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TMI Blog1943 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... isional Officer, who remanded them to hajat up to 17th September. On the 17th the police report had not been received, and the Magistrate postponed the case to the 25th, asking the investigating officer to produce the prosecution witnesses on the date fixed. Similar orders were passed on 25th and 28th September and on 3rd October. On 5th October, the Magistrate recorded this order: Police report received. The case is ready. To my tile. Two prosecution witnesses present. Examined and cross-examined two prosecution witnesses. Charge framed. Tomorrow for defence. 4. Next day he examined the accused and 1 some defence witnesses, and on the 7th he delivered his judgment, convicting the accused persons under Rule 56(4), Defence of India Rules, and sentencing them to rigorous imprisonment for two years and a fine of ₹ 500 each. The orders on the order-sheet up to and including the order of 3rd October were signed N. Huda over the initials S.D.O. From 5th October onwards the orders were simply signed N. Huda. The judgment was signed N. Huda, Special Magistrate. 5. Special Magistrates are constituted under Section 9 of the Ordinance. The Ordinance came I into force in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased upon the Full Bench decision of this Court in Banwari Gope v. Emperor A.I.R. 1943 Pat. 18. In this decision it was held that the Ordinance was not retrospective. It could not take away from the subject vested rights which had come-into existence before the Ordinance came into force. Where criminal proceedings had been initiated against any person before the Ordinance came into force, such person had thereby acquired vested rights including, inter alia, the right of appeal in case of conviction, and including the right to be tried in the ordinary criminal Courts under the ordinary procedure, which alone existed at the time the proceedings were initiated. The promulgation of the Ordinance could not, the Full Bench held, affect such rights, and the provisions of Section 26 of the Ordinance could not operate to bar interference by the High Court under Section 491, Criminal P.C., since the Ordinance having no application at all to such a case Section 26 itself could not apply to it. According to Mr. Manuk, the Full Bench further held that the taking of cognizance by a Magistrate of a case against any person marked the initiation of proceedings against that person and consequently g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce of the Ordinance and its coming into operation. The Ordinance became the law on 21st August when the Governor declared it to be in force in the province. What happened subsequently was merely the, setting up the machinery for its operation, and could not affect the legal position. The reason for the rule of construction that a statute shall not be held to operate retrospectively unless the language is compelling in that regard, is that it shocks the conscience for a new law to affect the subject adversely in respect of something already over and done with. That reason does not apply in a case like the present. After a law has come into existence, whether or not the machinery for its operation has been set up once that law is declared to be in force and the subjects of the province are put upon notice of that fact by official publication--no one can have any just grievance if his acts and rights thereafter are to be determined in accordance with that law. Not only was the Ordinance declared to be in force on 21st August, but on the 22nd Special Courts were constituted. They were in existence before any steps at all were taken against the petitioners. It may be that they could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be passed in each case until after the initiation of proceedings. Therefore, the position contemplated by Mr. Manuk must arise in every case, and simply because special orders are passed in each case instead of a general order, an alter, native provided for in Section 10, no Special Magistrate could ever have jurisdiction to try any case, for in every case a vested right of trial in the ordinary Courts would necessarily arise before the special order under Section 10 could be passed. This is surely a reductio ad absurdum of the argument, which is thereby shown to involve the proposition that in such a district the Ordinance comes into force separately for each particular case upon the date when the special order under Section 10 in respect of that case is passed by the District Magistrate. 16. There is a further ground for holding that Mr. Manuk's contention has no force. An examination of the Ordinance as a whole shows that it sets up new Courts and prescribes a new procedure for trial of cases in those Courts. The procedure it sets up is only for the trial of cases. It lays down no new procedure for dealing with cases in the preparatory stages up to the point when the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on 5th October he said: The case is ready. To my file, but the fact is quite irrelevant. His procedure was what the Ordinance contemplates, and he rightly acted as Sub-Divisional Officer while getting the case ready for trial, and rightly passed an order transferring the case for trial from himself as Sub-Divisional Officer to himself as Special Magistrate. We don't know and can't know at what stage he made up his mind that the case should be tried under the Ordinance. The Ordinance was in force on 21st August. He had been constituted Special Magistrate on 22nd August. His first order in this case was passed on 3rd September. He may well; have contemplated from the beginning the trial of the case under the Ordinance. Nevertheless, he quite rightly under Section 27 of the Ordinance passed his preliminary orders as Sub-Divisional Officer and the fact that he did so could give rise to no right of trial either in one set of Courts or in the other set of Courts. The procedure would be the same in either case. 19. This being the position, the question whether judicial proceedings against the petitioners should be taken to have been initiated on 5th October upon the receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the Code of Criminal Procedure. It is a word of somewhat indefinite import. It is perhaps not always used in exactly the same sense. It is argued upon the basis of Emperor v. Sonrindra Mohan Chuckerbutty (10) 37 Cal. 412 that 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. 24. That indeed expresses my own view. In my judgment, the word cognizance is used in the Code to indicate the point when a Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate. Cognizance is taken of cases, not of persons, and there seems to be nothing in theory to prevent a Magistrate from taking cognizance of a case even where the offenders are unknown. The fact that a Magistrate has taken cognizance does not necessarily mean that there will be judicial proceedings against any one. 25. For example, where cognizance is taken upon a complaint, the complaint may be summarily dismissed, or may be dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 30. It is also to be noted that Section 190 is the first Section under chap. 14-B which is headed conditions requisite for initiation of proceedings, and the marginal note is cognizance of offences by Magistrates. It may then clearly be held that the law regards the taking of cognizance as the first condition requisite for the initiation of proceedings. It is after he has first taken cognizance that the Magistrate initiates proceedings should be think that course proper. He need not, however, do so at all. Cognizance, in my view, is merely the mental decision of the Magistrate to take judicial notice of a case. This view of what the law regards as taking cognizance is in accord with the ordinary dictionary meaning of the word. Cognizance is defined as knowledge or notice, judicial or private. 31. Reverting again to complaint cases, it is clear from the wording of the Code that it is only when the stage is reached of an order under Section 204, that is for issue of process, that proceedings before the Magistrate can be said to commence, for Section 204 is the first Section in the chapter headed Of the commencement of proceedings before Magistrate. 32. Two thing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands at that date gives them to him. No doubt prior to that stage a person detained in custody may have certain rights. He may have a right to apply for bail, he may have a right to come up to the High Court for a writ of habeas corpus under Section 491. But these rights, however valuable they may be, are not rights appertaining to any pending judicial proceedings against him. 34. In a case of illegal detention, where Section 491 may be applicable, there might well be no question of any judicial proceedings. The mere fact that a man may have been put in peril does not make him a party to any judicial case. He may be merely a detenue, he may be illegally detained in private custody Section 491 refers to illegal or improper detention in public or private custody. The fact, therefore, that such rights as these may have accrued to a person cannot in themselves involve also the accrual of a vested right in any particular form and manner of trial, appeal, or punishment. It must be remembered that we are in these cases considering the rights of the individual not against any other individual who may have complained against him, who may have given information to the police against hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to make allowance for this circumstance, and to take a fair and commonsense view of it. Reading it as a whole I have no doubt in my mind that what the District Magistrate meant was to empower the Sub-divisional Officers of Samastipur and Madhubani, like Mr. Bilgrami and Mr. Chakravarty at Sadr, to try all cases arising during the time of the disturbances. The District Magistrate by the order could not have meant merely to appoint the Sub-divisional Officers as Special Magistrates, because that had already been done by Government on 22nd August, and it is impossible to suppose that the District Magistrate merely meant unnecessarily to repeat the Government order; In para. 1 relating to the Sadr Courts he used the expression 'for all cases.' It seems to me clear that he meant that expression to apply to para. 2 of his order also. This construction finds support also in the fact that after referring to the Sub-divisional officers the order goes on to say that a Deputy Magistrate at Samastipur would try such cases under the Ordinance as might be made over to him by the Sub-divisional Officer of Samastipur, and similarly that certain Sub-Deputy Magistrates as sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Act, that is to say, by a special tribunal or in the ordinary Courts. 39. Mr. Manuk has referred to a Calcutta case where a similar argument was put forward. That is the case of Santosh Kumar Bhatacharjee v. King-Emperor AIR1943Cal224 . There the argument was put in a slightly different form. It was pointed out that Section 72 of Schedule 9, Government of India Act 1935, tinder which the Ordinance was promulgated, lays down that the power of making ordinances under the Section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any ordinance made under the Section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act. Reliance was placed on the words and may be controlled or superseded by any such Act to support a contention that the ordinance must be regarded as controlled by the Defence of India Act 1939. 40. This argument was rejected by Derbyshire C.J., and Lodge J. on the ground that the words in question referred only to a subsequent Act, an Act passed for the purpose of controlling or superseding the ordinance, and could not refer to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or offences under the Act. The Section merely means that the Defence of India Act does not necessarily take away the jurisdiction of the ordinary Courts. It could never mean to bar the Legislature in perpetuity from setting up other Courts, or suspending jurisdiction of the ordinary Courts. Section 14 merely preserves the jurisdiction of the ordinary Courts in certain circumstances, so far as the Defence of India Act itself is concerned, not so far as subsequent Acts are concerned. It indicates that the Defence of India Act (and that Act only) does not take away the ordinary Courts' jurisdiction, except in the manner specifically indicated. 44. Mr. Manuk meets this objection by saying that the ordinance does not repeal or suspend the Defence of India Act. The Ordinance does, however, constitute Special Courts, and in certain respects take away the jurisdiction of the ordinary Courts. The Defence of India Act, 1939, obviously could not pre-vent it from doing so, and if the provisions of the Ordinance are in any way inconsistent with those of the Defence of India Act, those of the Ordinance), which is equivalent to a subsequent Act, must prevail. Section 27 of the Ordinance, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Jorward by Mr. Manuk. Mr. S.C. Chakarverty, however, stepped into the breach and argued that the whole Ordinance was ultra vires under Section 100, Sub-section (3), Government of India Act, which provides that: Subject to the two preceding sub-sections the Provincial Legislature has, and the Federal Legislature has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List 2 in the said schedule (hereinafter called the 'Provincial Legislative List). 49. Mr. Chakravarty's contention is that the Ordinance essentially relates to matters in List 2, the Provincial Legislative List. Item 1 of that List is: Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power) ; the administration of justice; Constitution and organisation of all Courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subject to such detention. Item 2 is: Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this list; procedure in rent and reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction and powers of Courts with respect to offences involving public order, a subject itself in List II and therefore, brought in by the words with respect to any of the matters in this List, which occur in Item 2 of List II. It is noteworthy that item 15 of the Concurrent List is jurisdiction and powers of all Courts, except the Federal Court, with respect to any of the matters in this List. The words with respect to any of the matters in this List here again occur and will, in my judgment, operate to bring in the exclusion in Item I. of List III of offences against laws with respect to any of the matters specified in List II, e.g., public order. 53. However, it is unnecessary finally to decide this point, because even if the Ordinance essentially deals with matters in List ill, Mr. Chakravarty's argument must fail upon another ground. It ignores the provisions of Section 102, Government of India Act. I will not cumber this judgment by setting out the provisions of Section 102 in full. Essentially it provides that if the Governor. I General has in his discretion declared by proclamation that a grave emergency exists whereby the security of India is threatened whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restrictions as there may be upon the Legislature. Section 102 and the proclamation thereunder remove the restriction on the power of the Legislature upon which Mr. Chakravarty relies. Therefore upon the wording of Section 72 that restriction disappears also so far as the ordinance powers are concerned. The position is so clear that it is unnecessary to say anything further upon this matter, and it is unnecessary to consider to what extent in the absence of Section 102, the principles adumbrated in the cases of the Board of Commerce Act 1919 A.I.R. 1921 P.C. 205 and Fort Frances Pulp and Power Co. Ltd. v. Manitoba Free Press Co. Ltd. (1923) 1923 A.C. 695 by Lord Haldane, could be invoked in this country. 56. In the four cases under consideration all the points urged must fail, and the applications must be rejected. 57. Next come two more Samastipur cases (Criminal Revision Nos. 785 and 786 of 1942), which have been argued by Mr. G.P. Das. The petitioners in these cases were convicted by Mr. Huda as Special Magistrate under Rules 56(4) and 38(5) of the Defence of India Rules, on 10th October 1942. It is contended that cognizance was taken at least on 16th September, if not ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding anything contained in the Code, in the case of such transfer no rehearing will be necessary. This has been taken to mean that the Government realised there was a hiatus in the Ordinance as regards power of transfer. There was a hiatus, but it was in regard to transfer from a Special Magistrate, not transfer to one. The fact seems to have been that in Section 26 the law had over-reached itself. That Section provided, inter alia, that no other Court should have any authority to transfer any case from a Court constituted under the Ordinance. This Section was designed to prevent interference by other Courts with the proceedings of the Ordinance Courts, but its terms were so wide that its effect would obviously be that when once a Special Magistrate or a Special Judge had seisin of a case, then in no circumstances could any authority take it from him; an awkward state of affairs should be happen to be transferred, become ill, or go off his head. Hence some provision had to be made for transfer from the Special Courts, and Section 25A had to be inserted and consequential amendments were necessary in Section 5 and Section 10. The amendment has nothing whatever to do with the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The petitioner had no vested right of trial in the ordinary Courts. He could and can be tried under the Ordinance. It is merely a case where the particular Special Magistrate who tried him had not power to do so. Section 26 of the Ordinance expressly provides against interference by any other Court with the proceedings of a Court constituted under the Ordinance. There is an express reference to Section 491, and since only High Courts can act under Section 491, Section 26 must have been designed to exclude interference by all other Courts including the High Courts. 64. The position is however that Mr. Usman's proceedings were wholly void, being without jurisdiction. Under Section 530, Criminal P.C.: If any Magistrate, not being empowered by law in this behalf, does any of the following things, viz. (p) tries an offender, his proceedings shall be void. 65. Section 530 is in no way inconsistent with the provisions of the Ordinance, and its operation is therefore preserved by Section 27 thereof. This being so, there is no question of any interference with Mr. Usman's proceedings. The position is that in the eye of the law, the petitioner's trial and conviction b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial, after taking further evidence, as he held that the evidence adduced was quite insufficient to support the conviction. 68. Mr. Awadhesh Nandan Sahay points out that in the charge the trying Magistrate described himself as Sub-divisional Officer and at the examination of the accused as first class Magistrate, while in the decision he described himself in both capacities. He argued on this that they were really tried by Mr. Chatterji as Sub-divisional Officer. The sentence was one which he had as such no power to pass, nor had the Special Judge power to entertain the appeal and order a re-trial. 68. The case as presented before the Magistrate does seem to have been a very flimsy one, and whether the Special Judge was wise in directing a re-trial, and giving an opportunity for the prosecution to adduce fresh evidence may well be questioned. The question, however, is whether this Court has any jurisdiction to interfere. There can be no ground for interference with the order of the Magistrate, for the conviction has been set aside. As for the order of the Special Judge, it is not contended that that was without jurisdiction. The petitioners themselves went to him in appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n connexion with Rules 34 and 38 in the charge against the petitioners. It is true that 6(e) and 6(p) were not mentioned in the order, but the important thing is that Sub-rule (5) of Rule 38 was mentioned. Nothing further was needed. The reference to various clauses defining prejudicial acts was a mere superfluity, and was in any case merely illustrative. Even were it otherwise, reference to (k) in the charge would give the Special Magistrate jurisdiction, and interference by this Court would be prevented by Section 26 of the Ordinance. This application must therefore fail, and I Would discharge the rule. 73. The next two cases (Criminal Revisions Nos. 664 and 666 of 1942) were argued by Mr. Section C. Chakravarty. They are Samastipur cases. It is argued that cognizance was taken on 4th October the very day when the order under Section 10 was passed, but it has not been shown that it had been communicated. There is a short answer. The only order' passed on 4th October was seen police report. Pat up tomorrow. N. Huda, S.D.O. Apart from the fact that I have already rejected Mr. Manuk's argument based upon the taking of cognizance before 4th October, there is nothing in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were convicted before 4th October. For the reasons already stated, it must be held that the trial and conviction by a Special Magistrate was in the circumstances without jurisdiction, and that this Court can and should interfere under Section 491 of the Code. I would accordingly make the rule absolute, allow the application, and direct under Section 491 that the petitioners must be forthwith released, or brought: to trial according to law. 77. The next case (criminal Revision No. 72 of, 1943) comes from the Bihar Sub-division of the Patna District. On 24th September a charge sheet was received against the petitioners, whereupon the Sub-divisional Officer passed an order: To Second Officer for disposal as Special Magistrate. The latter tried, and on 2nd October convicted the petitioner under Section 395, Penal Code, and imposed sentences of six or four years' rigorous imprisonment. In this case there are two orders under Section 10, which must be considered. On 23rd August, before the charge sheet was received, Mr. Archer, the District Magistrate, had authorised all Special Magistrates in the district of Patna to try certain specified offences but the offence under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually selected the case for trial by a Special Magistrate, and directed the Second Officer to try it as such. That, however, makes the position worse, not better. I would accordingly allow this application, make the rule absolute, and under Section 491 direct that the petitioners must forthwith be released, or brought to trial in accordance with law. 81. I now come to a batch of cases argued by Mr. M.N. Pal, namely, Criminal Revisions Nos. 670, 718, 752 and 802 of 1942 and 71 of 1943. 82. Mr. M.N. Pal has in the first instance argued and in support of his argument he has treated us to a most learned and painstaking discussion--that we should hold gene-rally that this Court has the power to issue writs of certiorari, and accordingly to call up the proceedings of Special Magistrates under the Ordinance to this Court for examination and, if necessary, for quashing. Interesting as it would be to follow Mr. M.N. Pal into a detailed examination of the question of certiorari, I consider I would not be justified in cumbering this judgment by doing so, because the position is actually very clear. There can, in my judgment, be no doubt that this Court has no power at all to issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his manner the power to issue the writ descended to the Calcutta High Court; but it was never similarly conferred upon the Patna High Court as successor of the Calcutta High Court. The Patna High Court, like other High Courts in India, is a creature of statute. We must not make the mistake of assuming that there is any common law power of certiorari as opposed to a statutory power. The powers of the Patna High Court are those conferred upon it by its Letters Patent, or by any subsequent legislation. I have examined the Letters Patent most carefully to ascertain if there is anything therein to support the argument that it inherited the power of certiorari from the Calcutta High Court. Mr. Pal sought to rely upon Clause 15 of the Letters Patent, but that merely conferred ordinary original criminal jurisdiction over all such persons as had formerly been subject to the similar jurisdiction of the Calcutta High Court, within the province of Bihar and Orissa. Certiorari is certainly no part of ordinary original criminal jurisdiction. Mr. Pal was unable to point to any other provision of the Letters Patent upon which he could rely in this regard. 86. Before the establishment of the Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o certain provisions of the High Courts Act of 1861 which was enacted just before the establishment of the High Court of Calcutta, and of the two successive Letters Patent under which the Calcutta High Court was established and its powers defined. In fact in the recitals there is not merely a reference to the Calcutta High Court but also a reference to the establishment of the High Court at Allahabad in the year 1866 and this is quite enough to show that the allusions were merely historical. Besides the Letters Patent of the Patna High Court clearly define the civil, criminal, admiralty, testamentary, matrimonial and other jurisdictions of the High Court and if it was intended that the Patna High Court should possess the power of issuing prerogative writs similar to those possessed by the Calcutta High Court and the High Courts of Bombay and Madras, there seems to be no reason why this could not have been provided by an express clause to that effect. 89. Thus, there is clearly no power to issue the writ. But assuming that there is power, Section 26 of the Ordinance has unquestionably taken it away. Mr. Pal argues that Section 26 was meant merely to refer to Courts other than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay quite reasonably have intended to take it away, and there is no reason why full effect should not be given to its language. 92. Upon this reasoning full effect must equally be given to the words of Section 26 of the Ordinance, which are perfectly clear and definite and include the words: no Court shall...have any jurisdiction of any kind in respect of any proceedings of any such Court. Mr. Pal has not challenged the competence of the Indian Legislature to enact a provision like this. He could not well do so having regard to the decision of the Full Bench of this Court, which is binding upon us, in the case of Sheonandan Prasad Singh v. King-Emperor A.I.R. 1918 Pat. 103. 93. Lastly, however, Mr. Pal relies upon Colonial Bank of Australasia v. Willan (1874) L.R. 5 P.C. 417, as paraphrased in Halsbury, volume already cited, page 862, para. 1458: Although certiorari is taken away, it may be granted, even on the application of the defendant, where the inferior Court has acted without or in ?excess of jurisdiction; for in such a case the Court has not brought itself within the terms of the statute taking away certiorari. 94. This is the principle upon which I have alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s absolute, and direct under Section 491 of the Code that the petitioners must be forthwith released, or brought to trial in accordance with law. For convenience of reference I now summarise the decision of the Court. Out of the 23 applications before us the following are successful: 99. Numbers 669, 701, 707, 753 of 1942, 71, 72 of 1943, while the remainder, namely the following, fail: of 1942 Nos. 654, 655, 662, 663, 664, 666, 670, 715, 716, 717, 718, 752, 770, 785, 786, 802; of 1943 No. 73. Saiyid Fazl Ali, C.J. 100. These are a number of applications arising out of convictions by Special Magistrates constituted under Ordinance 2 of 1942. Owing to the number of such applications that are coming before the Court and the fact that many points keep arising over and over again, I thought it desirable that there should be, so far as this Court is concerned, an authoritative decision once and for all upon the important points common to many such applications. I have, therefore, constituted this Special Bench. The applications though argued by various lawyers, have been heard continuously. As I have already indicated, the same points are common to many of them, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime the Magistrate passed orders on 28th September and 3rd October 1942 which are almost in the same terms as his order of 17th September 1942. On 5th October after the police report was received he noted in the order-sheet that the case was ready and then proceeded to try it and after examining some prosecution witnesses he framed a charge against the petitioners. On 6th October he examined the petitioners and also recorded the statements of certain defence witnesses and on 7th October he delivered his judgment convicting and sentencing the petitioners as aforesaid. 103. On these facts two principal points are urged by Mr. Manuk, Counsel for the petitioners: (1) that the Special Courts constituted under ordinance 2 of 1942 had no jurisdiction to try offences committed under the Defence of India Rules, inasmuch as the Defence of India Act which is still in force is a self-contained Act containing its own provisions as to the constitution of the Courts by which the offences under that Act are to be tried. It is contended that inasmuch as it is not expressly stated in the Ordinance that the tribunals specifically provided for in the Defence of India Act have been abrogated, the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Special Tribunal and the powers to be exercised by it. Section u which is the first Section in chap, IV states that save as otherwise expressly provided by or under this Act the ordinary criminal and civil Courts shall continue to exercise jurisdiction. In pressing his contention, Mr. Manuk lays special stress on the fact that the only qualification which the Ordinance requires a Special Magistrate to possess is that he should have exercised the powers of a First Class Magistrate for at least two years which falls far short of the qualifications of the member of the Special Tribunal as set out in Section 8(2), Defence of India Act. 105. It is to be noted that Section 8 of the Defence of India Act is not mandatory, but merely enables the Provincial Government to constitute a Special Tribunal composed of persons possessing the qualifications set out in Sub-clause (2). The use of the word may in this Section as well as in Section 9 clearly shows that it is for the Provincial Government to decide whether a Special Tribunal should be constituted and whether any general or special order should be passed directing it to try the offences mentioned in Section 9. That the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delegates under Section 10, I do not see how they can be held to be debarred from including the offences under the Defence of India Rules in the order issued under that section. The force of Mr. Manuk's argument lies in the emphasis which is laid therein upon the anomaly of a trial by a Special Magistrate of offences for the trial of which the Defence of India Act contemplates the constitution of a Special Tribunal of three highly qualified persons, but that is merely an argument directed against the policy of the new law which is a question with which we are not primarily concerned. What we are concerned with is the construction of the Ordinance which in my opinion does not give rise to any difficulty whatsoever. There is nothing in the Defence of India Act to suggest that the ordinary Courts which could try the offences under that Act as well as other offences could not be replaced by other Courts if the legislative authority considered it necessary to do so. I think that it will be wrong to suggest that the Defence of India Act should control the Ordinance though the Ordinance came long after it and was passed under quite different circumstances. This last point is directly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een in the nature of a mere remote contingency. A question then arose as to when the right of appeal is acquired by an accused person and it was pointed out in A.I.R. 1943 Pat. 18 that that right must be conceded to him at the date when the criminal proceedings are instituted against him. The final conclusion which was arrived at after an examination of the various provisions of the Code of Criminal Procedure was expressed in these terms: There can be no doubt that where a Magistrate takes cognizance of an offence upon complaint the proceeding before him is commenced as soon as the process is issued. Similarly, when the cognizance is taken upon a charge-sheet, the proceeding must be deemed to commence as soon as the Magistrate makes up his mind to act upon the charge-sheet.... There can be no doubt therefore that either the summoning of the accused person or any other step which is equivalent to it must be held to mark the initiation of the criminal proceedings against him and as these steps follow automatically, after a Magistrate has taken cognizance of a particular offence, it may be safely laid down that there is a criminal case against the accused person as soon as a Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of appeal could have arisen only after the submission of a charge-sheet and after the accused had been placed on trial. Until then it could not be said whether the accused would be tried by a Magistrate holding first class powers or second class powers or whether they were to be tried by a Magistrate empowered to try summary cases, or by a Court of Session or they would be tried at all. 109. Again in A.I.R. 1943 Pat. 18 it was stated that: When cognizance is taken upon a charge-sheet the proceeding must be deemed to commence as soon as the Magistrate makes up his mind to act upon the charge-sheet. In such cases if the accused person has appeared before the police, he is sent up for trial and if he has not appeared before the police, a prayer is usually made by the police for warrant or some other process. In the former case the Magistrate has to pass some order as to bail or otherwise and in the latter case he generally issues a warrant and sometimes has to issue process under Sections 87 and 88, Criminal P.C. These steps in my opinion-definitely mark the beginning of the criminal proceeding against the accused. 110. This Bench is bound by the decisions pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vation of Cotton L.J. in (1885) 14 Q.B.D. 648 which was also cited by me in A.I.R. 1943 Pat. 18. How can it be said that the prosecution commenced before a person is summoned to answer the complaint? The case in which Jenkins C.J. expressed this view appears to have been relied on before the Privy Council in 571. A. h ill1 and their Lordships referring to that case observed as follows: It may quite well be that a prosecution only commences after a summons is issued, and that before that stage is reached a complainant cannot be said to have dropped a prosecution under the Code: (11) 38 Cal. 880. 113. The observations in A.I.R. 1943 Pat. 18 which are said to have caused some difficulty run as follows: It may be safely laid down that a criminal case commences against a person as soon as a Magistrate has taken cognizance. 114. It must be remembered that this observation was intended merely to provide a rough and ready test and it is obvious that the test can be correctly applied only if the words quoted above are not torn or severed from their context. The entire passage where those words occur runs as follows: There can be no doubt therefore that either the summoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions requisite for initiation of proceedings. Section 190 is not the only Section in this part, but there are other Sections, viz., 195, 196, 196A, 196B, 197, 198 and 199 which state that a Court can take cognizance of certain offences only upon a complaint made by certain specified persons. The heading of Part B which is condition requisite for initiation of proceedings shows that there is an intimate connexion between cognizance and initiation of proceedings and the importance of the cognizance test has therefore been emphasised in the decisions of other Courts also. Salig Ram v. Emperor AIR1943All26 which is the latest pronouncement of the Allahabad High Court on the subject Iqbal Ahmad C.J. after referring to sub-heading B in chap. 15, Criminal P.C., and the provisions of Section 190 of the Code observes as follows: It is clear that a judicial proceeding begins before a Magistrate only after he has taken cognizance of an offence and such judicial proceeding must in my opinion be regarded by the law in force at the time that the proceeding was initiated. 116. Again in Sitao Jholla Dhimar v. Emperor A.I.R. 1943 Nag. 36 Grille C.J. after referring to The King v. Timot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on itself shows that production under this Section need not be before a Magistrate having jurisdiction to try the case and all that can be done under the Section is to authorise detention of the accused. This does not amount to taking cognizance of a case or, in my opinion, to the institution of judicial proceedings. 119. In all these cases taking cognizance has been described as the step which marks the initiation of criminal proceedings, but strictly speaking cognizance is merely a condition requisite for the initiation of such proceedings and they actually commence when the Magistrate after taking cognizance issues summons against the accused person, or, if he is in attendance, passes some order or takes some step signifying that there is a criminal case against him which requires to be heard and determined according to law. The Ordinance was brought into force in this Province on 21st August 1942 and whatever proceedings were taken against the petitioners were taken after that date. These cases therefore do not fall within the rule laid down in A.I.R. 1943 Pat. 18 wherein it was held that if the judicial proceedings against the accused had commenced before the date of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under which the alleged offence had been committed or the actual acts done by the accused persons. It is clear that on such report the Magistrate could not take cognizance of the offence and he could not take any step against the accused until a complete police report was received. That being so, on 17th September 1942 as well as on several subsequent dates he urged the police to send the report. The learned Counsel for the petitioners lays great emphasis on the fact that in several order sheets it is noted that the police officer should be asked to produce the prosecution witnesses and the accused also on the dates fixed. On 17th September 1942 the Magistrate also noted in the order sheet, Issue production warrant for the accused for the date fixed. But it is clear that these orders were passed merely to prevent the trial being unduly delayed and to ensure that the witnesses, if any, as well as the accused might be in attendance on the date on which the final police report was received so that, if necessary, the trial may be proceeded with forthwith. Ultimately on 3rd October the police submitted a report to the following effect: I have the honour to submit that the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovince or any part thereof with respect to any of the matters enumerated in List 2 in the said schedule (hereinafter called the 'Provincial Legislative List'). List 1 of Schedule 7 is called the Federal Legislative List and Section 100, Sub-section (1) provides that Federal Legislature has and the Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in this List. Item 53 of this List is Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in this List. List 2 is the Provincial Legislative List to which reference is made in Sub-section (8) of Section 100 and items 1 and 2 of this List are as follows: Item 1. Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power); the administration of justice; constitution and organisation of all Courts, except the Federal Court, and fees taken therein; preventive detention for reasons connected with the maintenance of public order; persons subjected to such detention. Item 2. Jurisdiction and powers of all Courts except the Federal Court, with respect to any of the matters in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43All26 which is to the effect that the constitution of new Courts is a matter which is included in item 2 of the Concurrent Legislative List. That item, as I have already said, is criminal procedure including all matter included in the Code at the date of the passing of this Act. It is pointed out that part II of the Code deals with constitution and powers of criminal Courts and this subject is comprehensive enough to include the constitution of Special Courts. In my opinion it is unnecessary to pursue the question as to whether the constitution of Special Courts falls within the Concurrent List, because the point raised by Mr. Chakravarty can be conclusively met by referring to Section 102, Constitution Act. That Section provides: (1) Notwithstanding anything in the preceding Sections of this Chapter, the Federal Legislature shall if the Governor-General has in his discretion declared by proclamation (in this Act referred to as a Proclamation of Emergency ) that a grave emergency exists whereby the security of India is threatened, whether by war or internal disturbance, have power to make laws for a Province or any part thereof with respect to any of the matters enumerated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Acts or laws or Provincial Acts or laws, or to Acts or laws of the Federal or a Provincial Legislature, shall be construed as including a reference to an ordinance made g by the Governor-General or a Governor General's Act or, as the case may be, to an ordinance made by a Governor or a Governor's Act. 128. Section 72 of Schedule 9 which has already been quoted must therefore be read along with these provisions and the following points should also be noted, (1) That under the Section as it reads the Ordinance promulgated by the Governor-General can-remain in force only for six months from the date of its promulgation, but the words for the space of not more than six months from its promulgation have been deleted by The India and Burma (Emergency Provision) Act of 1940, 3 and 4 Geo. VI chap. 33. (2) Assuming that the Ordinance relates to a matter which falls within List 2, that is to say, the Provincial List, the restriction imposed by Section 100, Sub-section (3) cannot invalidate the Ordinance because such a restriction having been named by Section 102, Section 72 is to be read in the present cases as if there was no restriction on the power of the Governor-Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and it was held that the Ordinance applied even to those cases where the date of the alleged offence was prior to the date when the Ordinance came into force. In dealing with this point, the Bombay and Allahabad High Courts have observed that a person by committing an offence cannot acquire any vested rights and must submit himself to the machinery of justice as it exists on the date he stands his trial. This reasoning has been criticised on the ground that it is based on the assumption that an accused person has committed the offence of which he is accused though the law requires that he should be presumed to be innocent until his guilt is established. 131. There is something to be said for this argument, but in my opinion in whatever way we look at the matter the accused can acquire no right on the alleged date of offence. If he in fact committed the offence, then all that is necessary to say is that he could not acquire a right by breaking the law. If, on the other hand, it be assumed that no offence was committed by him on the alleged date, then that date ceases to have any significance and no vested right can obviously accrue on a date on which nothing happened. Eights, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioners in this case are four in number and they have been convicted by Mr. M. Usman, Special Magistrate of Samastipur, for having committed an offence under Section 38 read with Section 34 of the Defence of India Rules and have been sentenced to undergo rigorous imprisonment for 18 months and to pay a fine of ₹ 100 each. These four persons were sent up in custody to the Sub-divisional Officer of Samastipur on 6th October 1942 and the Sub-divisional Officer noted in the order sheet on that date that the Police Sub-Inspector must submit charge-sheet against them by 16th October 1942. The report was not received until 24th October 1942, but as prosecution witnesses were not present, the case was adjourned till 28th October 1942. On 28th October 1942, the case was made over by the Sub-divisional Magistrate to Mr. Usman for disposal. Mr. Usman then proceeded with the trial of the petitioners and passed an order of conviction on 17th December 1942. The only point which has been raised on behalf of the petitioners is that the Sub-divisional Magistrate had no power under the Ordinance to transfer the case to Mr. Usman and therefore Mr. Usman had no jurisdiction to try it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a Sub-divisional Magistrate g may transfer a case of which he has taken cognizance for inquiry or trial to any Magistrate subordinate to him. The Ordinance does not affect this power either expressly or by implication; on the other hand, the words of Section 27 are wide enough to suggest that Section 192 as well as a number of other provisions, specially those relating to matters which precede the commencement of a trial, were never intended to be abrogated. The Ordinance itself contains no provision for the stages which precede the trial and the order under Section 192 which is passed before the trial begins must necessarily be governed by the Code of Criminal Procedure. 135. There are certain provisions in the Code of Criminal Procedure which provide for the transfer of a case from one Court to another after the Court is in seisin of it, for the purpose of trial. The High Court, for example, can direct the transfer of a case from one Court to another under Section 526, Criminal P.C., and similarly the District Magistrate and the Sub-divisional Magistrate can transfer it under Section 528 from one Magistrate to another within their respective jurisdictions. In the Ordinan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing note in the order sheet: To my file. I will try the case as Special Magistrate. Five prosecution witnesses present. Examined in chief five prosecution witnesses. Charge under Rule 56(4), D.I. Rules, framed against the accused who pleads not guilty. Cross-examined P. Ws. and discharged them. Examined the accused. The accused had filed a petition stating that adjournment be given for adducing defence. I am not satisfied from the petition that it is necessary in interest of justice and hence disallowed. Judgment delivered. Accused convicted and sentenced to R.I. for two years and a fine of ₹ 250 in default R.I. for one year under Rule. 56, D.I. Rules. 137. The petitioners in criminal Revision No. 753 were sent up before Mr. Hoda, Sub-divisional Officer of Samastipur on 15th September and the learned Magistrate convicted them on 16th September 1942 under Section 56(4), Defence of India Rules, and sentenced them to two years rigorous imprisonment and a fine of ₹ 300 each. 138. The common feature of these cases is that in all of them Mr. Hoda tried the accused persons as a Special Magistrate and in each case the trial was concluded before 4th October. The po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule (B) to this order will be tried by the Special Magistrates in this district. It should also further be noted that the Special Magistrates shall try the offences mentioned in Schedule (B) committed in the jurisdiction of the subdivision where they are ordinarily posted, unless otherwise directed by me by an order in writing. 140. Then follow two long schedules. Schedule (A) is headed Offences triable by a Special Judge and contains five clauses which set out specifically the offences which were intended to be tried by the Special Judges. Schedule (B) is headed Offences triable by a Special Magistrate and contains four clauses which also set out with great precision the offences intended to be tried by the Special Magistrates. The question which arises in these cases is whether the order issued by the District Magistrate on 31st August can be treated as an order under Section 10 giving jurisdiction to Mr. Hoda, one of the Special Magistrates, to hold trials of any and every offence under the Ordinance. It appears that a Bench of this Court of which my brother Meredith was a member has held that inasmuch as the District Magistrate had to act in great haste and unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not, however, see any justification for putting such a construction upon the order as would constrain us to hold that the District Magistrate had directed something which he had no power to direct and that he had acted g without due care. In the order of 4th October it is definitely stated that it was issued by the District Magistrate under Sections 5 and 10 by virtue of the power vested in him by the Government of Bihar under Section 9 of the Ordinance and a list of offences was also given. If the order of 31st August was in-tended to be an order under Section 10, then there should have been something in the order of 4th October to show that the previous order had been superseded and that the Magistrates concerned were no longer competent to try all cases but only offences mentioned in the later order. This view is confirmed by h another order which was issued by the District Magistrate on 26th October and which runs as follows: I.R.N. Lines, I.C.S., District Magistrate of Darbhanga, in exercise of the powers conferred on me as a servant of the Grown, under Sections 5 and 10 of Ordinance No. 2 of 1942 promulgated by the Government of Bihar, hereby direct that the following am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power of issuing a writ of certiorari like the old Supreme Court and that the Patna High Court must be deemed to have inherited those powers from the Calcutta High Court at the time when it was created to exercise jurisdiction over part of the territory which was formerly under the jurisdiction and that the Patna High Court must be held to possess the power to issue a writ of certiorari. Mr. Pal has cited a number of authorities to show that the power to issue this writ e cannot be taken away by a statute, unless express words are used to that effect and it is further argued by him that Section 26 of the Ordinance cannot bar the right to issue the writ, because this right has not been expressly taken away by that section. 144. From this brief summary of the very elaborate and learned arguments of Mr. Pal it will be clear that the points raised by him are really two in number: First, that this High Court has the power to issue a writ of certiorari and secondly, that this power has not been taken away by Section 26 of the Ordinance. Neither of these points however appear to me to require very elaborate treatment in view of two Full Bench decisions of this Court, and at any rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta High Court and the High Courts of Bombay and Madras, there seems to be no reason why this could not have been provided by an express clause to that effect. 146. The reasons given in this passage not only cover the writ of mandamus, but also other prerogative writs including the writ of certiorari and the reference to the observation made by the Privy Council suggesting that it was at least debatable whether the High Courts other than those of Calcutta, Madras and Bombay possessed the power of issuing the writ of certiorari strengthens that conclusion. Thus, if the decision of the Full Bench can be taken to cover the writ of certiorari, no further question arises. But assuming that the observations in that case with regard to that writ are mere obiter dicta, there still remains the question as to whether this Court can issue such a writ in the cases before us now notwithstanding the provisions of Section 26 of the Ordinance. It appears that the Defence of India Act, 1915, (Act 4 of 1915) contained a provision which was identical in terms with Section 26 of the Ordinance. That was Section 8 of the Act and it ran as follows: (1) Notwithstanding the provisions of the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rning jurisdiction and character of jurisdiction with reference to all proceedings under the Act leaves no room to doubt that the framers of this Act intended the Section and have in fact so worded it as to be exhaustive. 148. In view of this decision which is binding upon us no further question arises, but I think I should state that even apart from what was held in that case I am of the opinion that even if this Court had the power to issue the writ of certiorari, that power has been taken away by the language of Section 26 of the Ordinance. It has undoubtedly been held in a number of cases that the power to issue the writ of certiorari unless expressly taken away must be deemed to have been left intact: see Rex v. Moreley (1760) 2 Burr. 1041, Rex v. Plowright (1686) 8 M.R 94, R. v. Jukes (1800) 8 T.R. 542, Rex. v. Cahiobury Justices (1823) 3 Dowl. R. 35 and (1874) L.R. 5 P.C. 417. But I gather that though there may be no reference to the writ of certiorari in so many words, yet if the language used in the statute is clear and unmistakable so as to show that the power to issue this writ has been taken away the effect is the same as if it has been expressly taken away. In A.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other Meredith, and I agree with the order which he proposes to make in regard to them in his judgment. 150. Criminal Revisions Nos. 785, 786, 669, 717, 664, 666, 655, 715, 716, 72: So far as these revisions are concerned I agree with the conclusions of my brother Meredith as well as with the orders proposed by him. Manohar Lall, J. 151. I have had the advantage of seeing in advance the judgments prepared by my lord the Chief Justice and by Meredith J. As I agree entirely with the reasonings and the conclusions of the judgment of my lord the Chief Justice, and also in view of the great length to which these two judgments have already reached, I think it is undesirable that I should pronounce a judgment of my own which may, owing to the necessity of dealing fully with the numerous points raised, occupy an equally large space. But I would like to make two observations only. 152. The first is that in my opinion it is unnecessary to decide whether this High Court has power to issue a writ of certiorari because as shown by my lord the Chief Justice even if we have the power this power has been taken away by Section 26 of the Ordinance under consideration. 153. The sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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