Patna High Court
State vs Surajdeo Sinha And Anr. on 2 July, 1953
Equivalent citations: AIR1954PAT80, 1953(1)BLJR471, AIR 1954 PATNA 80
JUDGMENT Imam, J.
1. These two applications have been heard together as the same question arises in both the cases as to whether the deposition of Mr. C. A. Mahadevan, I. A. S., is admissible under Section 33, Evidence Act, Mr. Mahadevan being dead. The deposition of Mr. Mahadevan was recorded on commission at Bombay in the proceedings against the opposite party. Mr. Mahadevan had been seriously ill with cancer of the tongue and was receiving treatment for that disease at Bombay.
2. The case against the opposite party was before a Magistrate at Patna, and the order sheet of the Magistrate shows that he had decided to hold an enquiry under Chapter 18, Criminal P. C., that is to say, he adopted a procedure to be followed in an enquiry into cases before commitment to the Court of Session. While the enquiry was thus proceeding, an application was filed before the Magistrate on 25-7-1952, for the examination of Mr. Mahadevan on commission. The ground given was that he was seriously suffering from cancer of the tongue and that he was receiving treatment for that disease at Bombay, and it was impossible for him to be produced as a witness in court during the said enquiry. On 31-7-1952, the Magistrate allowed the application and off 4-8-1952, the District Magistrate of Patna issued a writ of commission to the Chief Presidency Magistrate, Bombay, for the examination of Mr. Mahadevan on commission. One Mr. Pandit, a Presidency Magistrate of Bombay, was ordered by the Chief Presidency Magistrate to execute the commission, and Mr. Mahadevan was examined on 14-8-1952, 16-8-1952 and 18-8-1952. In one of these cases, Mr. Mahadevan was cross-examined, but in the other the accused declined to cross examine although a sum of Rs. 500/- had been deposited in the court of the Magistrate at Patna by way of compensation to the accused concerned for the examination of Mr Mahadevan on commission.
3. On 28-7-1952, however, the President of India gave his assent to the Criminal Law Amendment Act, 1952 (46 of 1952), hereinafter referred to as the Act, and the same was published in the Bihar Gazette of 7-8-1952, by Notification No. LG-1-015/52 Leg. 1639, dated 6-8-1952. The object of the Act was to amend the Penal Code and Criminal P. C., 1898, and to provide for a more speedy trial of certain offences. Section 2 of the Act concerns an amendment to Section 165, Penal Code, (Act 45 Of 1860). Section 3 of the Act introduces a new Section as Section 165A in the Penal Code. Section 4 of the Act concerns an amendment to Section 164, Criminal P. C. 1898. Section 5 concerns an amendment to Section 337, Criminal P. C., 1898. Section 6 of the Act empowers the State Government by notification in the Official Gazette to appoint Special Judges to try offences mentioned in that section. Section 7 of the Act provides for cases triable by Special Judges. Section 8 of the Act states the procedure & powers of Special Judges. Section 9 of the Act concerns appeals and revisions to the High Court. Section 10 of the Act provides for transfer of pending cases to the court of Special Judges. The provisions of the Act contained in Sections 6, 7, 8 and 10 will be considered in detail later on.
4. On 28-8-1952, the State Government appointed Special Judges under Section 6 of the Act. On 9-9-1952, the proceedings before the Magistrate against the opposite party were transferred to the Special Judge Mr. Radha Prasad Singh an Additional Sessions Judge of Patna. On 16-3-1953, the deposition of Mr. Mahadevan recorded on Commission was tendered in evidence before the Special Judge under Section 33, Evidence Act, but was rejected by the Special Judge mainly on the ground that the Act having come into force on 28-7-1952, the Magistrate before whom the proceedings were before the commencement of the Act had no jurisdiction to try the opposite party, and consequently the order for the examination of Mr. Mahadevan on commission was without jurisdiction, and the deposition of Mr. Mahadevan, recorded on commission could not be said to be evidence given by a witness in a judicial proceeding or before any person authorised by law to take it.
5. There can be no question, having regard to the case of the prosecution, that the evidence of Mr. Mahadevan was of prime importance in the case, and it is highly desirable that the question as to whether his evidence was admissible under Section 33, Evidence Act, should be determined before the trial of the opposite party was concluded. It is for this reason that the present applications have been moved against the order of the Special Judge declining to admit into evidence the deposition of Mr. Mahadevan under Section 33, Evidence Act. The question raised necessarily requires a careful examination of the Act. The Act, as its title indicates, was an Act to amend the Penal Code, & the Criminal P. C., and to provide for a more speedy trial of certain offences. It is not necessary to deal at length with Sections 1 to 5 of the Act. They merely refer to certain amendments to the Penal Code and the Code of Criminal Procedure. The sections to be seriously considered are Sections 6, 7, 8 and 10 of the Act. Section 6 states:
"6. (1) The State Government may, by notification in the Official Gazette, appoint as many special judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely:
(a) an offence punishable under section 161, Section 165 or Section 165A of the Indian Penal Code (Act 45 of 1860) or Sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 (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).
(2) A person shall not be qualified for appointment as a special judge under this Act unless he is, or has been, a sessions judge or an additional sessions judge or an assistant sessions judge under the Code of Criminal Procedure, 1898 (Act V of 1898)."
6. Section 7 states:
"7(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in any other law the offences specified in Sub-Section (1) of section 6 shall be triable by special judges.
(2) Every offence specified in Sub-section (1) of section 6 shall be tried by the special judge for the area within which it was committed, or where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the State Government. (3) When trying any case, a special judge may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial."
7. Section 8 of the Act empowers a Special Judge to take cognizance of offences without the accused being committed to him for trial. The Special Judge in trying an accused person shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates Sub-section (2) of this section need not be referred to. Sub-section (3) of this section reads as follows :
"(3) Save as provided in Sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1898 shall, so far as they are not inconsistent with this Act, apply to the proceedings before a special judge; and for the purpose of the said provisions, the court of the Special judge shall be deemed to be a court of session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special judge shall be deemed to be a public prosecutor."
Sub-Section (4) of this section need not be referred to.
8. Section 10 of the Act reads as follows:
10. AU cases triable by a special Judge under section 7 which, immediately before the commencement of this Act, were pending before any magistrate shall, on such commencement, be forwarded for trial to the Special Judge having jurisdiction over such cases."
The provisions of the Act which I have set out in detail show that the Act is capable of being divided into two parts, one part operating at once and the other after appointment of special judges. It purports to amend the Penal Code and the Code of Criminal Procedure, so far as these amendments are concerned, they came into force immediately on the commencement of the Act and the two Codes stood amended from the date the Act, came into force. The purpose of the Act, however, was also to provide for a more speedy trial of certain offences. Those offences have been set out in Section 6 of the Act. That is to say, the Act by its provisions enabled speedier mode for trial of certain offences than was to be found in the provisions of the Code of Criminal Procedure. It is, however, to be remembered that there is no provision in the Act which specifically terminates any proceeding pending in a Court of law. The question for consideration therefore, is : does any proceeding pending before a Magistrate immediately before the commencement of the Act cease to be a judicial proceeding merely because the Act came into force on a particular date? Section 6 of the Act does not state that the State Govt. shall appoint special Judges nor does it state that such a Government shall establish Courts of special judges.
Section 6, Criminal P. C., however, specifically states that besides the High Court and Courts constituted under any other law, there shall be five classes of criminal courts, one of them being Courts, of Session. Section 9, Criminal P. C., states that the State Government shall establish a Court of Session for every sessions division and appoint a Judge of such Court, it is clear from these sections of the Criminal P. C., that various criminal courts including the Courts of Session have been established by its provisions and that it was mandatory upon the State Government to establish a Court of Session and to appoint a Judge of such a court. There is no discretion given to a State Government in this respect. The language used in Section 6 of the Act and sections 6 and 9, Criminal P. C., presents a striking contrast. By the provisions of the Code of Criminal Procedure, the criminal courts including the Courts of Session. were created and the State Government was compelled to establish a Court of Session and to appoint a Judge of such a court. There is no provision in the Act which creates the court of special Judges or compels the State Government to establish such a court and to appoint judges of such a court.
Section 6 of the Act no doubt empowered the State Government to appoint special judges. The word "may" is used in Section 6 and not the word "shall'. It was, however, urged that there have been numerous instances where in interpreting a statute the word "may" has been read as "shah". Accordingly, the word "may" in Section 6 of the Act should be so construed having regard to the intention of the legislature apparent from the provisions of the Act. Before this submission can be acceded to, it will be necessary to examine the provisions of the Act in order to ascertain whether the intention of the legislature was as suggested by the argument made on behalf of the opposite party. Prima facie, the word "may" must be given its ordinary and natural meaning. Primarily, it is permissive in its meaning and until the contrary is established the word "may" in Section 6 of the Act should be read to mean that "it shall be lawful" for the State Government to appoint special judges. In Section 6 of the Act not only does the word "may" appear but the words "as may be necessary" are to be found. There is no ambiguity in the words employed by the legislature so far as Section 6 of the Act is concerned. These words "may" and "as may be necessary" clearly do not indicate a compelling duty upon a State Government to appoint special judges.
Then the words "for such area or areas as may be specified in the notification" leave it to a State Government to specify the area or areas for which special judges may be appointed, that is to say, State Government is not compelled to appoint special judges for the entire state over which it has jurisdiction or the entire area which constitutes the State. Usually a State is divided into Divisions and each Division is divided into Districts. At least this is so, so far as the State of Bihar is concerned. According to the provisions of Section 6 of the Act it would be permissive to a State Government to appoint special judges for one particular area as specified by the notification in the official Gazette and not to appoint special judges for other areas depending upon the circumstances prevailing at the commencement of the Act and thereafter. It may well happen that in a particular State there were no cases pending at the commencement of the Act involving offences mentioned in Section 6. In such circumstances, it would be unnecessary for a State Government to appoint any special judge for the State at the commencement of the Act. At the commencement of the Act a State Government may find that cases concerning offences mentioned in Section 6 were pending only in certain Divisions or certain Districts but not in all Divisions and all Districts comprising the State. In such circumstances it would be open to a State Government to appoint special judges only for such area or areas as would be specified by it in the notification.
In other words, for certain areas of the State it may be Quite unnecessary to appoint special judges, in which case the provisions of Section 6 and onwards of the Act would not apply to those areas. Subjection (2) of Section 7 of the Act has also to be considered in this connection. This sub-section provides that offences mentioned in Section 6 of the Act shall be tried by the special judge for the area within which it was committed, or where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the State Government. It is clear from this provision that the authority in a special judge to try offences under Section 6 of the Act is for the area within which it was committed. Until an area is specified by a notification in the official Gazette for which a special judge is appointed, the jurisdiction to try offences specified in Section 6 would be lacking. Similarly, under Section 10 of the Act cases involving offences specified in Section 6 pending before a Magistrate immediately before the commencement of the Act could not, on such commencement, be forwarded for trial to a special Judge unless it was known who was the special judge having jurisdiction over such cases.
It seems to me on a consideration of the provisions of Sections 6, 7 and 10 of the Act that until the State Government did appoint special judges for such area or areas as may be specified in the notification, the operative part of Section 6 and onwards of the Act would not come into effect. As I have said already, the Act may be divided into two parts. The first part was concerned with the amendment of the Penal Code and the Code of Criminal Procedure, and the second part was concerned with the appointment of special judges and the procedure to be followed by such judges in the matter of trial of cases before them and the sending of cases pending before Magistrates before the commencement of the Act to such judges, for trial. A reasonable reading of the provisions of Sections 6, 7 and 10 of the Act do not convey the impression that it was compulsory for a State Government to appoint special judges. In -- 'Julius v. Bishop of Oxford', (1879-80) 5 A. C. 214 at p 222 (A) Lord Cairns observed:
"The words 'it shall be lawful' are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the subject for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so. Whether the power is one coupled with a duty such as I have described is a question which, according to our system of law, speaking generally, it falls to the Court of Queen's Bench to decide, on an application for a mandamus. And the words 'it shall be lawful' being according to their natural meaning permissive or enabling words only, it lies upon those, as it seems to me, who contend that an obligation exists to exercise this power, to shew in the circumstances of the case something which, according to the principles I have mentioned, create this obligation."
9. It is to be noticed that the provisions of Section 6 and onwards of the Act provide for a procedure for trial of offences mentioned in Section 6, which are not to be found in the Code of Criminal Procedure; the purpose of the Act being to provide for a more speedy trial of offences mentioned in Section 6 than the procedure authorised by the Code of Criminal Procedure permitted. A State Government might well be of the opinion that having regard to the circumstances prevailing in the State it was unnecessary to deviate from the procedure prescribed by the Code of Criminal Procedure. I am firmly of the opinion that there is nothing to be found in the provisions of the Act which would compel a court to give to the word "may" in Section 6 of the Act a meaning other than its ordinary meaning and to interpret it as "shall", thereby conveying the meaning that a State Government was compelled to appoint special nudges irrespective of the circumstances prevailing in a particular State.
10. Assuming, however, that there was a duty imposed upon a State Government by the provisions of the Act to appoint Special judges, the Act did not prescribe the period within which such Special Judges Khali be appointed. Therefore, until Special Judges were appointed under the provisions of the Act, Sections 6, 7, 8, 9 and 10 of the Act could not come into operation, although the Act came into force on the 23th of July 1952. As I have already pointed out, there is no express provision in the Act terminating the proceedings in any case concerning an offence under Section 6 before a Magistrate on the commencement of the Act. Since there is no such provision terminating the proceedings, there was no statutory obstacle in the way of a Magistrate in continuing the proceedings until it was known who was the Special Judge having jurisdiction over the case to whom the case had to be forwarded for trial. The Act came into force on 28-7-1952, and if a case involving an offence mentioned in Section 6 of the Act was pending before a Magistrate before that date and the evidence in the case had been concluded on 26-7-1952, and the Magistrate had reserved judgment for some subsequent date, would the Magistrate, in these circumstances, be precluded from delivering his judgment merely because the Act came into force on 23-7-1952 and wait indefinitely for the appointment of Special Judges?
I do not think that the legislature intended any such situation to arise. The Magistrate could not know whether the State Government would at all appoint a Special Judge for the area in which the of fence was committed in the particular case. There was nothing in the Act, in the absence of appointment of Special Judges under Section 6 of the Act, to prevent the Magistrate in dealing with the case according to the provisions of the Cocle of Criminal Procedure which are certainly not affected until Special Judges are appointed. In proceedings which are enquiries under Chapter 18, Criminal P. C-- before commitment to the Court of Session, the position, in my opinion, is even clearer. Such prohibition as there is under the Act, it is with reference to trial of cases specified in Section 6 of the Act. There is no prohibition for enquiries to be held under Chapter 18, Criminal P. C. If an enquiry under Chapter 18 of Criminal P. C., was pending immediately before the commencement of the Act, that enquiry could proceed even after the commencement of the Act, there being no bar to it. At the end of the enquiry, the Magistrate concerned would be bound to send the case for trial to a Special Judge having jurisdiction over the case if such a judge had been appointed under Section 16 of the Act.
Under Criminal P. C., if at the end of the enquiry, the Magistrate came to the conclusion that no prima facie case had been established against the accused, he could, under the provisions of the said Code, discharge the accused. Was he then bound to stay his hands merely because the Act name into force before he passed his order at the conclusion of his enquiry when upto that time the State Government had not appointed any Special Judge for the area in which the offence had been committed? To take the view that he was so bound would be to hold that the provisions of the Code of Criminal Procedure were abrogated from the moment the Act commenced with reference to cases involving an offence specified in Section 6 of the Act.
In my opinion, such an interpretation of the Act is not warranted by any reasonable understanding of its provisions. On a fair interpretation of the Act, the reasonable view to take is that the proceedings before the Magistrate in the cases before me did not cease to be judicial proceedings merely because the Act came into force on 28-7-1952 and that evidence of Mr. Mahadevan recorded on commission before 28-8-1952, when Special Judges were appointed under Section 6 of the Act, was evidence given in a judicial proceeding, and his evidence was admissible under Section 33, Evidence Act.
11. I would accordingly allow these applications, set aside the order of the Special Judge rejecting the prayer of the prosecution to take into evidence, under Section 33, Evidence Act, the deposition of Mr. Mahadevan recorded on commission, and direct the Special Judge to take into evidence the deposition of Mr. Mahadevan.