Criminal Appeal No 16 of 1972
Appeal by Special Leave from the Judgment and Order dated 14 6 1971 of the Mysore High Court in Criminal Revi sion Petition No 229 of 1971
N Nettar for the Appellant
KR Nataraja for the Respondent
The Judgment of the Court was delivered by BHAGWATI J
This appeal by special leave raises a short but interesting question of law
The facts giving rise to the appeal are few and briefly stated as follows On 1st October 1970 the police filed a chargesheet against the respondent in the court of the Judicial Magis trate First Class Badami charging him with having commit ted an offence punishable under Section 34 of the Mysore Excise Act 1965
The learned Judicial MagiStrate by an order dated 3rd October 1970 refused to take cognizance of the offence on this charge sheet since it was filed by the Police and not by an Excise official
The view taken by the learned Magistrate was that under Section 60 clause b as amended by Mysore Ordinance No 4 of 1970 which represented the law as it then stood it was not competent to him to take cognizance of an offence punishable under Section 34 except on the complaint or report of an Excise Officer and since the chargesheet in the present case was filed by the police and not by an Excise Officer he was precluded from taking cognizance of the offence
The learned Judicial Magistrate on this view directed that the charge sheet be returned to the police and ordered release of the respond ent
The State thereupon preferred a Revision Application to the Sessions Court Bijapur
The learned Sessions Judge agreed with the view taken by the Judicial Magistrate and holding that the Judicial Magistrate was right in refusing to take cognizance of the offence on the charge sheet filed by the police rejected the Revision Application summarily
This led to the filing of a Revision Application by the State before the High Court
The High Court too summarily rejected the Revision Application and hence the State pre ferred the present appeal with special leave obtained from this Court
Now in order to appreciate the contention that has been raised on behalf of the State in support of the appeal it is necessary to notice the various changes which Section 60 of the Principal Act went 546 through from time to time during the relevant period
Section 60 clause b as it originally stood provided that no Magistrate shall take cognizance of an offence punishable under any Section of the Act other then Section 35 or 38 or 46 or 48 except on his own knowledge or suspicion or on the complaint or report of an Excise or Police Officer
But before the chargesheet in the present case came to be filed by the Police an amendment was made in Section 60 clause b by Mysore Ordinance No 4 of 1970 which came into force on 7th August 1970
Section 18 of this amending ordinance omitted the words or police in clause b of Section 60
The result was that cognizance of an offence punishable under Section 34 could not be taken by a Magistrate except on his own knowledge or suspicion or on the complaint or report of an excise officer
Section 60 B was also added at the same time and by this new Section inter alia offence under Section 34 was made cognizable and the provisions of the Code of Criminal Procedure 1898 with respect to cog nizable offences were made applicable to such offence
It was on the basis of the amended clause b Section 60 that the learned Judicial Magistrate as well as the Sessions Judge held that cognizance of the offence under Section 34 charged against the respondent could not be taken since the chargesheet was filed by the police and not by an excise officer
The learned counsel appearing on behalf of the State contended before us that even on the language of the amended clause b of Section 60 without the words or police it was competent to the Judicial Magistrate by reason of the enactment of Section 60B to take cognizance of the offence but it is necessary for us to examine this contention since we find that before the Revision Applica tion came to be heard by the High Court a further amendment was made in clause b of Section 60 by Mysore Act 1 of 1971 and that restored the position which obtained prior to the amendment made by Mysore Ordinance No 4 of 1970
Mysore Act No 1 of 1971 was deemed to have come into force on 7th August 1970 and Section 23 of this Act provided inter alia that the amendment to Section 60 made by Mysore Ordinance No 4 of 1971 shall be deemed never to have been made and the provisions of Section 60 as they stood prior to the said amendment shall be deemed to continue to be in force
The result of the enactment of this provision by Mysore Act 1 of 1971 was that the amendment made in Section 60 clause b by deleting the words or police by Mysore Ordinance 4 of 1970 was obliterated and wiped out with retrospective effect so that in the eye of the law it was never made at all
It is now settled law that when a legal fiction is enacted by the Legislature the Court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect in it
We must therefore proceed on the basis that the words or police were always there in clause b of Section 60 even at the time when the learned Judicial Magistrate made his order dated 3rd October 1970 refusing to take cognizance of the offence and returning the charge sheet to the police
If these words were in clause b of Section 60 at that time then obviously the learned Magistrate was in error in refus ing to take cognizance of the complaint on the ground that the charge sheet was not filed by an excise officer but by the police
That is the clear effect of the legal 547 fiction enacted in Section 23 of Mysore Act 1 of 1971 and that this would be so is amply supported by the decision of this Court in MK Venkatachalam ITO and Another vs Bombay Dyeing and Mfg Co Ltd1 The High Court as well as the Court of Sessions were therefore clearly in error in affirming the order made by the learned Judicial Magis trate and it must be held that the charge sheet was validly filed before the learned Judicial Magistrate by the police and the Judicial Magistrate was entitled to take cognizance of the offence on the basis of such charge sheet
We accordingly allow the appeal set aside the orders made by the learned Judicial Magistrate Sessions Judge and the High Court and remand the case to the Judicial Magis trate with a direction to him to deal with the charge sheet filed by the police in accordance with law in the light of the observations contained in this judgment
ORDER After we delivered the judgment in this case our atten tion was drawn to the fact that subsequent to the decision of the High Court a fresh charge sheet for the same of fence was filed by the police against the respondent and in view of the amendment made in section 60 clause b by Mysore Act I of 1971 the learned Judicial Magistrate took cognizance of the offence and tried the respondent and ultimately as a result of the trial the respondent was convicted and sentenced to imprisonment and in fact by the time the appeal came to be heard by us he had already served out his sentence of imprisonment
In view of this fact it is unnecessary to remand the case to the learned Judicial Magistrate for taking cognizance of the offence
We accordingly direct that the last part of the final order made by us which commences with the words and remand the case be deleted
SR Appeal allowed


Summary:
The Mysore Ordinance 4 of 1970 which came into effect from 7th August 1970 omitted the words or police in section 60b of the Mysore Excise Act 1965 which provided for taking of cognizance by the Magistrate on his own knowledge or suspicion or on the complaint or report of an excise or police officer
It also inserted a new section 60B whereby offence under section 34 was made cognizable and the provisions of the Criminal Procedure Code 1898 with respect to cogniz
able offences made applicable to such offence
The earlier position which obtained prior to the said Ordinance was restored by the Mysore Amendment Act No 1 of 1971 which received the President s assent on 20th January 1971 but which was deemed to have come into force on 7th August 1970
Section 23 of the 1971 Act provided that the amendment to section 60 made by the Ordinance of 1970 shall be deemed never to have been made and the provisions of section 60 as they stood prior to the said amendment shall be deemed to continue to be in force
The judicial Magistrate Badami on a complaint filed by a police officer refused to take cognizance of an offence for the illegal Possession of 412 tolas of ganja under section 34 of the Mysore Excise Act 1965 in view of the provisions if section 60b ibid which represented the law as it then stood
The revision application before the Sessions Court was dismissed on 15 1 1971
A further revision filed before the High Court on 14 6 1971 was also dismissed in limine
However after the dismissal of the revision by the High Court on a fresh complaint filed by the police in respect of the same offence as per the amending Act I of 1971 the judicial Magistrate took cognizance of the of fence convicted the accused and sentenced hun to simple imprisonment for three months and also to pay a fine of Rs 100 
Notwithstanding the conviction the State pressed its appeal by special leave against the judgment of the High Court dismissing the revision
Allowing the appeal the Court HELD 1 The High Court as well as the court of Ses sions were clearly in error in affirming the order made by the learned judicial Magistrate
547A 2 The charge sheet was validly filed before the learned judicial Magistrate by the Police and the judicial Magistrate was entitled to take cognizance of the offence on the basis of such charge sheet
547A B 3 The result of the enactment of section 23 by Mysore Act I of 1971 was that the amendment made in section 60 clause b by deleting the words or police by Mysore Ordinance No 4 of 1970 as oblitarated and wiped out with retrospective effect so that in the eye of the law it was never made at all
546F 4 It is now well settled law that when a legal fiction is enacted by the Legislature the court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect to it
The clear effect of the legal fiction enacted in section 23 of Mysore Act No 1 of 1971 was that the 545 words or police were always there in cl
b of section 60 even at the time when the charge sheet was presented before the learned Magistrate and if that be so the learned Magistrate was in error in refusing to take cognizance of the complaint on the ground that the charge sheet was not filed by an excise officer but by the police
546G H 547A MK
Venkatachalam ITO  Anr
vs Bombay Dyeing  Mfg Co Ltd   applied