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Akbaralli Tayaballi Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 747 of 1950
Judge
Reported inAIR1951Bom145; (1951)53BOMLR553; ILR1952Bom73
ActsBombay Essential Supplies (Temporary Powers) and Essential Commodities and Cattle (Control) (Enhancement of Penalties) Act, 1947 - Sections 2(1) and 3; Code of Criminal Procedure (CrPC) , 1898 - Sections 29 and 29(2)
AppellantAkbaralli Tayaballi
RespondentState
Appellant AdvocateIshwarlal C. Dalal and ;B.R. Trivedi, Advs.
Respondent AdvocateH.M. Choksi, Govt. Pleader
DispositionAppeal dismissed
Excerpt:
.....state v. xxxvi [36] of 1947 mights have been drafted better & should have specifically mentioned that, pursuant to the provisions of section 29, sub-section (1) of the criminal p. their lordships went on to hold in that case that although section 3 of the act might have been better worded, it did contain a substantial compliance with the provisions of section 29, sub-section (1), criminal p. if in the case or cases of any of such offences the legislature intends to enact a provision that a specially empowered magistrate of the first class or a presidency magistrate may inflict a sentence of more than two years' rigorous imprisonment, it would be appropriate to enact a section like section 3 of act no. now if the legislature intends to enact a provision that a specially empowered first..........by a presidency magistrate's court under the criminal p.c. if in the case or cases of any of such offences the legislature intends to enact a provision that a specially empowered magistrate of the first class or a presidency magistrate may inflict a sentence of more than two years' rigorous imprisonment, it would be appropriate to enact a section like section 3 of act no. xxxvi [36] of 1947. but it could not be said that the said magistrate derived an authority or jurisdiction to try those offences under that section. he has already got the jurisdiction to try those cases under the criminal p. c. take the ease of an offence of voluntarily causing grievous hurt. it is triable by a couru of a first class magistrate or even by a court of a second class magistrate. now if the legislature.....
Judgment:

Vyas, J.

1. This is an appeal by the original accused 1, who has been convicted by the Presidency Magistrate, Fourth Court, Girgaum, Bombay, under Section 2 (1), Bombay Essential Supplies (Temporary Powers) & the Essential Commodities & Cattle (Control) (Enhancement of Penalties) Act, 1947, (Act No. XXXVI [36] of 1947), read with Section 4, Bombay Essential Commodities & Cattle (Control) Act, 1946, (Act No. XXII [22] of 1946) read with Notification No. 129-IP (5), dated 6-7-1946, issued under Sub-section (1) of Section 4 of the above mentioned Act (No. XXII [22] of 1946).

2. The gravamen of the offence alleged against accused l is that on 7-6-1949, he and accused 2 sold to a bogus customer, one Amritlal Girdharilal Mehta, 100 bags of pure cement at Rs. 9 per bag without having authority from the Cement Adviser to the Govt. of India or the Regional Cement Adviser, Bombay. Notification No. 129-IP (5), dated 6 7-1946, issued under Sub-section (1) of Section 4, Bombay Essential Commodities and Cattle (Control) Act, 1946, (Act No. XXII [22] of 1946), directed that no person could sell cement unless authorized in writing to do so by the Honorary Cement Adviser to the Govt. of India or the Regional Honorary Cement Adviser to the Govt. of Bombay or by a person authorized in this behalf by the said authority. Section 10 (1) of Act No. XXII [22] of 1946 provided that if any person contravened any order made under Section 4 of that Act, he would be liable to imprisonment for a term which may extend to three years & would also be liable to fine. By Act No. XXXVI [36] of 1947 the penalties prescribed in Section 7, Sub-section (1) of tbe Essential Supplies (Temporary Powers Act) 1946, (Act No. XXIV [24] of 1946), for contravention of the orders made under 3. 3 of that Act & those prescribed in Section 10, Sub-section (1), Act No. XXII [22] of 1946, for contravention of orders made under Section 4 of the Act were sought to be enhanced. Section 2 (1) of Aot No. XXXVI [36] of 1947 lays down that the penalties for breaches of orders made under Sections 3 and 4 of Act No. XXIV [24] of 1946 & Aot No. XXII [22] of 1946, respectively, may extend to seven years, but shall not, except for reasons to be recorded in writing, be less than six months, & provides further that the delinquent shall also be liable to fine. It is in this way that both the original accused were charged under Section 2(1) of Act No. XXXVI [36] of 1947 read with Section 4 of Act No. XXII[22] of 1946 read with Notification No. 129-IP (5), dated 6-7-1946, issued under Section 4 of Act No. XXII [22] of 1946.

3. Now, Mr. Dalai for the appellant has con-tended that the Court of the Presidency Magistrate who tried the appellant had no competence at all in law to try an offence under Section 2 (1) of Act No. XXXVI [36] of 1947, & a reference is made by him in this connection to Section 29(1), Criminal P. C., which lays down :

'Subject to the other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court.'

It is submitted by Mr. Dalai that no Court is specifically mentioned in the body of Act No. XXXVI [36] of 1947 which can try an offence under Section 2(1) of that Act. Next, Mr. Dalai has referred to Sub-section (2) of Section 29, Criminal P.C. which provides as under :

''When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable.'

Now, if we turn to the eighth column of the second schedule to the Criminal P. C., we find under the caption 'Offences against other laws' that if an offence is punishable with death, transportation or imprisonment for seven years or upwards, Court of Session is the only Court which can try it. From this it is argued by Mr. Dalai that as an offence under Section 2 (1) of Act No. XXXVI [36] of 1947 is punishable with impri-sonment which may extend to seven years, a Court of Session alone is competent to try it. Referring to Section 3 of Act No. XXXVI [36] of 1847, it is argued by Mr. Dalal that it only lays down that a specially empowered Magistrate of the First Class may impose enhanced penalties. It is then contended by him that there is a real distinction between power or jurisdiction to try an offence or take cognizance of an offence & power to inflict punishment for an offence, & that, therefore Section 3 of Act No. XXXVI [36] of 1947 which only deals with the power of certain specially empowered Magistrates to award enhanced penalties can confer no competence on those Magistrates to try offences under Section 2, sub Section (1), of Act No. XXXVI [36] of 1947.

4. Now, before we can accent the above con- tention of Mr. Dalai, we shall have to hold, firstly, that Section 3 of Act XXXVI [36] of 1947 enacted by the Legislature is a meaningless section since there is no sense in saying that a Magistrate may impose an enhanced penalty for a certain offence when he cannot try that offence at all; & secondly, that the Legislature was not even aware that in framing Section 3 it was enacting a meaningless provision. We feel ourselves unable to attribute such ignorance to the Legislature. The Legislature is presumed to know the law. It must be presumed to know that under Section 29, Criminal P. C., 'an offence under any other law' shall be tried by a Court which is mentioned in such law & that where no such Court is mentioned, the offence may be tried by the Court mentioned in respect of it in the eighth column of Sch. II to the Criminal P. C. In other words, the Legislature must be presumed to know that unless Act No. XXXVI [36] of 1947 provided that the Court of the Magistrate empowered under Section 8 to award an enhanced penalty was also the Court which could try offences under Section 8(1) of the Act, a Court of Session alone would be competent to try such offences. In such circumstances we hold that in enacting Section 3 of Act No. Rule XXXVI [36] of 1947 the Legislature intended that the Court of the Magistrate referred to therein was also the Court which was competent to try offerees under Section 2, Sub-section (1), of that Act.

5. Precisely the same point arose in State v. Mohammed Hamid, in Appeal No. 800 of 1949 D/- 6-2-50 in which it was observed by their Lordships that Section 3 of Act No. XXXVI [36] of 1947 mights have been drafted better & should have specifically mentioned that, pursuant to the provisions of Section 29, Sub-section (1) of the Criminal P. C. a Presidency Magistrate should be the Court to try the offence although the sentence for that offence was up to seven years' rigorous imprison ment. Their Lordships went on to hold in that case that although Section 3 of the Act might have been better worded, it did contain a substantial compliance with the provisions of Section 29, Sub-section (1), Criminal P. C. They observed :

'That the very fact that the Legislature empowered the Presidency Magistrate to pass a sentence up to seven years' rigorous imprisonment for the offences contemplated by the special law made it clear that that was the tribunal which the Legislature intended should try those offences.'

And therefore, in their opinion, that wag the Court mentioned in that behalf in the special law as required by Section 23, Sub-section (1), Criminal P. C. We follow that judgment; but, with great respect, it appears to us that as a general proposition the argument employed in the above quoted observations does not seem to be a necessarily conclusive one. There are quite a number of offences which are punishable with more than two years' rigorous imprisonment & which are yet triable by a First Class Magistrate's Court or by a Presidency Magistrate's Court under the Criminal P.C. If in the case or cases of any of such offences the Legislature intends to enact a provision that a specially empowered Magistrate of the First Class or a Presidency Magistrate may inflict a sentence of more than two years' rigorous imprisonment, it would be appropriate to enact a section like Section 3 of Act No. XXXVI [36] of 1947. But it could not be said that the said Magistrate derived an authority or jurisdiction to try those offences under that section. He has already got the jurisdiction to try those cases under the Criminal P. C. Take the ease of an offence of voluntarily causing grievous hurt. It is triable by a Couru of a First Class Magistrate or even by a Court of a Second Class Magistrate. Now if the Legislature intends to enact a provision that a specially empowered First Class Magistrate or a Presidency Magistrate may inflict a heavier senterce than two years' rigorous imprisonment in such oases, the appropriate procedure would be to enact a section like Section 3 of Act No. XXXVI [36] of 1947. But it could not be said that the Magistrate concerned derived his authority to try such offences of voluntarily causing grievous hurt under that section. The obvious reason is tha,t he has already got jurisdiction to try such offences under the Criminal P. C. We are accordingly of the opinion, with great respect, that it would not be a necessarily conclusive argument to say that because the Legislature by enacting a section empowers a First Class Magistrate or a Presidency Magistrate to pass a sentence of more than two years' rigorous imprisonment, it must follow that the Magistrate derives competence to try a particular offence under that section. In the case in hand, however, we have already seen that unless the Legislature intended that the Court of the Magistrate referred to in Section 3 of Act No. XXXVI [86] of 3947 was also to be the Court to try offences under Section 2, Sub-section (1) of the Act, Section 3 would be meaningless. We have also pointed out that unless we hold that the intention of the Legislature was that the Magistrate referred to in Section 3 of Act No. XXXVI [36] of 1947 was also to be the Court which could try offences under Section 2, Sub-section (1) ofthe Act, we shall have to attribute ignorance oflaw to the Legislature which we are not preparedto do. We must, therefore, hold, as the learnedChief Justice & Gajendragadkar J. held in Statev. Mahommed Hamid, 1924-41 R.P.C. 423 that inenacting Section 3 of Act No. XXXVI [36] of 1947, theLegislature intended that the Magistrate referredto in Section 3 would be the Court to try offences under Section 2 (1) of the Act. Therefore, we reject the firstcontention advanced before us by Mr. Dalai forthe appellant. [The rest of the judgment is notmaterial to this report.] For reasons aforesaid theorder of conviction & sentence passed on the appellant is confirmed, & the appeal is dismissed.


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