http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: BHAJAHARI MONDAL

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT: 11/09/1958

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. IMAM, SYED JAFFER

CITATION:  1959 AIR    8            1959 SCR 1276  CITATOR INFO :  R          1963 SC 765  (17)  RF         1965 SC 706  (12)  RF         1987 SC1140  (3)  R          1988 SC1531  (64)

ACT: Special  judges  jurisdiction of-Convicting of  offence  not specifically  empowered  to try-Defect of  jurisdiction,  if curable-West Bengal Criminal Law Amendment (Special  Courts) Act,  1949 (W.  B. XXI Of 1949), s. 4(2),  Schedule-Criminal Law  Amendment  Act, 1952 (XLVI of  1952)-Code  of  Criminal Procedure  (V of 1898), S. 529(e)-Indian Penal Code (XLV  of 1860), ss. 116, 161 and 165A.

HEADNOTE: On September 6, 1952, the appellant, who was being tried  by an  Assistant  Sessions Judge and a jury, was  caught  while giving  a  bribe to one of the jurors.   By  a  notification dated  November  27, 1952, the Government  of  West  Bengal, acting  under  s.  4(2)  Of the  West  Bengal  Criminal  Law Amendment  (Special  Courts) Act, 1949, entrusted  the  case against the appellant under s. 161/116 Indian Penal Code  to the Special judge, Burdwan, for trial.  Before this date  as a result of the introduction of s. 165A in the Indian  Penal Code by the Criminal Law Amendment Act, 1952, providing  for punishment  for abetment of offences under ss. 161 and  165, abetment  of  s. 161 had ceased to be an  offence  under  s. 161/116  though it was an offence specified in the  Schedule to  the West Bengal Act.  The records were received  by  the Special  judge on December 23, 1952, and he took  cognizance of the case.  On February 10, 1954, a charge under s.  165-A Indian  Penal  Code was framed by the Special judge  and  on July 7, 1954, the appellant was convicted under s. 165-A and sentenced  to  rigorous  imprisonment for  six  months.   An appeal  to  the High Court of Calcutta was  dismissed.   The appellant obtained special leave and appealed. Held, that the special judge had no jurisdiction to try  and convict  the appellant for the offence under s. 165A  Indian Penal  Code as when the case was distributed to the  Special judge  s. 165A was not one of the offences specified in  the Schedule  of  the  West  Bengal Act.   The  case  which  was distributed  to the Special judge was one under  s.  161/116

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

Indian Penal Code, an offence which was non-existent at that time.  Section 165A cannot be deemed to have been  specified in  the  Schedule merely because abetment  of  the  offences under  ss.  161,  162  163 and 165  Indian  Penal  Code  was specifically  mentioned in the Schedule.  The offence  under s.  165A  is  a  distinct  offence.   It  is  not  merely  a restatement  of  the offence of abetment under s. 116  ;  it comprises  also  abetment under s. 109 and provides  for  in enhanced penalty. This defect of jurisdiction could not be cured by s.  529(e) of  the Code of Criminal Procedure.  Section 529(e)  applied to 1277 Magistrates  and  would not apply to  Special  judges  whose jurisdiction  arose not on their taking cognizance under  s. 190  of the Code but on the case for offences  specified  in the  Schedule  being  distributed  to  them  by  the   State Government by a proper notification.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 29  of 1956. Appeal from the judgment and order dated August 24, 1955, of the Calcutta High Court, in Criminal Appeal No. 196 of 1954, arising out of the judgment and order dated June 7, 1954, of the  Court of the Judge, Special Court, Burdwan, in  Special Court case No. 10 of 1952. S.   C. Issacs and S. N. Mukherjee, for the appellant. B.   Sen and P. K. Bose, for the respondent. 1958.  September 11. The Judgment of the Court was delivered by KAPUR  J.-This  is an appeal by leave of the High  Court  of Calcutta  against  the  judgment and  order  of  that  Court dismissing  the  appellant’s  appeal against  the  order  of conviction  by the Special Court of Burdwan for  an  offence under  s. 165-A, Indian Penal Code and six months’  rigorous imprisonment. The facts leading to this appeal are that one Istipada Ghosh and  his son were being tried in the court of  an  Assistant Sessions  Judge, Burdwan, with a jury of five.   During  the course  of  the trial the appellant approached  one  of  the jurors  Baidya  Nath  Mukherjee  and  offered  him   illegal gratification   as  an  inducement  for  giving  a   verdict favourable  to  Ghoslies.  On the morning  of  September  6, 1952,  the  juror  narrated these facts to  the  police  and thereupon  the   officer in charge sent a  Sub-Inspector  to arrest  the  appellant  if he offered the  bribe.   After  a little  while the appellant came to the appointed place  and offered Rs. 40 in four 10 rupee notes to the juror and while he  was trying to pass those notes to the juror  the  Police Officer  arrested  the  appellant.   The  First  Information Report  for an offence under ss. 161/116, Indian Penal  Code was made soon after.  And after investigation a report 1278 was  made  by the police officer in  charge  Burdwan  police station which resulted in the case being sent to the Special Judge, Burdwan.  On November 27, 1952, the Government issued the  following notification No. 6603J under s. 4(2)  of  the West  Bengal  Criminal Law Amendment (Special  Courts)  Act, 1949 (W.  B. XXI of 1949): "  In exercise of the power conferred by sub-section (2)  of section  4  of  the  West  -Bengal  Criminal  Law  Amendment (Special  Courts) Act, 1949 (West Bengal Act XXI  of  1949),

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

the Governor is pleased to distribute to the Burdwan Special Court constituted by notification No. 4632J, dated the  22nd August, 1952, under section 2 of the said Act the  following cases  involving offences specified in the Schedule  to  the said Act to be tried by the said Special Court:- (4)  The State versus Bhajhari Mondal, son of Bhuson Chandra Mondal of Katwa Station Bazar Police Station Katwa, district Burdwan tinder sections 161/116 of the Indian Penal Code. This notification shows that the offence charged against the appellant  was  one under ss. 161/116 of  the  Indian  Penal Code. The order sheet of the Special Court shows that the  records of  the case State v. B. C. Mondal under ss. 161/116  Indian Penal  Code were received by the Special Judge  on  December 23, 1952, and the Special Court took cognizance of the case, the  appellant  was summoned for appearance on  January  22, 1953, and he did appear on that day.  On December 21,  1953, after several adjournments the hearing of the case was fixed for  January  29,  1954, on which date  the  examination  of witnesses  commenced.  On February 10, 1954, a charge  under s. 165A, Indian Penal Code was framed by the Special  Judge. The  trial  ended  on June 7, 1954, and  the  appellant  was convicted  under  s.  165A  of the  Indian  Penal  Code  and sentenced  to  six months’ rigorous  imprisonment.   Against this order of conviction the appellant took an appeal to the High  Court of Calcutta which was dismissed.  It  held  that the appel- 1279 lant had rightly been convicted under s. 165,A and that  the Special Court had jurisdiction to try the offence under that section  from July 28, 1952, to May 9, 1953, under s.  7  of the  Central Act (XLVI of 1952) and from May 9, 1953,  under the West Bengal Act (W.  B. XV of 1953).  It also held  that any defect in the   taking  of cognizance was curable  under s. 529 (e)     of the Criminal Procedure Code and that as  a matter  of fact the Special Judge took cognizance  under  s. 165A  and  not  under ss. 161/116,  Indian  Penal  Code.  On December 16, 1955, the High Court granted leave to appeal to this Court. Counsel  for the appellant has not contested the  appeal  on any  question of fact but has confined his arguments to  the question  of  jurisdiction.  He contended that  the  Special Judge had no jurisdiction to try the case as (1) at the time he took cognizance of the case, s. 165A, Indian Penal  Code, was not an offence specified in the Schedule of West  Bengal Act  XXI  of 1949; (2) the case distributed to him  was  one under ss. 161/116 an offence which no longer existed in  the Indian  Penal  Code; (3) the Special  Judge  was  exercising jurisdiction under the West Bengal Act (W.  B. XXI of  1949) and  not under the Central Act (XLVI of 1952) as no  Special Judges  were  appointed by the State Government  under  that Act;  (4)  the appellant could not be tried under  the  West Bengal Act XV of 1953 because there was no distribution of a case against him under s. 165A, Indian Penal Code.  In order to decide these matters it is necessary to set out the dates on  which  the various statutes came into force and  to  See what  provisions  were  made therein.  On  March  11,  1947, Prevention of Corruption Act (Act 11 of 1947) was enacted by the  Central  Legislature.   The  West  Bengal   Legislature enacted  the West Bengal Criminal Law Amendment Act of  1949 (W.   B.  XXI  of 1949) which received  the  assent  of  the Governor-General  on June 23, 1949.  Its preamble shows  the objects  of  the  Act  to be  more  speedy  trial  and  more effective  punishment of certain offences.  By s. 2 of  this Act,  Special Courts were set up in West Bengal which  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

s. 3 were to be presided over by Special 1280 Judges.  Section 4 provided for allotment of cases for trial to  the  various  Special Judges  and  also  authorised  the Provincial Government to transfer any case from one  Special Judge   to  another  and  to  make  modifications   in   the description of cases (whether in the name of the accused  or in  the charges preferred or in any other manner) as may  be considered necessary.  The Special Judge bad jurisdiction to try the cases for the time being allotted to him under s.  4 (1)  in  respect  of such of the charges  for  the  offences specified  in the Schedule as may be preferred  against  the accused.   All cases pending before any court or before  any other  Special  Judge were deemed to be transferred  to  the Special Judge to whom they were allotted.  The Special Judge when  trying  a  case allotted to him  could  also  try  any offence whether specified in the Schedule or not with  which an accused could be charged at the same trial.  By s. 5  the Special  Judge could take cognizance of a case  without  the case  being  committed and was to follow  the  procedure  of warrant cases and the court of the Special Judge was  deemed to  be  a court of Session trying without a jury.  By  s.  8 rules of evidence were amended in certain particulars.  Sec- tion  9  provided  for  enhanced  punishment.   By  S.   the provisions  of  the Prevention of Corruption Act  were  made applicable.  The schedule to the Act enumerates the offences triable  by  a Special Judge, the relevant  items  of  which were: (1)  "  An offence punishable under ss. 161, 162, 163 or  s. 165 of the Indian Penal Code.  ........................................................... (8)  Any  conspiracy to commit or any attempt to  commit  or any abetment of any of the offences specified in items 1  to 7 ". On  July  28,  1952, the  Central  Legislature  enacted  the Criminal  Law  Amendment Act (Act XLVI of 1952) by s.  3  of which  an  offence  of abetment, s.  165A-with  an  enhanced punishment was inserted. S.   165A.   "  Whoever abets any offence  punishable  under section 161 or section 165, whether or not that 1281 offence  is committed in consequence of the abetment,  shall be  punished with imprisonment of either description  for  a term  which may extend to three years, or with fine or  with both ". By s. 6 the State Government were authorised by notification to  appoint  Special  Judges for various areas  to  try  the following offences: (a)  " an offence punishable under section 161, section   165 or section 165A of the Indian Penal Code (Act XLV of   1860) or  subsection  (2)  of  section  5  of  the  Prevention  of Corruption Act (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)..............." By  s.  7 exclusive jurisdiction was  conferred  on  Special Judges.   The effect of this enactment was the insertion  in the  Penal  Code  of an offence 165A  and  the  creation  of Special Judges to be appointed by the State.  On August  12, 1952,  the  Central  Legislature  passed  another  Act,  the Prevention  of  Corruption  (Second Amendment)  Act  (59  of 1952), s. 3 of which changes the rules of evidence in regard to  presumption and onus by adding sub-s. 2 to s. 4  of  the principal Act by which it was provided: Where  in any trial of an offence punishable  under  section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

165A of the Indian Penal Code (Act XLV of 1860) it is proved that  any gratification (other than legal  remuneration)  or any valuable thing has been given or offered to be given  or attempted  to  be given by an accused person,  it  shall  be presumed  unless  the  contrary is proved that  he  gave  or offered  to give or attempted to give that gratification  or that  valuable  thing, as the case may be, as  a  motive  or reward  such  as is mentioned in section 161 of  the  Indian Penal Code or, as the case may be, without consideration  or for a consideration which he knows to be inadequate ". On  July 30, 1952, an Act, to amend the West Bengal Act  XXI of  1949,  the West Bengal Criminal Law  Amendment  (Special Court Amending Act) (W.  B. XII of 1952) received the assent of the President and came into force.  Section 3 of this Act substituted a new s.   2 in place of s. 2 of the West Bengal Act (W.  B. XXI 1282 of  1949).   This substituted section authorised  the  State Government  to  constitute  Special Courts  and  to  appoint Special  Judges  to  preside  over  such  courts  which  had jurisdiction throughout West Bengal.  By s. 5, the following was substituted in place of s. 4 of the West Bengal Act  XXI of 1949: "  (1)  Notwithstanding anything contained in  the  Code  of Criminal  Procedure,  1898 (Act V of 1898) or in  any  other law, the offences specified in the Schedule shall be triable by Special Courts only: Provided that when trying any case, a Special Court may also try  any  offence other than an offence  ,specified  in  the Schedule,  with  which  the accused may under  the  Code  of Criminal Procedure, 1898, be charged at the same trial. (2)  The  distribution  amongst  Special  Courts  of   cases involving offences specified in the Schedule, to be tried by them shall be made by the State Government ". The  Schedule under the West Bengal Act (W.B. XXI  of  1949) was  also  amended by the insertion of s. 164  Indian  Penal Code  only.   The West Bengal Act XXI of  1949  was  further amended  by the West Bengal Criminal Law Amendment  (Special Courts)  Amending Act, 1953 (Act XV of 1953).   It  received the  assent of the President and came into force on  May  9, 1953.  This Act added s. 165A, Indian Penal Code in item No. 1 of the Schedule of the 1949 West Bengal Act. The  result of these various enactments, Central as well  as State  was  the creation of Special Courts to  try  offences which were specified in the case of West Bengal (W.  B.  XXI of  1949) in the Schedule and in the case of Central Act  in the  body of the Act itself The West Bengal Act (W.  B.  XXI of  1949)  created  Special Judges to  try  cases  involving offences  specified in the Schedule and allotted to them  by the State Government alone.  Under the Central Act (XLVI  of 1952)  also the State Government was authorised  to  appoint Special  Judges and the offences specified in the  Act  were triable by such Judges as stated in s. 7(2) of the Act.  The procedure to be followed by the 1283 Special Judges was that prescribed for the trial of  warrant cases.    Therefore  the  jurisdiction  of  Special   Judges appointed  under this State enactment to try cases  relating to  offences specified in the Schedule arose only when  they were  allotted to them.  By the West Bengal Amending Act  of 1952 (W.  B. XII of 1952) in place of " Special Judges " the words "Special Courts " were- substituted and two conditions necessary  for conferring jurisdiction on such Courts  were: (1)  cases to be tried related to offences specified in  the Schedule  and  (2)  the State Government  had  to  make  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

distribution  of such cases to the various  Special  Courts. Therefore  no Special Court had jurisdiction to try  a  case unless it was for offences specified in the Schedule and the State Government distributed it to the Special Court. The  notification in the present case specified the name  of the accused, the offence for which he was to be tried as one under  s.  161/116,  Indian Penal Code,  and  the  case  was distributed to the Special Court, Burdwan for trial.  On the date of the notification s. 161 and abetment of s. 161  were offences  specified in the Schedule but as a result  of  the amendment   by the Criminal law Amendment Act 1952 (XLVL  of 1952)  s. 165A had been inserted in the Code  providing  for punishment for abetment of offences mentioned in ss. 161  or 165.   Section 165A created a distinct and separate  offence and  therefore  abetment of an offence under s. 161  was  no longer  an offence under s. 161/ 116 of the  Code.   Section 165A was not included in the Schedule to the West Bengal Act (W.  B. XXI of 1949).  Counsel for the State contended  that this section although not specifically mentioned was all the time specified in and must be deemed to have been  specified in the Schedule to the West Bengal Act (W.  B. XXI of  1949) because  item 8 specifically mentioned abetment of  offences in items I to 7 and that s. 165A only prescribes  punishment for abetment of offences under ss. 161 or 165 and cannot  be called  a new or a different offence.  Section 165A  is  not merely a restatement of the offence of abetment under s. 116 of the Code. It 163 1284 also  comprises  abetment  under  s. 109  of  the  Code  and provides  an  enhanced penalty of three  years  imprisonment instead of 1/4th of three years imposeable under s. 116.  It further  attracts  the  application  of  s.  4  (2)  of  the Prevention  of Corruption Act (11 of 1947)  as  subsequently amended.   It cannot be, said therefore that merely  because the abetment of an offence under s. 161 was specified in the Schedule  of the West Bengal Act of 1949, s. 165A which  did not  then  exist in the Penal Code, must be deemed  to  have been  specified  therein.  It is significant that  the  West Bengal Act was further amended on May 9, 1953, by Act XV  of 1953 in order to include s. 165A in the Schedule. It  appears therefore that under the notification  the  case distributed  to the Special Court for the appellant’s  trial was  for  a non-existing offence because  when  the  Special Judge took cognizance of the case there was no such  offence as  ss. 161/116 of the Indian Penal Code.  The  notification did not mention s. 165A of the Code and at the time when the Special  Judge  purported  to  take  cognizance  he  had  no jurisdiction  to  do so and to try the case as  the  offence under  s.  165A was not in the Schedule of the  West  Bengal Act, 1949, as amended in 1952. The  crucial  date  for  the  purpose  of  determining   the jurisdiction  of the Court would be the date when the  Court received the record and took cognizance of the case and took any step in aid of the progress of the case and not when the evidence  of the witnesses began to be recorded. Under s.  4 of West Bengal Act (W.B. XXI of 1949) as amended by the  Act of  1952  the  jurisdiction of the  Court  arises  when  the notification is issued distributing the case to a particular Special Court giving the name of the accused and  mentioning the charge or charges against him which must be under one of the  offences specified in the Schedule.  In the absence  of any  of  these  elements the Special  Court  would  have  no Jurisdiction. The High Court held.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

" that the offence under section 165A was always triable  by a Special Judge only from 28th July, 1952, to 9th May, 1953, under section 7 of the Central Act 1285 and from 9th May, 1953, under the W. B. Act XV of 1953 ". As  already  stated the case which was  distributed  to  the Special Judge was one under s. 161/116, Indian Penal Code an offence not then existing in the Code and as s. 165A was not in the Schedule as an offence triable by a Special Judge  it could  not  be held that the Special Judge  was  trying  the appellant for an offence under s. 165A.  There is nothing to indicate  that  the appellant was being tried  upto  May  9, 1953, under s. 7 of the Central Act.  No notification of the State Government appointing any Special Judge under s. 6  of the  Central  Act  (Act XLVI of 1952)  was  brought  to  our notice.  It was on the other hand stated by counsel for  the State  that  there was no such notification.  Nor  is  there anything  to  show  that the Special Judge  of  Burdwan  was trying the appellants’ case under s. 7 of that Act.  We  are of the opinion that the trial was not under the Central Act, 1952.   Nor could the trial be under the provisions of  West Bengal  Act  XV  of  1953 because  no  distribution  of  the appellants’  case  was  made  to  the  Special  Judge  by  a notification  mentioning  the charge against him to  be  one under s. 165A, Indian Penal Code.  The High Court also said: "  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 cognizance of the offence and cognizance 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) of the Criminal Procedure  Code would    apply   and   the   proceedings   would   not    be vitiated.........  It  is trial  without  jurisdiction  that vitiates  a  proceeding  (section 530 Cr.  P.  C.)  and  not taking of cognizance in good faith without jurisdiction". But that with respect, is an erroneous application of s.   529 of the Code of Criminal Procedure which provides: 1286 "  If any Magistrate not empowered by law to do any  of  the following things, namely: (e)  to take cognizance of an offence under section 190,sub- section (1), clause (a) or clause (b); erroneously  in good faith does that thing, his  proceedings shall not be set aside merely on ground of his not being  so empowered.  " This section applies to Magistrates and would not apply to a Special  Judge whose jurisdiction arises not on  his  taking cognizance  under s. 190 of the Code of Criminal  Procedure, but  on  the case for an offence specified in  the  Schedule being  distributed  to  him  by  the  State  Government   by notification.   The defect of jurisdiction therefore  cannot be  cured  by s. 529(e) of the Code of  Criminal  Procedure. The Special Judge war, consequently not a Court of competent jurisdiction  and the proceedings before him were  null  and ineffectual. We  are  of the opinion, therefore, that when the  case  was distributed  to the Special Court which is the basis of  the jurisdiction  of  that  Court, s. 165A was not  one  of  the offences  specified  in the Schedule  and  consequently  the appellant  could  not  be tried for and  convicted  of  that offence.   The conviction is therefore by a Court which  had no  jurisdiction to try the case against the  appellant  and the whole proceedings in this case are null and void.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

We  would  accordingly allow the appeal and  set  aside  the conviction of the appellant under s. 165A, I.   P. C., and the sentence imposed thereunder. Appeal allowed. 1287