iminal Appeal No 29 of 1956
Appeal from the judgment and order dated August 24 1955 of the Calcutta High Court in Criminal Appeal No 196 of 1954 arising out of the judgment and order dated June 7 1954 of the Court of the Judge Special Court Burdwan in Special Court case No 10 of 1952
section C Issacs and section N Mukherjee for the appellant
B Sen and P K Bose for the respondent
September 11
The Judgment of the Court was delivered by KAPUR J
This is an appeal by leave of the High Court of Calcutta against the judgment and order of that Court dismissing the appellant s appeal against the order of conviction by the Special Court of Burdwan for an offence under section 165 A Indian Penal Code and six months  rigorous imprisonment
The facts leading to this appeal are that one Istipada Ghosh and his son were being tried in the court of an Assistant Sessions Judge Burdwan with a jury of five
During the course of the trial the appellant approached one of the jurors Baidya Nath Mukherjee and offered him illegal gratification as an inducement for giving a verdict favourable to Ghoslies
On the morning of September 6 1952 the juror narrated these facts to the police and thereupon the officer in charge sent a Sub Inspector to arrest the appellant if he offered the bribe
After a little while the appellant came to the appointed place and offered Rs 40 in four 10 rupee notes to the juror and while he was trying to pass those notes to the juror the Police Officer arrested the appellant
The First Information Report for an offence under sections 161116 Indian Penal Code was made soon after
And after investigation a report 1278 was made by the police officer in charge Burdwan police station which resulted in the case being sent to the Special Judge Burdwan
On November 27 1952 the Government issued the following notification No 6603J under section 42 of the West Bengal Criminal Law Amendment Special Courts Act 1949 W B XXI of 1949  In exercise of the power conferred by sub section 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 Burdwan Special Court constituted by notification No 4632J dated the 22nd August 1952 under section 2 of the said Act the following cases involving offences specified in the Schedule to the said Act to be tried by the said Special Court 4 The State versus Bhajhari Mondal son of Bhuson Chandra Mondal of Katwa Station Bazar Police Station Katwa district Burdwan tinder sections 161116 of the Indian Penal Code
This notification shows that the offence charged against the appellant was one under sections 161116 of the Indian Penal Code
The order sheet of the Special Court shows that the records of the case State vs B C Mondal under sections 161116 Indian Penal Code were received by the Special Judge on December 23 1952 and the Special Court took cognizance of the case the appellant was summoned for appearance on January 22 1953 and he did appear on that day
On December 21 1953 after several adjournments the hearing of the case was fixed for January 29 1954 on which date the examination of witnesses commenced
On February 10 1954 a charge under section 165A Indian Penal Code was framed by the Special Judge
The trial ended on June 7 1954 and the appellant was convicted under section 165A of the Indian Penal Code and sentenced to six months  rigorous imprisonment
Against this order of conviction the appellant took an appeal to the High Court of Calcutta which was dismissed
It held that the appel 1279 lant had rightly been convicted under section 165A and that the Special Court had jurisdiction to try the offence under that section from July 28 1952 to May 9 1953 under section 7 of the Central Act XLVI of 1952 and from May 9 1953 under the West Bengal Act W B XV of 1953
It also held that any defect in the taking of cognizance was curable under section 529 e of the Criminal Procedure Code and that as a matter of fact the Special Judge took cognizance under section 165A and not under sections 161116 Indian Penal Code
On December 16 1955 the High Court granted leave to appeal to this Court
Counsel for the appellant has not contested the appeal on any question of fact but has confined his arguments to the question of jurisdiction
He contended that the Special Judge had no jurisdiction to try the case as 1 at the time he took cognizance of the case section 165A Indian Penal Code was not an offence specified in the Schedule of West Bengal Act XXI of 1949 2 the case distributed to him was one under sections 161116 an offence which no longer existed in the Indian Penal Code 3 the Special Judge was exercising jurisdiction under the West Bengal Act W B XXI of 1949 and not under the Central Act XLVI of 1952 as no Special Judges were appointed by the State Government under that Act 4 the appellant could not be tried under the West Bengal Act XV of 1953 because there was no distribution of a case against him under section 165A Indian Penal Code
In order to decide these matters it is necessary to set out the dates on which the various statutes came into force and to See what provisions were made therein
On March 11 1947 Prevention of Corruption Act Act 11 of 1947 was enacted by the Central Legislature
The West Bengal Legislature enacted the West Bengal Criminal Law Amendment Act of 1949 W B XXI of 1949 which received the assent of the Governor General on June 23 1949
Its preamble shows the objects of the Act to be more speedy trial and more effective punishment of certain offences
By section 2 of this Act Special Courts were set up in West Bengal which under section 3 were to be presided over by Special 1280 Judges
Section 4 provided for allotment of cases for trial to the various Special Judges and also authorised the Provincial Government to transfer any case from one Special Judge to another and to make modifications in the description of cases whether in the name of the accused or in the charges preferred or in any other manner as may be considered necessary
The Special Judge bad jurisdiction to try the cases for the time being allotted to him under section 4 1 in respect of such of the charges for the offences specified in the Schedule as may be preferred against the accused
All cases pending before any court or before any other Special Judge were deemed to be transferred to the Special Judge to whom they were allotted
The Special Judge when trying a case allotted to him could also try any offence whether specified in the Schedule or not with which an accused could be charged at the same trial
By section 5 the Special Judge could take cognizance of a case without the case being committed and was to follow the procedure of warrant cases and the court of the Special Judge was deemed to be a court of Session trying without a jury
By section 8 rules of evidence were amended in certain particulars
Sec tion 9 provided for enhanced punishment
By section the provisions of the Prevention of Corruption Act were made applicable
The schedule to the Act enumerates the offences triable by a Special Judge the relevant items of which were 1  An offence punishable under sections 161 162 163 or section 165 of the Indian Penal Code          8 Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1 to 7 
On July 28 1952 the Central Legislature enacted the Criminal Law Amendment Act Act XLVI of 1952 by section 3 of which an offence of abetment section 165A with an enhanced punishment was inserted
section 165A  Whoever abets any offence punishable under section 161 or section 165 whether or not that 1281 offence is committed in consequence of the abetment shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both 
By section 6 the State Government were authorised by notification to appoint Special Judges for various areas to try the following offences a  an offence punishable under section 161 section 165 or section 165A of the Indian Penal Code Act XLV of 1860 or subsection 2 of section 5 of the Prevention of Corruption Act II of 1947 b any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause a    By section 7 exclusive jurisdiction was conferred on Special Judges
The effect of this enactment was the insertion in the Penal Code of an offence 165A and the creation of Special Judges to be appointed by the State
On August 12 1952 the Central Legislature passed another Act the Prevention of Corruption Second Amendment Act 59 of 1952 section 3 of which changes the rules of evidence in regard to presumption and onus by adding sub section 2 to section 4 of the principal Act by which it was provided Where in any trial of an offence punishable under section 165A of the Indian Penal Code Act XLV of 1860 it is proved that any gratification other than legal remuneration or any valuable thing has been given or offered to be given or attempted to be given by an accused person it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing as the case may be as a motive or reward such as is mentioned in section 161 of the Indian Penal Code or as the case may be without consideration or for a consideration which he knows to be inadequate 
On July 30 1952 an Act to amend the West Bengal Act XXI of 1949 the West Bengal Criminal Law Amendment Special Court Amending Act W B XII of 1952 received the assent of the President and came into force
Section 3 of this Act substituted a new section 2 in place of section 2 of the West Bengal Act W B XXI 1282 of 1949
This substituted section authorised the State Government to constitute Special Courts and to appoint Special Judges to preside over such courts which had jurisdiction throughout West Bengal
By section 5 the following was substituted in place of section 4 of the West Bengal Act XXI of 1949  1 Notwithstanding anything contained in the Code of Criminal Procedure 1898 Act V of 1898 or in any other law the offences specified in the Schedule shall be triable by Special Courts only Provided that when trying any case a Special Court may also try any offence other than an offence specified in the Schedule with which the accused may under the Code of Criminal Procedure 1898 be charged at the same trial
2 The distribution amongst Special Courts of cases involving offences specified in the Schedule to be tried by them shall be made by the State Government 
The Schedule under the West Bengal Act WB XXI of 1949 was also amended by the insertion of section 164 Indian Penal Code only
The West Bengal Act XXI of 1949 was further amended by the West Bengal Criminal Law Amendment Special Courts Amending Act 1953 Act XV of 1953
It received the assent of the President and came into force on May 9 1953
This Act added section 165A Indian Penal Code in item No 1 of the Schedule of the 1949 West Bengal Act
The result of these various enactments Central as well as State was the creation of Special Courts to try offences which were specified in the case of West Bengal W B XXI of 1949 in the Schedule and in the case of Central Act in the body of the Act itself The West Bengal Act W B XXI of 1949 created Special Judges to try cases involving offences specified in the Schedule and allotted to them by the State Government alone
Under the Central Act XLVI of 1952 also the State Government was authorised to appoint Special Judges and the offences specified in the Act were triable by such Judges as stated in section 72 of the Act
The procedure to be followed by the 1283 Special Judges was that prescribed for the trial of warrant cases
Therefore the jurisdiction of Special Judges appointed under this State enactment to try cases relating to offences specified in the Schedule arose only when they were allotted to them
By the West Bengal Amending Act of 1952 W B XII of 1952 in place of  Special Judges  the words Special Courts  were substituted and two conditions necessary for conferring jurisdiction on such Courts were 1 cases to be tried related to offences specified in the Schedule and 2 the State Government had to make the distribution of such cases to the various Special Courts
Therefore no Special Court had jurisdiction to try a case unless it was for offences specified in the Schedule and the State Government distributed it to the Special Court
The notification in the present case specified the name of the accused the offence for which he was to be tried as one under section 161116 Indian Penal Code and the case was distributed to the Special Court Burdwan for trial
On the date of the notification section 161 and abetment of section 161 were offences specified in the Schedule but as a result of the amendment by the Criminal law Amendment Act 1952 XLVL of 1952 section 165A had been inserted in the Code providing for punishment for abetment of offences mentioned in sections 161 or 165
Section 165A created a distinct and separate offence and therefore abetment of an offence under section 161 was no longer an offence under section 161 116 of the Code
Section 165A was not included in the Schedule to the West Bengal Act W B XXI of 1949
Counsel for the State contended that this section although not specifically mentioned was all the time specified in and must be deemed to have been specified in the Schedule to the West Bengal Act W B XXI of 1949 because item 8 specifically mentioned abetment of offences in items I to 7 and that section 165A only prescribes punishment for abetment of offences under sections 161 or 165 and cannot be called a new or a different offence
Section 165A is not merely a restatement of the offence of abetment under section 116 of the Code
It 163 1284 also comprises abetment under section 109 of the Code and provides an enhanced penalty of three years imprisonment instead of 14th of three years imposeable under section 116
It further attracts the application of section 4 2 of the Prevention of Corruption Act 11 of 1947 as subsequently amended
It cannot be said therefore that merely because the abetment of an offence under section 161 was specified in the Schedule of the West Bengal Act of 1949 section 165A which did not then exist in the Penal Code must be deemed to have been specified therein
It is significant that the West Bengal Act was further amended on May 9 1953 by Act XV of 1953 in order to include section 165A in the Schedule
It appears therefore that under the notification the case distributed to the Special Court for the appellant s trial was for a non existing offence because when the Special Judge took cognizance of the case there was no such offence as sections 161116 of the Indian Penal Code
The notification did not mention section 165A of the Code and at the time when the Special Judge purported to take cognizance he had no jurisdiction to do so and to try the case as the offence under section 165A was not in the Schedule of the West Bengal Act 1949 as amended in 1952
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 WB 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
The High Court held
 that the offence under section 165A was always triable by a Special Judge only from 28th July 1952 to 9th May 1953 under section 7 of the Central Act 1285 and from 9th May 1953 under the W B Act XV of 1953 
As already stated the case which was distributed to the Special Judge was one under section 161116 Indian Penal Code an offence not then existing in the Code and as section 165A was not in the Schedule as an offence triable by a Special Judge it could not be held that the Special Judge was trying the appellant for an offence under section 165A
There is nothing to indicate that the appellant was being tried upto May 9 1953 under section 7 of the Central Act
No notification of the State Government appointing any Special Judge under section 6 of the Central Act Act XLVI of 1952 was brought to our notice
It was on the other hand stated by counsel for the State that there was no such notification
Nor is there anything to show that the Special Judge of Burdwan was trying the appellants  case under section 7 of that Act
We are of the opinion that the trial was not under the Central Act 1952
Nor could the trial be under the provisions of West Bengal Act XV of 1953 because no distribution of the appellants  case was made to the Special Judge by a notification mentioning the charge against him to be one under section 165A Indian Penal Code
The High Court also said  It is true that if the offence under section 165A be regarded as a distinct offence the Special Judge appointed under the W B Act had no jurisdiction in December 1952 to take cognizance of the offence and cognizance could be taken only by a Special Judge appointed under the provisions of the Central Act
But since in such case the Special Judge must be deemed to have acted erroneously in good faith the provisions of section 529e of the Criminal Procedure Code would apply and the proceedings would not be vitiated 
It is trial without jurisdiction that vitiates a proceeding section 530 Cr P C and not taking of cognizance in good faith without jurisdiction
But that with respect is an erroneous application of section 529 of the Code of Criminal Procedure which provides 1286  If any Magistrate not empowered by law to do any of the following things namely e to take cognizance of an offence under section 190sub section 1 clause a or clause b erroneously in good faith does that thing his proceedings shall not be set aside merely on ground of his not being so empowered
 This section 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 529e of the Code of Criminal Procedure
The Special Judge war consequently not a Court of competent jurisdiction and the proceedings before him were null and ineffectual
We are of the opinion therefore that when the case was distributed to the Special Court which is the basis of the jurisdiction of that Court section 165A was not one of the offences specified in the Schedule and consequently the appellant could not be tried for and convicted of that offence
The conviction is therefore by a Court which had no jurisdiction to try the case against the appellant and the whole proceedings in this case are null and void
We would accordingly allow the appeal and set aside the conviction of the appellant under section 165A I P C and the sentence imposed thereunder
Appeal allowed


Summary:
The appellant land owner held lands in excess of 30 standard acres as on 641960
He filed a return as required by the Tamil Nadu Land Reforms Fixation of Ceiling on Land Act 1961 and an enquiry was initiated by the Authorised Officer concerned under Section 92b of the Act
Several objections raised by the appellant were rejected and the Authorised Officer came to the conclusion that the family of the appellant could be reckoned to be of five members be tween 641960 and 2101962 and thus the appellant was entitled to 30 standard acres his wife and daughter however could hold 10 and 771 standard acres respectively as strid hana
The appellant was asked to elect which lands he wished to be included in his holding and state which lands should be treated as surplus
Feeling aggrieved by the said deter mination the appellant preferred an appeal under Section 781 to the Land Tribunal
The appellant contended i that the Authorised Officer had wrongly included the lands of his minor sons unmarried daughter and wife gifted to them long before 1960 ii that subsequent to the filing of the appeal the Act was amended as a consequence whereof his rights and liabilities with regard to the fixation of ceil ing area were required to be worked out on the basis of the revised date of commencement of the Act ie 1521970 notified date being 2101970
It was also urged by the appellant that the lands of his eldest son Laxminarayanan could not be included in his holding
On those grounds amongst others relating to the effect of subsequent transac tions the appellant prayed that the matter ought to be remanded to the Authorised Tribunal for a de novo considera tion
The appellant authority rejected all the contentions and dismissed the appeal whereupon the appellant preferred a revision application before the High Court
Before the High Court his plea regarding subsequent transactions was confined to the documents executed between 15th February 1970 the date of commencement of the 359 Act and 2nd October 1970 the notified date contentions regarding other transactions were not pressed
The High Court accepted this contention and took the view that even in respect of proceedings which commenced prior to the coming into force of the Amending Act an affected person can take advantage of the provisions contained In Section 2 IA
The High Court held that while Section 2 of the Amending Act reduced the ceiling area to half benefit was conferred by Section 21A and hence both the provisions had to be read together
On that reasoning the High Court opined that the three documents relating to subsequent transactions executed between the said date could not be ignored in fixing the ceiling area unless it was found that the documents were executed to defeat the provisions of the Act in which case the transactions may be declared void under Section 22 of the Act
The High Court accordingly directed the Authorised Officer to make further inquiries regarding the three trans actions in question and pass appropriate orders
The High Court rejected the other contentions
The appellant being aggrieved with the rejection of other points raised before the High Court has preferred this appeal by special leave
Dismissing the appeal this Court HELD The proceedings in this case had started and concluded before the Authorised Officer long before the Amending Act saw the light of the day
Under Section 31 of the Amending Act any action taken including any order made decision or direction given proceeding taken etc under the provisions of Act before the date of publication of the Amending Act can be continued and enforced after the said date in accordance with the provisions of the Act as if the Amending Act had not been passed
This is however subject to subsection 2 which carves out an exception to sub section 1 insofar as the reduction of the ceiling area from 30 standard acres to 15 standard acres is concerned
367E G BKV Radhamani Ammal vs Authorised Officer Land Reforms Coimbatore  referred to