Skip to content


The State of Gujarat Vs. Chaturbhuj Maganlal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Case NumberCriminal Appeal Nos. 212 and 213 of 1971
Judge
Reported inAIR1976SC1697; 1976CriLJ1367; (1976)0GLR828; (1976)3SCC54; [1976]3SCR1076
ActsCode of Criminal Procedure (CrPC) 1973 - Sections 32; Code of Criminal Procedure (CrPC) 1898 - Sections 39 and 39(1)
AppellantThe State of Gujarat
RespondentChaturbhuj Maganlal
Appellant Advocate S.N. Anand,; M.N. Shroff, Advs
Respondent Advocate N.H. Hingorani, ; K. Hingorani, Advs.
Cases ReferredAbdul Hussain Tayabali v. State of Gujarat
Prior historyAppeal from the Judgment and order dated the 21st November, 1970 of the Gujarat High Court in Criminal Revision Applications Nos. 321 and 322 of 1969
Books referredOxford Dictionary
Excerpt:
.....words 'specially empowered' appearing in section 2 (c) - empowerment of all magistrates of first class in state under one notification by virtue of their office to try offence under act in area held to be 'special' and not 'general' - held, by virtue of state government notification judicial magistrate first class at 'x' has jurisdiction to try offences under act of 1956. - sections 3(1)(xi) & 23 & scheduled castes and scheduled tribes (prevention of atrocities) rules, 1995, rule 7: [dr. arijit pasayat, dr. mukundakam sharma & h.l. dattu, jj] offence of atrocities - quashing or proceedings held, plea that in f.i.r. caste of accused was not mentioned and, therefore, proceedings should be quashed cannot be allowed. whether accused belongs to scheduled caste or scheduled tribe can be..........dated february 19, 1959 did not have the effect of making him a 'magistrate of the first class specially empowered' within the meaning of section 2(c) of the act. accordingly, the magistrate was directed to drop the proceedings pending against the revision-petitioners.5. against that decision of the high court, the state has now filed these appeals on a certificate granted by the high court under article 134(1)(c) of the constitution.6. section 2(c) of the act defines a 'magistrate' to mean 'a district magistrate, a sub-divisional magistrate of the first class specially empowered by the state government, by notification in the official gazette to exercise jurisdiction under the act'.7. section 22 further says:no court inferior to that of a magistrate as defined in clause (c) of.....
Judgment:

R.S. Sarkaria, J.

1. Controversy in these appeals centers round the interpretation of the words 'specially empowered' appearing in Section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (to be hereinafter referred to as the Act).

2. The facts giving rise to these appeals are as follows:

3. Chaturbhui Maganlal and Bai Sabita, respondents herein, are husband and wife residing together at Parvati Bhuvan, Raikot. Both of them together with Bai Hamida Basir Mohammed, respondent 3 herein, are accused 1, 2 and 3 respectively, in a trial for offences punishable under Sections 5 and 6 of the Act before the Judicial Magistrate, First Class Raikot in Cr. Cases Nos. 1372 and 1404 of 1968. When the trial was about to commence in ' these cases, the accused moved applications raising an objection that the Magistrate had no jurisdiction to try the offences as he had not been 'specially empowered' as required by Section 2(c) of the Act. The Magistrate rejected those applications whereupon the accused went in revision before the Sessions Judge, Rajkot who dismissed the same.

4. Aggrieved, the accused filed two revisions (Cr. Rule 321 and 322 of 1969) in the High Court of Gujarat. A learned Judge of the High Court allowed the revisions on the ground that Mr. Modha, Magistrate 1st Class Rajkot, before whom these cases were pending, had no jurisdiction to try the same because the State Government notification, dated February 19, 1959 did not have the effect of making him a 'Magistrate of the first class specially empowered' within the meaning of Section 2(c) of the Act. Accordingly, the Magistrate was directed to drop the proceedings pending against the revision-petitioners.

5. Against that decision of the High Court, the State has now filed these appeals on a certificate granted by the High Court under Article 134(1)(c) of the Constitution.

6. Section 2(c) of the Act defines a 'Magistrate' to mean 'a District Magistrate, a Sub-Divisional Magistrate of the First Class specially empowered by the State Government, by notification in the Official Gazette to exercise jurisdiction under the Act'.

7. Section 22 further says:

No court inferior to that of a Magistrate as defined in Clause (c) of Section 2 shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Section 8.

8. The State Government Notification No. PPA/1257/84187/X of July 22, 1958, published in the Bombay Government Gazette of July 31, 1958, purporting to have been issued under Section 2(c) runs as follows:

In the exercise of the powers conferred by Section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act, except under Sections 12(1), 18(1), 19, 20(1) and (3) of the Act.

9. The question is, whether this notification has the effect of making every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction, a Magistrate competent to try any offence under Sections 3, 4, 5, 6. 7 or 8 of the Act?

10. Answer to this question depends on a correct interpretation of the expression 'specially empowered' in Section 2(c). There has been a sharp conflict of judicial opinion in regard to the meaning of this expression.

11. One line of decisions has taken the view (hereafter referred to as the narrow view) that the word 'specially' in this expression has reference only to the mode of empowerment as indicated in Section 39(1) of the CrPC, 1898. According to this view the word 'specially' stands in contrast to the word 'generally.' Therefore, if powers to try certain offences are conferred on a class of officials by their official title, they are 'generally empowered'; but if the powers are conferred on particular individuals by name or by virtue of their office, they are 'specially empowered.' On this reasoning it is deduced that the words 'specially empowered' imply 'the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power is to be conferred.' Some of the cases in which this view has been expounded are: Mohd. Kasim v. Emperor AIR 1915 ; Emperor v. Udho Chandumal AIR 1943 ; Polubha Vajubha v. Tapu Ruda AIR 1956 and Sabuddin Sheikh Mansur v. J.S. Thakkar : AIR1969Guj1 .

12. A different view (hereafter referred to as the broad view) has been taken in these decisions: K. N. Vijayan v. State, AIR 1953 T C 402; State v. Judhabir Chetri AIR 1953 Assam 35: State of Mysore v. Kashambi : Ashiq Hasan Khan v. S.D. Order Monghir AIR 1965 Madhaya Mannadiar v. District Collector Palghat : AIR1970Ker50 . According to this view, the word 'specially' has reference to the special purpose of the empowerment and is not intended to convey the sense of a 'special' as contrasted with a 'general' empowerment. 'Specially' qualifies the word 'empowered' and not the person on whom the power is conferred. In this view, the State Government is within its competence to confer powers under Section 2(c) of the Act on some or all the Magistrates of the First Class in the State, in any of the modes known to law and the Magistrate or Magistrates on whom powers are so conferred will be 'specially empowered' within the meaning of Section 2(c).

13. In our opinion, this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow view.

14. It is well recognised that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision, comports best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system. This rule will apply in full force where the provision confers ample discretion on the Government for a specific purpose to enable it to bring about an effective result.

15. The Act has been enacted to suppress a special kind of mischief. With that end in view it creates new offences, and confers wide powers on the Government to constitute special machinery for its enforcement. The narrow view taken in the decisions led by Mohd. Kasim's case AIR 1915 Mad 1159 which reads, with external aid into the expression 'specially empowered' a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act. It tends to introduce unnecessary inconvenience, friction, confusion and artificiality in the working of the provision. It also tends to reduce its efficacy and impede the exercise of the discretionary power which the Legislature has in its wisdom, confided in full measure to the Government. In the context of Section 2(c) of the Act, therefore, the narrow, restrictive interpretation of the expression 'specially empowered' has to be eschewed.

16. Incidentally, it may be noticed that none of the decisions expounding the narrow view was concerned with the interpretation of the expression 'specially empowered' in the context of the Suppression of Immoral Traffic in Women and Children Act. In Mohammed Kasim v. Emperor AIR 1915 Mad 1159 (supra) which leads the exponents of this view, the Madras High Court was concerned with the construction of this expression as used in Section 3 of the Opium Act. Similarly. the Full Bench decision of the Gujarat High Court in Sabuddin's case : AIR1969Guj1 (supra) (the ratio of which has been followed by the Judgment under appeal) turns on an interpretation of this expression in the context of Section 56 of the Bombay Police Act.

17. On the other hand, 'State of Mysore v. Kashambi (supra) which is a prominent exponent of the broad view, the construction of Section 2(c) of the Act was directly in issue before the Mysore High Court. Therein, by a notification, the State Government conferred powers on all First Class Magistrates to try cases under the Act. The accused, Kashambi and Mohadinbi were being prosecuted under Section 8(a) of the Act in the court of Judicial Magistrate First Class, Saundatti. The accused raised an objection that the Magistrate had no jurisdiction to try the cases because the aforesaid notification was invalid and ineffective to confer the jurisdiction on him as it did not satisfy the requirement of Section 2(c) regarding 'special empowerment'. Hegde J., who spoke for the Bench, expressly dissented from the view taken in Polubha Vajubha v. Tapu Ruda AIR 1956 Sau 73 (supra) and Mohammed Kasim v. Emperor AIR 1915 Mad 1159 (supra) and held that the language of Section 2(c) of the Act does not justify the contention that such a notification amounts to general , conferment of power as opposed to special conferment of power as required by Section 2(c) and therefore enlarges the scope of that section. In the opinion of the Bench, the word 'specially' is an adjective (adverb?) to the verb 'empowered' and not an adjective to the noun 'Magistrate' and that this word means 'specifically' or 'for a particular purpose'. The Bench did not accept the contention that the word 'specially' conveys the idea of picking and choosing of the Magistrate or Magistrates for the purpose of conferring the additional powers. It was emphasised that the conferment of power under Section 2(c) of the Act is not made by having recourse to Section 39, Cr. Procedure Code.

18. In our opinion, the view taken by the Mysore High Court in Kashambi's case (Mys) is the correct one. It seems to be more in accord with the trend of the recent decisions of this Court, in which such an expression came up for construction. In this connection, the first case to be noticed is Sindhi Lohona Choithram v. State of Gujarat : 1967CriLJ1396 . Therein, the meaning of the expression 'specially empowered' occurring in Section 6(1) of the Bombay Prevention of Gambling Act, 1887 came up for consideration. By a notification, dated January 22, 1955, the Saurashtra Government empowered specially certain Assistant Superintendents and Deputy Superintendents of Police, Porbander Division, Porbander, to authorise by issue of special warrants in each case, a police officer not below the rank of Sub-Inspector of Police to do the various things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house, room or place was suspected as being used as a common gaming house. The appellant's house was raided by a Sub-Inspector of Police, and on the basis of incriminating evidence the appellant and six others were charged under Sections 4 and 6 of the Act. At the trial, the accused contended that Shri Pandhya, the Deputy Superintendent of Porbander who issued the search warrant, was not authorised to do so because the aforesaid notification did not specially empower Shri Pandhya within the contemplation of Section 6.

19. This Court expressed, that in view of the principle embodied in Section 15 of the Bombay General Clauses Act, 1904, when power is conferred on a person by name or by virtue of his office, the individual designated by name or as the holder of the office for the time being is empowered specially. Judging by this test, the Court held that the notification, dated January 22, 1955, 'specially empowered' Shri Pandhya, holder of the office of the Dy. Superintendent of Police, Porbander to issue the search warrant under Section 6. The Court noticed the conflict of judicial opinion on the question whether a notification empowering all Magistrates of certain class to try certain cases, can be said to be empowered specially every Magistrate of that class to try those cases, but left that question open. However, it settled that a person can be specially empowered even by virtue of his office.

20. Again, in Abdul Hussain Tayabali v. State of Gujarat AIR 1968 the construction of the expression 'specially appointed' within the meaning of Section 3(c) of the Land Acquisition Act, 1894 read with Rule 4 of the Land Acquisition (Company's) Rules, came up for consideration before this Court. By a notification, dated October 1, 1963, issued under Section 3(c) of the Land Acquisition Act, the State Government authorised all Special Land Acquisition Officers in the State to perform the functions of Collectors under that Act within the area of their respective jurisdictions. Question arose whether that notification satisfied the requirements of Section 3(c) and had the effect of specially empowering all the Land Acquisition Officers as a class to perform the duties under the Act. Shelat J., speaking for a Bench of three learned Judges, answered this question in the affirmative and made these apposite observations:

In our view, those words (specially appointed) simply mean that as such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be 'specially appointed', that is, appointed for the specific purpose of performing those functions. The word 'specially' has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against a general appointment. The word 'specially' thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act. It qualifies the word 'appointed' and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector. It is the appointment therefore which is special and not the person from amongst several such officers. Besides Section 15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a person to perform a certain function, such power can be exercised either by name or by virtue of office.

There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by his name.

21. The above observations are an apt guide to the interpretation of the expression 'specially empowered' in Section 2(c) of the Act with which we are concerned. Although the words in Section 3(c) of the Land Acquisition Act, the construction of which was considered in Abdul Hussain's case : [1968]1SCR597 were 'specially appointed', their connotation is the same as conveyed by the expression 'specially authorised' or 'specially empowered' (see Oxford Dictionary according to which the word 'authorised' means 'empowered' 'appointed'). In construing the expression 'specially empowered' in the instant case, therefore, we can safely adopt the reasoning in Abdul Hussain's case. Thus considered, the term 'specially' must be taken to have reference to the special purpose of the empowerment. Even according to Oxford Dictionary, one sense of this word is 'of special purpose.' It qualifies the word 'empowered.' It is used in an attributive sense to highlight special nature of the power. It does not convey the sense of a contradistinction or contrast between 'special' empowerment and 'general' empowerment. All that this word signifies is the investment of some or all the Magistrates of the First Class with powers which are 'special' and are not part of the 'ordinary' or 'additional' powers which can be conferred on a Magistrate of the First Class under the CrPC. In short, the word 'specially' connotes that it is the empowerment which is special and not the person. Thus considered, special empowerment does not necessarily involve selection of individuals by name or ex officio from the Magistrates of the 1st Class.

22. The fallacy in the narrow view stems from the undue stress it lays on the mode of empowerment at the cost of the special purpose of the empowerment, forgetting that the Act is a code by itself which creates new offences triable only by those Magistrates of the 1st Class who are specially empowered under Section 2(c) of the Act, and not under the CrPC.

23. Be that as it may, Section 39 of the CrPC, 1898 and Section 32 of the CrPC, 1973, are concerned with the mode of conferring power. Power may be conferred on any person either 'by name or in virtue of his office', or 'on classes of officials generally by their official title'. The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose. The mode of conferring power is not to be confused with the purpose of the power, as seems to have been done in the cases taking the narrow view.

24. The narrow view can be tested yet from another angle. According to it, if a Magistrate of the 1st Class is selected by name or by virtue of his office and invested with these powers to try offences under the Act, he would be 'specially empowered.' If no such pick and choose is made and the power is conferred on all the Magistrates of the same Class, they would be 'generally empowered'. This distinction if taken to its logical end, breaks down, and exposes the inherent artificiality of the proposition. If the empowering of a Magistrate of the First Class to try offences under this Act, by virtue of his office, satisfies the requirements of Section 2(c), it is not understood how the empowerment of a whole class of Magistrates of the First Class by the same mode becomes ultra vires the section.

25. In Abdul Husein's case : [1968]1SCR597 the contention canvassed for the narrow view was considered from this aspect, also. It was observed:.even if the meaning of the word 'specially' were to be that which is canvassed (by the appellant), the Government could have issued separate notification for each of the Sp. L.A. Officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction. Instead of doing that, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection. Such a notification would have the same force as a separate notification in respect of each individual Sp. L.A. Officer. Such a notification would mean that the Government thereby appoints each of the existing Sp. L. Officers to perform the functions of the Collector within their respective areas.

26. On parity of reasoning, it can be said that the empowerment of all the Magistrates of the First Class, in the State under one notification, by virtue of their office, to try offences under the Act in the area of their respective jurisdiction, must 'be held to be 'special' and not 'general'.

27. It will not be out of place to mention here that Abdul Husein's case AIR 1988 SC 432 was decided by this Court on September 20, 1967, that is, about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddin's case : AIR1969Guj1 , Consequently, the Bench did not have the advantage of the guidance furnished by Abdul Husein's case.

28. In the light of the construction put by us on the expression 'specially empowered' as used in Section 2(c) of the Act, we hold that by virtue of the State Government Notification dated July 22, 1958, the Judicial Magistrate First Class Rajkot has the jurisdiction to try the offences under the Act. Accordingly, we allow these appeals, set aside the judgment of the High Court. The cases will now go back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law. The cases, being very old, it is directed that they be disposed of on top-priority basis, with utmost expedition, if possible, within three months from today.


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