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Emperor Vs. Parmanand Rai and ors. - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1943All233
AppellantEmperor
RespondentParmanand Rai and ors.
Excerpt:
.....and directed that the accused should be committed to the court of session for trial after the required commitment proceedings had been held provided that the magistrate who conducted those proceedings was satisfied that a prima facie case was made out. on the other hand, if the learned judge intended to pass these orders in his capacity as a special judge under the ordinance i am satisfied that this court has no jurisdiction whatsoever. section 26 of the ordinance makes the matter perfectly clear. broome enjoyed the powers of a special judge;.....one accused in the other. both the cases were tried by mr. masudul hasan ostensibly acting as a special magistrate under ordinance no. 2 of 1942. he convicted all the accused in both the cases and sentenced each of them to two years' rigorous imprisonment, and one of the accused, radha raman, was also ordered to pay a fine of rs. 500.2. two appeals were filed by the convicted persons 'in the court of the sessions judge exercising the powers of special judge at anamgarh' and the appeals were headed as appeals 'under section 13 of the special criminal courts ordinance, 2 of 1942.' the learned judge allowed the appeals, set aside the conviction and sentences of all the appellants in both the appeals and directed that the accused be committed to the court of sessions for trial 'after.....
Judgment:

Iqbal Ahmad, C. J.

1. This and the connected application in revision No. 840 of 1942 are two criminal applications in revision by the Provincial Government and arise under the following circumstances: On 14th August 1942, a mob set fire to the Notified Area Office at Mau with the result that the records and the building were destroyed. Two separate cases arising out of this occurrence were sent up by the police under Section 436, Penal Code. There were ten accused in one case and one accused in the other. Both the cases were tried by Mr. Masudul Hasan ostensibly acting as a Special Magistrate under ordinance No. 2 of 1942. He convicted all the accused in both the cases and sentenced each of them to two years' rigorous imprisonment, and one of the accused, Radha Raman, was also ordered to pay a fine of Rs. 500.

2. Two appeals were filed by the convicted persons 'in the Court of the Sessions Judge exercising the powers of Special Judge at Anamgarh' and the appeals were headed as appeals 'under Section 13 of the Special Criminal Courts Ordinance, 2 of 1942.' The learned Judge allowed the appeals, set aside the conviction and sentences of all the appellants in both the appeals and directed that the accused be committed to the Court of Sessions for trial 'after regular commitment proceedings have been held.' The twp applications in revision before us are directed against this order of the learned Judge. The learned Judge while signing the judgment described himself as 'Sessions Judge' and not as a Special Judge. The appeals before him, however, purported to be under Section 15 of the Ordinance and were preferred to him in his capacity as a Special Judge. It is, therefore, manifest that he entertained, heard and decided the appeals as a Special and not as a Sessions Judge, and the cardinal question that arises for consideration is whether this Court is competent, in the exercise of its revisional jurisdiction, to interfere with the order passed by the learned Judge.

3. It appears that Mr. Masudul Hasan had exercised the powers of a Magistrate of the first class for less than two years and, as such could not, in view of the provisions of Section 9 of the Ordinance, be invested with the powers of a Special Magistrate under the Ordinance. The learned Judge, therefore, held, and rightly held, that the whole trial was ultra vires and illegal. The appeals by the convicted persons were, however, filed after the expiry of the period of seven days prescribed by Sub-section (2) of Section 13 of the Ordinance, and the Government Pleader accordingly raised a preliminary objection to the hearing of the appeals by the learned Judge on the ground that they were barred by time. The learned Judge overruled the preliminary objection on the ground that as Mr. Masudul Hasan was not legally 'a Special Magistrate' Section 13 of the Ordinance had no application to the cases. He held that the cases should be 'treated as having been disposed of by an ordinary first class Magistrate' and therefore the appeals were within time. He then proceeded to determine the question as to ' what further proceeding should be taken in the cases.' He held that, as the offence with which the accused persons were charged was committed before the Ordinance was put into force in these Provinces, the accused persons could not be tried under the Ordinance. This view of the learned Judge was opposed to the view taken by this Court in the Full Bench case in Salig Ram v. Emperor : AIR1943All26 and was clearly erroneous. Having arrived at the conclusion just mentioned, the learned Judge passed the order for the commitment of the accused as stated above. In the Full Bench decision in Salig Ram v. Emperor : AIR1943All26 . I held that the words of Section 26 of the Ordinance are very wide and . completely bar the revisional jurisdiction of this Court in cases tried and decided by Special Magistrates or Special Judges, and I still adhere to that view. Section 26 runs as follows:

Notwithstanding the provisions of the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence of a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, or to transfer any case from any such Court, or to make any order under Section 491 of the Code or have any jurisdiction of any kind in respect of any proceedings of any such Court.

4. As the Court of a Special Judge is constituted under the Ordinance, this Court has no authority to revise the order of a Special Judge howsoever erroneous or unjust it may be. The learned Judge was clearly wrong in holding that the accused could not be tried in accordance with the provisions of the Ordinance and his order that they should be committed to the Court of Session after regular commitment proceedings was, therefore, also contrary to law. But as the revisional jurisdiction of this Court has, by words of clear and unambiguous import, been barred, this Court cannot assume jurisdiction to correct an erroneous order passed by a Special Judge. As I read Section 26 of the Ordinance, it appears to me that this Court cannot, in any manner whatsoever, interfere with the orders passed by a Court validly constituted under the Ordinance, be it a Court of a Special Magistrate or a Court of a Special Judge. To this effect is the Full Bench decision of the Patna High Court in Banwari Gope v. Emperor ('48) 30 A.I.R. 1943 Pat. 18 and I am in full agreement with that decision to this extent that the High Court cannot, in the exercise of its revisional jurisdiction, interfere with the orders passed by Special Magistrates and Special Judges. The Patna High Court, however, went further and held that

if the Ordinance under which the petitioners were tried was not applicable to their cases, then their trial was no trial at all in the eye of law and they cannot be detained in prison, because they should be deemed to have been committed to prison without trial and because the Magistrates who have sentenced them to imprisonment had no power to send them to prison

and that the High Court may direct under Section 491, Criminal P. C., that the petitioners who were illegally detained be set at liberty. With all respect I am unable to agree with this view. Section 26 explicitly prohibits the passing of an order under Section 491, Criminal P. C., in cases taken cognizance of by Special Magistrates or Special Judges and this prohibition is to my mind, absolute. For the reasons given above, I would dismiss both the applications in revision.

Allsop, J.

5. The Local Government have made two applications to us for the revision of orders passed by the Sessions Judge of Azamgarh on two appeals in the course of one judgment. The two cases arose out of a single occurrence. There were ten accused in one case and one in the other and they were all convicted by Mr. Masudul Hasan of offences punishable under Section 436, Penal Code. Mr. Masudul Hasan purporting to act as a Special Magistrate under Ordinance 2 of 1942 sentenced the accused each to rigorous imprisonment for a period of two years and one of them to a fine of Rs. 500 in addition. The learned Judge found that Mr. Masudul Hasan was not competent to act as a Special Magistrate because he had not been exercising first class powers for a period of two years. The Ordinance allows the Local Government to appoint as a Special Magistrate only a person who has been exercising first class powers for this period. The appeals were to the Sessions Judge acting in his capacity as a Special Judge under the Ordinance. It was urged by the Government g Pleader that the appeals were barred by limitation because they had not been presented within seven days after the date of the Magistrate's order. The learned Judge, however, overruled this point upon the ground that the Magistrate had acted ultra vires and that the whole trial was void. He set aside the convictions and sentences and directed that the accused should be committed to the Court of Session for trial after the required commitment proceedings had been held provided that the Magistrate who conducted those proceedings was satisfied that a prima facie case was made out. In the ordinary course an offence punishable under Section 436, Penal Code, can be tried only by the Court of Session.

6. It is not clear whether the learned Judge intended to pass this order in his capacity as a Sessions Judge or in his capacity as a Special Judge under the Ordinance. It seems to me that he was probably not very clear upon this point himself. The Ordinance has set up certain Special Courts which are not amenable to the jurisdiction of the High Court and it is purely a matter of coincidence that persons who preside over special Courts at the same time preside over ordinary Courts which are subject to such jurisdiction. These persons should be careful to distinguish between their functions as presiding officers of these different Courts. If the learned Judge intended to pass his Orders in his capacity as a Sessions Judge those orders are subject to revision by this Court. In that case, I should say that the orders do substantial justice and that there is no reason why this Court should interfere with them. On the other hand, if the learned Judge intended to pass these orders in his capacity as a Special Judge under the Ordinance I am satisfied that this Court has no jurisdiction whatsoever. Section 26 of the Ordinance makes the matter perfectly clear. It lays down without any manner of doubt that this Court must not interfere with any order passed by a Court of a Special Judge or a Special Magistrate constituted under the Ordinance. Whatever the position of the Magistrate may have been the learned Judge was undoubtedly presiding over a Court so constituted. When the section speaks of a Court constituted under the Ordinance it no doubt means a Court properly so constituted and this Court could go into the question of the proper constitution of the Court but once it has held that a Court has been properly constituted I consider that it cannot interfere with any order passed by that Court. If the section spoke of an order passed under the Ordinance, this Court could doubtless consider whether the order could be said to have been passed under the Ordinance and if it dealt with some matters which were not within the purview of the Ordinance it could act accordingly, but that is not the wording of the section. In my judgment, once a special Court has been properly constituted under the Ordinance this Court has no jurisdiction to interfere with any order passed by that Court whether that order comes within the purview of the Ordinance or does not do so. The person aggrieved or any other person interested may possibly, at his own risk, ignore an order which he considers is passed without jurisdiction, but this Court cannot interfere with such an order in appeal or in revision or for that matter under the provisions of Section 491, Criminal P.C., which is specifically mentioned in the section. I. hold that there is no force in these applications and I would dismiss them both.

Bajpai, J.

7. This is an application in revision on behalf of the Provincial Government and is headed as a revision under Sections 435 and 439 read with Section 423, Criminal P. C., against the order passed by W. Broome Esqr. I. C. Section , Sessions Judge of Azamgarh, dated 10th September 1942. It is connected with Criminal Revision No. 847 of 1942 where t also the heading of the criminal revision is similar. I have emphasised the heading because I think it is of some importance that the Provincial Government treat the proceedings as a revision under the Code of Criminal Procedure against the order of a Sessions Judge, and I have little doubt that, the revision in spirit and in letter is as indicated above. The facts are that the opposite parties in the two revision petitions^ were tried by Mr. Masudul Hasan, a Magistrate of the first class, for an offence under Section 436, Penal Code. The Magistrate tried the offences under Ordinance No. 2 of 1942 arrogating to himself the capacity of a Special Magistrate constituted under the Ordinance. It is, however, clear that he had been exercising first class powers only since 23rd November 1940, and thus did not possess the necessary qualification laid down by Section 9 of Ordinance No. 2. He must, therefore, be deemed to be an ordinary first class Magistrate and as such Magistrate he was not empowered under the Criminal Procedure Code to try an offence under Section 436, Penal Code. The question which arises is that if a Magistrate usurps jurisdiction which he does not possess can his action be questioned < before a superior tribunal -- superior to an ordinary Magistrate, but not superior as not possessing appellate jurisdiction to a Special Magistrate? It may be conceded that when in the present case if Mr. Masudul Hasan was a Special Magistrate the learned Sessions, Judge entertained the appeal, the appeal was time-barred by virtue of Section 13 of the Ordinance because it was presented more than seven days after the date of the sentence passed by Mr. Masudul Hasan, but the said officer was, as pointed out above, not a Special Magistrate and he could not, therefore, have tried the case under the Ordinance and / the trial must, therefore, be deemed to be an ordinary trial under the Criminal Procedure Code which, as once again pointed out before,, could not have been conducted by an ordinary Magistrate in as much as an offence under Section 436, Penal Code, is triable exclusively by a Court of Session and Mr. Broome therefore rightly entertained the appeal.

8. I have little doubt that the order passed in the present case by Mr. Masudul Hasan could be questioned in appeal before the learned Sessions Judge. It is true that the appeal before him was headed by the opposite parties as an appeal against a decision under, Section 13 of the Special Criminal Courts Ordinance 2 of 1942, in the Court of the Sessions Judge exercising the powers of a Special Judge, but it was also said that Mr. Masudul Hasan had been exercising the powers of a First Class Magistrate for less than two years and Mr. Masudul Hasan was not described as a Special Magistrate. What then is the result of the entire proceedings from beginning to end: Mr. Masudul Hasan was not a Special Magistrate; he tried the case as a Special Magistrate; he usurped jurisdiction which he did not possess; he was therefore an ordinary Magistrate following a procedure which he was not competent to follow and as an ordinary Magistrate he could not take cognizance of an offence under Section 486, Penal Code, in the sense that he could not himself convict the accused, and the Sessions Judge as a Sessions Judge--not as a Special Judge -- was authorised to pass orders in appeal and a revision against the decision of the Sessions Judge lay to this Court under the provisions of as. 435 and 489, Criminal P. C. The complications of the re-visional powers of the High Court under Section 26 of the Ordinance do not arise in the present case. My views about the revisional powers of the High Court in cases under the Ordinance are stated at length in the Full Bench case in Salig Ram v. Emperor : AIR1943All26 , etc., and even if it be held that the revisional powers of the High Court under the Ordinance have to be considered, this Court has the power in the circumstances of the present case to entertain the revision.

9. I have thus now to see whether the order of the learned Sessions Judge is right or requires interference. The learned Sessions Judge has pointed out that Mr. Masudul Hasan could not act as a Special Magistrate and that as an ordinary First Class Magistrate he could not try a case under Section 436, Penal Code. There can be little controversy on the above two points. The learned Sessions Judge further points out that the particular offence with which the accused were charged was committed on 14th August 1942 before the Special Criminal Courts Ordinance was brought into force in the United Provinces by the notification issued on 20th August, and therefore the present ease could not be tried by Special Courts which were not in existence in the United Provinces at the time when the offence was committed. This opinion is in keeping with my own views expressed in Salig Ram v. Emperor : AIR1943All26 , but this opinion is not in conformity with the opinion of the majority in that case, but as a member of this Bench I am not bound by the aforesaid Full Bench and I am free to express my own individual opinion, unfettered by anything that might have been said in the earlier case. In my view the order of Mr. Broome is correct on all points. For the reasons given above, I hold that there is no force in this revision and I would therefore dismiss it.

Mohd. Ismail, J.

10. The two connected revisions arise out of the same incident, which occurred on 14th August 1942. Radha Raman and nine others were tried together in one case and Parmanand Rai was tried separately in another, by Mr. Masudul Hasan as Special Magistrate under Ordinance 2 of 1942. The trial ended in the conviction of all the accused, who were sentenced to two years' rigorous imprisonment each. Radha Raman was awarded a fine of Rs. 500 in addition to the sentence of imprisonment. The convicted persons appealed to the Special Judge under Section IS of the Ordinance. The appeal was made beyond time, that is after the expiry of seven days allowed by Section 13(2). As the sentences imposed upon the appellants do not exceed two years, no appeal lay from the order of the Special Magistrate.

11. The Special Judge has set aside the orders of the Special Magistrate on several grounds. He held that the cases could not be tried under the Ordinance because the offence was committed before the enforcement of the Ordinance. The opinion of the Special Judge is in conflict with the majority view in Salig Ram v. Emperor : AIR1943All26 . The Special Judge further held that the Magistrate was not competent to try the cases under the Ordinance because his appointment itself was illegal, as he had not exercised the powers of a Magistrate of the first class for a period of two years. Some other reasons were given by the Special Judge, which need not be enumerated. Eventually, upon setting aside the convictions and sentences of all the accused, the ' Special Judge directed the Magistrate to commit the accused to the Court of Session for trial under the Code of Criminal Procedure. The Provincial Government has now come to this Court in revision. It is conceded that Mr. Broome enjoyed the powers of a Special Judge; but it is argued that the orders passed by the Special Judge were illegal and improper and therefore should be set aside. In my opinion, the revisions are incompetent and cannot be entertained by this Court. Section 26 of the Ordinance provides:

Notwithstanding the provisions o the Code, or of any other law for the time being in force, or of anything having the force of law by whatsoever, authority made or done, there shall, save as provided in this Ordinance, be no appeal from any order or sentence by a Court constituted under this Ordinance and, save as aforesaid, no Court shall have authority to revise such order or sentence, ... or have any jurisdiction of any kind in respect of any proceeding of any such Court.

12. As the cases were tried under the Ordinance and no appeal or revision is provided under the Ordinance to this Court, it is manifest that the applications must be dismissed. Our attention has been drawn to a Full Bench decision of the Patna High Court in Banwari Gope v. Emperor ('48) 30 A.I.R. 1943 Pat. 18. In that case it was held:

As the Special Magistrates derive their jurisdiction from the Ordinance, they cannot be properly described as 'inferior criminal Courts' and the High Court cannot revise their orders, but the High Court is not entirely powerless in the matter. Under Section 491, Criminal P. C., the High Court may direct that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction be set at liberty. If the Ordinance under which the petitioners were tried was not applicable to their cases, then their trial was no trial at all in the eye of law and they cannot be detained in a prison, because they should be deemed to have been committed to prison without trial and because the Magistrates who have sentenced them to imprisonment had no power to send them to prison.

13. The facts of that case are entirely distinguishable and therefore I do not consider it necessary to express any opinion with regard to the observations of the learned Chief Justice of Patna High Court. In the present case we are asked to revise the orders of the Special Judge. No one has been illegally detained in or sent to prison by him. The orders of the Special Judge may be erroneous, but in my judgment, we have no power to revise those orders. For the reasons given above I would dismiss the applications.

Hamilton, J.

14. I agree with the judgment of Allsop J. and I would reject these applications for the reasons which he has given.

15. These two applications are dismissed.


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