N Criminal Appeal Nos
212 21371
Appeal from the Judgment and order dated the 21st November 1970 of the Gujarat High Court in Criminal Revision Applications Nos 321 and 322 of 1969
section N Anand and M N Shroff for the Appellant
N H Hingorani and Mrs K Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA J
Controversy in these appeals centres round the interpretation of the words specially empowered appearing in section 2c of the Suppression of Immoral Traffic in Women and Girls Act 1956 to be hereinafter referred to as the Act
The facts giving rise to these appeals are as follows Chaturbhuj Maganlal and Bai Sabita respondents herein are husband and wife residing together at Parvati Bhuvan Rajkot
Both 1078 of them together with Bai Hamida Basi Mohammed respondent 3 herein are accused 1 2 and 3 respectively in a trial for offences punishable under sections 5 and 6 of the Act before the Judicial Magistrate First Class Rajkot in Cr
Cases Nos 1372 and 1404 of 1968
When the trial was about to commence in these cases the accused moved applications raising an objection that the Magistrate had no jurisdiction to try the offences as he had not been specially empowered as required by section 2c of the Act
The Magistrate rejected those applications whereupon the accused went in revision before the Sessions Judge Rajkot who dismissed the same
Aggrieved the accused filed two revisions Cr R 321 and 322 of 1969 in the High Court of Gujarat
A learned Judge of the High Court allowed the revisions on the ground that Mr Modha Magistrate 1st Class Rajkot before whom these cases were pending had no jurisdiction to try the same because the State Government notification dated February 19 1959 did not have the effect of making him a Magistrate of the first class specially empowered within the meaning of section 2c of the Act
Accordingly the Magistrate was directed to drop the proceedings pending against the revision petitioners
Against that decision of the High Court the State has now filed these appeals on a certificate granted by the High Court under Article 134 1 c of the Constitution
Section 2c of the Act defines a Magistrate to mean a District Magistrate a Sub Divisional Magistrate of the First Class specially empowered by the State Government by notification in the Official Gazette to exercise jurisdiction under the Act
Section 22 further says No court inferior to that of a magistrate as defined in Clause c of Section 2 shall try any offence under Section 3 Section 4 Section 5 Section 6 Section 7 or Section 8
The State Government Notification No PPA125784187X of July 22 1958 published in the Bombay Government Gazette of July 31 1958 purporting to have been issued under section 2c runs as follows In the exercise of the powers conferred by section 2c of the Suppression of Immoral Traffic in Women and Girls Act 1956 the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act except under sections 121 181 19 201 and 3 of the Act
 The question is whether this notification has the effect of making every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction a Magistrate competent to try any offence under sections 3 4 5 6 7 and or 8 of the Act 1079 Answer to this question depends on a correct interpretation of the expression specially empowered in Section 2c
There has been a sharp conflict of judicial opinion in regard to the meaning of this expression
One line of decisions has taken the view hereafter referred to us the narrow view that the word specially in this expression has reference only to the mode of empowerment as indicated in section 391 of the Code of Criminal Procedure 1898
According to this view the word specially stands in contrast to the word generally
Therefore if powers to try certain offences are conferred on a class of officials by their official title they are generally empowered but if the powers are conferred on particular individuals by name or by virtue of their office they are specially empowered
On this reasoning it is deduced that the words specially empowered imply the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power is to be conferred
Some of the cases in which this view has been expounded are Mohd Qasim and anr
vs Emperor Emperor vs Udho Chandumal Polubha Vajubha vs Tapu Ruda and Sabuddin Sheikh Mansur vs J section Thakkar and anr
A different view hereafter referred to as the broad view has been taken in these decisions K N Vijavan vs State State vs Judhabir Caetri State of Mysore vs Kashambi and anr
 Ashaq Hussain Khan vs section D O Monghir C V Madhava Mannadiar vs District Collector and ors
According to this view the word specially has reference to the special purpose of the empowerment and is not intended to convey the sense of a special as contrasted with a general empowerment
Specially qualifies the word empowered and not the person on whom the power is conferred
In this view the State Government is within its competence to confer powers under section 2c of the Act on some or all the Magistrates of the First Class in the State in any of the modes known to law and the Magistrate or Magistrates whom powers are so conferred will be specially empowered within the meaning of section 2c
In our opinion this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow view
It is will recognised that where the language of a statutory provision is susceptible of two interpretations the one which promotes the object of the provision comports best with its purpose and preserves its smooth working should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system
This rule will apply in full force where the provision confers ample 1080 discretion on the Government for a specific purpose to enable it to bring about an effective result
The Act has been enacted to suppress a special kind of mischief
With that end in view it creates new offences and confers wide powers on the Government to constitute special machinery for its enforcement
Th narrow view taken in the decision led by Mohd Qasim s case which reads with external aid into the expression specially empowered a restriction as to the mode or manner of empowerment is neither congenial to the special purpose of the provision nor conducive to the main object of the Act
It tends to introduce unnecessary inconvenience friction confusion and artificiality in the working of the provision
It also tends to reduce its efficacy and impede the exercise of the discretionary power which the Legislature has in its wisdom confided in full measure to the Government
In the context of section 2c of the Act therefore the narrow restrictive interpretation of the expression specially empowered has to be eschewed
Incidently it may be noticed that none of the decisions expounding the narrow view was concerned with the interpretation of the expression specially empowered in the context of the Suppression of Immoral Traffic in Women and Girls Act
In Mohammed Qasim vs Emperor supra which leads the exponents of this view the Madras High Court was concerned with the construction of this expression as used in section 3 of the Opium Act
Similarly the Full Bench decision of the Gujarat High Court in Sabuddin s case supra the ratio of which has been followed by the Judgment under appeal turns on an interpretation of this expression in the context of section 56 of the Bombay Police Act
On the other hand in State of Mysore vs Kashambi and anr
supra which is a prominent exponent of the broad view the construction of section 2c of the Act was directly in issue before the Mysore High Court
Therein by a notification the State Government conferred powers on all First Class Magistrates to try cases under the Act
The accused Kashambi and Mohadinbi were being prosecuted under section 8a of the Act in the court of Judicial Magistrate First Class Saundatti
The accused raised an objection that the Magistrate had no jurisdiction to try the cases because the aforesaid notification was invalid and ineffective to confer the jurisdiction on him as it did not satisfy the requirement of section 2c regarding special empowerment
Hegde J who spoke for the Bench expressly dissented from the view taken in Polubha Vajubha vs Tepu Buda supra and Mohammed Qasim vs Emperor supra and held that the language of section 2c of the Act does not justify the contention that such a notification amounts to general conferment of power as opposed to special conferment of power as required by section 2c and therefore enlarges the scope of that section
In the opinion of the Bench the word specially is an adjective adverb  to the verb empowered and not an adjective to the noun Magistrate and that this word means specifically or for a particular purpose
The Bench did not accept the contention that the word specially conveys the idea of picking and choosing of the Magistrate or Magistrates for the purpose 1081 of conferring the additional powers
It was emphasised that the conferment of power under section 2c of the Act is not made by having recourse to section 39 Cr
Procedure Code
In our opinion the view taken by the Mysore High Court in Kashambi s case is the correct one
It seems to be more in accord with the trend of the recent decisions of this Court in which such an expression came up for construction
In this connection the first case to be noticed is Sindhi Lohana Chaithram vs State of Gujarat
Therein the meaning of the expression specially empowered occurring in s61 of the Bombay Prevention of Gambling Act 1887 came up for consideration
By a notification dated January 22 1955
the Saurahtra Government empowered specially certain Assistant Superintendents and Deputy Superintendents of Police Porbander Division Porbander to authorise by issue of special warrants in each case a police officer not below the rank of Sub Inspector of Police to do the Varios things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house room or place was suspected us being used as a common gaming house
The appellant s house was raided by a Sub Inspector of Policeand on the basis of incriminating evidence the appellant and six others were charged under sections 4 and 6 of the Act
At the trial the accused contended that Shri Pandhya the Deputy Superintendent of Porbander who issued the search warrant was not authorised to do so because the aforesaid notification did not specially empower Shri Pandhya within the contemplation of section 6
This Court expressed that in view of the principle embodied in section 15 of the Bombay General Clauses Act 1904 when power is conferred on a person by name or by virture of his office the individual designated by name or as the holder of the office for the time being is empowered specially
Judging by this test the Court held that the notification dated January 22 1955 specially empowered Shri Pandhya holder of the office of the Dy
Superintendent of PolicePorbander to issue the search warrant under section 6
The Court noticed the conflict of judicial opinion on the question whether a notification empowering all Magistrates of certain class to try certain class can be said to be empowered specially every Magistrate of that class to try those casesbut left that question open
However it settled that a person can be specially empowered even by virtue of his office
Again in Abdul Husein Tayabali and ors
vs State of Gujarat and ors
decided on September 20 1967 the construction of the expression specially appointed within the meaning of section 3c of the Land Acquisition Act 1894 read with r 4 of the Land Acquisition Company s Rules came up for consideration before this Court
By a notification dated October 1 1963 issued under section 3c of the Land Acquisition Act the State Government authorised all Special Land Acquisition Officers in the State to perform the functions of 1082 Collectors under that Act within the area of their respective jurisdiction
Question arose whether that notification satisfied the requirements of section 3c and had the effect of specially empowering all the Land Acquisition Officers as a class to perform the duties under the Act
Shelat J speaking for a Bench of three learned Judges answered this question in the affirmative and made these apposite observations In our view these words specially appointed simply mean that as such an officer is not a Collector and cannot perform the functions of a Collector under the Act he has to be specially appointed  that is appointed for the specific purpose of performing those functions
The word specially has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against a general appointment
The word specially thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act
It qualifies the word appointed and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector
It is the appointment therefore which is special and not the person from amongst several such officers
Besides sec
15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a person to perform a certain function such power can be exercised either by name or by virtue of office
 There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by his name
 The above observations are an apt guide to the interpretation of the expression specially empowered in section 2c of the Act with which we are concerned
Although the word in section 3c of the Land Acquisition Act the construction of which was considered in Abdul Hussain s case were specially appointed their connotation is the same as conveyed by the expression specially authorised or specially empowered see Oxford Dictionary according to which the word authorised means empowered appointed
In constructing the expression specially empowered in the instant case thereforewe can safely adopt the reasoning in Abdul Hussain s case
Thus considered the term specially must be taken to have reference to the special purpose of the empowerment
Even according to Oxford Dictionary one sense of this word is of special purpose
It qualifies the word empowered
It is used in an attributive sense to highlight the special nature of the power
It does not convey the sense of a contradistinction or contrast between special empowerment and general empowerment
All that this word signifies is the investment of some or all the Magistrates of the First Class with powers which are special and are not part of the ordinary  or additional powers which can be conferred on a Magistrate of the First Class under the Code of Criminal Procedure
In short the word specially 1083 cannotes that it is the empowerment which is special and not the person
Thus considered special empowerment does not necessarily involve selection of individuals by name or ex offico from the Magistrates of the 1st Class
The fallacy in the narrow view stems from the undue stress it lays on the mode of empowerment at the cost of the special purpose of the empowerment forgetting that the Act is a code by itself which creates new offences triables only by those Magistrates of the 1st Class who are specially empowered under section 2c of the Actand not under the Code of Criminal Procedure
Be that as it mays39 of the Code of Criminal Procedure 1898 and s32 of the Code of Criminal Procedure1973 are concerned with the mode of conferring power
Power may be conferred on any person either by name or in virtue of his office or on classes of official generally by their official title
The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose
The mode of conferring power is not to be confused with the purpose of the poweras seems to have been done in the cases taking the narrow view
The narrow view can be tested yet from another angle
According to it if a Magistrate of the 1st Class is selected by name or by virtue of his office and invested with these powers to try offences under the Acthe would be specially empowered
If no such pick and chose is made and the power is conferred on all the Magistrates of the same class they would be generally empowered
This distinction if taken to its logical and breaks down and exposes the inherent artificiality of the proposition
If the empowering of a Magistrate of the First Class to try offences under this Act by virtue of his office satisfies the requirements of section 2c it is not understood how the empowerment of a whole class of Magistrates of the First Class by the same mode becomes ultra vires the section
In Abdul Hussain s case the contention canvassed for the narrow view was considered from this aspect also
It was observed  even if the meaning of the word specially  were to be that which is canvassed by the appellant the Government could have issued separate notification for each of the Sp L A Officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction
Instead of doing that if one notification were to be issued authorising each of them to perform those functions there could be no valid objection
Such a notification would have the same force as a separate notification in respect of each individual Sp L A Officer
Such a notification would mean that the Government thereby appoints each of the existing Sp L A Officers to perform the functions of the Collector within their respective areas
 1084 On parity of reasoning it can be said that the empowerment of all the Magistrates of the First Class in the State under one notification by virtue of their office to try offences under the Act in the area of their respective jurisdiction must be held to be special and not general
It will not be out of place to mention here that Abdul Hussain s case was decided by this Court on September 20 1967 that is about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddin s case supra Consequently the Bench did not have the advantage of the guidance furnished by Abdul Hussain s case
In the light of the construction put by us on the expression specially empowered as used in section 2c of the Act we hold that by virtue of the State Government Notification dated July 22 1958 the Judicial Magistrate First Class Rajkot has the jurisdiction to try the offences under the Act
Accordingly we allow these appeals set aside the judgment of the High Court
The cases will now go back to the Judicial Magistrate First Class Rajkot for further proceedings in accordance with law
The cases being very old it is directed that they be disposed of on top priority basis with utmost expedition if possible within three months from today
VPS Appeals allowed


Summary:
Section 2c Suppression of Immoral Traffic in Women and Girls Act 1956 defines a Magistrate to mean a District Magistrate a Sub Divisional Magistrate of the First Class specially empowered by the State Government by notification in the official Gazette to exercise jurisdiction under the Act
The appellant State issued a notification under the section empowering all the Judicial Magistrates of the 1st Class to exercise jurisdiction to try certain offences under the Act
The High Court held that the notification did not have the effect of making a Magistrate one specially empowered within the meaning of section 2c
Allowing the appeal to this Court  HELD It is not necessary that the State Government should pick and choose individual Magistrates and confer special power on them
The notification had the effect of making every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction a Magistrate specially empowered to try those offences
1083E 1084C Mohd Qasim  Anr
vs Emperor AIR  Emperor vs Udho Chandumal AIR 1943 Sind 107 Polubha Vajubha vs Tapu Buda AIR 1956 Sau
73 and Sabuddin Sheikh Mansur vs J section Thakkar  Anr
ILR 1968 Guj 4 disapproved
K N Vijayan vs State AIR 1953 Tr
Co 402
State vs Judhabir Caetri AIR 1953 Assam 35 FB State of Mysore vs Kashambi  Anr  Ashaq Hussain Khan vs SDO Manghir
ATR 1965 Pat 446 and C V Madhava Mannadiar vs Distt
Collector  Ors AIR 1970 Kerala 50
approved
1 Where the language of a statutory provision is susceptible of two interpretations the one which promotes the object of the provision
comports best with its purpose and preserves its smooth working should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system
This rule will apply in full force where the provision confers ample discretion on the Government for a specific purpose to enable it to bring about an effective result
1079G 1080A 2 The word specially has reference to the special purpose of the empowerment and is not intended to convey the sense of a special as Contrasted with a general empowerment
Specially qualifies the word empowered and not the person on whom the power is conferred
In this view the State Government is within its competence to confer powers under the section on some or all of the Magistrates of the First Class in the State in any of the modes known to law and the Magistrate or Magistrates
On whom Powers are so conferred will be specially empowered within the meaning of the section
This broad view keeps in focus the special purpose of the empowerment and must be preferred to the narrow view namely
That the word specially stands in contrast to the word generally
According to 1077 the narrow view if powers to try certain offences are conferred on a class of officials by their official title they are generally empowered  but if the powers are conferred on particular individuals by name or by virtue of their office as a result of selection by the Government they are specially empowered
This view which reads into the expression specially empowered a restriction as to the mode or manner of empowerment is neither congenial to the special purpose of the provision nor conducive to the main object of the Act and tends to reduce its efficacy and to impede the exercise of the discretionary power which the legislature has confided in full measure to the Government1079B D E G 1080B C H 1082G 3 The word specially signifies the investment of some or all the Magistrates of the First Class with powers which are special  and are not part of the ordinary or additional powers which can be conferred on a Magistrate of the First Class under the Code of Criminal Procedure
The fallacy in the narrow view stems from the undue stress it lavs on the mode empowerment at the cost of the special purpose of the empowerment ignoring the fact that the Act is a code by itself which creates new offences triable only by those Magistrates of the First Class who are specially empowered under section 2c of the Act and not under the Code of Criminal Procedure
Power may be conferred under section 39 of the Code of Criminal Procedure 1898 corresponding to section 32 of the Code of Criminal Procedure 1973 on any person either by name or in virtue of his office or on classes of officials generally by their official title
The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose
The mode of conferring power is not to be confused with the purposes of the power
1082H 1083B D 4 A person can be specially empowered even by virtue of his office
If empowering a Magistrate of the First Class to try offences under the Act by virtue of his office satisfies the requirement of section 2c there is no reason why the empowerment of all the Magistrates of the First Class in the State under the notification by virtue of their office to try offences under the Act in the areas of their respective jurisdictions should not be held to be special but treated as general
The Government could have issued separate notifications for each Magistrate
Instead of doing so if one notification were to be issued authorising each of them to perform those functions there could be no valid objection
1081F G 1083E F G 1084B Sindhi Lokana Chajthram vs State of Gujarat  and Abdul Hussain Tayabali and ors
vs State of Gujarat and ors
  followed