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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: FAKRUSAB BABUSAB KARANANDI

DATE OF JUDGMENT17/12/1976

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. GUPTA, A.C. SINGH, JASWANT

CITATION:  1977 AIR 1336            1977 SCR  (2) 544  1977 SCC  (1) 666

ACT:             Cognizance  of an offence under s. 60(b) of  the  Mysore         Excise Act, 1965 for an offence under s. 34  thereof--Mysore         Ordinance No. 4 of 1970 amending s. 60(b) and introducing  a         new  s.  60B;  Mysore Amendment Act No   1  of  1971  Effect         of---Competency of the judicial magistrate in returning  the         complaint  filed  by a Police Officer and refusing  to  take         cognizance  of  the  offence under s. 60(b)  as  amended  by         Mysore  Ordinance 4 of 1970 which represented the law as  it         that stood.

HEADNOTE:              The  Mysore Ordinance 4 of 1970 which came  into  effect         from  7th  August 1970 omitted the words "or police"  in  s.         60(b)  of  the Mysore Excise Act, 1965  which  provided  for         taking of cognizance by the Magistrate "on his own knowledge         or  suspicion or on the complaint or report of an excise  or         police  officer".  It  also inserted a new  s.  60B  whereby         offence  under s. 34 was made cognizable and the  provisions         of the Criminal Procedure Code 1898 with respect to  cogniz.         able offences made applicable to such offence.  The  earlier         position  which  obtained prior to the  said  Ordinance  was         restored  by  the Mysore Amendment Act No. 1 of  1971  which         received  the  President’s assent on 20th January  1971  but         which was deemed to have come into force on 7th August 1970.         Section 23 of the 1971 Act provided that the amendment to s.         60  made by the Ordinance of 1970 shall be deemed  never  to         have  been  made and the provisions of s. 60 as  they  stood         prior  to the said amendment shall be deemed to continue  to         be in force.             The judicial Magistrate, Badami, on a complaint filed by         a  police officer refused to take cognizance of  an  offence         for  the  illegal Possession of 41/2 tolas  of  ganja  under         section  34  of the Mysore Excise Act 1965 in  view  of  the         provisions if s. 60(b) ibid which represented the law as  it         then  stood.  The revision application before  the  Sessions         Court was dismissed on 15-1-1971.  A further revision  filed         before  the  High Court on 14-6-1971 was also  dismissed  in         limine.  However after the dismissal of the revision by  the         High  Court  on  a fresh complaint filed by  the  police  in         respect  of  the same offence as per the amending Act  I  of

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       1971,  the  judicial Magistrate took cognizance of  the  of-         fence,  convicted  the accused and sentenced hun  to  simple         imprisonment for three months and also to pay  a fine of Rs.         100/-. Notwithstanding the conviction the State pressed  its         appeal   by special leave against the judgment of  the  High         Court dismissing the revision.         Allowing the appeal, the Court,             HELD:  (1) The High Court as well as the court  of  Ses-         sions  were clearly in error in affirming the order made  by         the learned judicial Magistrate. [547A]             (2)  The  charge  sheet was  validly  filed  before  the         learned  judicial Magistrate by the Police and the  judicial         Magistrate was entitled to take cognizance of the offence on         the basis of such charge sheet. [547A-B]             (3) The result of the enactment of s. 23 by Mysore Act I         of  1971 was that the amendment made in s. 60 clause (b)  by         deleting the words "or police" by Mysore Ordinance No. 4  of         1970 as oblitarated and wiped out with retrospective  effect         so  that  in the eye of the law it was never  made  at  all.         [546F]             (4) It is now well-settled law that when a legal fiction         is enacted by the Legislature the court should not allow its         imagination  to boggle but must carry the legal  fiction  to         its  logical extent and give full effect to it.   The  clear         effect  of the legal fiction enacted in s. 23 of Mysore  Act         No. 1 of 1971 was that the         545         words "or police" were always there in cl. (b) of s. 60 even         at  the time when the charge sheet was presented before  the         learned Magistrate and if that be so, the learned Magistrate         was in error in refusing to take cognizance of the complaint         on  the  ground that the charge sheet was not  filed  by  an         excise officer but by the police.  [546G-H, 547A]             M.K.  Venkatachalam  I.T.O. & Anr. v. Bombay   Dyeing  &         Mfg. Co. Ltd. [1959] S.C.R. 703, applied.

JUDGMENT:             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal  No. 16         of 1972.             Appeal  by  Special Leave from the  Judgment  and  Order         dated  14-6-1971 of the Mysore High Court in Criminal  Revi-         sion Petition No. 229 of 1971.         N. Nettar, for the Appellant.         K.R. Nataraja, for the Respondent.         The Judgment of the Court was delivered by             BHAGWATI,  J.--This  appeal by special  leave  raises  a         short   but interesting question of law.  The  facts  giving         rise to the appeal are few and briefly stated as follows:             On  1st  October, 1970 the police  filed  a  chargesheet         against  the respondent in the court of the Judicial  Magis-         trate, First Class, Badami, charging him with having commit-         ted  an  offence punishable under Section 34 of  the  Mysore         Excise  Act, 1965.  The learned  Judicial MagiStrate  by  an         order dated 3rd October, 1970 refused to take cognizance  of         the offence on this charge-sheet, since it was filed by  the         Police and not by an Excise official.  The view taken by the         learned  Magistrate was that under Section 60 clause (b)  as         amended by Mysore Ordinance No. 4 of 1970 which  represented         the  law  as it then stood, it was not competent to  him  to         take  cognizance of an offence punishable under Section  34,         except  on the complaint or report of an Excise Officer  and         since the charge:sheet in the present case was filed by  the         police  and not by an Excise Officer, he was precluded  from

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       taking  cognizance  of the offence.   The  learned  Judicial         Magistrate  on this view directed that the  charge-sheet  be         returned  to the police and ordered release of the  respond-         ent.   The State thereupon preferred a Revision  Application         to the Sessions Court, Bijapur.  The learned Sessions  Judge         agreed  with the view taken by the Judicial  Magistrate  and         holding  that the Judicial Magistrate was right in  refusing         to take cognizance of the offence on the charge-sheet  filed         by .the police, rejected the Revision Application summarily.         This  led  to the filing of a Revision  Application  by  the         State  before the High Court.  The High Court too  summarily         rejected  the Revision Application and hence the State  pre-         ferred  the present appeal with special leave obtained  from         this Court.             Now in order to appreciate the contention that has  been         raised  on behalf of the State in support of the appeal,  it         is necessary to notice the various changes which Section  60         of the  Principal Act  went         546         through  from  time  to time  during  the  relevant  period.         Section  60 clause (b) as it originally stood provided  that         no Magistrate shall take cognizance of an offence punishable         under any Section of the Act other then Section 35 or 38  or         46 or 48 "except on his own knowledge or suspicion or on the         complaint  or report of an Excise or Police  Officer".   But         before the charge,sheet in the present case came to be filed         by  the Police, an amendment was made in Section  60  clause         (b) by Mysore Ordinance No. 4 of 1970 which came into  force         on  7th August 1970.  Section 18 of this amending  ordinance         omitted  the words "or police" in clause (b) of Section  60.         The  result  was that cognizance of  an  offence  punishable         under Section 34 could not be taken by a Magistrate  "except         on  his  own knowledge or suspicion or on the  complaint  or         report of an excise officer".  Section 60 (B) was also added         at the same time and by this new Section inter-alia  offence         under  Section 34 was made cognizable and the provisions  of         the  Code of Criminal Procedure 1898 with  respect to   cog-         nizable  offences were made applicable to such offence.   It         was  on the basis of the amended clause (b) Section 60  that         the  learned  Judicial Magistrate as well  as  the  Sessions         Judge  held that cognizance of the offence under Section  34         charged against the respondent could not be taken, since the         charge,sheet  was filed by the police and not by  an  excise         officer.   The  learned counsel appearing on behalf  of  the         State  contended before us that even on the language of  the         amended  clause  (b)  of Section 60 without  the  words  "or         police",  it  was competent to the  Judicial  Magistrate  by         reason of the enactment of Section 60(B) to take  cognizance         of  the offence, but it is necessary for us to examine  this         contention since we find that before the  Revision  Applica-         tion came to be heard by the High Court, a further amendment         was made in clause (b) of Section 60 by Mysore Act 1 of 1971         and  that restored the position which obtained prior to  the         amendment  made by Mysore Ordinance No. 4 of  1970.   Mysore         Act No. 1 of 1971 was deemed to have come into force on  7th         August  1970 and Section 23 of this Act provided  inter-alia         that  the amendment to Section 60 made by  Mysore  Ordinance         No.  4 of 1971 shall be deemed never to have been  made  and         the provisions of Section 60 as they stood prior to the said         amendment  shall be deemed to continue to be in force.   The         result of the enactment of this provision by Mysore Act 1 of         1971 was that the amendment made in Section 60 clause (b) by         deleting  the  words "or police" by Mysore  Ordinance  4  of         1970,  was  obliterated  and wiped  out  with  retrospective         effect  so that in the eye of the law it was never  made  at

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       all.   It  is now settled law that when a legal  fiction  is         enacted  by the Legislature, the Court should not allow  its         imagination  to boggle but must carry the legal  fiction  to         its  logical  extent and give full effect in it.   We  must,         therefore,  proceed on the basis that the words "or  police"         were  always there in clause (b) of Section 60, even at  the         time  when  the learned Judicial Magistrate made  his  order         dated  3rd October, 1970 refusing to take cognizance of  the         offence  and returning the charge-sheet to the  police.   If         these  words were in clause (b) of Section 60 at that  time,         then obviously the learned Magistrate was in error in refus-         ing  to take cognizance of the complaint on the ground  that         the  charge-sheet was not filed by an excise officer but  by         the police.  That is the clear effect of the legal         547         fiction  enacted in Section 23 of Mysore Act 1 of  1971  and         that this would be so is amply supported by the decision  of         this  Court  in  M.K. Venkatachalam I.T.O.  and  Another  v.         Bombay Dyeing and Mfg. Co. Ltd.(1)   The High Court as  well         as  the Court of Sessions, were therefore, clearly in  error         in  affirming the order made by the learned Judicial  Magis-         trate and it must be held that the charge-sheet was  validly         filed  before the learned Judicial Magistrate by the  police         and the Judicial Magistrate was entitled to take  cognizance         of the offence on the basis of such charge-sheet.             We  accordingly allow the appeal, set aside  the  orders         made by the learned Judicial Magistrate, Sessions Judge  and         the  High Court and remand the case to the  Judicial  Magis-         trate with a direction to him to deal with the  charge-sheet         filed by .the police in accordance with law in the light  of         the observations contained in this judgment.         ORDER             After we delivered the judgment in this case, our atten-         tion  was drawn to the fact that subsequent to the  decision         of  the High Court, a fresh charge-sheet for .the  same  of-         fence was filed by the police against the respondent and  in         view  of  the amendment made in section 60,  clause  (b)  by         Mysore  Act I of 1971, the learned Judicial Magistrate  took         cognizance  of  the  offence and tried  the  respondent  and         ultimately  as  a result of the trial,  the  respondent  was         convicted and sentenced to imprisonment and in fact by  :the         time  the  appeal  came to be heard by us,  he  had  already         served  out his sentence of imprisonment.  In view  of  this         fact,  it is unnecessary to remand the case to  the  learned         Judicial  Magistrate for taking cognizance of the   offence.         We  accordingly direct that the last part of the final order         made  by us which  commences with the words "and remand  the         case" be deleted.         S.R.                                     Appeal allowed.          (1) [1959] S.C.R. 703.         548