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TMI Blog1962 (11) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... istribution amongst Special Courts of cases involving offenses specified in the Schedule, to be tried by them, shall be made by the State Government." This is followed by s. 5 reading, again confining ourselves to the portion material for this appeal "S. 5 (1). A Special Court may take cogni- zance of offenses without the accused being committed to his Court for trial, and in trying accused persons, shall follow the procedure, prescribed by the Code of Criminal Procedure, 1898, for the trial of warrant cases by Magistrates, instituted otherwise than on a police report. (2) Save as provided in, sub-section (1) or subsec. I (a), the provisions, of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with the present Act, apply to the proceedings of a Special Court; and for the purposes of the said provisions, a special Court shall be deemed to be a Court of Session trying cases without a jury, and a person conducting a prosecution before a Special Court shall be deemed to be a Public Prosecutor. " As recited in the preamble and in s.4, there is a Schedule setting out the offenses which are triable solely by these Special Courts. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e report." In the previous decisions the learned Judges drew a distinction between cognizance of a case and jurisdiction to proceed with the trial and held that unless the Special judge had material before him in the proper statutory form, he could not take "cognizance' notwithstanding the allotment of the case to him by the State Government with the result that he was incompetent to proceed with trial of such a case. The Division Bench before which the revision of the present appellant came on for disposal entertained doubts about the correctness of these two earlier decisions and accordingly the matter wa s referred for the consideration of a Full Bench. The questions referred were: (1)Does the Special Judge appointed under the WestBengal Criminal Law Amendment (Special Courts) Act, 1949, to whom a case has been allotted by notification u/s 4(2) of the Act need a petition of complaint for taking cognizance of the case or does he take cognizance when on receiving the Government notification and the record of charge from the court of the Magistrate, he applies his mind to the facts of the case ? (2)There was a second question which specifically referred to the two ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope of s. 190(1) of the Criminal Procedure Code it is necessary to mention that it is the first of a fasciculus of sections comprised in Part B of Ch. XV containing ss. 190 to 199 dealing with the statutory conditions necessary for the initiation of criminal proceedings. Of these ss. 190 to 194 form one group and it is sufficient to confine attention to them : "190. (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence- (a)upon receiving a complaint of facts which constitute such offence; (b)upon a report in writing of such facts made by any police-officer; (c)upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed. (2)......................................................... (3).............................................. "191. When a Magistrate takes cognizance of an offence under sub-section (1), clause (c), of the preceding section, the accused shall, before any evidence is taken, be informed that he is entitled to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is section is limited to Presidency Magistrates, District Magistrates, Sub divisional Magistrates and other Magistrates specially empowered in that behalf and it is common ground that the judge of the Special Court appointed under s. 2 of the Act is not within the class of Magistrates designated by s. 190(1) and hence there can be no question of such a judge having to comply with its requirements before he can "take cognizance of an offence." Nor is it the contention of the appellant that such Court is a Sessions Court or a High Court as to require an order of committal by a Magistrate as a precondition for the emergence of its jurisdiction to proceed judicially with the matter. It is thus clear that there is no statutory requirement under the Criminal Procedure Code as to' the class or character of material that must be before a special judge before he can assume and exercise jurisdiction over a case. It was common ground that the same is not a requirement of the Special Courts Act either. There were however certain matters which were relied on as pointing to a different inference to which we shall immediately refer. In the first place it was urged that s. 5(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance of a case was different from jurisdiction to conduct the trial, the former being dependent on the existence of material which alone invested the court or judge with jurisdiction, so to speak, to initiate the proceedings. Throughout the arguments of the learned Counsel for the appellant there was an underlying assumption that jurisdiction to proceed with the trial of the case was different from "'Cognizance" which was some technical requisite necessary to invest the Judge or Magistrate with jurisdiction and that in the absence of proper material for cognizance being taken he was incompetent to proceed with the trial of the case allotted to him. Much of the arguments on this head was based on a passage in the judgment of this court in Bhajahari Mondal v. The State of West Bengal ([1959] S.C.R. 1276) which dealt with the Act. That passage runs : "'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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely means become aware of and when used with reference to a Court or judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor (A.I.R. (1943) Pat. 245) by the learned judges of the Patna High Court in a passage quoted with approval by this Court in R. R. Chari v. State of Uttar Pradesh ([1951] S.C.R. 312, 320) that the word, "cognizance' was used in the Code to indicate the point when the Magistrate or judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuckerbutty(1910) ˜I.L.R. 37 Cal. 412, 416.), "'taking cognizance does not involve any formal action ; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence." Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled. Thus, a sessions judge cannot exercise that original jurisdiction which magistrates specified in s. 190(1) can, but the material on which alone he can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t relating to, as it is, obviously a matter of procedure would have applied to pending proceedings, but it was not suggested that there was anything in the amending Act invalidating proceedings commenced without reference to the amended provisions ; in other words, the special judge having validly acquired jurisdiction to proceed with the trial of the case allotted to 'him, there was nothing in the amending Act to deprive him of that jurisdiction. It is in the background of these considerations which the learned Counsel did not dispute, that his submissions have to be considered. Learned Counsel referred us to a very considerable number of decisions on the interpretation of statutes, but we have not found them of assistance or even relevance. The amending Act does not purport to be declaratory but seeks in terms to carry out an amendment, in other words, to effect a change. The mere fact that the change effected conforms to a particular interpretation which the words which previously existed might bear and which found acceptance at the hands of the courts in a few cases, is, in our opinion, a wholly insufficient foundation to base an argument that it is declaratory and further tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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