State of West Bengal vs Hemant Kumar Bhattacharjee and Others

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 207 of 1959

Decision Date: 27 November 1962

Coram: N. Rajagopala Ayyangar, Syed Jaffer Imam, J.R. Mudholkar

In the case titled State of West Bengal versus Hemant Kumar Bhattacharjee and Others, decided on 27 November 1962, the Supreme Court of India delivered its judgment. The opinion was authored by Justice N. Rajagopala Ayyangar, who sat on a bench together with Justices Syed Jaffer Imam and J. R. Mudholkar. The petitioner was the State of West Bengal and the respondents were Hemant Kumar Bhattacharjee and several others. The citation of the decision appears as 1966 AIR 1061 and 1963 SCR Suppl. (2) 542, and the matter concerned the Criminal Trial‑jurisdiction‑West Bengal Criminal Law Amendment (Special Courts) Act, Act XII of 1952, specifically section 12 of that Act.

The factual backdrop began when a charge sheet was filed on 19 January 1951 before the Chief Presidency Magistrate of Calcutta against the first respondent and other accused persons. The charge sheet alleged offences under section 120‑B read with section 409 of the Indian Penal Code, as well as under section 5 (2) of the Prevention of Corruption Act. By an order of the Government, the case was subsequently allotted to a Special Judge created under the West Bengal Criminal Law Amendment Act. The respondents challenged this allotment, and the Calcutta High Court, on 4 April 1952, set aside the Government’s order. The High Court held that section 4 (1) of the Criminal Law Amendment Act, which empowered the Government to assign cases to the Special Judge, was unconstitutional.

Following the High Court’s decision, the legislature amended the Act by promulgating an Ordinance, and later that Ordinance was replaced by West Bengal Act XII of 1932. When the Ordinance came into force, the prosecution re‑filed the charge sheets against the respondents before the Special Judge. This re‑filing was again contested. The High Court observed that the summons issued by the Special Judge on the basis of the re‑filed charge sheet had ceased to operate with the lapse of the Ordinance, and because neither the original Act nor the Ordinance contained any saving provision for proceedings commenced under the Ordinance, no further proceedings could lawfully continue against the respondents.

Undeterred, the Government lodged a fresh charge sheet on 18 June 1953. The respondents again disputed the jurisdiction of the Special Judge, contending that section 12 of the 1952 Act vested exclusive jurisdiction in the Chief Presidency Magistrate and that the case could not be lawfully transferred to the Special Judge. The Special Judge over‑ruled this objection, and the matter proceeded to the High Court on a revision petition. The High Court dismissed the revision, and the Supreme Court at that stage declined to grant special leave to appeal.

Subsequently, the respondents raised the jurisdictional objection once more before the Special Judge, who this time accepted the objection and discharged the respondents. Without contesting the Special Judge’s order, the Government filed another charge sheet before the Chief Presidency Magistrate, who then issued process against the respondents. The first respondent again challenged this step by filing a revision petition (identified as revision 543) before the High Court. On 19 December 1956, the High Court set aside the order of the Chief Presidency Magistrate. The High Court reasoned that the earlier High Court order dated 24 March 1953, which had upheld the jurisdiction of the Special Judge, remained effective, and therefore the Chief Presidency Magistrate could not try the case.

The Court observed that, by operation of section twelve of the Act, jurisdiction to try the matter belonged exclusively to the Chief Presidency Magistrate, and therefore that magistrate could not try the case. The Government then filed a fresh charge‑sheet before the Special Judge. The first respondent objected once more to this filing and placed the objection before the High Court on revision. The High Court held that, because of section twelve of the Act, jurisdiction remained with the Chief Presidency Magistrate and not with the Special Judge. The Court further held that the High Court’s decision declaring section four (1) of the first Act unconstitutional was binding upon the parties and could not be attacked collaterally or incidentally, since no appeal had been taken against that decision. Moreover, the Court held that although the High Court’s quashing of the earlier allotment left the charge‑sheet pending before the Chief Presidency Magistrate, the subsequent proceeding culminating in the High Court’s decision dated 19 December 1956 conferred jurisdiction on the Special Judge, and that decision was binding on the parties. The Court also held that the fresh charge‑sheet filed under the Special Judge fell within the prohibition of section twelve and could not be regarded as the initiation of a new proceeding. JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 207 of 1959, filed by special leave against the judgment and order dated 9 May 1958 of the Calcutta High Court in Criminal Revision No. 1128 of 1957. Counsel for the appellant appeared for the State of West Bengal, while the respondent appeared in person. The judgment was delivered on 27 November 1962. This appeal by special leave was preferred by the State of West Bengal against the Calcutta High Court’s judgment dated 9 May 1958 in Criminal Revision Case No. 1128 of 1957. The three respondents were alleged to have committed offences in September 1950; although twelve years had elapsed, only notices had been issued and no further steps had been taken. The delay resulted from divergent opinions, entertained at various times, regarding which court possessed jurisdiction to try the respondents—whether the Court of the Chief Presidency Magistrate, Calcutta, or the Special Court established under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. The High Court, whose decision is now under appeal, had held that the Special Court judge lacked jurisdiction to conduct the trial and that only the Chief Presidency Magistrate, before whom a charge‑sheet concerning the offences had been filed in January 1951, possessed jurisdiction to try the case. The State, in appeal, contended that a proper construction of the relevant statutes and other matters indicated that the Special Judge, not the Chief Presidency Magistrate, had the jurisdiction to try the case. To understand the issues raised on appeal, the Court proceeded to consider the arguments presented.

It was necessary to set out, at least in broad outline, the various stages of the proceeding. At the relevant time, which was toward the later part of 1950, the first respondent was employed as the Sub‑Postmaster of a post office in Calcutta. He received information that systematic misappropriation of Government funds was occurring in several Calcutta post offices, including the one where he served, and that the scheme involved, among other things, the affixing of used postage stamps. In response, the police devised a plan and appointed a foot constable to act as a packer in the Sub‑Post Office so that he could observe the activities there. On the basis of information supplied by that constable, the police conducted a raid in September 1950. During that raid the first respondent, together with the second and third respondents—who were respectively the Money Order clerk and the Registration clerk in the same post office—were arrested. The specific contents of the charges need not be reproduced here, except to note that the accused were charged with offences under section 409 and section 120‑B read with section 409 of the Indian Penal Code, as well as under section 5(2) of the Prevention of Corruption Act. The narrative now turns to the events that have caused the proceedings to remain pending for twelve years. After completing its investigation, the police submitted a charge‑sheet on 16 January 1951 to the Chief Presidency Magistrate of Calcutta, charging the three accused with the aforementioned offences. The case was entered in that court as Crime Case No. 136 of 1951, and the magistrate took cognizance of the matter. However, before the magistrate could proceed further, the Government of West Bengal issued a notification on 1 February 1959 under section 4(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (hereinafter referred to as the Act), allocating the trial of the case to the Special Judge who presided over the Special Court at Alipore. When the magistrate learned of this allocation, he issued an order on 16 February 1951 stating, “Under Government Notification dated 1 February 1951 this case has been allotted to the Special Judge, Alipore. The accused are to appear before him on 5 March 1951 at 10:30 a.m. Send this record to the Special Judge in the meantime.” Before the Special Judge took any step to proceed with the trial, the first respondent filed an application before the High Court under Article 226 of the Constitution, challenging the constitutional validity of section 4(1) of the Act on the ground that it violated Article 14 of the Constitution and therefore deprived the Special Judge of jurisdiction to hear the case, insisting that the matter should be tried by the regular criminal courts. This petition, together with several others raising the same issue, was heard by a Full Bench of the High Court, and by judgment dated 4 April 1952 the writ petition filed by the first respondent was allowed, with section 4(1) of the Act being struck down as unconstitutional.

In the earlier decision, the learned judges declared the relevant section of the statute unconstitutional, holding that the Special Judge did not possess jurisdiction to try the case and ordering that the accused remain in custody as under‑trial prisoners until a legally valid retrial could be conducted. In response, the Government of West Bengal enacted an amendment to bring the legislation into conformity with the Constitution by promulgating Ordinance 8 of 1952 on 9 April 1952, which also marked the date on which the ordinance was to become operative. Following this amendment, the charge‑sheets against the respondents were promptly re‑filed before the Special Judge at Alipore, and the judge issued summons on 2 June 1952 directing the respondents to appear before him. The first respondent then filed a revision petition before the High Court, seeking the cancellation of both the proceedings before the Special Judge and the summons issued by him. Although the specific grounds of that petition are not reproduced, it is relevant to note that, before the petition could be heard, Ordinance 8 of 1952 expired and was supplanted by West Bengal Act 12 of 1952, which essentially reenacted the provisions of the ordinance and was scheduled to take effect upon the expiry of the ordinance. Neither the ordinance nor the permanent legislation that replaced it contained any saving clause indicating that actions taken or proceedings initiated under the authority of the ordinance would survive its termination. Moreover, Act 12 of 1952 introduced a provision in section 12 stating: “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 High Court, hearing the revision on 24 March 1953, concluded that, in the absence of a statutory saving provision, the expiry of the ordinance terminated all proceedings that had been commenced under its authority; consequently, the summons issued on 2 June 1952 and the attendant proceedings before the Special Judge were deemed to have become dead upon the ordinance’s lapse and were therefore liable to be set aside. The judges either relied solely on this reasoning or, having not been prompted to examine the effect of section 12 of Act 12 of 1952, chose not to address the impact of that provision on the Special Judge’s jurisdiction.

The Court noted that the provision concerning the jurisdiction of the Special Judge had been raised earlier. After the High Court’s order, the Government once more allotted the case to the Special Court and a fresh charge‑sheet was filed on 18‑June‑1953 against the accused. The first respondent again challenged the Special Judge’s jurisdiction and invoked the High Court’s revisional powers. Although the specific grounds pleaded on this occasion were not clearly recorded, the revision was later withdrawn and dismissed by an order dated 24‑May‑1954. Subsequently, after the termination of that revision, the Special Judge issued notice to the accused and commenced trial proceedings. The first respondent then filed a petition before the Special Judge contending that, under section 12 of Act XII of 1952, only the Chief Presidency Magistrate possessed jurisdiction over the case and that the State Government could not lawfully assign the trial to the Special Judge. The Special Judge rejected this objection and dismissed the petition. The respondent appealed that order by filing a criminal revision petition in the High Court, which was dismissed on 12‑January‑1956. While several points were argued before the learned judges, the matter relevant to the present discussion was the applicability of section 12 to the facts of the case. The High Court held that section 12 did not deprive the Special Court of jurisdiction because the proceedings in question had been initiated after 9‑April‑1952, namely by the State Government’s allotment announced in the Gazette in December 1952 and by the fresh charge‑sheet filed on 18‑June‑1953. The judges observed that the original allotment to the Special Judge in February 1951 had been set aside by the High Court’s order of 4‑April‑1952, so that on the day the Ordinance came into force (9‑April‑1952) no proceeding was pending before the Special Judge. Accordingly, the subsequent allotment and charge‑sheet constituted new proceedings that were not governed by the language of section 12. Dissatisfied with this reasoning, the first respondent filed a petition for special leave to appeal to this Court, alleging that the High Court’s construction of section 12 was erroneous. This Court dismissed the petition, stating that it was not appropriate to intervene at that stage, but dismissed it “without prejudice” so that the petitioner could raise the issue in a proper forum at a proper time. Following the Supreme Court’s observation, the respondents again contested the Special Judge’s jurisdiction, claiming it was barred by section 12 when the matter returned to his consideration.

In the subsequent proceedings, the respondents filed a formal petition raising an objection to the jurisdiction of the Special Judge. The Special Judge, in an order dated 22‑2‑1956, upheld the objection and discharged the respondents. The Government did not contest the correctness of that order and therefore did not move the High Court on its behalf. After that, a charge‑sheet was presented to the Chief Presidency Magistrate. The filing of that charge‑sheet could be justified only on the basis that the Government had accepted the position that, when the allotment to the Special Judge and his assumption of jurisdiction were set aside by the High Court on 4‑4‑1952, the proceedings that had been initiated before the Chief Presidency Magistrate by a complaint dated 16‑1‑1951 continued to be pending before that Magistrate.

When the Chief Presidency Magistrate directed that process be issued against the respondents so that their trial could commence before his court, the first respondent filed a revision petition before the High Court objecting to the Magistrate’s jurisdiction. The High Court disposed of that revision on 19‑12‑1956, allowing the petition. The rationale for that decision can be seen in a passage from the judgment of Das Gupta,: “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 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. I cannot see any way, however, of escaping from the conclusion that by its decision of 24‑3‑1953, 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 therefore made absolute, and the order of the Chief Presidency Magistrate directing the issue of process against the respondents was set aside.

Subsequently, the Government again exercised power under S. 4 of the Act by allotting the case to a Special Judge, and a fresh charge‑sheet was filed in that Special Judge’s court. The respondents once more objected to the jurisdiction of the Special Court. That objection was over‑ruled, and for the sixth time the matter was brought before the High Court by a criminal revision petition. The learned judges of the High Court accepted the revision and quashed the orders of the Special Judge, holding that, by reason of the order of the High Court dated 4‑4‑1952 quashing the allotment as …

Along with the charge‑sheet that had been filed before the Special Judge, the criminal proceedings were still pending before the Chief Presidency Magistrate on 9 April 1952. The reasoning adopted by the learned judges of the High Court was the same as that which Justice Das Gupta had been prepared to apply to the effect of section 12 of the Act in the facts of this case, except that Justice Das Gupta considered himself prevented from giving that effect because of an earlier judgment of this Court. The State, in the present appeal, contests the correctness of the High Court’s order dated 4 April 1952. Counsel for the appellant advanced four principal grounds. First, it was submitted that, properly understood, the legal effect of the High Court’s order of 4 April 1952 was not to revive the proceedings in the Court of the Chief Presidency Magistrate so that they would be pending there on 9 April 1952. Second, it was contended that the High Court’s order of 4 April 1952, which quashed the proceedings before the Special Judge on the ground that section 4 was unconstitutional for violating article 14 of the Constitution, was itself erroneous because the law upon which that conclusion was based had later been disapproved by this Court in Kedar Nath Bajoria v. State of West Bengal (1) (3) (1954) S.C.R. 30. Third, the counsel argued that there was no identity between the proceedings that had been initiated before the Chief Presidency Magistrate by the complaint and charge‑sheet filed in January 1951 and the proceedings before the Special Judge that the High Court directed to be quashed, and that section 12 had therefore been wrongly applied by the learned judges. Fourth, it was submitted that the earlier decisions of the High Court dated 12 January 1956 and 19 December 1956 were correct, were binding on this Court, and consequently should have been followed.

Before analysing those arguments in detail, the Court observed that the second contention could be disposed of swiftly. That contention was based on a fundamental misconception because it attempted to equate a decision reached without jurisdiction with an erroneous decision rendered by a court that did possess jurisdiction. The Court explained that a wrong decision issued by a court having jurisdiction is as binding between the parties as a correct decision and can be set aside only by appeal to a higher tribunal or by the specific remedial processes authorized by law, such as review. The learned judges of the High Court who issued the order on 4 April 1952 possessed full jurisdiction to adjudicate the matter, and the fact that their decision was later found to be erroneous on the merits does not diminish its finality or its binding effect upon the parties at the time it was pronounced. Consequently, there was no merit in the contention that the High Court’s order should be treated as ineffective. The Court therefore affirmed that the High Court’s decision of 4 April 1952 continued to bind the parties irrespective of whether the reasons for the decision were later deemed unsound. The remaining points raised by the counsel were grouped under two headings. The first asked what the effect of the High Court’s order of 4 April 1952 was: whether, by quashing the proceedings before the Special Judge, the order automatically reinstated the jurisdiction of the Chief Presidency Magistrate over the case and the offence he had taken cognizance of, a result which, under section 12, would deprive the Special Judge of jurisdiction unless later binding decisions precluded that effect. The second question concerned whether the present proceedings, which had been initiated by a Government order of allotment and for which a charge‑sheet was filed on 18 June 1963, fell within the ambit of section 12.

In answering the first question, the Court examined whether the Presidency Magistrate who originally possessed jurisdiction over the case and the offence for which he had taken cognizance could retain that jurisdiction after the High Court’s decision. The Court held that, if the effect of the High Court’s order were to be that the special judge acquired jurisdiction, then, under section 12, the special judge would in fact lack jurisdiction unless a later decision binding on the parties were to give effect to that position. The Court therefore agreed with the view expressed by Das Gupta, J., that the earlier High Court judgment of April 1953 had the capacity to determine the matter, and that that view would have been given effect but for the earlier decision of that Court in April 1953. It was considered appropriate to first determine the legal consequences of the order dated 4‑4‑52 and thereafter to examine whether any subsequent High Court decisions would prevent the construction of that order which the Court was prepared to adopt.

The second question concerned whether the present proceedings, initiated by an order of allotment passed by the Government and for which a charge‑sheet was filed on 18‑6‑63, were affected by section 12. The Court observed that a charge‑sheet had indeed been filed by the police before the Chief Presidency Magistrate, who possessed jurisdiction to entertain the complaint and to conduct the enquiry and trial. The magistrate duly took cognizance of the offence, thereby seizing the proceedings. At that stage the Government issued a notification under section 4 of the Act, allotting the case to the Special Judge at Alipore and directing that the trial proceed before him. The High Court declared that order of allotment and transfer unconstitutional, and that decision became final as between the parties. Consequently, the situation was treated as if no allotment to the Special Judge had ever occurred, leaving the Special Judge without any jurisdiction, the allotment being a nullity. When the Chief Presidency Magistrate learned of the Government’s notification, he issued an order on 16‑2‑51 directing the dispatch of the records to the Special Judge. The Court described that order as merely ministerial or mechanical, intended to give effect to a governmental order that had no legal existence, and therefore it could not affect the magistrate’s pre‑existing jurisdiction. After the High Court quashed the order under section 4 on 4‑4‑52, the Court restored the position that existed before the unlawful allotment, namely that the jurisdiction of the Chief Presidency Magistrate over the case was revived. Accordingly, under section 12, the proceedings against the respondent remained pending in the court of the Chief Presidency Magistrate.

On 9‑4‑52, the Ordinance came into force. The Court then considered whether any subsequent proceedings, which occurred after the High Court’s order dated 4‑4‑52, altered the legal situation that existed on that date. In May 1952, while the Ordinance was still in effect, the case was allotted to the Special Judge; however, the High Court set aside that allotment by its order of 24‑3‑1953 on the ground that, on the strength of the Ordinance, the proceedings could not continue after the Ordinance expired. That High Court decision restored the position to what it had been before the May 1952 allotment. Afterwards, another allotment was made in December 1952, and a fresh charge‑sheet based on that allotment was presented before the Special Judge on 18‑6‑53. The legality of this December allotment was later affirmed by the High Court in its order of 12‑1‑1956, when the learned judges declined to quash the proceedings before the Special Judge; that judgment subsequently became final. Nevertheless, the Court noted that the High Court’s 12‑1‑1956 judgment had been obtained through a special leave petition, and the Court had already extracted observations made when it dismissed that special leave petition. Those observations favoured the view that the respondents were free to raise anew objections to the Special Judge’s jurisdiction. If the respondents relied solely on those observations, the State could have argued that the High Court’s judgment remained binding on the parties because the petition for leave under Article 136 had been dismissed. The matter, however, did not end there. Despite the High Court’s earlier judgment, the first respondent—apparently encouraged by the Court’s observations while dismissing his special leave petition—raised an objection before the Special Judge, invoking section 12 of the Act. The Special Judge accepted that objection, ordered the discharge of the accused, and directed that the inquiry and trial for the offences should be conducted by the Chief Presidency Magistrate. The State did not challenge this Special Judge’s order of 22‑2‑56 in a revision before the High Court, thereby accepting it. Consequently, the Court held that the Special Judge’s later order superseded the High Court’s earlier order of 12‑1‑56. The Court then turned to the effect of the High Court’s order dated 19‑12‑56, which quashed the proceedings before the Presidency Magistrate when that magistrate attempted to exercise jurisdiction after the State’s prayer that those proceedings be revised. The Court considered this quashing to be crucial for resolving the appeal. Justice Das Gupta, speaking for the Court, recorded two findings: first, that without being influenced by prior decisions, he would have concluded that the case remained pending before the Chief Presidency Magistrate on 9‑4‑52, and therefore, under section 12 of the Act, jurisdiction to try the case was vested in the Special Court.

In this case the Court recorded two principal findings. First, it observed that if the Court were not constrained by any earlier decisions it would have concluded that on 9‑4‑52 the case was still pending before the Chief Presidency Magistrate, and therefore, under section 12 of the Act, jurisdiction to try the matter was vested in the Special Court. Second, the Court held that the earlier decision of 24‑3‑53 prevented it from giving effect to the first finding because that earlier decision, although not expressed in absolute terms, had implicitly held that the Special Court possessed jurisdiction over the case. Acting on that earlier decision, the Court set aside the proceedings before the Magistrate.

Turning to the effect of the decision dated 24‑3‑53, the Court noted that the learned judges, in their order of 19‑12‑56, had failed to consider events that had occurred after the High Court’s order of 24‑3‑53, particularly the impact of the Special Judge’s order of 22‑2‑56 which upheld an objection to his jurisdiction and became final because the State made no challenge to it. Viewed properly, that later order nullified the effect of the earlier High Court rulings that had expressly or implicitly held that the Special Judge had jurisdiction. What is material for the present purpose is not whether the opinion expressed in the High Court decision of 19‑12‑56 is correct, but whether that opinion constitutes a binding determination between the parties regarding the appropriate forum for trial.

The Court observed that although the judges in the earlier judgment added that they offered “no opinion on the question whether it was still possible for the State to institute legal proceedings against the petitioner on the facts alleged,” that qualification does not detract from the clear statement that the effect of the 1953 decision was that the proceedings were pending before the Special Judge after 9‑4‑52. Consequently, the position that emerges is that, while the order of the High Court dated 4‑4‑52 left the proceedings against the accused pending before the Chief Presidency Magistrate, thereby invoking the prohibition of section 12, the subsequent decision of the High Court dated 1‑9‑12‑1956, which is binding as between the parties, held that the Special Court had jurisdiction and that section 12 did not bar the trial.

There is no way for the respondent to escape this state of affairs or to gain any advantage by insisting on the correct result of the 4‑4‑1952 order untainted by the later binding decisions. Accordingly, the Court concluded 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 overturning the order of the Special Judge. Although it was not necessary to consider the other submission of the learned counsel for the State, the Court, having found that submission to be seriously raised, expressed its opinion on that point as well.

In this part of the judgment the Court explained that its discussion proceeded on the assumption that the effect of the High Court order dated 19‑12‑56 could be set aside. The second contention raised by counsel for the State was framed in the following manner: suppose that a proceeding was pending before the Chief Presidency Magistrate on 9‑4‑52; that circumstance, the State argued, did not bar the State Government from commencing fresh proceedings for the same offences against the accused, from assigning those fresh proceedings to a Special Judge pursuant to section 4(2), and from filing a new charge‑sheet based on those fresh proceedings. The Court observed that this is exactly what had occurred when the present proceedings were initiated on 23‑7‑57 after the earlier proceedings before the Chief Presidency Magistrate had failed because of the High Court order. Although this argument had not been raised before the High Court, the Court noted that the appellant was not precluded from raising it now, but the Court also stated that it could not succeed. The Court further observed that there was no dispute that the charge framed against the accused concerned the same offences that had been the subject of the earlier proceedings instituted before the Chief Presidency Magistrate in January 1951. The Court then turned to the statutory scheme, noting that West Bengal Act XII of 1952 introduced a new section 4 into the parent Act of 1949 and, by way of its second sub‑section, empowered the State Government to distribute among the Special Courts the cases listed in the Schedule, such cases to be tried by the Special Courts. It was under this provision that the allotment to the Special Judge was made in July 1957. However, the Court pointed out that section 12 of the same Act expressly provided that nothing in the Act would apply to any proceedings that were pending on the date of commencement of the ordinance, namely 9‑4‑52. Accordingly, if the prohibition contained in section 12 must be given effect, the Court reasoned that a case pending on 9‑4‑52 could not be allotted to a Special Judge under section 4. The Court considered that to hold otherwise would amount to a plain evasion of the bar contained in section 12. The apparent purpose of section 12, the Court explained, was to prevent the Government from exercising its power to allot the trial of an offence to a Special Court, created under section 2 of the Amending Act, when ordinary court proceedings were already pending; instead, those ordinary proceedings were to continue and be concluded in the ordinary courts. Finally, the Court concluded that to accept the State’s argument that, notwithstanding the prohibition in section 12, the Government could still allot a case involving the same offence, arising from identical facts and against the same accused, to a Special Judge would constitute a clear infringement of the statutory prohibition.

The Court held that interpreting the provisions of section 12 in a way that would erode the protection that the statute was intended to provide was impermissible. It observed that assigning a different reference number to an allotment or effecting that allotment at a later date did not alter the essential question of whether the new proceeding was substantially identical to the one that had been pending before the Chief Presidency Magistrate on 9‑April‑1952. The Court noted that there was no dispute that the matter which had been allotted to the Special Court concerned the same incident, that it charged the same accused, and that it sought to establish substantially the same offences as were involved in the earlier proceedings before the Magistrate. Accordingly, the appellant derived no benefit from a fresh allotment made in July 1957, nor from any earlier allotments on which reliance was placed. The Court stressed that such an allotment fell squarely within the prohibition contained in section 12, and that the protection afforded by that section could not be defeated by characterising the fresh allotment as the commencement of a new proceeding. This line of argument was therefore found to lack any substance and was rejected. As a result, the Court allowed the appeal, set aside the order of the High Court, and expressed the hope that its decision would put an end to objections concerning the appropriate forum. The matter was ordered to proceed expeditiously before the judge of the Special Court, who was held to have jurisdiction over the case. Appeal allowed.