a police report pursuant to section 190(1)(b). The later amendment to the Act, which added the words in question, was intended merely to ensure that section 251‑A did not apply to the procedure to be followed in special courts, and it bore no additional significance. The next issue for the Court’s consideration concerned the effect of the 1960 amendment on the special court’s jurisdiction to try the appellant’s case. Counsel for the appellant advanced an elaborate argument, essentially contending that the amending legislation was, in substance, declaratory because it accepted the correctness of one of two interpretations that had been placed on section 5(1) of the Act as originally framed. He urged the Court to hold that the Legislature thereby intended that this interpretation should govern the provision from the date the Act was originally enacted. Before addressing that contention, the Court found it necessary to set aside certain matters. First, the amendment contained no express words indicating that it was retrospective or retroactive so as to operate from the Act’s commencement. Second, while the amendment dealt with procedural matters and would therefore have applied to pending proceedings, there was no suggestion that anything in the amendment invalidated proceedings that had begun without reference to the amended provisions; in other words, the special judge, having validly acquired jurisdiction to proceed with the trial of the allotted case, was not stripped of that jurisdiction by the amendment. These background considerations, which the appellant’s counsel did not dispute, formed the context within which his submissions were evaluated. The counsel cited a substantial number of decisions on statutory interpretation, but the Court found them unhelpful and irrelevant to the issue at hand. The Court noted that the amending Act did not purport to be declaratory; rather, it sought, in terms, to carry out an amendment, that is, to effect a
In this matter, the Court noted that the simple fact that the amendment produced a change which happens to fit a particular way of reading the words that existed in the earlier statute, and that such a reading had previously been accepted by the courts in a few reported decisions, could not by itself support a claim that the amendment was merely declaratory. The Court held that this circumstance was wholly inadequate to justify an argument that the amendment must be construed as having declared the law from the date on which the parent Act originally came into force, thereby rendering void any proceedings that had been lawfully initiated under a proper construction of the law as it stood at that time. Consequently, the Court found that there was no substantive merit in the contention concerning the effect of the amending Act upon which the reliance was placed to impute jurisdiction to the special court. The Court further stated that it had no hesitation in rejecting that line of argument. As a result, the Court concluded that the appeal could not succeed, and accordingly ordered that the appeal be dismissed. The final order therefore dismissed the appeal in its entirety.