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TMI Blog1962 (10) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... on him all the powers of a Presidency Magistrate in respect of the trial in the case involving the seizure of approximately 49,990 tolas of foreign gold and known as the 'Deogad Gold Seizure Case.' 2. On January 10, 1962, the Government of Maharashtra gave consent in writing as required by s. 196-A sub-section (2) of the Code of Criminal Procedure to the institution of criminal proceedings against the petitioners and eight others for offences punishable under s. 120B of the Indian Penal Code, 1860 read with s. 167(81) of the Sea Customs Act, 1878 (as amended) and s. 120B of the Indian Penal Code read with s. 167(81) of the Sea Customs act, 1878 (as amended) and s. 8(1) of the Foreign Exchange Regulation Act, 1947 (as amended) and s. 120B of the Indian Penal Code read s. 8(1) with and s. 23 of the Foreign Exchange Regulation Act, 1947 (as amended) . Thereafter H. R. Jokhi, Assistant Collector of Customs Central Excise, Marine Prevention Division, Collectorate of Central Excise Bombay instituted a complaint in the Court of the Special Magistrate appointed under the Notification dated December 29, 1961, against 16 persons (including the petitioners) alleging that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code of Criminal Procedure as amended by the Bombay Legislature by Act 23 of 1951 and the Notification dated December 29, 1961, issued by the Government of Maharashtra appointing Mr. Gehani as Special Judicial Magistrate and investing him with the powers of a Presidency Magistrate, infringed Art. 14 of the Constitution. 3. Sub-section (1) of s. 14 of the Code as amended in so far as it is material, provides : 14. Special Magistrates. - (1) The State Government may, in consultation with the High Court, confer upon any person who holds or has held any judicial post under the Union or a State, or possesses such other qualifications as may, in consultation with the High Court, be specified in this behalf by the State Government by notification in the Official Gazette, all or any of the powers conferee for conferrable by or under this Code on a Judicial Magistrate in respect to particular cases or to a particular class or classes of cases, or in regard to cases generally in any local area. 4. By s. 6-A which was also added by Bombay Act 23 of 1951 in the Code, constitution of different classes of Judicial Magistrates was provided, and under that head were included Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Presidency Magistrate being a Judicial Magistrate under s. 6-A as added by the Bombay Legislature, powers conferrable on a Presidency Magistrate may lawfully be conferred upon a Special Judicial Magistrate who has been appointed for the Presidency town with or without any additional locality. Section 20 of the Code of Criminal Procedure provides that every Presidency Magistrate shall exercise jurisdiction in all places within the presidency-town for which he is appointed, and within the limits of the port of such town and of any navigable river or channel leading thereto, as such limits are defined under the law for the time being in force for the regulation of ports and port-dues. There is, however, nothing in this section which detracts from the authority which may be exercised by the State Government under s. 14 to appoint a Special Judicial Magistrate in respect of a Presidency Town nor is there any prohibition against the investiture of powers of a Presidency Magistrate upon such Magistrate in respect of a locality outside the Presidency town so long as he has jurisdiction also over a Presidency Town. On the principle of M. K. Gopalan's case MANU/SC/0189/1954 : 1954CriLJ10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Income-tax Officer has been charged with the function of assessing that assessee. This Court held in the Bidi Supply Company's case MANU/SC/0040/1956 : [1956]29ITR717(SC) , that sub's. 5(7A) of s. 5 as it stood at the material time contemplated transfer of a pending case for a particular year. It was observed that the provision that such a transfer may be made 'at any stage of the proceedings' obviously postulates proceedings actually pending, and 'stage' refers to a point in between the commencement and the termination of those proceedings. Further the provision that such transfer shall not render necessary the reissue of notice already issued by the Income-tax Officer from whom the case is transferred quite clearly indicates that the transfer contemplated by the sub-section is the transfer of a particular case actually pending before an income-tax Officer of one place to the Income-tax Officer of another place. The decision of the Court turned on the meaning of the word 'case' use in sub. s. 5(7A) as enacted by the Income-tax Act Amendment Act, 1940 and this Court held that the expression 'case ' meant an assessment case of a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners, for, it was said, other persons similarly situated as the petitioners were ordinarily liable to be tried by the Magistrate within whose jurisdiction the offence was alleged to be committed, and could not be required to go to a distance of more than three hundred miles from their normal place of residence to defend themselves. It was urged that Mr. Gehani being a Presidency Magistrate for the trial of the case against the petitioners and others he would be sitting in Bombay where he normally functions, and it would result in great inconvenience to the petitioners to the called upon to attend the sittings of the Court in Bombay specially when there are Magistrates available in Deogad who are competent to hear and decide the case against the petitioners. By the Notification Mr. Gehani has been invested with the powers over Greater Bombay and Ratnagiri District. His jurisdiction therefore extends over the whole of the Greater Bombay area and the District of Ratnagiri. There is no provision in the Code of Criminal Procedure which enjoins upon a Magistrate the duty to hold his sitting in any particular place. Under s. 9(2) of the Code of Criminal Procedure the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e special circumstances constituted a Special Magistrate, as it was entitled to, and the Notification does and even suggest the place where the Magistrate is to hold his sittings. The ground of inconvenience in support of the plea of discrimination cannot therefore be sustained. 8. It is urged that against the order of conviction which may be passed by Mr. Gehani who is invested with the powers of a Presidency Magistrate an appeal would lie only to the High Court whereas if the case were tried before a Magistrate of Ratnagiri District an appeal would lie to the Court of Session and a further revision application to the High Court. This it was pointed out made a substantial difference of procedure between persons similarly situated. It is true that if the complaint was filed in the Court Magistrate having jurisdiction over Deogad alone, as it could lawfully be filed an appeal would, against an order of conviction, lie to the Court of Session, Ratnagiri and an application in the exercise of revisional jurisdiction to the High Court from the order of the Court of Session. But it is difficult to hold that this amounts to any discrimination. Apart from the fact that the trial by a sp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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