1. This is an appeal from the order of Sri A. B. Ganguly, Judge, Special Court, Burdwan, convicting the appellant, Bhajahari Mandal, under Section 165-A, Penal Code, and sentencing him to suffer rigorous imprisonment for six months. The prosecution case was briefly as follows:
2. Two men, Istipada Ghosh and Gopiraman Ghosh, were being tried before an Assistant Sessions Judge, Sri D. N. Chakravarty, at Burdwan for offences under Sections 304/324, Penal Code. The trial commenced on 2-9-1952 and Baidyanath Mukherjee was one of the jurors. Dharanidhar Misra was the- foreman and Gangadhar Dawn was another juror in the same case. The appellant Bhajahari Mandal was a tadbirkar for the accused before the Assistant Sessions Judge, namely, Istipada Ghosh and Gopiraman Ghosh. The appellant Bhajahari approached the juror Baidyanath from the 2nd day of the trial for showing favour to the accused by returning a verdict of not guilty, on taking a bribe or illegal gratification from him on behalf of the accused. Baidyanath refused to take any bribe in order to give a verdict favourable to the accused of that case and he reported the matter to the foreman, Dharanidhar Misra, who said that the appellant had also approached him, requesting him to take a bribe and to give a verdict in favour of the the accused but he had also refused. The evidence shows that the appellant had also approached another juror Gangadhar Dawn with a similar proposal and Gangadhar had also turned down the offer of a bribe. On the fourth day of the trial, that is, on 5-9-52, Baidyanath consulted Dharanidhar Misra and Gangadhar Dawn and they came to the decision that they would report the matter & get the man who was offering bribe to them apprehended & brought to justice. Baidyanath also went to Sri Durgapada Choudhury, the Public Prosecutor of Burdwan and reported the matter to him on 5/9/52 in the evening and Durgapada Babu told Baidyanath that if he could get apprehended the man who had offer-ed the bribe at the proper time, he would be doing a service to the cause of justice. He also advised Baidyanath to bring the matter to the notice of the police. The appellant Bhajahari happened to meet Baidyanath in the evening of the same day after Baidyanath had seen the Public Prosecutor Sri Durgapada Choudhury. At that time, Baidyanath pretended to agree to accept bribe and asked him to come with money next morning between 9-30 and 10 a.m., that is, before the sitting of the Court, at the house of Dibakar Banerji, clerk of a lawyer, Mahadev Roy. The juror Baidyanath was then staying at the house of Dibakar. Next morning, at about 9 or 9-30 a.m. Baidyanath with his brother Sashi Bhusan Mukherji went to the police station and informed the Ofiicer-in-charge that Bhajahari had been offering bribe to Baidyanath on several occasions to induce him to return a verdict favourable to the secured. The Officer-in-charge then sent junior Sub-Inspector, Sisir Bindu Bhowmik, to the house of Dibakar for arresting the man who offered the bribe if he could be caught red-handed. From the Police Station Baidyanath Mukherji & Sashi Bhusan Mukherji went straight to the house of Dibakar. After a while, the appellant Bhajahari Mandal came there with money and tendered four ten rupee notes, to Baidyarath who accepted them. At the same moment, the junior Sub-Inspector, Sisir Bindu Bhowmik, came up and saw the money being tendered and accepted; and to him Baidyanath reported then and there that Bhajahari had given the bribe. Thereupon, Sisir Bindu Bhowmik arrested Bhajahari and took him to the thana and Baidyanath was taken to the thana where he lodged information which was treated as the first information report. On the same day, the matter was reported to the Assistant Sessions Judge who was trying the case against Istipada Ghosh and Gopi-raman Ghosh, and heaving everything the learned Judge discharged the jury and ordered retrial of Istipada and Gopiraman.
3. It has been said already that Bhajahari was arrested, and taken to the thana. The Officer in-Charge investigated the case and submitted a charge sheet under Section 161/116, Penal Code, in due course. The case was transferred to the Judge of the Special Court, Burdwan who took cognisance of the case on 23-12-52 and ultimately tried and convicted and sentenced the appellant as already stated.
4. The accused pleaded not guilty and the defence was that the appellant Bhajahari had not taken any initiative in offering any bribe, and it was Sashibhusan who was the brother of juror Baidyanath and who was also a clerk of the Public Prosecutor Durgapada Babu who took the initiative and proposed to the appellant that the appellant should pay Rs. 500/- as bribe to the jurors, saying that his brother was sitting a juror and he could manage everything; and then the appellant promised to consider the matter; that on the next day Baidyanath in the presence of the foreman Dharanidhar and juror Gangadhar asked the ap-pellant what he had done about the proposal made by Sashibhusan and the appellant replied that he would consult Istipada and his son & would report later. On the next day, the appellant saw Baidyanath and told him that the accused persons in the Sessions case were poor and they were unable to pay Rs. 500/- and then Baidyanath replied that he would see; the appellant was nervous that the jurors might return a verdict of guilty because they were not obliged by being tendered a bribe and so he protested that he would bring the conduct of Baidyanath to the notice of the District Judge and the District Magistrate and see that his name was removed from the list of jurors. On the next day. in the morning, Sashi Bhusan Mukherji is alleged to have invited the appellant, Bhajahari to take tea and to forget the ill-Will which the quarrel on the previous evening had generated, and in the meantime they laid a trap and a police officer came, and before the police officer Baidyanath falsely charged the appellant Bhajahari with having offered him a bribe According to the defence, the four ten rupee notes which Baidyanath gave to the junior Sub-Inspector were the property of Baidyanath himself and he had used his own money in order to bring a false case against the appellant.
5. As already stated, the learned Special Judge disbelieved the defence case and accepted the prosecution case and convicted and sentenced the appellant under Section 165A, Penal Code.
6. In this appeal, Mr. Ajit Kumar Datta urged on behalf of the appellant that the main witnesses in the case were Sashibhusan and Baidyanath; that Baidyanath must be regarded as an accomplice and Sashibhusan was the brother of Baidyanath and, according to the defence, he had initiated the proposal regarding giving of bribe and that he was not, therefore, a reliable witness and that in the circumstances, the evidence on the side of the prosecution ought not to have been accepted. He has also referred to a discrepancy in the evidence regarding the point whether or not the junior Sub-Inspector Sisir Bindu Bhowmik was in plain dress or was in Police uniform. According to the prosecution witnesses Nos. 2 and 3, Dibakar Banerji and Mahadeb Roy, the police officer was in uniform but according to the others, namely, P. W. s 4 and 8, the Sub-Inspector himself, he was in plain dress. Mr. Datta has urged that sufficient weight was not given to the discrepancy by the learned Special Judge. Mr. Datta has also urged that the learned Special Judge wrongly regarded the evidence of P. W. 3, Mahadeb Boy, a pleader of Burdwan, as corroborating the prosecution case. On the whole, Mr. Datta has urged that the case under Section 165A was not satisfactorily made out.
7-10. It is true that P. W. 4, Baidyanath Mukherji, who was the complainant and was the person to whom the bribe had been tendered, must be regarded as a witness whose evidence should be corroborated before the same can be acted upon. Mr. Datta has pointed out that he was not one of the jurors summoned to sit for the trial of the case against Istipada and another on 2-9-52 but he was one of the men found present when the case was taken up and who was emparelled because there was a shortage of the jurors who had been summoned for the case. It is also true that P. W. 1, Sashi Bhusan Mukherji, the other witness who directly proves the tendering of the bribe, is the full brother of P. W. 4, Baidyanath and his evidence also has to be taken with some caution. There is, however, other evidence in the case which must be regarded as satisfactory. (After discussing the evidence, the judgment proceeded:)
11. In the circumstances it must be held that the case Under Section 165A, I. P. C., was sufficiently proved on the evidence against the appellant.
12. Next there is the point of law that the trial was held without jurisdiction. In the memo of appeal the objection taken was that the learned Judge of the Special Court, Burdwan, had no competence and jurisdiction to take cognisance of the case and try the same, inasmuch as the offence Under Section 165A, I. P. C., was nt included in the Schedule of offences included in West Bengal Act 21 of 1949 as amended by West Bengal Act 12 of 1952. But the offence Under Section 165A was expressly included in the Schedule of W.B. Cr. Law Amendment (Special Courts) Act, 1849, by another amending Act, viz., W.B. Act 55 of 1953, in respect of which the assent of the President was published on 9-5-53. Mr. Dutt has therefore urged that on 23-12-52 when the learned Special Judge took cognizance, he had no jurisdiction to take cognisance of the offence Under Section 165A, as the offence had not then been included in the schedule; that in fact he did not take cognisance of the offence Under Section 165A, but of the offence Under Section 161/116, I.P.C., but in view of the fact that the Indian Penal Code had been amended with effect from 23-7-52 by addition of the new Section 165A, there was no offence under Sections 161/116, I.P.C., on 23-12-52, when cognizance was taken, or even on 6-9-52 when the offence is alleged to have been committed, because Section 113 applies only when no express provision is made by the Code for the punishment of abetment of an offence; & that therefore the proceedings were altogether void. Mr. Banerjee for the State has pointed out that the trial of the case began on 29-1-1954 and than long before that date, Section 165A had been included in the Schedule and he has urged that the learned Judge had jurisdiction to try the case Under Section 165A and that the trial was good, Mr. Dutt has replied that the fact that when the trial took place the learned Judge had jurisdiction to try the case, could not cure the original defect in the matter of taking cognisance of the case.
13. The question is whether there was such defect, and if so whether it would invalidate the trial even though the learned Judge had jurisdiction to try the case when he did try the same. Abetment of the offence Under Section 161 or the offence Under Section 165, I. P. C., was made a distinct offence punishable Under Section 165A by Act 46 of 1952 (Central) which came into force on 28-7-52. By the same Act, it was provided that an offence Under Section 161/165 or 165A or any conspiracy or attempt to commit or abetment of such offence would be triable only by a Special Judge appointed by the State Government. West Bengal Act 21 of 1849 was amended by W. B. Act 12 of 1952 which came into force on 30-7-1952, assent of the President being published on that date. The amended W. B. Act made provision for the trial of offences mentioned in the Schedule by Special Courts only and for the appointment of Judges of such Special Courts. The Schedule then included offence Under Sections 161 to 165, I.P.C., and any conspiracy or attempt to commit or abetment of such offence but not Section 165A--naturally enough -- because Act 46 of 1952 (Central) which inserted Section 165A into the Indian Penal Code was published only, on 28-7-1952 and the provisions thereof were not before the West Bengal Government and Legislature when W.B. Act 12 of 1952 was drafted & passed. W. B. Act 15 of 1953 which came into force on 9-5-53 inserted Section 165A into the Schedule of the W. B. Cri. Law Amendment (Special Courts) Act and also provided that Sections 5 to 10 of the Central Act; Act 46 of 1952, making provision for trial by Special Judges, would not apply and would be deemed never to have applied to West Bengal, which would be governed by the similar provisions of the W. B. Act as amended.
14. But on 23-12-52, the position was that the Central Act 46 of 1952 would apply to West Bengal subject to the provisions of the W. B. Amending Act 12 of 1952; since the latter Act came into force later, though only two days later, and had received the assent of the President, the provisions thereof where contrary to or inconsistent with the provisions of the Central Act would prevail vide Article 254 of the Constitution. If the offence under Section 165A, I. P. C., be regarded as an independent offence, created by Central Act, 46 of 1952, there being nothing in W. B. Act 12 of 1952 about Section 165A, the provisions of the Central Act would apply to West Bengal in respect of the offence, and only a special Judge appointed by the State Government would have jurisdiction to try the offence. Mr. Dutt has referred to an unreported decision of Das Gupta and Debarbrata Mookerjee, JJ., in -- 'Dukhitram Singh v. State', Criminal Reva. Case 700 of 1953 (Cal) (A). In that case the petitioner had obtained Rule on the ground that the Court of a Magistrate, first class, had no jurisdiction to try a case under Section 165A. Their Lordships discharged the rule on the ground that on behalf of the petitioner, no legislative provision could be placed before the Court to show that the offence under Section 165A, I. P. C., was triable only by a Special Court. The provisions of Section 7 of the Central Act, 46 of 1952 -- the Criminal Law Amendment Act 1952 -- were not placed before or considered by their Lordships. No doubt the subsequent W. B. amendment Act, No. 15 of 1953, provided that the provisions of Sections 5 to 10 of the Central Act would not apply and would be deemed never to have applied to West Bengal. But if some provision of the Central Act did apply by its own force before W. B. Act 15 of 1952 had come into force, it is difficult to see how the operation thereof could retrospectively be taken away. It could only be provided that proceedings in contravention of Sections 5 to 10 of the Central Act would nevertheless be deemed to be valid provided the corresponding W. B. Act had not also been contravened. Such a provision, was necessary -- or might be considered necessary' -- in respect of proceedings which were pending in ordinary Courts when the Central Act, 46 of 1952, came into force. The Central Act provided that all such proceedings under Sections 161, 165, etc., should be transferred to the Courts of Special Judges & ordinary Courts would no longer have the power to proceed with, them. The W. 13. Act on the other hand provided that such proceedings which were pending when the West Bangal Criminal Law Amendment (Special Courts) Act Amending Ordinance 1952 came into force should continue in the ordinary Courts. A clarification on that point might be considered necessary, and, it might be therefore provided that the provisions of the Central Act would be deemed never to have applied in West Bengal. But as regards the forum for the trial of the offence under Section 165A, if regarded as an independent offence, such retrospective provision could have no meaning. It must be held that the offence under Section 165A was always triable by a Special Judge only, from 28-7-52 to 9-5-53 under Section 7 of the Central Act, and from 9-5-53 under the W. B Act 15 of 1953.
15. It is true that if the offence under Section 165A be regarded as a distinct offence, the Special Judge appointed under the W. B. Act had no jurisdiction in December 1952 to take cognisance of the offence, and cognisance could be taken only by a Special Judge appointed under the provisions of the Central Act. But since in such case the Special Judge must be deemed to have acted erroneously in good faith, the provisions of Section 529(e), Criminal P. C. would apply, and the proceedings would not be vitiated. It is trial without jurisdiction that vitiates a proceeding (see Section 530, Cr. P. C.) end not taking of cognisance in good faith without jurisdiction. Reference may be made in this connection to -- 'Lalit Chandra v. Emperor' 39 Cal 119 (127) (B), and -- 'Jhakar Abir v. Province of Bihar' 1945 Pat 98 (102) (AIR (V 32) (PB) (C).
16. As regards the argument that the learned Special Judge in this case did not in fact take cognisance of the offence under Section 165A at all whether with or without jurisdiction, it is true that in the F. I. R. and in the charge sheet, the police erroneously mentioned the sections as 161/116, I. P. C., and the learned Judge in his order dated 23-12-52 referred to the papers in respect of the case under Sections 161/116, I. P. C., and then noted 'Cognisance taken' without specifying the section. But Under Section 190, cognisance is taken upon receiving a complaint of the facts which constitute the offence, or upon a report in writing of such facts (constituting the offence) made by any police officer. Taking cognisance means applying the mind of the Judge or Magistrate to the facts constituting the offence for the purpose of initiating judicial proceedings against the offender or taking steps to see whether there is any basis for initiating judicial proceedings -- 'Pannalal v. Hyderabad State' 1951 Hyd 113 (AIR V 38) (D). The learned Special Judge in this case applied his mind to the facts of the case and was satisfied that prima facie the offence of abetment of the offence of accepting a bribe had been committed by the accused. The offence could only come under Section 165A at the time, and the learned Judge when he came to try the case tried the accused on the charge under Section 165A, I. P. C. Hence he must be deemed to have taken cognisance of the offence under Section 165A, I. P. C.
17. It has already been pointed out that even if it be held that the offence under Section 165A is a distinct offence created for the first time by Act 46 of 1952, and the learned Judge had no jurisdiction to take cognisance, the proceedings would not be vitiated because of Section 529(e) of the Code. But the offence under Section 165A is an independent offence only in the sense that it provides for an enhanced punishment in the case where the offence under Section 161, or 165 is not committed in consequence of the abetment. In substance, however, the offence under Section 165A is the offence of abetment of the offence under Section 161 or 165 I. P. C., and may therefore be regarded as included in the Schedule of offences contained in the West - Bengal C. L. A. (Special Courts) Act 1949 as amended by Act 12 of 1952. In that view the learned Special Judge even in December 1952 had jurisdiction to take cognisance of the offence under Section 165A. Mr. Dutt has urged that in that view there was no need to further amend the W. B. Act by Act 15 of 1953 so as to include Section 165A expressly in the Schedule. This might however have been done to bring the provisions in conformity with the Central Act and to remove any possible doubt, in my opinion, when the provisions of Section 7 of Act 46 of 1952 are kept in mind, viz., that the offence under Section 165A might be tried by a Special Judge only, the view must be taken that abetment of the offence under Sections 161 to 165 as included in the Schedule of the W. B. Act as amended by Act 12 of 1952 comprised the offence under Section 165A. But even if the other view is taken, it must be held that the taking of cognisance when the Learned Judge had no power was only an irregularity cured by Section 529, Criminal P. C. Accordingly we reject the contention that trial was bad because of the defect in taking cognisance of the offence by the Learned Judge.
18. The sentence cannot be regarded as unduly severe. The appeal therefore fails and is dismissed. The appellant must now surrender and serve out his sentence.
J.P. Mitter, J.
19. I agree.