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TMI Blog1976 (4) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... plications raising an objection that the Magistrate had no jurisdiction to try the offences as he had not been "specially empowered" as required by s. 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. Aggrieved, the accused filed two revisions (Cr. R. 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 s. 2(c) of the Act. Accordingly, the Magistrate was directed to drop the proceedings pending against the revision-petitioners. 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. Section 2(c) of the Act defines a "Magistrate" to mean "a District Magistrate, a Sub-D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l; Polubha Vajubha v. Tapu Ruda; and Sabuddin Sheikh Mansur v. J. S. Thakkar and anr. A different view (hereafter referred to as the broad view) has been taken in these decisions: K. N. Vijavan v. State; State v. Judhabir Caetri; State of Mysore v. Kashambi and anr.; Ashaq Hussain Khan v. S. D. O. Monghir, C. V. Madhava Mannadiar v. District Collector and ors. 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 s. 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 whom powers are so conferred will be "specially empowered" within the meaning of s. 2(c). In our opinion, this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow view. It is will recognise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, 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 s. 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 s. 2(c) regarding "special empowerment". Hegde, J., who spoke for the Bench, expressly dissented from the view taken in Polubha Vajubha v. Tepu Buda (supra) and Mohammed Qasim v. Emperor (supra) and held that the language of s. 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 s. 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&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification empowering all Magistrates of certain class to try certain class, 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. Again, in Abdul Husein Tayabali and ors. v. State of Gujarat and ors. decided on September 20, 1967, the construction of the expression "specially appointed" within the meaning of s. 3(c) of the Land Acquisition Act, 1894 read with r. 4 of the Land Acquisition (Company's) Rules, came up for consideration before this Court. By a notification, dated October 1, 1963, issued under s. 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 jurisdiction. Question arose whether that notification satisfied the requirements of s. 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 affirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Code of Criminal Procedure. In short, the word "specially" cannotes 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- offico from the Magistrates of the 1st Class. 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 triables only by those Magistrates of the 1st Class who are specially empowered under s. 2(c) of the Act,and not under the Code of Criminal Procedure. Be that as it may,s.39 of the Code of Criminal Procedure, 1898 and s.32 of the Code of Criminal Procedure,1973, are concerned with the mode of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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