TMI Blog1962 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... no jurisdiction to proceed with the trial but that the Chief Presidency Magistrate before whom a charge-sheet in respect of the offences alleged against the respondents had been laid in January 1951 had alone jurisdiction to try the case. The State which has come up in appeal against this order contends that on a construction of the relevant statutes and other matters to which we shall refer, it was the Special Judge who had the jurisdiction to try the case. 3. To appreciate the contentions raised in the appeal it would be necessary to state at least in broad outline the several stages of this proceeding. 4. The first respondent was at the relevant date, which was some time towards the latter part of 1950, the Sub Postmaster in a post office in the town of Calcutta. The Special Police Establishment, Calcutta, received information that in certain post offices in Calcutta, including that in which the first respondent was the Sub Postmaster, systematic misappropriation of Government monies was taking place by, inter alia, the affixing of used postage stamps. The police devised a plan by which they had a foot-constable appointed as a Packer in the Sub Post Office in order to watc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that the Special Judge had no jurisdiction to try the case and they directed : That the accused be held as under-trial prisoners pending a retrial according to law . 7. The West Bengal Government thereupon amended the enactment seeking to bring it in accordance with the Constitution and for that purpose Ordinance 8 of 1952 was promulgated on April 9, 1952 that being also the date on which it was to commence to operate. Immediately thereafter the charge-sheets against the respondents were re-filed in the Court of Special Judge at Alipore, who issued summons on June 2, 1952 to the respondents to appear before him. The first respondent thereupon preferred a revision petition to the High Court praying that the proceedings before the Special Judge and the summons issued by him be quashed. It is unnecessary to state the grounds of this petition, but what is of relevance for the present purpose is that before the petition came on for hearing the Ordinance lapsed, and was moreover replaced by West Bengal Act 12 of 1952 which re-enacted the provisions of the Ordinance and was to come into force on the expiry of the Ordinance. Neither the Ordinance nor the permanent legislation wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a petition before him questioning his jurisdiction to try the case on the ground that by reason of the provision contained in s. 12 of Act XII of 1952, it was the Chief Presidency Magistrate alone that had jurisdiction over the case and that it could not legally be allotted by the State Government to the Special Judge for trial. The Special Judge over-ruled this objection and dismissed the petition. The respondent challenged this order by a Criminal Revision Petition filed in the High Court. This petition was dismissed on 12-1-1956. Several points were urged before the learned Judges which have been dealt with in the judgment, but what is relevant to the present context is the one relating to the applicability of s. 12 to the facts of the present case. The learned Judges held that s. 12 did not bar the jurisdiction of the Special Court because those proceedings had been initiated long after 9-4-1952 by the allotment by the State Government notified in the Gazette in December 1952 and the fresh charge-sheet filed in pursuance thereof on 18-6-1953. In this connection, the learned judges pointed out that the original allotment to the Special Judge in February 1951 had been quashed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt were wrong and neither of these Courts had any jurisdiction in the matter, so that the correct position in law would be that the case was still pending in the Chief Presidency Magistrate's Court, the position that was reached after this Court's order passed on April 4, 1952. I cannot see any way however of escaping from the conclusion that by its decision of the March 24, 1953, this Court must be taken to have held that Sri J.C. Lodh (Special Judge) had jurisdiction in the matter. It seems clear that the effect of s. 12 of the Act was not raised before the Court and the argument proceeded on the basis that Mr. Lodh's Court had jurisdiction, the only point being whether having had jurisdiction under the Ordinance, the jurisdiction continued after the Ordinance came to an end and the Act took its place. 14. The Rule was accordingly made absolute and the order of the Chief Presidency Magistrate directing the issue of process against the respondents was set aside. 15. Thereafter, the Government again took action under s. 4 of the Act by allotting the case to a Special Judge and a fresh charge-sheet was filed in that Court. The respondents again objected to the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals to higher tribunals or other procedure like review which the law provides. The learned Judges of the High Court who rendered the decision on 4-4-1952 had ample jurisdiction to decide the case and the facts that their decision was on the merits erroneous as seen from the later judgment of this Court, does not render it any the less final and binding between the parties before the Court. There is, thus, no substance in this contention. The decision of the High Court dated 4-4-52 bound the parties and its legal effect remained the same whether the reasons for the decision be sound or not. 17. The other points urged by the learned counsel may be considered under two heads :- 1. What is the effect of the order of the High Court dated 4-4-1952 ? By quashing the proceedings before the special judge, did it or did it not automatically re-invest the Chief Presidency Magistrate with jurisdiction over the case and the offence of which he had taken cognizance ? If it has this result, then on the terms of s. 12, the special judge would have no jurisdiction, unless by reason of later decisions binding on the parties, effect cannot be given to this position. 2. Are the present p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the respondent was pending in the court of the Chief Presidency Magistrate on 9-4-52, the date of the commencement of the Ordinance. 19. The question next to be considered is whether any of the proceedings which took place subsequent to the order of the High Court dated 4-4-1952 affect this situation. The allotment to the special judge, in May, 1952, during the continuance of the Ordinance having been set aside by the High Court by its order dated 24-3-1953 on the ground that on its strength the proceedings could not be continued after the lapse of the Ordinance, left the position as it was before that allotment. Next we have the allotment in December, 1952, and a fresh charge-sheet on its basis before the special judge on 18-6-53. No doubt the legality of this allotment was upheld by the High Court by its order dated 12-1-1956 when the learned Judges declined to quash the proceedings before the special judge and that judgment has become final. As against this however it must be pointed out that this judgment of the High Court was brought up by special leave and we have already extracted the observations of this Court in dismissing the petition for special leave which appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect as between the parties of the order of the Special Judge dated 22-2-56 upholding an objection to his jurisdiction, becoming final by no challenge being made to it by the State. Properly viewed that nullified the effect of the earlier decisions of the High Court taking expressly or impliedly the view that the special judge had jurisdiction over the case. But what is relevant to the present purpose is not whether the opinion expressed in the decision of the High Court dated 19-12-56 is correct or otherwise, but whether it does not constitute a binding adjudication between the parties as to the forum in which the trial could competently take place. No doubt the learned judges added in their judgment that they expressed no opinion on the question whether it was still possible for the State to institute legal proceedings against the petitioner on the facts alleged . But this in our opinion does not detract from the express statement that the effect of the previous decision of 1953 was that the proceedings were pending before the special judge subsequent to 9-4-52. The position that emerges therefore is that though the effect of the order of the High Court dated 4-4-52 was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect a distribution amongst the Special Courts of cases falling within the Schedule, such cases to be tried by the Special Courts. This is the provision under which the allotment to the Special Judge has been made in July 1957. But s. 12 however enacts that nothing in the Act shall apply to any proceedings pending on the date of the commencement of the Ordinance, i.e., on 9-4-52. If effect has to be given to the prohibition contained in s. 12, it must necessarily be held that where a proceeding is pending on 9-4-52, there cannot be an allotment of that case to a Special Judge under s. 4. We consider that to hold that there could be an allotment of a case in respect of an offence for which a complaint before a Magistrate is pending on 9-4-52, would be a plain evasion of the bar contained in s. 12. The manifest object of s. 12 appears to be that where a proceeding is pending in the ordinary courts the power of the Government to allot the trial for that offence to a special court constituted under s. 2 of the Amending Act and the allotment to the judge of that court under section 4 shall not be effected, but that those proceedings shall continue and be concluded before the ordinary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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