Skip to content


The State Vs. Bichitrananda Mohanty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Ref. No. 5 of 1957 and Criminal Revn. No. 24 of 1958
Judge
Reported inAIR1958Ori150; 1958CriLJ916
ActsCriminal Law (Amendment) Act, 1952 - Sections 6 and 7; Indian Penal Code (IPC) - Sections 161, 165, 165A, 465 and 471; Post Offices Act - Sections 52; Delhi Special Police Establishment Act, 1946 - Sections 3; Prevention of Corruption Act, 1947 - Sections 5(2); Code of Criminal Procedure (CrPC) - Sections 193(2)
AppellantThe State
RespondentBichitrananda Mohanty
Appellant AdvocateGovernment Adv. in Criminal Ref. No. 5/1957 and ;S.K. Ray, Adv. in Criminal Revn. No. 24/1958
Respondent AdvocateS.K. Ray, Adv. in Criminal Ref. No. 5/1957 and ;Government Adv. in Criminal Revn. No. 24/1958
Excerpt:
.....v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it does not, therefore, necessarily follow that any offence which may be lawfully investigated by the delhi special police establishment, under the provisions of the delhi special police establishment act can be tried by the special judge appointed under section 6 of the criminal law (amendment) act, 1952. this distinction should be clearly borne in mind. 7. the notification dated 11-6-1956 clearly says that it is issued in exercise of the powers conferred by section 6 of the criminal law (amendment) act. but when the notification clearly mentioned the section of the statute under which it was..........(criminal appeal 84 of 1956). the state of orissa filed a revision before the same sessions judge (criminal revision petition no. 3 of 1957 (p) challenging the order of acquittal, passed by the assistant sessions judge, in respect of one of the registered letters. the learned sessions judge held that the assistant sessions judge had no jurisdiction to try the case in view of notification no. 727-reforms dated 11-6-1956 issued by the home department (reforms) of the government of orissa and that the additional sessions judge alone had such jurisdiction.he therefore set aside the conviction and sentence passed on bichitrananda mohanty and directed retrial by the additional sessions judge, puri. in the criminal revision against acquittal filed by the state, he made a reference to the.....
Judgment:
ORDER

R.L. Narasimham, C.J.

1. This reference and revision were heard analogously and will be dealt with in one judgment.

2. The Orissa Branch of the Delhi Special Police Establishment of the Government of India, submitted charge-sheet for offence under Sections 409/467, I. P. C. and Section 52 of the Indian Post Offices Act 1898 (Act VI of 1898), against a Postman named Bichitrananda Mohanty, on 31-3-1955, before the Additional District Magistrate of Puri who, after a preliminary enquiry committed him for trial to the Court of Session for offences under Sections 465/471, I. P. C. and Section 52 of the Indian Post Offices Act.

The substance of the allegation against him was that he abstracted two cement permits addressed to two persons, namely Sri Ramachandra Das and Sri Gadadhar Parida in two registered letters, committed misappropriation in respect of them and also fraudulently used as genuine two forged acknowledgement receipts purporting to have been given by the addressees. The Additional Sessions Judge of Puri on 13-8-1956 transferred the case to the file of the Assistant Sessions Judge, Puri, in pursuance of the instructions contained in the letter of the Sessions Judge of Ganjam, in his letter No. 1465 dated 8-8-1956.

The Assistant Sessions Judge acquitted Bichitrananda Mohanty of the offence under Section 52 of the Indian Post Offices Act and also of the offence under Section 471/465, I.P.C., in respect of one of the registered letters, but in respect of the other registered letter he convicted him of both the offences and sentenced him to rigorous imprisonment for one year on each count, the sentences to run concurrently.

Bichitrananda Mohanty filed a regular appeal before the Sessions Judge of Ganjam-Nayagarh against his conviction and sentence (Criminal Appeal 84 of 1956). The State of Orissa filed a revision before the same Sessions Judge (Criminal Revision Petition No. 3 of 1957 (P) challenging the order of acquittal, passed by the Assistant Sessions Judge, in respect of one of the registered letters. The learned Sessions Judge held that the Assistant Sessions Judge had no jurisdiction to try the case in view of Notification No. 727-Reforms dated 11-6-1956 issued by the Home Department (Reforms) of the Government of Orissa and that the Additional Sessions Judge alone had such jurisdiction.

He therefore set aside the conviction and sentence passed on Bichitrananda Mohanty and directed retrial by the Additional Sessions Judge, Puri. In the criminal revision against acquittal filed by the State, he made a reference to the High Court for quashing the order of acquittal and directing retrial. Bichitrananda Mohanty filed Criminal Revision No. 24 of 1958 before this Court challenging the order of the Sessions Judge in the criminal appeal filed by him.

3. The main question of law arises out of a construction of two statutory notifications issued by the Government of Orissa and it is therefore desirable to quote them in full.

On 23-9-1953 the Government of Orissa (Home Department) issued the following notification (No. 14435A):

Government of Orissa.

Home Department.

Notification.

The 23rd September 1953.

No. 14453-A:-- In exercise of the powers conferred by Section 6 of the Criminal Law Amendment Act, 1952, (XLVI of 1952) and in supersession of the notifications of the Government of Orissa in the Home Department, No. 103A dated 3-1-1953, No. 1932A dated 11-1-1953 and No. 3860A dated 20-3-1953, and No. 120335A dated 7-8-1953, the Governor of Orissa is pleased to appoint the following Sessions Judges of the Sessions divisions noted against each, as Special Judges in their respective jurisdiction, namely:--

1. .. ..

2. ......

3. ......

4. ......

5. Additional Sessions Judge, Ganjam-Nayagarh.

6. .......

No. 14436A:-- Dated 23-9-1953.

In exercise of the powers conferred by Section 6 of the Criminal Law Amendment Act, 1952 (XLVI of 1952) and in partial modification of the notification of the Government of Orissa in the Home Department, No. 14435A, dated 23-9-1953 the Governor of Orissa is pleased to appoint the Assistant Sessions Judge of Puri, to be the Special Judge to try all sessions cases arising throughout the State of Orissa and investigated under the Delhi Special Police Establishment Act, 1946 (XXV of 1946).

By order of the Governor,

A. K. Barren.

Secretary to Government.

On 11-6-1956 the Government of Orissa (Home Department) issued the following Notification.

Government of Orissa,

Home Department.

Cuttack, the 11th June, 1956.

No. 727-Reforms:-- In exercise of the powers conferred by Section 6 of the Criminal Law Amendment Act, 1952 (XLVI of 1952), and in partial modification of notification of the Government of Orissa in the Home Department, No. 14436-A, dated 23-9-1953, the Government of Orissa do hereby appoint the Additional Sessions Judge, Ganjam Nayagarh at present stationed at Puri, to be the Special Judge to try all Sessions cases arising throughout the State of Orissa and investigated under the Delhi Special Police Establishment Act, 1946 (XXV of 1946).

By order of the Governor,

A. K. Barren.

Secretary to Government.

Memo No. 728 (3) Reforms, dated 11-6-1956.

Memo No. 729-Reforms, dated 11-6-1956.

Copy forwarded to the District and Sessions Judge, Ganjam-Nayagrah for information and necessary action-

2. Government have decided that the Additional District and Sessions Judge, Puri will deal with the Special Police Establishment cases at Puri pending in the Court of the Assistant Sessions Judge, Puri, expeditiously and as of topmost priority. The Assistant Sessions Judge, Puri may be directed to transfer such cases to the Court of the Additional Sessions Judge, immediately.'

Sd. D. D. Gupta.

Under Secretary to Government.'

4. The argument which appears to have found favour with the learned Sessions Judge is that as the aforesaid Notification No. 727-Reforms, is dated 11-6-1956, this case which was investigated by the Delhi Special Police Establishment, should have been tried only by the Additional Sessions Judge and not by the Assistant Sessions Judge and that the entire trial was, therefore, invalid.

The transfer of the case to the Assistant Sessions Judge was ordered on 13-8-1956, in pursuance of the direction given by the Sessions Judge of Ganjam on 8-8-1956, but the aforesaid notification had been issued nearly two months before that date. Hence it was urged that the transfer order of the Sessions Judge was inoperative and cannot override the statutory notification issued by the State Government under the Criminal Law (Amendment) Act, 1952.

5. On the other hand, it was contended by the Government Advocate before this Court that the aforesaid notification of the Government of Orissa, having been issued in exercise of the powers conferred by Section 6 of the Criminal Law (Amendment) Act, 1952, must as a matter of construction, be restricted only to those offences which are dealt with in that Act and not all offences which might have been investigated by the Delhi Special Police Establishment. Sub-section (1) of Section 6 of that Act is as follows:

'6 (1) The State Government may, by notification in the official gazette, appoint as many special judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely:--

(a) an offence punishable under Section 161, Section 165 or Section 165A of the Indian Penal Code (Act XLV of 1860) or Sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 (II of 1947);

(b) any conspiracy to commit, or any attempt to commit, or any abetment of any of the offences specified in Clause (a)'.

Sub-section (3) of Section 7 of that Act says that when trying any case a Special Judge may also try any offence other than the offences specified In Section 6 with which the accused may, under the Criminal Procedure Code, be charged at the same trial. A perusal of Sections 6 and 7 of the Criminal Law (Amendment) Act, 1952, leaves no room for [ doubt that a Special Judge appointed under Section 6 of that Act may try (i) offences under Sections 161, 165 and 165A of the Indian Penal Code and under Section 5 (2) of the Prevention of Corruption Act, 1947, (ii) a conspiracy to commit any of those offences and (iii) any other offence with which the accused may be charged in one trial alone with the aforesaid offences. The Criminal Law (Amendment) Act, 1952, has nothing to do with the trial of other classes of offences.

6. The Delhi Special Police Establishment Act, 1946 (Act XXV of 1946) confers power on the Delhi Special Police Establishment to investigate such offences as may be notified by the Central Government under Section 3 of that Act, after obtaining the sanction of the State Government concerned. Thus, if an appropriate notification is issued by the Central Government, the Delhi Special Police Establishment may investigate the offences specified in Section 6 of the Criminal Law Amendment Act, 1952 and also other offences under the Indian Penal Code.

But the Criminal Law (Amendment) Act, 1952, deals only with the trial of a special class of offences by the Special Judges to be appointed by the State Government, by notification. It does not, therefore, necessarily follow that any offence which may be lawfully investigated by the Delhi Special Police Establishment, under the provisions of the Delhi Special Police Establishment Act can be tried by the Special Judge appointed under Section 6 of the Criminal Law (Amendment) Act, 1952. This distinction should be clearly borne in mind.

7. The notification dated 11-6-1956 clearly says that it is issued in exercise of the powers conferred by Section 6 of the Criminal Law (Amendment) Act. A power that is derived from a statutory provision cannot be wider in ambit than that provision itself. Hence, as a matter of construction, it must be held that the said notification deals with the trial only of offences under Sections 161, 165 and 165A of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act and other offences with which the accused may be charged at the same trial along with the aforesaid offences.

Offences under Section 52 of the Indian Post Offices Act and under Section 465/471, Indian Penal Code, cannot be said to fall within the classes of offences described in Section 6 and Section 7 of the Criminal Law (Amendment) Act, 1952, even though those offences might have been investigated By the Delhi Special Police Establishment. Hence, the said notification dated 11-6-1956 cannot be held to be applicable to the trial of the offences with which the petitioner Bichitrananda Mohanty was charged.

8. The learned Sessions Judge appears to have realised this difficulty but thought that the words 'all sessions cases' occurring in the notification were indicative of the fact that the intention of Government was that all offences investigated by the Delhi Special Police Establishment should be tried by the Additional Sessions Judge of Puri who was appointed as the Special Judge, and the scope of the notification should not be limited to the offences described in Section 6 and Section 7 of the Criminal Law Amendment Act, 1952.

The Sessions Judge is undoubtedly right in saying that the offences which are brought within the scope of the Criminal Law Amendment Act, 1952, cannot be described as 'Sessions Cases' inasmuch as they are triable by the Special Judge in accordance with the procedure for trial of Warrant cases. But when the notification clearly mentioned the Section of the statute under which it was issued too much importance cannot be attached to an inaccurate expression like 'Sessions Cases' occurring in the notification so as to widen the scope of the notification.

I must therefore hold that Notification No. 727-Reforms dated 11-6-1956, issued by the Government of Orissa (Home Department) has nothing to do with the trial of the petitioner Bichitrananda Mohanty of the offences with which he was charged.

9. The learned Sessions Judge has further observed that in view of Memo No. 729 Reforms dated 11-6-1956 issued by Government to the District and Sessions Judges while forwarding a copy of the notification, it must be held, as a matter of statutory construction that Government issued a satutory order under Section 193 (2) of the Criminal P. C., directing the Additional Sessions Judge of Puri to try all offences that might have been investigated by the Special Police Establishment. There are however two objections to such a construction. Firstly, the memo does not purport to be issued in exercise of the powers conferred on the State Government by Sub-section (2) of Section 193, Criminal P.C. It cannot be held to amount to a statutory direction at all. Secondly, it is a mere forwarding memo enclosing notification No. 727-Reforms dated 11-6-1956 and when that notification purports to have been issued in exercise of the powers conferred by Section 6 of the Criminal Law Amendment Act 1952, the memo also should be held to be limited to those offences which are described in that Section.

10. In the result, therefore, I would in disagreement with the learned Sessions Judge hold that the notification dated 11-6-1956, has no application to the present case, that the commitment was validly made by the Additional District Magistrate, and it was competent for the Sessions Judge to transfer the case for trial to the Assistant Sessions Judge. There is no invalidity in the exercise of jurisdiction by the Assistant Sessions Judge, to call for interference by this Court.

11. The order of the Sessions Judge of Ganjam in Criminal Appeal No. 84 of 1956 directing retrial of the petitioner is therefore set aside. He is directed to hear that appeal on merits and dispose of it according to law.

The reference made by him to this Court (Criminal Reference No. 5 of 1957) is discharged and he is directed to dispose of the criminal revision petition filed before him by the State (Criminal Revision Petition No. 3 of 1957 (P) ) according to law.

As both the appeal and the revision ariseof the same judgment he may hear them analogously and deliver judgment on the same date.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //