Jagannath Sonu Parkar vs State Of Maharashtra

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Writ Petition No. 65 of 1962

Decision Date: 11 October, 1962

Coram: J.C. Shah, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In this matter, the parties were Jagannath Sonu Parkar as petitioner and the State of Maharashtra as respondent. The judgment was rendered on 11 October 1962 by a Bench of the Supreme Court consisting of Justice J.C. Shah, Justice Bhuvneshwar P. Sinha, Justice P.B. Gajendragadkar, Justice K.N. Wanchoo and Justice K.C. Das Gupta. The case is reported in 1963 AIR 728 and in the Supplement to the Supreme Court Reports of 1963 at page 573, and is also cited as RF 1980 SC1382 (111). The operative legislation involved the provisions of the Code of Criminal Procedure, 1898, particularly section 14 as amended by the Bombay Separation of Judicial and Executive Functions Act, 1951 (Bombay Act 23 of 1951). The amendment permitted the State Government to appoint a qualified individual as a special magistrate and to confer upon such magistrate all powers that could be exercised by a judicial magistrate for a specific case, a class of cases, or generally within a designated locality. By a notification dated 29 December 1961, the Bombay Government appointed an individual designated as Mr G to serve as a Special Judicial Magistrate for the area covering Greater Bombay and Ratnagiri District, and vested in him the full authority of a Presidency Magistrate for the trial of the Deogad Gold Seizure case.

The petitioners, who were alleged conspirators in the said case, applied to the Supreme Court for a writ of certiorari seeking the quashing of the aforesaid notification on the ground that the notification and the amended provision of section 14 infringed Article 14 of the Constitution. The Court held that the amendment to section 14 did not contravene Article 14 and was therefore constitutionally valid. It observed that there was essentially no material difference between the powers conferred by the original wording of section 14 and those authorized by the amended version, relying on the precedent set in M. K. Gopalan v. State of Madhya Pradesh, [1955] 1 SCR 168. Furthermore, the Court found that the notification creating a Special Magistrate for the trial of the petitioners was not discriminatory. The amended section contemplated both cases already pending and those that might be instituted after the magistrate’s appointment, and the creation of a Special Magistrate did not amount to a transfer of any case, directly or indirectly. While the appointment might cause the petitioners to face trial in Bombay rather than Deogad, an inconvenience that was acknowledged, the Court held that such inconvenience could not substantiate a claim of discrimination. The charges involved alleged conspiracies occurring at Bombay, Deogad and other locations, and the petitioners could lawfully be tried at Bombay. The notification therefore conferred jurisdiction on the Special Magistrate over both the place where the alleged conspiracy was planned and the place where the substantive offences were said to have been committed, without violating the principle of equal treatment.

In this case the Court observed that the offences for which the petitioners were charged were alleged to have been actually committed, and that the distinction in the appellate route did not amount to discrimination. Specifically, when a judgment was rendered by the Special Magistrate, the petitioners could appeal directly to the High Court, whereas if the petitioners had been tried by a regular magistrate at Deogad, the proper appellate sequence would have been an appeal to the Sessions Judge followed by a revision to the High Court. The Court held that the difference in venue arose from the nature of the jurisdiction exercised by the magistrate conducting the trial and not from any unequal treatment created by the notification. The judgment then set out the original jurisdiction of the writ petition numbered 65 of 1962, which was filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel for the petitioners and counsel for the respondents were listed. The judgment dated 11 October 1962 was delivered by Justice Shah. The Court noted that it possessed evidence indicating that the petitioners and others were involved in a conspiracy to smuggle gold from foreign countries into the port of Deogad in Ratnagiri District, in violation of the Sea Customs Act and the Foreign Exchange Regulation Act. Sub‑Inspector Kalyankar of Customs and Central Excise arrested the petitioners and produced them before the Judicial Magistrate of First Class at Deogad. On 29 December 1961 the Government of Maharashtra issued a notification, under the authority of section 14 of the Code of Criminal Procedure, 1898 (as amended by Bombay Act XXIII of 1951 for Maharashtra, appointing Mr V M Gehani as a Special Judicial Magistrate with jurisdiction over Greater Bombay and Ratnagiri District, and granting him all powers of a Presidency Magistrate for the trial concerning the seizure of approximately 49,990 tolas of foreign gold, known as the “Deogad Gold Seizure Case.” Subsequently, on 10 January 1962 the Government of Maharashtra gave written consent, as required by section 196‑A(2) of the Code of Criminal Procedure, to institute criminal proceedings against the petitioners and eight others for offences punishable under section 120B of the Indian Penal Code read with section 167(81) of the Sea Customs Act, as amended, and under section 8(1) (together with section 23) of the Foreign Exchange Regulation Act, 1947, as amended. Following this, H R Jokhi, Assistant Collector of Customs & Central Excise, Marine & Prevention Division, Collectorate of Central Excise Bombay, filed a complaint in the Court of the Special Magistrate appointed under the December 29 1961 notification, charging sixteen persons, including the petitioners, with participation in a conspiracy at Bombay, Janjira, Dabhol and Deogad (the latter three places being situated in the District of Ratnagiri).

According to the complaint filed by the Assistant Collector of Customs and Central Excise, Marine and Prevention Division, the petitioners were alleged to have participated in a conspiracy that extended to Bombay, Janjira, Dabhol, Deogad and other locations in the District of Ratnagiri. The allegation was that they conspired to smuggle large quantities of gold into India with the purpose of evading the payment of customs duty and of contravening the prohibitions and restrictions that were in force during the period from about October 1959 to the end of April 1961. The alleged conduct was said to be in breach of the Sea Customs Act, 1878 and the Foreign Exchange Regulation Act, 1947. It was further asserted that, in pursuance of the conspiracy and with a continuing purpose and design, the accused persons, in or about April 1961, acquired or arranged to import and obtain possession of gold totalling 49,990 tolas, a quantity valued at over seventy lakh rupees, in violation of the two statutes. The petitioners then applied to the Special Magistrate, requesting that their trial be conducted at Deogad or at Ratnagiri, the headquarters of the district, on the ground that they were permanent residents of Deogad, that their occupations were based there, that they had already made individual defence arrangements at Deogad, and that it would be just and convenient for the trial to be held in the district of Ratnagiri. The Special Magistrate rejected this application, and the petitioners subsequently approached the High Court of Judicature at Bombay seeking an order that the case be transferred to a judicial magistrate at Deogad or Ratnagiri competent to try the case. In the alternative, they prayed that the Special Magistrate, Mr. Gehani, be directed to try the case at either Deogad or Ratnagiri where all necessary facilities were available. The High Court dismissed the petitioners’ application.

Following the dismissal by the High Court, the petitioners filed a petition before this Court under Article 32 of the Constitution. They sought a writ of certiorari or any other appropriate writ or direction to set aside the Notification dated 29 December 1961, issued by the Government of Maharashtra. In the alternative, they asked that Section 14 of the Code of Criminal Procedure, as amended by the Bombay Act 23 of 1951, be declared ultra vires and void, and that the case be ordered to be heard at Deogad or at Ratnagiri by any magistrate competent to inquire into or try the case. In their petition, the petitioners contended that Section 14 of the Code of Criminal Procedure, as amended by the Bombay Legislature by Act 23 of 1951, together with the Notification dated 29 December 1961 which appointed Mr. Gehani as a Special Judicial Magistrate and invested him with the powers of a Presidency Magistrate, infringed Article 14 of the Constitution. They highlighted Sub‑section (1) of Section 14, as amended, which provides that the State Government, in consultation with the High Court, may confer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may be prescribed, the powers of a Special Magistrate for particular cases or classes of cases or generally within any local area.

The Court explained that, under section 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951, the State Government may, after consulting the High Court, specify in a notification published in the Official Gazette any or all of the powers that the Code confers or allows to be conferred on a judicial magistrate. These powers may be assigned for particular cases, for a particular class or classes of cases, or generally for cases occurring in any local area. Section 6‑A, also inserted by the same Bombay Act, created various classes of judicial magistrates, among which were the Presidency magistrates. Accordingly, the amended Code authorized the State Government to appoint a person who possessed the required qualifications as a Special Magistrate and to vest in that person the powers that the Code confers on a judicial magistrate for a specific case, a specific class of cases, or for cases generally within any local area. Originally, section 14 of the Code of Criminal Procedure, as enacted in 1898, barred the appointment of a Special Magistrate to operate in any local area that fell within the Presidency towns. The amendment made by Bombay Act 23 of 1951 removed this restriction, thereby permitting the Government of Maharashtra to constitute a Special judicial magistrate who may function in any local area, including Greater Bombay. The term “local area” was interpreted to mean any part of a State and may encompass more than one district. Consequently, the Government of Maharashtra was empowered to appoint Mr Gehani as a Special judicial magistrate with jurisdiction over Greater Bombay and the District of Ratnagiri and to confer upon him the powers of a Presidency magistrate for the trial of the case known as the Deogad Gold Seizure Case. The Court referenced the decision in M K Gopalan v State of Madhya Pradesh, where the validity of section 14 of the 1898 Code was challenged on the ground that it violated the constitutional guarantee of equality before the law under article 14. The Court held that a law that authorises an authority to appoint a Special magistrate under section 14 to try cases in accordance with the ordinary procedure does not constitute discrimination and is not inconsistent with article 14. The Court observed that there is essentially no substantive difference between the powers that could be conferred under the original section 14 and those that may be conferred after the amendment by Bombay Act 23 of 1951, except for certain procedural requirements such as consultation with the High Court before the powers are entrusted. The only material change introduced by the amendment is that a Special magistrate may now be appointed for a Presidency town. Section 14 therefore envisages that a Special magistrate may be entrusted with any powers that the Code allows to be conferred on a judicial magistrate, and a Presidency magistrate is, by definition, a judicial magistrate.

The Court observed that, pursuant to the decision reported in under (1) [1955] 1 S.C.R. 168, the amendment of section 6‑A by the Bombay Legislature permits that powers which may be conferred on a Presidency Magistrate may likewise be lawfully conferred on a Special Judicial Magistrate appointed for a Presidency town, whether or not the appointment carries any additional locality. It further noted that section 20 of the Code of Criminal Procedure expressly provides that every Presidency Magistrate shall exercise jurisdiction in all places that lie within the Presidency town for which he is appointed, and also within the limits of the port of that town and any navigable river or channel leading to the port, as such limits are defined by the law then in force for the regulation of ports and port‑dues. The Court emphasized, however, that nothing in section 20 detracts from the authority of the State Government to exercise the power conferred on it by section 14 to appoint a Special Judicial Magistrate for a Presidency town, nor does it prohibit the investiture of the powers of a Presidency Magistrate upon such Special Judicial Magistrate with respect to a locality outside the Presidency town, provided that the magistrate also retains jurisdiction over the Presidency town. Relying on the principle laid down in M. K. Gopalan’s case (1), the Court held that section 14 of the Code of Criminal Procedure, as amended, cannot be said to infringe article 14 of the Constitution. Consequently, the Court indicated that the validity of the notification issued by the Government of Maharashtra, which directed the trial to be conducted by Mr Gehani, who possessed jurisdiction over both the Greater Bombay area and the District of Ratnagiri, could now be examined. The submission, founded upon the judgment in Bidi Supply Company v. Union of India (2), alleged that the impugned notification was unauthorised. The Court recounted the factual matrix of that precedent: an assessee normally assessed for income tax by officers located in Calcutta was, by a letter dated 25 January 1955 issued under section 5(7‑A) of the Income‑Tax Act, 1922 (as amended by Act XL of 1940), informed that his assessment records were being transferred from the Income‑Tax Officer, Calcutta, to the Income‑Tax Officer, Special Circle, Ranchi, in the State of Bihar, and that all future correspondence regarding the assessment would be directed to the Ranchi officer. The assessee had received no prior notice of the intended transfer and was not afforded an opportunity to make any representation against the decision. He consequently challenged the order by filing a petition before this Court, contending that the transfer violated the equal‑protection clause of the Constitution. The Court further referred to section 64 of the Income‑Tax Act, which delineates the normal place of assessment, noting that subsection (1) mandates that an assessee engaged in business, profession or vocation at a particular place shall be assessed by the Income‑Tax Officer of the area in which that place is situated, or, where the business or profession operates in multiple places, by the Officer of the area containing the principal place of the business or profession.

When a business, profession or vocation is carried on in more than one place, the assessment must be made by the Income‑tax Officer of the area in which the principal place of that business, profession or vocation is situated. In every other situation, the assessee is to be assessed by the Income‑tax Officer of the area where the assessee resides. Sub‑section (5) of section 64 further provides, inter alia, that the rules laid down in sub‑sections (1) and (2) do not apply where, by any direction given or any distribution or allocation of work made by the Commissioner of Income‑tax under sub‑section (5) of section 5, or as a consequence of any transfer made under sub‑section (7A) of section 5, a particular Income‑tax Officer has been entrusted with the function of assessing that assessee. The Supreme Court, in the Bidi Supply Company’s case (1), held that sub‑section (7A) of section 5, as it existed at the relevant time, contemplated the transfer of a pending case for a specific year. The Court observed that “the provision that such a transfer may be made ‘at any stage of the proceedings’ obviously postulates proceedings actually pending, and ‘stage’ refers to a point in between the commencement and the termination of those proceedings. Further the provision that such transfer shall not render necessary the re‑issue of notice already issued by the Income‑tax Officer from whom the case is transferred quite clearly indicates that the transfer contemplated by the sub‑section is the transfer of a particular case actually pending before an Income‑tax Officer of one place to the Income‑tax Officer of another place.” The decision hinged on the meaning of the word ‘case’ used in sub‑section (7A) of section 5 as enacted by the Income‑tax Act Amendment Act, 1940, and the Court concluded that the expression ‘case’ meant an assessment case of a particular year. After this decision, the Legislature intervened by enacting the Income‑tax Amendment Act 26 of 1956, which added an explanation that the word ‘case’ in relation to any person whose name is specified in the order of transfer means all proceedings under the Income‑tax Act in respect of any year that may be pending on the date of the transfer, and includes all proceedings under the Act that may be commenced after the date of the transfer in respect of any year. The principle laid down in Bidi Supply Company (1) therefore has no relevance for assessing the validity of the Notification issued under section 14 of the Code of Criminal Procedure as amended by the Bombay Act 23 of 1951. In the Bidi Supply Company case, the assessee obtained a benefit from a gap in the provisions of the Indian Income‑tax Act, since, apart from a provision for the transfer of a pending case, there was no general power to transfer future assessment proceedings. A Notification under section 14 of the Code of Criminal Procedure is an order that creates a Special Magistrate with jurisdiction over a specified local area and confers powers that

In this matter, the Court observed that the powers normally exercised by a Judicial Magistrate are likewise exercisable by a Special Magistrate. The creation of a Special Magistrate, however, did not constitute, either directly or indirectly, a transfer of any “case,” and none of the considerations identified by this Court in the Bidi Supply Company case (1) regarding the meaning of the word “case” in the Income‑Tax Act were applicable to the present order. Consequently, the Court was not compelled to hold that the term “case” within section 14 should be interpreted to refer only to a pending case. Section 14 authorises the State Government to appoint a special Judicial Magistrate with respect to “any particular case or a particular class or classes of cases or in regard to cases generally in any local area.” The language of the provision therefore embraces a case that is either pending at the time of the Special Magistrate’s appointment or that may be instituted after the date of such appointment. The petitioners submitted that the Notification appointing a Special Magistrate to try the contemplated complaint against them operated in a discriminatory manner. They argued that, given the circumstances of the case, the conferment of the powers of a Presidency Magistrate on the Special Magistrate placed the petitioners at a disadvantage because other persons in a similar position would ordinarily be tried by a Magistrate whose jurisdiction covered the place where the alleged offence occurred, and would not be required to travel a distance of more than three hundred miles from their ordinary residence to defend themselves. The petitioners further contended that Mr Gehani, being a Presidency Magistrate appointed for the trial of the case against them and others, would ordinarily sit in Bombay, where he normally functions, and that requiring the petitioners to attend sittings in Bombay would cause great inconvenience, especially when Magistrates capable of hearing and deciding the case were available in Deogad. By virtue of the Notification, Mr Gehani was invested with jurisdiction over Greater Bombay and Ratnagiri District, and his authority therefore extended over the whole of the Greater Bombay area and the District of Ratnagiri. The Court noted that the Code of Criminal Procedure contains no provision that obliges a Magistrate to hold his sittings at any particular place. While section 9(2) of the Code requires the State Government to direct the places where a Court of Session shall ordinarily hold its sittings, and permits that Court, with the consent of the prosecution and the accused, to sit at another place in the sessions division if it serves the general convenience of the parties and witnesses, there is no comparable provision governing the sittings of Magistrates. Thus, the Court found no statutory requirement that would limit the Special Magistrate’s authority to sit only at a specific location, and the petitioners’ claim of inconvenience could not, on this basis, compel a transfer of the trial.

The Court observed that the Code of Criminal Procedure contained no rule requiring a magistrate to hold his sitting at a particular place, and therefore the Special Judicial Magistrate, Mr Gehani, possessed the authority to sit at any location within the area defined by his appointment. Consequently, the Court could not speculate about the specific place where Mr Gehani would exercise his jurisdiction; the choice of venue rested entirely on his discretion. The petitioners had earlier approached the Bombay High Court seeking to transfer the trial from Mr Gehani’s court to a magistrate situated in the Ratnagiri district on the ground of inconvenience. That application had been dismissed by the High Court, and the petitioners could no longer contend that a trial conducted in Bombay was inconvenient or that it would jeopardise the fairness of the proceedings.

The Court noted that, although the Code of Criminal Procedure ordinarily required an offence to be investigated and tried by a magistrate of the local area where the offence was committed, the present charges involved a conspiracy spanning Bombay, Deogad, Dabhol, Janjira and other locations, alleged to have been committed under the Sea Customs Act and the Foreign Exchange Regulation Act, as well as the commission of substantive offences under those statutes. According to the prosecution, the illegal importation of gold had taken place at Deogad port, while the conspiratorial meetings occurred at various places, including Bombay. By appointing a Special Magistrate who possessed jurisdiction over both the places of conspiracy and the place where the offences were actually committed, the State had ensured that the trial would be conducted by a magistrate with territorial jurisdiction over all relevant areas. The Court found no indication that the notification creating the Special Magistrate was issued for any ulterior motive; rather, it reflected the State’s lawful authority to constitute such a magistrate, and the notification even hinted at the venue for the magistrate’s sittings. Accordingly, the petitioners’ claim of inconvenience and discrimination could not be upheld.

The petitioners further argued that an order of conviction rendered by Mr Gehani, who wielded the powers of a Presidency Magistrate, permitted an appeal only to the High Court, whereas a trial before a magistrate of the Ratnagiri district would allow an appeal to the Court of Session and subsequently a revision application to the High Court, thereby creating a substantial procedural disparity between similarly situated persons. The Court acknowledged that, had the complaint been filed in a magistrate having jurisdiction solely over Deogadi, an appeal against a conviction would indeed lie to the Court of Session, Ratnagiri, with a revisional remedy in the High Court. However, the Court concluded that this procedural distinction arose from the nature of the jurisdiction exercised by the Special Magistrate and not from any discriminatory effect of the notification.

In this case, the Court observed that although an appeal from a conviction by a Special Magistrate could be taken directly to the High Court, this procedural feature did not amount to discrimination. The Court explained that the perceived advantage to the accused of being tried by a Special Magistrate, whose decisions could be appealed directly to the High Court, stemmed from the constitutional status of the Special Magistrate rather than from any special rule created by the Notification. The Court noted that the complainant was legally entitled to file the complaint either in the Court of a Presidency Magistrate at Bombay or before any competent magistrate in the Ratnagiri district. Under section 182 of the Code of Criminal Procedure, each of those magistrates had the authority to entertain the complaint, and the appeal from a conviction recorded by a Presidency Magistrate would lie to the High Court, whereas an appeal from a conviction recorded by a judicial magistrate of the First Class would lie to the Court of Session. The Court emphasized that the difference in the forum for appeal arose solely from the nature of the jurisdiction exercised by the magistrate hearing the case, and not from any unequal treatment by the executive in constituting the magistrates’ courts. Because the powers normally possessed by a Presidency Magistrate were lawfully conferred on the Special Magistrate, the statutory right of appeal was correctly directed to the High Court rather than to the Court of Session. Consequently, the Court found no discrimination in the Notification that had created the Special Magistrate for trying the case against the petitioners and others. Accordingly, the petition was dismissed.