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In Re: Azgaralli Nazaralli Singaporewalla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 1304 of 1952 and 349 of 1953
Judge
Reported inAIR1954Bom327; (1954)56BOMLR199; ILR1954Bom763
ActsIndian Penal Code (IPC), 1860 - Sections 109, 114, 116, 161, 165 and 165(A); Criminal Law (Amendment) Act, 1952 - Sections 3, 6, 6(1), 7, 7(1), 7(3) and 10; Constitution of India - Article 14; Code of Criminal Procedure (CrPC) , 1898 - Sections 337; General Clauses Act - Sections 5(2); West Bengal Criminal Law (Amendment) (Special Courts) Act, 1949 - Sections 4; Government of India Act, 1935; Interpretation Act - Sections 38(2); Employers Liability Act, 1880
AppellantIn Re: Azgaralli Nazaralli Singaporewalla
Advocates:A.S. Pradhan and ;P.A. Pradhan, Advs.;H.M. Choksi, Govt. Pleader
Excerpt:
criminal - conviction - sections 109, 114, 116, 161, 165 and 165 (a) of indian penal code, 1860, sections 3, 6, 6 (1), 7, 7 (1), 7 (3) and 10 of criminal law (amendment) act, 1952, article 14 of constitution of india, section 337 of criminal procedure code, 1898, section 5 (2) of general clauses act, section 4 of west bengal criminal law (amendment) (special courts) act,1949, government of india act, 1935, section 38 (2) of interpretation act and employers liability act, 1880 - accused charged of offence under section 161 read with section 116 and further read with section 109 or section 114 - whether trial magistrate had jurisdiction in matter - during pendency of trial criminal law amendment act, 1952 came into force - under section 6 of act state government had constituted court of.....bavdekar, j.1. these are two appeals, one an acquittal appeal & one a conviction appeal. the appeals arose from a case tried by the learned presidency magistrate, 19th court, bombay, in which five persons, accused no. 1, a mehta in the employment of a firm called messrs. m.m. baxabhoy & co., accused no. 2, who is their manager, and accused nos. 3, 4 and 5, who are the receivers of the properties of the firm in litigation in regard to it, were charged with offences under section 161 read with section 116 & further read either with section 109 or section 114, penal code for offering to jibhai chhotalal barot, a sub-inspector of police attached to the anti-corruption branch of the c. i. d., a sum of rs. 1,25,000 as illegal gratification other than legal remuneration as a motive or reward for.....
Judgment:

Bavdekar, J.

1. These are two appeals, one an acquittal appeal & one a conviction appeal. The appeals arose from a case tried by the learned Presidency Magistrate, 19th Court, Bombay, in which five persons, accused No. 1, a mehta in the employment of a firm called Messrs. M.M. Baxabhoy & Co., accused No. 2, who is their manager, and accused Nos. 3, 4 and 5, who are the Receivers of the properties of the firm in litigation in regard to it, were charged with offences under Section 161 read with Section 116 & further read either with Section 109 or Section 114, Penal Code for offering to Jibhai Chhotalal Barot, a Sub-Inspector of Police attached to the Anti-Corruption Branch of the C. I. D., a sum of Rs. 1,25,000 as illegal gratification other than legal remuneration as a motive or reward for his showing favour to the accused and to Messrs. M.M. Baxabhoy & Co. in the exercise of his official functions. The conviction appeal is by accused No. 2. and the acquittal appeal is, of course, by the State.

2. The first point which arises in these appeals is as to whether the learned Magistrate has jurisdiction to try the case, after the coining into force on 28th July 1952, during the pendency of the trial, of Act No. 46 of 1952 called the Criminal Law Amendment Act, 1952. It is not in dispute that under the provisions of Section 6 of that Act the State-Government has constituted for Greater Bombay the Court of a Special Judge for the purpose of trying offences mentioned in clauses (a) and (b) of Sub-section (1) of that section. The Special Judge was appointed on 23rd September 1952, and the judgment in this case was delivered six days later 29-9-1952.

3. Now, Section 7 of the Act gave to the Court so constituted exclusive jurisdiction for trial of the-offences mentioned in Sub-section' (1) of Section 6. The first point which has been made, however, on behalf of the acquitted accused is that the same Act which constituted the Special Court also added Section 165A to the Indian Penal Code, by which, whoever abetted any offence punishable under Section 161 or Section 165 was made liable to be punished with; imprisonment of either description for a term which may extend to three years, or with fine, or with both, whether the offence abetted was committed or not. It is contended consequently that, to the facts alleged against the accused persona Section 116, Penal Code has no application, inasmuch as Section 116 has application only when no express provision is made by the Code for the punishment of the abetment of an offence.

Inasmuch as Section 165A which was added to the Code by the Criminal Law Amendment Act, 1952; prescribes a punishment for the abetment of the-offence under Section 161, Section 116 has no application. The section, however, came into force only on 28th July, 1952, and it had no retrospective application, for the reason that all Acts are presumed to be prospective, and Section 165A which imposes a higher penalty for abetment of the offences under Ss. 161 and 165 has no application to acts committed before its enactment, it being perfectly easy to read the section prospectively without doing violence to its language. The accused were, therefore, rightly tried for the offences under Section 161 when read with Section 116 further read with Section 109 or Section 114.

It is contended, however, on behalf of the acquitted accused that, even so, clause (b) of Section 6, Sub-8, (1) had no application to the case against them, because Section 165A, Penal Code is specifically mentioned in clause (a) of Sub-section (1) of Section 6, and it must be taken that there was not in existence, after the date of the enactment of Act No. 46 of 1952, on the criminal statute book, any offence falling within the purview of Section 161 read with Section 116, and consequently any offence like the abetment of the offence under Section 161 when read with Section 116.

That contention, however, cannot possibly be considered. In case Section 165A, Penal Code was applicable only to offences committed after the date of its enactment, Section 116 which remained upon the statute book was available even if we consider only the cases of abetment of the offence under Section 161, for the punishment of offences which might have been committed before 28-7-1952.

4. In that case, the only question which remains, apart from a constitutional question, which will be mentioned last, is whether there was anything in Act No. 46 of 1952 which took away the Jurisdiction of the learned trial Magistrate to try a case which had already been instituted in his Court and in which he had made considerable progress when Act No. 46 of 1952 was enacted. Now, Section 7 of the Act took away the jurisdiction of the Courts mentioned in the Code of Criminal Procedure to try such offences, because of the opening words of Sub-section (1) to Section 7, 'Notwithstanding anything contained in the Code of Criminal Procedure, 1398.'

It is true that the question as to whether the section has got any application to pending proceedings has to be considered. But, in the first instance, no one has got a vested right in any particular forum. It is true that this Court has taken the view that when criminal proceedings are instituted, a right of trial by jury is a vested right. Also where a suit or a proceeding is instituted, the right of appeal to a superior Court is a right vested in a party from the date of the institution of the suit. But that is upon the ground that the right which was regarded as a vested right was of appealing to a Court superior to the Court to which a later enactment provides that an appeal shall lie. It cannot be said in this case that the learned Magistrate, who tried the appellants, was a Court superior to the Special Judge constituted under the Criminal Law Amendment Act.

Coming next to the consideration that in this case proceedings had already been instituted in the Court of a particular Magistrate, our attention has been drawn to the case of -- 'Venugopala v. Krishnaswami . That was, however, a case decided under Section 33 of the Interpretation Act. In the second instance, the principle of that case appears to me to be that a right of action is a vested right, and that is especially so when the action has been instituted already. It is no argument to tell the plaintiff, who objects to an enactment, which is supposed to take away his right of action after it is instituted, that no vested right of his is taken away, because he can still institute a suit outside the country, or, as the English lawyer puts it, outside the realm. The right to sue someone else outside the country is obviously illusory and no substitute for a right to sue in a domestic Court.

5. But apart from anything else, in decidine the question as to whether the learned Magistrate had or had not Jurisdiction to try the case after 28th July, 1952, we must not read Section 7 alone. That section must be read with Section 10, which specifically has got application to pending cases, and If we look at the wording of the latter section, there is no doubt whatsoever that the Legislature had got, in enacting those two sections, a retrospective intent. What is the extent to which it intended that the Act should be retrospective may be considered later; but on reading the two sections together, there is no doubt whatsoever that the Legislature intended that the Act of 1952 should apply to pending proceedings, and even though this is made clearer in Section 10, inasmuch as the two sections have got to be read together, it must be taken that Section 7 is also retrospective, in so far as it takes away the jurisdiction of the other Courts to try the case.

It is a well known principle of statutory construction that not only has the Act to be read as a whole, but it any portion of the Act makes it quite clear that a particular word bore a particular meaning, that meaning must be given to the word, when the intention is quite clear that the word bore that meaning throughout the Act, not only in the section which makes the intention clear, but wherever the word occurs. So in the Employers Liability Act, 1380, one section-prescribed that the notice shall be 'given' which. might be satisfied by verbal notice, but another section provided that the notice shall be 'served' on or 'left' with another, plainly implying that the notice is to be in writing. The word notice in both sections had to be interpreted to mean notice in writing. In -- 'Canada Sugar Refining Co. v. Reg. (1898) AC 735 (B). Lord Davey said (p. 741). :

' .... Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute ....'

In my view, once it is quite clear that Section 10 shows the retrospective intent of the Legislature, Section 7 also must be read retrospectively, with the result that from 28th July, 1952, the learned Magistrate who tried the case ceased to have jurisdiction to try the case which was before him.

6. That result can also be arrived at from looking at the wording of Section 10 alone. That section says :

'All cases triable by a Special Judge under Section 7 which, immediately before the commencement, of this Act, were pending before any magistrate shall, on such commencement, be forwarded for trial to the Special Judge having. Jurisdiction over such cases.'

It is true that Section 10 could have been worded, differently. It might, for example, have stated, that the Courts trying the pending cases shall cease to have jurisdiction to try them and the cases will have to be transferred to the Courts constituted under the Act. But even if the section', does not say so specifically, inasmuch as the word 'shall' has been used, the case must necessarily be transferred from the Magistrate who is trying the case. The section, therefore, shows specifically an intention that the Magistrate should not have any jurisdiction to try the case after the coming into force of the Act.

7. It is true that the case is to be transferred only to a Special Judge appointed under the Act, and there was in this case no appointment for some time after 28th July, 1952. But, in the first instance, it is impossible to read Section 10 as if it made the transfer of jurisdiction conditional upon the appointment of a Special Judge. There would have been some force in such a contention, in case it was contemplated that whereas in some areas Special Courts would be constituted, yet in others there would be no appointment of a Special Judge made.

It is true that the section which empowers the State Government to appoint Special Judges uses the word 'may'; but that does not mean that there was any option left to the State Government, because Section 7 provided that the Courts which would have jurisdiction to try the offences under Section 6(1) would cease to have jurisdiction to try them after the coming into force of the Act, and even it Section 7 was not retrospective, arrangements obviously had to be made after the coming into force of the Act for trial of offences mentioned in Sub-section (1) of Section 6 which may be committed after the coming into force of the Act. The appointment of a Special Judge was obviously, therefore, really compulsory.

8. Nor would it avail any of the accused persons, who have been acquitted, anything, if this Court were to hold that the cessation of the jurisdiction of the Magistrate was conditional upon the appointment of a Special Judge being made, for the reason that it is not in dispute that in this case the appointment of Mr. Bakhle as a Special Judge for Greater Bombay was made on 23rd September, 1952, and the learned trial Magistrate had not delivered his judgment prior to that date. He would cease to have jurisdiction, therefore, at any rate, from the appointment of Mr. Bakhle.

It is contended, however, on behalf of the acquitted accused, that Section 10 gives a Magistrate, before whom any cases are pending, the power to transfer the cases to a Special Judge but such power is to be exercised by him only once, and that is, upon the coming into force of the Act. If there is any appointment made when the Act came into force, the Magistrate would have power to transfer the case, which is pending before him, to the Special Judge having jurisdiction over the case. But if, say, for example, on 29th July, 1952, at 11 a.m. the Magistrate, before whom the case is pending, found that there is no Special Judge having jurisdiction over the case appointed, his powers come to an end. Thereafter he could never exercise those powers.

Mr. Somjee, who appears on behalf of the acquitted accused, relies in this connection upon the words 'on such commencement.' The Act came into force however at the moment next after the midnight of July 27. It is obvious that the State Government could not make any appointment before the Act came into force. It is contended, however, that it could make the appointment before 11 o'clock on July 28, because it must be knowing that the Magistrate would have power to transfer the case if at all under the Act immediately upon the coming into force of the Act, and it ought to have made the appointment before the Magistrate took up his seat on the bench at 11 o'clock.

Theoretically this was possible, but it was not practicable as the High Court would have to be consulted. Besides if the Magistrates had got to exercise their power under the Act at 11 o'clock, there is no reason why the State Government, which gets powers on July 23, should also not exercise its powers whenever it started work. Nor is it clear to me why the Legislature should have intended that all pending cases should be transferred to the Courts of Special Judges at the magical hour of 11 a.m. on July 28. I would, therefore, interpret the words 'on the coming into force of this enactment' to mean not only immediately the Act came into force but also 'after' its coming into force, that is, whenever a Special Judge was appointed who had power to try the pending cases.

9. Finally, there is a contention that the Act is 'ultra vires' of Article 14 of the Constitution. It is said, in the first instance, that the Act makes a distinction between accused persons tried for the offence mentioned in Sub-section (1) and accused persons tried of other offences. It is only the former accused persons who are to go before a Special Judge. Accused persons charged with other offences will be required to go elsewhere.

The Legislature, however, must of necessity have wide powers of classification in order to prevent the mischiefs against which it aims its legislative action and no question of unequal treatment really arises unless persons in the same circumstances are treated differently. But even if we were to consider whether there is any rational basis for the classification which is impugned, I can well conceive the Legislature having decided to entrust the Special Judges with the trial of offences falling under Section 6, Sub-section (1), on the ground that cases of those offences formed majority of cases coming before the Courts in regard to the evil of corruption against which the Criminal Law Amendment Act, 1952, is aimed. This objection is, obviously, therefore, unsustainable.

It is true that the Act does make a distinction between the cases of persons charged with the offences under Section 6(1) whose cases may have been committed to the Sessions Court and those whose cases have not. The former would be tried by the Sessions Court, even after the coming into force of the Act. On the other hand, where the case of a person who has committed an offence has not yet been sent up at all by the police, or where his case is pending before a Magistrate at the elate of the commencement of the Act, the case will be tried by a Special Judge. But it seems to me that the classification is obviously reasonable.

It is true that the Special Judge is, at any rate in this State, usually a Judge of a Sessions Court; but the Legislature may well have thought that where a person is already committed to a Court of Session, he should not be deprived of the advantage of a trial by that Court, where the accused would have an advantage of having the benefit of a jury, where the case is triable by a Jury, and the opinion of the assessors, where the case is triable with the aid of the assessors. That Is especially because the trial before a Sessions Court is usually fairly expeditious. The classification is plainly in the circumstances reasonable.

10. In my opinion, therefore, the learned trial Magistrate had no jurisdiction to try the case.

11. The conviction of accused No. 2 and the acquittal of accused Nos. 3, 4 and 5 complained of by the State Government must be set aside.

Vyas, J.

12. A short but important point of law has arisen in this case and I wish to add my observations to what has been stated by my learned brother. There were five accused persons in this case and the charge against them was under Section 161 read with Sections 116, 109 and 114, Indian Penal Code. The prosecution case was that the accused had on 28, July 1950, offered a bribe of Rs. 1,25,000 to J. C. Barot, a Sub-Inspector of Police attached to the Anti-Corruption Branch of the C. I. D., as A motive or reward for showing favour to the accused and to the firm of Messrs. M.M. Baxabhoy & Co., in the exercise of his official functions, namely, in the investigation which Mr. Barot was then conducting in the affairs of the said firm, and had thereby abetted the commission of an offence under Section 161 by Mr. Barot.

The prosecution commenced before the learned Presidency Magistrate, 19th Court, Bombay, on 14, July 1951, and the charge against the accused was framed on 27, September 1951. On 29, September 1952 the learned Presidency Magistrate delivered the judgment convicted and sentenced accused Nos. 1 and 2 and acquitted accused Nos. 3, 4 and 5. Accused No. 2 has appealed against his conviction and sentence and the State of Bombay has appealed against the acquittal of accused Nos. 3, 4 and 5.

13. Today, the appeals are heard on a preliminary point only, and the preliminary point is as to the jurisdiction of the trial Magistrate to try and decide the case. It is contended by the learned Government Pleader for the State of Bombay and by the learned advocate for accused No. 2 that, since the coming into force on 28, July 1952, of the Criminal Law Amendment Act No. 46 of 1952, the jurisdiction of the learned Magistrate to try an offence under Section 161 read with Section 116 of the Indian Penal Code was ousted, that since the said date (28, July 1952) the said jurisdiction was vested exclusively in the Special Judge appointed under the Act and that, therefore, the continuance of the trial of the case by the learned Magistrate from 28, July 1952, onward was without jurisdiction, and accordingly the acquittals of accused Nos. 3, 4 and 5 and the conviction of accused No. 2 were illegal.

On the other hand, the learned advocate Mr. Somjee for accused No. 3 and the learned advocate Mr. Bhatt for accused Nos. 4 and 5 have contended that the Special Judge appointed under the Criminal Law Amendment Act No. 46 of 1S52 had no competence to try an offence under Section 161 read with Section 116, Penal Code and that, therefore, the Court of the learned trial Magistrate, where the case was commenced, was alone competent to continue to try it and decide it.

14. In support of the learned Government Pleader's contention regarding the incompetence of the learned Magistrate, for want of jurisdiction in him, to continue the trial of the accused for an offence under Section 161 read with Section 116, Penal Code from the date of the coming into force of the Criminal Law Amendment Act, 1952 which I shall hereinafter refer to as the 'Act', the learned Government Pleader has relied on Sections 6, 7 and 10 of the Act. By Section 6(1), the Legislature empowered the State Government to appoint Special Judges for the trial of certain offences, and the said offences, were specified in Clauses (a) and (b) of Sub-section (1) of the section.

It may be noted that an offence under Section 161 was one of the offences mentioned in Clause (a) of Sub-section (1), Abetment of an offence under Section 161 was amongst the offences mentioned in Clause (b). Clearly, therefore, abetment of an offence under Section 161 was one of the offences, for the trial of which the State Government was empowered by S 6, Sub-section (1), of the Act, to appoint Special Judges. Section 7 of the Act provided that notwithstanding anything contained in the Code of Criminal Procedure, 1898, (Act 5 of 1898), or in any other law, the offences specified in Sub-section (1) of S, 6 shall be triable by Special Judges only. Thus, from 28, July 1952, onward, the abetment of an offence under Section 161, Penal Code became an offence triable exclusively by a Special Judge under Section 7. Then Section 10 provides:

'All cases triable by a Special Judge under section 7 which, immediately before the commencement of this Act, were pending before any magistrate shall, on such commencement, be forwarded for trial to the Special Judge having jurisdiction over such cases'.

The learned Government Pleader presses into service these provisions of the Act and contends that the jurisdiction or the Magistrate to continue the trial of the case of abetment of an offence under Section 161, which was pending in his Court immediately before the commencement of the Act, was ousted by these provisions which made it obligatory upon the Magistrate to forward the said case for trial 'to the Special Judge having jurisdiction over the case.

15. The learned counsel Mr. Somjee for accused No. 3 submits that on 28th July 1952, upon which date the Act came into force, a new offence was created and it was an offence under Section 165A to be inserted in the Indian Penal Code (Act 45 of 1860). With effect from 28th July 1952, the abetment of an offence punishable under Section 161 or Section 165, Penal Code was made punishable under Section 165A, and it was made punishable with imprisonment of either description for a term which may extend to three years or with fine or with both. It ceased to be dealt with under Section 116, i.e. it ceased to be punishable under Section 116 under which the maximum punishment provided was imprisonment which may extend to one half of the longest term provided for the principal offence if the abettor or the person abetted was a public servant whose duty it was to prevent the commission of such an offence.

In other words, Mr. Somjee contends that on and from 28th July 1952, Section 116 ceased to be effective and, in the words of Mr. Somjee, 'became a dead letter'. Mr. Somjee's contention is that an offence which was created by a section which is made a 'dead letter' by the Act cannot be tried by a tribunal appointed under the Act, but its trial must continue to be held in the Court where it was pending before the coming into force of the Act.

16. It is clear that a fresh case of abetment (i.e. abetment committed on and after 28, July 1952) of an offence under Section 161 must be tried by a Special Judge appointed under the Act and according to the procedure prescribed by the Act. It would be an offence under Section 165A and not under Section 116. But we cannot agree with Mr. Somjee that a case of abetment, committed before the coming into force of the Act, of any of the offences mentioned in clause (a) of Sub-section (1) of Section 6 of the Act, which was pending in a Magistrate's Court immediately before the coming into force of the Act, would not be governed by the provisions of the Act, but must continue to be dealt with by the Court which was seized of it. That is not the scheme of the Act, and the provisions of the' Act are clearly and expressly indicative of the-contrary.

Amongst the offences specified in clause (b) of Sub-section (1) of Section 6, there is a mention of abetment of any of the offences specified in clause (a); and Section 7, Sub-section (1), provides that such an abetment shall also be triable by Special Judges only. Now, if the abetment of an offence under Section 161 or Section 165 is committed after the commencement of the Act, it would be an offence under Section 165A; but if the abetment of those offences was committed before the coming into force of the Act, it would be an offence under Section 116 read with Section 161 or Section 165, as the offence under Section 165A did not exist in the Code before the Act came into force.

Clearly thus, the effect of clause (b) of Sub-section (1) of Section 6 read with Sub-section (1) of Section 7 is that, even if the abetment of an offence under Section 161 was committed before the coming into force of this Act (No. 46 of 1952), which abetment would be an offence under Section 116 read with Section 161, the Special Judges appointed under the Act would alone be competent to try that offence. There is, therefore, no force in Mr. Somjee's submission that the Special Judges appointed under the Act would have no competence to try cases of abetment under Section 116.

17. Let us turn next to Section 7, Sub-section (3) of the Act. It provides in terms that when a Special Judge is trying any case, which means any of the cases mentioned in causes (a) and (b) of Sub-section (1) of Section 6, he 'may also try any offence 'other than' an offence specified in Section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial'.

Now, even if it were to be contended that the term 'abetment' in clause (b) of Sub-section (1) of Section 6 refers to the abetment committed after the commencement of the Act, even so it would appear that an offence of abetment under Section 116, Penal Code would be covered by the expression 'any offence other than an offence specified in Section 6' and therefore it is clear, under the provisions of Sub-section (3) of Section 7, that when a trial takes place under the Act for any of the offences specified in Section 6, a person may be charged at the same trial with any offence other than those offences, for which 'other' offence he could be charged at the same trial under the provisions of the Criminal P. C. An offence under Section 116 would be such 'other' offence.

18. Then again, Section 10 speaks of cases which are triable by a Special Judge under Section 7, but which were pending before a Magistrate immediately before the commencement of the Act. Obviously, the cases of abetment of offences punishable under Section 161 or Section 165, pending before a Magistrate immediately before the coming into force of the Act, could not be cases under Section 165A for the simple reason that Section 165A was not even in existence then, but must be cases under Section 116, and Section 10 says that the Magistrate shall forward such pending cases to the Special Judge having jurisdiction over them.

19. Now, if we were to accept Mr. Somjee's submission that a case of abetment of bribery under Section 116, which was pending before a Magistrate immediately before the commencement of the Act, must be disposed of by the Magistrate himself, notwithstanding the coming into force of the Act in the meantime, Section 10 would be rendered nugatory. It would have no meaning in that case and would serve no purpose. We must, therefore, reject the contention of Mr. Somjee.

20. Mr. Somjee's next contention is this: Immediately on the commencement of the Act, the Magistrate before whom the case of the accused persons was pending became possessed of the power to forward the case for trial to the Special Judge. The Act came into force on July 28, 1252. Therefore, says Mr. Somjee, on 28, July 1952, at the usual prescribed time for commencing his judicial work, the Magistrate had become possessed of power to forward this case to the Special Judge.

Now, the Special Judge having jurisdiction over this case was the Special Judge for Greater Bombay. But there was no Special Judge appointed for Greater Bombay on that date, 28, July 1952. He was appointed subsequently. Therefore, says Mr. Somjee, the power to forward the case to the Special Judge, of which power the Magistrate had become possessed on the commencement of the Act, was exhausted or spent out before a Special Judge was appointed for Greater Bombay and, could not be revived subsequently when the Special Judge was appointed.

21. Now, even assuming that the Magistrate's, power to forward the case to the Special Judge was spent out before the appointment of the Special Judge was made which view is clearly erroneous for the reasons to be presently stated, -- even so, the Magistrate had no jurisdiction, on the commencement of the Act, to proceed with the trial of the case. On the Act coming into force, the Magistrate's jurisdiction to continue the trial of the case was ousted, and the lapsed jurisdiction could not be revived, irrespective of whether the Magistrate's power to forward the case to the Special Judge was exhausted or not for non-appointment of the Special Judge immediately on the commencement of the Act.

22. Now, to say that the Magistrate's power to forward the case to the Special Judge was exhausted because there was no Special Judge available on the commencement of the Act to whom the case could be forwarded is to put an extremely literal and unreasonable, indeed impossible, construction on the words 'on such commencement' occurring in Section 10. The Act came into force, as I have said, on 28, July 1952, i.e., it came into force at the smallest fraction of a second past 12 mid-night of 27, July 1952, (See Section 5(2) of the General Clauses Act).

Now, if we accept the contention of Mr. Somjee, the Magistrate's power to forward the case to the Special Judge would be exhausted and would come to an end i there was no Special Judge available at a fraction of a second past 12 midnight of 27, July 1952. It was clearly impossible to make the appointment of the Special Judge simultaneously with the coming into force of the Act. The State Government could not possibly have kept an order of appointment of the Special Judge ready at 12 mid-night of 27, July 1952, or a fraction of a second thereafter, for the simple reason that it would have been illegal to do so, as the power of the State Government to appoint Special Judges was to be derived from the Act itself.

Until the Act came into force, there was no power in the State Government to appoint Special Judges. In other words, the State Government could make an appointment of the Special Judge only 'after' the Act came into force and not till then. Some time, however small or fractional, had to elapse between the two events, namely the coming into force of the Act and the appointment of the Special Judges by the State Government under the Act, but in that interval of time the Magistrate's power to forward the case to the Special Judge would lapse, if we are to uphold Mr. Somjee's construction of the words 'on such commencement.'

It is thus obvious that Mr. Somjee is advancing an impossible contention that if there was not available a Special Judge appointed under the Act when the Magistrate became possessed of power under the Act to forward the case to the Special Judge, the power would be exhausted. We must put a fair, possible and reasonable construction on the words 'on such commencement', and the reasonable construction must obviously be 'on and after such commencement'. That being so, as soon as the Special Judges are appointed by the State Government under Section 6 of the Act, the Magistrates before whom the cases triable by Special Judges under Section 7 are pending must forward those cases for trial to the Special Judges having jurisdiction over them. Thus, this submission of Mr. Somjee must also fail.

23. The main attack, however, which Mr. Somjee has made against the provisions of the Act (No. 46 of 1952) is that they are violative of the principle of equal protection of law contained in Article 14 of the Constitution. Article 14 provides :

'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'

Now, Mr. Somjee contends that these provisions are offended against by the discriminatory legislation contained in the Act. Mr. Somjee says that although the Court of a Special Judge appointed under the Act is to be deemed to be a Court of Session (see Section 8, Sub-section (3), of the Act), the procedure prescribed by the Act for the trial of offences mentioned in Section 6, Sub-section (1), is the procedure prescribed by the Code or Criminal Procedure for the trial of warrant cases by the Magistrates, the procedure in which the trial is without a jury and without the aid of assessors.

Mr. Somjee's challenge to the Act is that this is discrimination between the trial of persons accused of offences covered by Section 6, Sub-section (1), of the Act, and the trial of persons accused of offences which are outside the pale or Section 6, Sub- Section (1), and which are also triable by a Court of Session. In the latter category of trials, the accused persons will be entitled to be tried with a jury or with the aid of assessors. Mr. Somjee contends that in this manner the provisions of the Act offend against the equal protection clause of Article 14 of the Constitution.

24. In our view, the provisions of the Act are not violative of Article 14 of the Constitution. The Act certainly discriminates between cases, but is not discriminatory between persons. It is a class legislation which says that certain classes or categories of cases, though triable exclusively by a Court which is deemed to be a Court of Session, shall be tried according to the procedure prescribed, not for the trial of Sessions cases, but for the trial of warrant cases by the Magistrate. It makes no differentiation regarding protection of law as between persons charged with offences of the same class.

It does not, for instance, lay down that one person charged with an offence under Section 161, Penal Code shall be proceeded against in one way and another person charged with the same or similar offence shall be dealt with in another way. Equal protection of law is available under the Act to all persons charged with any of the offences specified in Section 6, Sub-section (1). 'The vice of discrimination, .... consists in .... singling out for different treatment one among a class of persons all of whom are similarly situated and circumstanced, be that class large or small' as observed in -- 'Kedar Nath Bajoria v. State of W. Bengal : 1953CriLJ1621 . There are cases where the Legislature itself makes a complete classification of offences and applies to those offences the law which it enacts.

There are other cases where the Legislature merely lays down the law to be applied to persons or things answering to a given description or exhibiting certain common characteristics, but is unable to make a precise and complete classification, and therefore leaves it to an administrative authority to make a selective application of the law to persons or things within the defined group. In this latter class of cases, the administrative authority selects the persons to be brought under the operation of the law. Such a legislation, of which Section 4, West Bengal Criminal Law Amendment (Special Courts) Act, 1949, is an instance, does discriminate between persons, and yet in 'Kedar Nath Bajoria's case (C), Section 4 of the West Bengal Act was held to be constitutionally valid.

In the present appeals, we are concerned with a legislative enactment in which the Legislature has not left any power with the executive authority of the State to make a selection of persons for the application of the Act, but has itself classified offences, the trial of which has to be made by a specified tribunal and according to a specified procedure, and this it can clearly do without contravening Article 14 of the Constitution.

In 'Kedar Nath's case (C)', Mr. Justice Bose, although he dissented from the majority judgment respecting the validity of Section 4, West Bengal Criminal Law Amendment Act, 1949, agreed that in so far as the said Act made provision for the setting up of Special Courts and of Special Judges and in so far as it selected classes of offences which could be tried by them, it was a good legislation.

In the Saurashtra Ordinance case ('Kathi Raning Rawat v. The State of Saurashtra : 1952CriLJ805 , power was given to the State Government to choose such offences or class of offences as were calculated to affect the public safety, the maintenance of public order, etc. for being tried in a Special Court and in accordance with the special procedure, and the Ordinance was held valid by the Supreme Court, as the basis of classification was rational and as the Ordinance was not arbitrary but had a definite objective.

In the appeals before us, we are dealing with the Act of the Legislature itself -- as distinguished from the act of the executive Government of the State -- and it hardly needs any statement that the Legislature is a sovereign authority so far as the law-making in the State is concerned and, in the exercise of its legislative competence, it is competent to it to classify offences and prescribe a special procedure for the trial of those offences. It was observed in -- 'Kedar Nath Bajoria v. State of West Bengal (C)', (p. 408) :

'Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary.'

Now, what is the practical assessment of the operation of the Act we are dealing with? Clearly, the classification of offences contained in the Act is calculated to serve a definite legislative purpose and is easily understandable in the context of the social conditions. In Chiranjitlal's case ('Chiranjit Lal Chaudhuri v. Union of India', : [1950]1SCR869 ), Mr. Justice Fazl Ali, quoting from Willis Constitutional Law, observed that

'If any set of facts could reasonably be conceived to sustain a classification, the existence of that set of facts must be assumed.'

In the words of the majority judgment in 'Kedar Nath's case (C)', it is well-known that the existing conditions of the society give

'special opportunities to unscrupulous persons in public services placed in positions of varying responsibility and charged with various duties to enrich themselves by corrupt practices and anti-social acts causing considerable loss to the efficiency of the services and impediment to the public good.'

It needs hardly any imagination that the offences dealt with by this special legislation are the offences relating to corrupt practices, and there is no doubt that the object of the Legislature in enacting the Act was to prevent or at least effectively check the social evil, namely the commission of such offences in the interests of the administration and social welfare. It is obvious that the legislators were satisfied that the penalties provided under the then existing ordinary law relating to corrupt practices did not have the desired effect of controlling, much less curing, the evil and, therefore, passed this special law whose policy is to impose heavier and deterrent sentences.

The effective administration of the ordinary law of the land is facilitated and the policies underlying the various governmental measures stand a better chance of succeeding if the fountain of public services is purified. If an officer in charge of investigation into an offence under the ordinary law is bribed, the administration of law must suffer and become unhealthy. If unscrupulous persons amongst the persons charged with the operation, for instance, of income-tax law or with the working of various controls, etc. became dishonest and corrupt, results adverse to the State's interests and to the interests of the society must follow.

Viewed against this background, it would be seen that in passing this class legislation providing deterrent punishment in classes of cases relating to corrupt practices, the object of the Legislature was to control the social evil of corruption and thereby make the administration of the State as pure, healthy and incorruptible as possible and so promote the welfare of the State and the society. Thus, the object of this special Act was good; but it is not enough merely to have a good object. It is not enough merely to enact that the bribe-givers and bribe-takers shall he more severely punished and hope for good results. If evidence is destroyed or made to disappear or influence on witnesses supervenes so as to distort the truth, mere existence of the enactment on the statute book will hardly serve a useful purpose.

This was clearly before the minds of the legislators and it was, therefore, that the Legislature laid down the principle that in the trial of the offences mentioned in Section 6, Sub-section (1), of the Act, the procedure will be shortened and simplified. It would thus be seen that the classification of cases made by the Act was based on 'an intelligible principle, having a clear and reasonable relation to the object sought to be attained' by the Act.

In other words, the classification is not arbitrary and therefore, although the Act does make a differentiation between the offences mentioned in Section 6, Sub-section (1), and other offences which are outside the purview of the Act, the said differentiation is not intended to deny the equal protection of law to the community, but on the contrary it is essential so that the protection of the ordinary law of the land may be effectively made available to the community. It is only when the discrimination is arbitrary and irrational, unfair and iniquitous that it becomes violative of Article 14 of the Constitution.

Where there is an intelligible principle behind the discrimination and where that principle has a reasonable relation to the object sought to be attained by the Legislature by making the discrimination, there is no violation of Article 14. In our view, therefore, the provisions of the Act do not offend against the equal protection principle of the Constitution.

25. Lastly, it is contended by the learned advocate Mr. Bhatt for accused Nos. 4 and 5 that, where a trial has been commenced before a certain Court, the accused has a right that it shall be continued before the same Court and shall be finished by the same Court, and that any legislation which amounts to an infringement of that right is bad legislation.

In this connection, the case of (A) is referred to. It was a case in which a suit was instituted in a South Indian Court. The suit properties which were immovable properties were situated partly in Burma and partly within the jurisdiction of the Court in South India. During the pendency of the suit, the Government of India Act, 1935, came into force and Burma ceased to be a part of India from 1st April, 1937. A question arose whether the Court in which the suit was instituted continued to have jurisdiction to proceed with the trial even with regard to the properties situated in Burma.

In support of the contention that the Court continued to have jurisdiction to proceed with the trial even in respect of the said properties, reliance was put on paragraph (e), Sub-section (2), of Section 38, of the Interpretation Act, and on the principle of decision of the Judicial Committee in --'Colonial Sugar Refining Co. v. Irving', 1905 AC 369 (P). So far as Section 38, Sub-section (2), para (e), of the Interpretation Act, is concerned, their Lordships aid not consider it necessary to examine its-application to the case as the principle of the ruling in 'Colonial Sugar Refining Co. v. Irving (P)', was considered sufficient for supporting the decision of the High Court. Nevertheless, their Lordships said that the interpretation of para (e) of Sub-section (2) of Section 38 of the Interpretation Act-was not free from difficulty.

One view has been that what is saved is a substantive right acquired under the repealed enactment and that para (e), Sub-section (2), Section 38, cannot be invoked in cases where the substantive right is not taken away by the repealing Act, but the forum for, or the method of, enforcing it is changed. The other view has been that a right to obtain relief in a suit pending at the time when the repealing enactment comes into operation is itself in the nature of a substantive right. Their Lordships, however, rested their decision on the. principle of the ruling in 'Colonial Sugar Refining Co. vs. Irving (F)'.

26. In the appeals before us, reference to Section 38 of the Interpretation Act is hardly relevant. Here there is no repealed enactment and no repealing Act. By Section 5, Sub-section (1), of the Act, certain amendments were made in Section 337, Criminal p. C. and by Sub-section (2) it was provided that those amendments would remain in force for a period of two years from the commencement of the Act. Section 7, Sub-section CD, provided that notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in Sub-section (1) of Section 6 shall be triable by Special Judges only.

Under Section 8, a Special Judge may take cognisance of offences without the accused being committed to him for trial. By these provisions of the Act, it could not be said that the Code of Criminal Procedure was repealed in any respect or to any extent. It might be said that in certain respects the Act contains over-riding provisions, but they cannot be said to be repealing provisions, and the provisions of the Code of Criminal Procedure amended or affected by the Act could not be said to be repealed provisions. That being so, it is unnecessary to refer to S- 38, Sub-section (2), para (e), of the Interpretation Act.

27. In 'Colonial Sugar Refining Co. v. Irving (F)', the Judiciary Act was passed during the pendency of the action in the Court of first instance and it was held by the Privy Council that from the date of the initiation of the action, the suitor had a right of appeal to a superior tribunal according to the state of the law as it stood at the time of the commencement of the proceeding. In the words of their Lordships in 'Venugopala Reddiar v. Krishnaswami Reddiar (A)', the decision in 'Colonial Sugar Refining Co. v. Irving (F)', necessarily involved

'the recognition of an equally valuable right that the proceeding should in due course be tried and disposed of by the tribunal before which it had been commenced.'

Their Lordships further said that the principle that a statute should not be so interpreted as to take away an action which had been well commenced had been affirmed in various cases in differing circumstances. In -- 'Marsh v. Higgins', (1850) 9 CB 551 (G) it was observed by Wilde C, J. that (p. 568) :

' .. It must have been well known to both branches of the legislature that strong and distinct words would be necessary to defeat a vested right to continue an action which has been well commenced.'

The same principle was recognised in Cf. -- 'In re Joseph Suche and Co. Limited (1875) 1 Ch D 48 (H) ; -- Vedavalli Narasiah v. Mangamma 27 Mad 538 (I) and in -- 'Subbaraya Mudaliar v. Rakki', 32 Mad 140 (J). In the case before UK, there are distinct wards in the Act itself which clearly and unequivocally express the intention of the Legislature that the Special Judges appointed under the Act will alone try the cases specified in Section 6 and that all cases triable by the Special Judges under Section 7 which, immediately before the commencement of the Act, were pending before the Magistrates, shall on such commencement be forwarded for trial to the Special Judges having jurisdiction over such cases.

Thus, the contested right of the accused to have the case tried and disposed of by the Magistrate before whom it was pending immediately before the commencement of the Act has been expressly taken away by the Legislature by passing the Act. In Maxwell's 'Interpretation of Statutes,' 9th Edn., p. 232, also it is said :

'.. No person has a vested right in any course procedure. He has only the right of prosecution of defence in the manner prescribed for the time being, by or for the Court in which he sues, and if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode.'

It may be noted that the Act with which we are dealing is an Act of Parliament and it is certainly competent to Parliament to lay down that the mode of procedure in respect of cases mentioned in Section 6, Sub-section (1), of the Act, shall be altered in certain respects from the mode of procedure prescribed for ordinary cases triable by a Court of Session. That being so, we cannot accept the contention of Mr. Bhatt that the Court of the learned Presidency Magistrate, 19th Court, Bombay, where the case of the accused was commenced, was alone competent to try that case to. a finish and that the Special Judge, Greater Bombay, appointed under the Act had no competence to try that case upon the coming into force of the Act.

28. For these reasons the preliminary point regarding want of jurisdiction in the learned trial Magistrate to try and decide the case must be answered in favour of the State and in favour of accused No. 2 who has been convicted of the learned Magistrate. In our view, on and after the! commencement of the Act, the learned Presidency Magistrate, 19th Court, had no jurisdiction to proceed with the trial of the case and decide the case. Accordingly, the learned Magistrate's order convicting accused No. 2 and acquitting accused. Nos. 3, 4 and 5 is set aside and the case will be sent to the Court of the Special Judge, Greater Bombay, for disposal according to law.

29. Order accordingly.


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