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TMI Blog1961 (5) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case; and (2) Was this point rightly decided in the un-reported decisions in two Criminal Appeals-Nos. 377 of 1958 with the title Sudhanshu Ram Guha v. The State and 393 of 1959 with the title Nemai Chandra Paul v. The State being cases decided by a Division Bench of N.K. Sen, J. and D. N. Das Gupta, J. 011 the 6th July, 1959 and in four Criminal Revision Cases 1545 to 1548. of 1959 with the title The State v. Pranlal Jamunalal Vora decided by the Division Bench of N.K. Sen, J. and D.N. Das Gupta, J. on the 22nd December, 1959". 2. Taking cognizance is a well-known but undefined concept in criminal jurisprudence. The Criminal Procedure Code does not define the word "cognizance". There is no statutory definition of what cognizance means. Judicial decisions however have indicated the character and nature of cognizance in criminal jurisprudence-It is unnecessary to review in detail the long line of authorities and cases discussing the idea and nature of cognizance. I need only cite the observations of Kama, C. J. in the Supreme Court decision in R.R. Chari v. State of U. P., 1951CriLJ775 , as being the most authoritative pronouncement on the subject; "A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) by saying that every Special Court shall have jurisdiction throughout the whole of West Bengal and shall sit at such place or places as the State Government may by notification in the Official Gazette specify. Section 3 has been omitted and deleted. Section 4 specifies the offences to be tried by Special Courts. It provides first that notwithstanding anything contained in the Criminal Procedure Code or in any other law the offences specified in the schedule shall be triable by Special Courts only with a proviso that when trying any case the Special Court may also try any offence other than an offence specified in the schedule with which the accused may under the Criminal Procedure Code be charged at the same trial. Secondly, it expressly excludes Section 337 (2B) of the Criminal Procedure Code-Thirdly, under Section 4 (2) of the Act the distribution among Special Courts of cases involving offences specified in the schedule to be tried by them, shall be made by the State Government. 5. It is followed by Section 5 which prescribes the procedure and powers of the Special Courts. Section 5 (1) of the Act expressly provides that a Special Court may take cognizance of offences witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion, it docs not follow the procedure of the Sessions Court, because Section 5 (1) of the Act expressly requires him to follow the procedure for the trial of warrant cases by Magistrate instituted otherwise than on a police report, in trying the accused person. In other words, it is a Sessions Court with a warrant procedure. That is why it is "deemed" to be a Sessions Court under Section 5 (2) of the Act while in reality it is not. It is truly a "Special Court" as its name implies. It is neither a real Sessions Court nor a real Magistrate's court. It partakes of some features of either. It is a Special Court with special procedure and with special jurisdiction as circumscribed by the special statute which creates it. The third conclusion follows from section 6 of the Act where it is provided that appeal and revision are put under the High Court's jurisdiction in accordance with the Chapters XXXI and XXXID of the Criminal Procedure Code. Fourthly, the essential feature to be noticed is the residuary provisions made in Section 5 (2) of the Act which I have quoted above providing that the provisions of the Criminal Procedure Code shall apply to the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attracted by the Special Courts, became they are not Magistrates of the description given in Section 190 (1) of the Criminal procedure Code. It is also necessary to remember that Section 5 (1) of the West Bengal Criminal Law Amendment (Special Courts) Act expressly prescribes the procedure for trial of warrant cases by Magistrate. Therefore the methods of taking cognisance in the manner laid down in sections 190 and 193 of the Criminal Procedure Code cannot apply to Special Courts under this Act. There is no other prescribed method of taking cognizance under the Criminal Procedure Code which can be made applicable under Section 5 (2) of the West Bengal Criminal Law Amendment (Special Courts) Act, section 194 of the Criminal Procedure Code being only applicable to High Court taking cognizance of offences. 8. As no provisions of the Criminal Procedure Code relating to taking cognizance of offences are applicable to the Special Court and as Section 5 (1) of the West Bengal Criminal Law Amendment (Special Courts) Act while requiring the Special Court to take cognizance of offences does not prescribe any hard and fast procedure for taking cognizance of such offences, it must in my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any step in aid of the progress of the case'' and "a Special Judge whose jurisdiction arises not on his taking cognizance under Section 190 of the Criminal procedure Code", are relevant on the point for determination by this Full Bench. 12. In the King v. Mrinal Kanti Chatterjee 54 CWN 753 a Division Bench of this High Court, decided that section 193 of the Criminal Procedure Code does not apply to trials under the West Bengal Special Courts Ordinance (Ordinance 3 of 1949) which contains exactly similar provisions as the present Act. That decision also held that it was not necessary that any Magistrate should take cognizance of offence under Section 190 (1) of the Criminal Procedure Code and therefore that fact that no Magistrate took cognizance of the offences tried in that case did not make the cognizance taken under section 6 of the Ordinance illegal. See the observation of Das Gupta, J. in 54 CWN 753 at pages 754-55. There is another Division Bench decision of this High Court in Anadi Kumar Chatterjee v. The State 59 CWN 306, which discussed almost] analogous provision in another statute called Tribunal of Criminal Jurisdiction Act, 1952 (Act 14 of 1952) who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act will ordinarily be the materials on which the Special Court will take cognizance. The accused under the Act will also ordinarily be arrested by the police during investigation and will either be in the custody or be released on bail by the order of the Magistrate concerned following the general criminal, procedure of producing the accused before the Magistrate. All such papers relating to the proceedings before the Magistrate will be relevant materials on which the Special Court can and will take cognizance under this Act. Even independently and apart from these papers or even in the absence of them in any special case, this much is certain that there is bound to be not only an order of distribution of the case under Section 4 (2) of the Act giving, it is expected, some reasonable particulars of the offence involved in the case and some papers of some kind of investigation by the Government and/or by the police before the case is distributed by the Government to the Special Court and then m such cases those papers will also be relevant papers on which the Special Court can and may take cognizance of the offence. No doubt, the special exclusion in Section 5 (1) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment which was introduced to this Act by the West Bengal Criminal Law Amendment (Special Courts) (Amending) Act, 1949 (West Bengal Act 24 of 1960) which was published on the 1st February, 1961 while this Full Bench reference was pending. The need for alluding to this amendment is the argument advanced from the Bar that the amendment must affect our answers to the questions raised on this Full Bench Reference because it prescribes the method of taking cognizance under Section 5 (1) of the Act. Sections 2 and 3 of this Amending Act lay down as follows : '2. In Sub-section (1) of Section 5 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, hereinafter referred to the said Act), after the words "cognizance of offences", the words," in the manner laid down in Clauses (a) and (b) of Sub-section (1) of Section 190 of the Criminal Procedure Code of 1898", shall be inserted. "3. After Section 5 of the said Act the following section shall be inserted, namely : "5A. Nothing in sections 4 and 5 shall affect the jurisdiction and powers of Magistrates under the Code of Criminal Procedure, 1898 during investigation by the police under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are retrospective". 20. In the same case Channel, J. also observed at page 339 as follows: "I wish to say that in my view a statute dealing only with procedure applies to past events as well as to future events, and to hold this is not to make the statute retrospective. The object of the statute is only to affect the procedure, and it matters not whether the events in respect of which the proceedings are taken happened before or after the passing of the Act". 21. The same view was taken by Das Gupta: J. in the Division Bench decision in Anadi Kumar Chatterjee v. The State (which Ii have already quoted on another point) 59 C WN 306 where after referring to the observations of Lord Manton, in Gardner v. Lucas, 3 AC 582 it was said that procedure was always retrospective unless good reason was shown otherwise. 22. The law therefore is not in doubt, that amended law relating to procedure operates retrospectively, but it is a very misunderstood branch of the law. It is necessary therefore to emphasise that it only means that pending cases although instituted under the old Act but still pending are governed by the new procedure under the amended law but it does not me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the referring Division Bench for final disposal in the light of the answers of the majority of this Full Bench. H.K. Bose, J. 25. The points which have been referred to the Full Bench for decision are:-- (1) Does the Special Judge appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 to whom the case has been allotted by a notification under Section 4 Sub-section (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 the case from the Court of the Magistrate' he applies his mind to the facts of the case? (2) Was this point rightly decided in the un-reported decisions in Criminal Appeals Nos. 377 of 1958 and 393 of 1959 and Criminal Revision cases 1545 to 1548 of 1959? 26. In the case of ILR 37 Cal 412 at p. 416 a Division Bench of this Court pointed out 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." 27. After referring to this observation in the case of Emperor v. Souri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous stage if he considers the charge to be groundless (Section 253(2)). But if the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI and within his competence to try, he is to frame a charge in writing against the accused. (Section 254). Then after the charge is framed and explained to the accused, the latter is called upon to plead and adduce evidence in his defence. (Section 255). 32. The scheme of sections 4 and 5 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 therefore appears to be that the State Government decides upon the materials placed before it that the persons mentioned in the Order of distribution as contemplated in section 4(2) of the Act, shall be prosecuted for the offences specified, but has left it to the Special Court to decide whether the evidence adduced by the prosecution justifies the framing of a charge. 33. By providing in Section 5(1) of the Act that the Special Court may take cognizance of offences without the accused being committed to its Court for trial, the bar imposed by Section 193 of the Code of Criminal Procedure upon a Court of Session takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." (page 13). 37. Then again at page 12 in paragraph 11 of the judgment the Supreme Court stated:-- "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 Section 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." 38. It is clear from these observations of the Supreme Court that a Special Court is not required to take cognizance in the manner laid down in Section 190 of the Code of Criminal; Procedure, and it appears to me that as soon as the Special Court is served with the Order of allotment of the case, it acquires jurisdiction to try the case and when it receives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken cognizance when on receiving the Government notification of the allotment or distribution of the case and the records of the case it applies its mind to the facts of the case and takes some step for proceeding under the subsequent sections of Chapter XXI of the Code. Question (2)-- This point is wrongly decided in Criminal Appeals Nos. 377 of 1958 and 393 of 1959 and Criminal Revision Cases Nos. 1545 to 1548 of 1959 (Cal). 42. A point was raised before us in course of argument to the effect that the amendment which was made in Section 5(1) of the West Bengal Criminal Law Amendment Act on 1st February 1961 by inserting after the words "cognizance of offences" the words "in the manner laid down in Clauses (a) and (b) of Sub-section (1) of Section 190 of the Code of Criminal Procedure 1898" is retrospective in operation and applies to pending proceedings and so it is this amended law which should govern the case before us. Our attention was drawn to the cases reported in 1905 2 KB 335; Rajib Lochan Shaw v. JogeshChandra Das AIR 1924 Cal 983 ; Nataraja Filial v. Rangaswami Pillai; Shrcekanta Pandurang v. Emperor AIR 1943 Bom 169 (FB); 59 Cal WN 306 and 1958 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to conclude that taking of cognisance by a Sessions Court under/Section 193 Cr. P. C. means only having jurisdiction to try the case committed in accordance with the prescribed procedure or to transfer it to an additional Sessions Judge Or an Assistant Sessions Judge. 45. A Special Court is deemed to be a Sessions Court trying cases without a jury for the-purpose of application of provisions of the Criminal Procedure Code except in so far as has been expressly provided for to the contrary in the Special Act, vide Section 5(2) of the Act. The wording of Section 5(1) of W. B. Criminal Law Amendment Special Courts Act, 1949, viz., "A Special Court may take cognizance of offences. without the accused being committed to Criminal Court) for trial" at once recalls the wording of Section 193 Cr. P. C. "Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in that behalf"; and indicates, even apart from Section 5(2) of the Act, that a Special Court is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the original scheme of the Act. 47. The filing of a police report containing the result of investigation is not open to objection to the same extent, if the first information report on the basis of which the investigation proceeded is mentioned in the order of distribution. But this is open to the objection that Section 173 of the Code does not apply to a "Special Court; it applies to submission of a police report before a Magistrate. Further, the stage of submission of a report of the investigation is prior to the distribution by the Government such report is meant to be submitted to the Government, so that it may after proper consideration make the order of distribution of the case for trial. It is hardly necessary to repeat the objection already pointed Out by my Lord to the entertainment of a complaint or police report by a Special Court for the purpose of taking cognizance viz., that Section 190(1) of the Code by its terms applies to Magistrate specified in that section, and does not apply to Sessions 'Courts. 48. I fully agree with the view expressed by my Lord that the provision introduced by the amending Act of 1960, that a Special Court may take cognizance in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinguish them by providing that unlike Courts of Session, Special Courts may take cognizance of offences without the accused being committed for trial. It preserves the Code of Criminal Procedure and makes its provisions applicable to trials under the Act only to the extent they are not inconsistent with it and directs that a Special Court shall follow the procedure prescribed by the Code for trial of warrant cases by Magistrates instituted otherwise than on police report. 52. This is a hurried summary of such of the provisions of the Special Courts Act as fall to be considered in the present context. 53. The decisions of this Court which are under examination in this Reference have held that an Order of distribution made by the State Government under Section 4 (2) of the Act is only an executive order which cannot relieve Special Courts of their duty to take cognizance of offences before they can be tried. The Act having nowhere indicated how and upon what material cognizance is taken, Special Courts are obliged to follow "the accepted mode" of taking cognizance prescribed in Section 190 (1) of the Code of Criminal Procedure. Of the three ways specified in Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Court. It is to be recalled that the application of the Code of Criminal Procedure has been expressly excluded by the Act to the extent the Code is inconsistent with its provisions. Section 4 (2) of the Act provides for distribution by the State Government of cases to Special Courts to be tried by them. The order of distribution appears not only to confer jurisdiction on a particular Court to try a particular case, it also directs trial by the Court concerned. The provision is that cases are distributed among-Special Courts "to be tried by them". The language employed is not without significance. The words "to be tried by them" appear to be meaningful words. If the only purpose of the sub-section was to confer jurisdiction on particular Special Courts to try particular cases and nothing more, that purpose might well have been achieved with-out the words "to be tried by them''; there would have been no diminution of sense Or loss of con-'tent if the sub-section was framed without them. It is well known that cognizance precedes trial. Judicial cognition takes place before judicial determination. Under the ordinary law of procedure it is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es no principles; it is factual; it evolves no standard which transcends the bounds of different Courts in the country. 58. It may perhaps be said that in view of Section 5(1) of the Act which expressly speaks of cognizance, Section 4(2) will not bear the construction that it provides lay implication for cognizance 'to be taken by Special Courts. This view may appear plausible at first sight but Section 5(1) properly read makes plain the true purpose of enacting the sub-section which is more to emphasise the difference between Special Court and Courts of Session than to make a positive provision as to the manner and the material upon which cognizance may be taken. Section 193 of the Code forbids Courts of Session to take cognizance of offences as Courts of Original Jurisdiction except upon commitment made by Magistrates duly empowered in that behalf. That bar is lifted by Section 5(1) of the Act, and the Special Court is empowered to take direct cognizance, despite the provision that it is deemed to be a Court of Session trying cases without a jury. The governing idea of the sub-section is the removal of the bar to direct cognizance which results in contrasting Special Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribunal charged with judicial duty. An order declining cognizance on the ground of insufficiency of materials is an order unknown to the law. Can a Court Or tribunal refuse to take cognizance on such ground? Can a Magistrate acting under Section 190(1) (a) of the Code refuse to take cognizance on the ground that the complaint does not disclose the facts with sufficient fullness? In my opinion he cannot; he can surely dismiss the complaint under Section 203 of the Code if the allegations do not disclose an offence. Cognizance can be declined only when the Magistrate is not competent to take it in which event he directs the complainant to the proper court. Similarly a Special Court can decline cognizance only when the allegations do not disclose the commission of a scheduled offence. But where there is no want of competence, cognizance cannot be declined. A Court of Session cannot decline cognizance and refuse to proceed with the trial of the person charged on the ground that the order of commitment does not disclose sufficient details to warrant the trial although the accused has been committed to it by a Magistrate duly empowered in that behalf? Upon a commitment made the trial b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed procedure follows cognizance taken otherwise than on a police report. Special Courts were for that reason precluded from taking cognizance on the report in writing of police officers. But this is academic since I have held that Special Courts do not take cognizance of offences in any of the ways indicated in Section 190(1) of the Code, but they do so on the order of distribution made by the State Government in terms of Section 4(2) of the Act. 63. It remains to notice the amendment introduced in Section 5 of the Act and the insertion of a new Section 5A by the amending Act of 1961. I have not been able to see much merit in these amendments except that they seek to conform to the opinions expressed by this Court in the decisions under review. One of these amendments merely engrafts into the Special Courts Act, some of the provisions of Section 190(1) of the Code. They provide for the taking of cognizance by Special Courts in the manner indicated in Clauses (a) and (b) of Sub-section (1) of Section 190 of the Code. The new Section 5A merely preserves the jurisdiction of Magistrates under the Code during investigation by the police of all offences specified in the schedule to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (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 the case from the court of the Magistrate, he applies his mind to the facts of the case, and (2) was this point rightly decided in the unreported decisions in Criminal Appeals Nos. 377 of 1958 (Cal) and 393 of 1959 and Criminal Revision Cases Nos. 1545 to 1548 of 1959". 65. For a proper appreciation of the points of Reference it is necessary to know what the powers and jurisdiction of a Special Court are and what procedure is to be followed by the Court in the trial of cases. A Special Court is a creature of a Special enactment, the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, (Act XXI of 1949), hereinafter referred to as the Act. Special Courts are constituted under Section 2 of the Act. A Special Court is not a Court of Session strictly so called "nor a Court of a Magistrate but it partakes of the character of both. "A Special Court shall be deemed to be a Court of Session trying cases without a Jury" (Section 5(2)). That indicates that in fact the Special Court is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or distributed to him by the State Government a Special Court can take cognizance .........". Realising that difficulty S.K. Sen, J. observed, "........ but if the papers in connection with the case which were before the Magistrate during investigation of the case are laid before the Special Judge along with the order of the Government distributing the case, the Special Judge may find out from those papers what the facts of the case are and take cognizance. Now the Magistrate's records relating to Criminal Revision No. 1557 of 1959 out of which this Full Bench Reference has arisen contain some remand petitions made by the police under Section 167 of the Code of Criminal Procedure, surety bonds furnished by the accused and some miscellaneous papers which furnish no materials on which the Special Court can judicially apply its mind and take cognizance. No doubt the remand petitions contain certain allegations made by the police for taking adjournments in order to enable them to continue the investigation but it would be improper for any Court to take cognizance of any offence on those allegations made in a remand petition. That would also be dangerous in principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court took cognizance on the charge-sheet which the Magistrate's records contained. 67. Our attention has been particularly drawn to the observations in the judgment of their Lordships of the Supreme Court, "The crucial date for the purpose of determining the jurisdiction of the Court would be the date when the Court received the records 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". That passage has to be read with reference to the context. Certain dates would be relevant in this connection. The order of distribution under Section 4 (2) of the Act was made on the 27th November, 1952. The records of the case were received by the Special Judge on the 23rd December, 1952, on which date he took cognizance. The examination of witnesses commenced on the 29th January, 1954. On the 10th February, 1954, a charge under Section 165A of the Indian Penal Code was framed against the accused and he was convicted after trial under that section- At the time the Special Judge took cognizance of the offence, Section 165A of the Indian Penal Code was not an offence specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observations of the Supreme Court in the case of 1959 CriLJ 98 that Section 529 of the Code of Criminal Procedure "applies to Magistrates and would not apply to a Special Judge whose jurisdiction arises not on his taking cognizance under Section 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 Section 529 (e) of the Code of Criminal Procedures". Now by those observations the Supreme Court did not lay down that cognizance was not taken by the Judge under Section 190 of the Code of Criminal Procedure but on the order of distribution made by Government, I would.' reproduce what I observed in Criminal Revn. Cases Nos. 1545 to 1548 of 1959 (Cal). "In that case their Lordships of the Supreme Court were criticising the view of the High Court that jurisdiction of a Special Court arises from his taking cognizance under Section 190 of the Code of Criminal Procedure. Their Lordships pointed out that the jurisdiction of a Special Court arises out of the West Bengal Criminal Law Amendment (Special Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding taking of cognizance are the same as in Section 5 of the Tribunals of Criminal Jurisdiction Act, 1952, with minor verbal alterations. 71. The judgment in the other case also was delivered by Das Gupta, J. and Lahiri, J. concurred (54 Cal WN 753) The judgment was delivered on the 27th April, 1950. It was decided in that case that since a Court constituted under the Ordinance might take cognizance without the accused being committed to Sessions for trial, it was not necessary that the Magistrate should take cognizance under Section 190 (1) of the Code of Criminal procedure. I do not find anything in this decision which is inconsistent with the decision of Das Gupta, J. reported in 59 Cal WN 306. Das Gupta, J. observed in 54 Cal WN 753 : It is argued that ......... the provisions in Section 190 (1), Criminal Procedure Code, as regards the taking cognizance of cases apply in this case, but no cognizance was taken of the offences in this case under Section 190 (1) of the Criminal Procedure Code. There is in my opinion no substance in this contention. Section 190 (1) of the Criminal Procedure Code provide"; for cognizance being taken by Magistrates, Section 393 provides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190 (1) (a), Criminal Procedure Code he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter,--proceeding under section 200 and therefore sending it for enquiry and report under Section 202- When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some either kind, e.g, ordering investigation under Section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence". In the Supreme Court Case of 1951 CriLJ 775 Kania, C. J. stated, referring to the above extract, that that was the correct approach to the question before His Lordship. 75. On a further consideration of the whole matter I think that the taking cognizance of an offence is something which is not included in the procedure for trial of a case. Cognizance is something diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot thought it tit and proper to amend the Act by providing that cognizance may be taken on the order of distribution made under Section 4 (2) of the Act. 78. To sum up: Before taking cognizance the Special Court must apply its mind judicially to the facts of the case. A Magistrate's record may not contain adequate materials for enabling the Court to do so, as in the present case--Criminal Revision No. 1557 of 1959. The order of distribution made by the State Government under Section 4 (2) of the Act does not contain sufficient materials for enabling the Court to apply its mind judicially, as in the present case. The order of distribution is as follows : "Government of West Bengal Law (Judicial) Department. Notification No. 7386-J.' Dated, Calcutta, the 25th August, 1959. In exercise of the power conferred by sub-s. (2' of Section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949- (West Bengal Act XXI of 1949), the Governor is pleased to distribute to the Calcutta Additional Special Court constituted by notification No. 5771J, dated 9th August, 1959 under Section 2 of the said Act, the following cases involving offences specified in the sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g cognizance was altogether omitted from the Act as a superfluity the position would have been different. The Special Court could then assume jurisdiction on the order of distribution and thereafter proceed with the trial. But so long as the position of taking cognizance is there, the Court must apply its mind judicially to the facts of the case which can only be properly furnished either in a petition of complaint or in a report in writing of facts constituting the offence made by a police-officer. 79. I would, therefore, answer the questions before the Full Bench as follows: (1) The Special Court under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, does not take cognizance of an offence on the order of distribution made by the State Government under Section 4 (2) of the Act but needs either a petition of complaint Or a report in writing of facts constituting the offence made by a police-officer, for taking cognizance. (2) Accordingly in so far as Criminal Appeals Nos. 377 of 1938 and 393 of 1959 and Criminal Revision Nos. 1545 to 1545 of 1959 took the view that cognizance could not be taken on a report in writing of facts constituting the offence made by ..... 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