Case Note & Summary
This criminal appeal by special leave arose from the conviction of the appellant by the Special Court, Burdwan, under Section 165A of the Indian Penal Code, 1860, and sentence of six months' rigorous imprisonment. The appellant was charged with offering illegal gratification to a juror during the trial of another accused before an Assistant Sessions Judge. On 6 September 1952, the appellant offered Rs 40 in four ten-rupee notes to juror Baidya Nath Mukherjee and was arrested by the police while handing over the notes. A First Information Report was lodged under Sections 161/116 of the Indian Penal Code. After investigation, the case was sent to the Special Judge, Burdwan. On 27 November 1952, the Government of West Bengal issued a notification under Section 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, distributing the case State versus Bhajhari Mondal under sections 161/116 IPC to the Special Court. The Special Judge received records on 23 December 1952 and took cognizance. On 10 February 1954 a charge under Section 165A IPC was framed, and on 7 June 1954 the appellant was convicted. The High Court of Calcutta dismissed the appellant's appeal, holding that the Special Court had jurisdiction under the Criminal Law Amendment Act, 1952 and the West Bengal Act XV of 1953, and that any defect in taking cognizance was curable under Section 529(e) of the Code of Criminal Procedure, 1898. The High Court granted leave to appeal to the Supreme Court. The Supreme Court examined the statutory history. The West Bengal Criminal Law Amendment (Special Courts) Act, 1949, constituted Special Courts for offences specified in its Schedule, which included offences under Sections 161, 162, 163, 165 IPC and abetment of those offences. On 28 July 1952, the Criminal Law Amendment Act, 1952, inserted Section 165A IPC creating a distinct offence of abetment with enhanced punishment and authorised State Governments to appoint Special Judges for offences under Sections 161, 165, 165A IPC and related conspiracies and abetments. The West Bengal Criminal Law Amendment (Special Court Amending) Act, 1952, amended the 1949 Act to reconstitute Special Courts. The notification distributing the appellant's case referred to Sections 161/116 IPC, which was no longer in existence after the insertion of Section 165A. Section 165A was not merely a restatement of abetment under Section 116; it also included abetment under Section 109 and provided enhanced penalty, and thus could not be deemed to be specified in the Schedule merely because abetment of the relevant offences was mentioned. The Supreme Court held that the Special Judge had no jurisdiction to try the offence under Section 165A, as the case distributed to him was for a non-existent offence. Further, the defect of jurisdiction could not be cured by Section 529(e) of the Code of Criminal Procedure, 1898, because that provision applied to Magistrates and not to Special Judges whose jurisdiction arose from distribution by the State Government, not from taking cognizance under Section 190 of the Code. Accordingly, the Supreme Court allowed the appeal and set aside the conviction and sentence.
Headnote
A) Criminal Law - Special Courts - Jurisdiction - West Bengal Criminal Law Amendment (Special Courts) Act, 1949, ss. 2, 4(2), Schedule - A Special Judge constituted under the West Bengal Act could try only offences specified in the Schedule and distributed to him by proper notification under Section 4(2). The notification distributed the case against the appellant under Sections 161/116 Indian Penal Code, an offence which no longer existed after insertion of Section 165A by the Criminal Law Amendment Act, 1952. Held that the Special Judge had no jurisdiction to try and convict the appellant under Section 165A because that offence was not specified in the Schedule at the time of distribution. (Paras 1-4) B) Criminal Law - Abetment and Bribery - Section 165A Indian Penal Code, 1860 - Section 165A IPC is a distinct offence and not merely a restatement of abetment under Section 116 IPC; it includes abetment under Section 109 and provides enhanced penalty. Therefore, the specification in the Schedule of abetment of offences under Sections 161, 162, 163 and 165 IPC could not be deemed to include Section 165A. Held that the case distributed under Sections 161/116 could not be expanded to try the distinct offence under Section 165A. (Paras 3-5) C) Criminal Procedure - Jurisdiction - Curing of Irregularities - Code of Criminal Procedure, 1898, s.529(e) - Section 529(e) of the Code applies to Magistrates and cures irregularities of taking cognizance, but does not cure a fundamental lack of jurisdiction of a Special Judge. A Special Judge's jurisdiction arises not from taking cognizance under Section 190 of the Code but from distribution of a case involving scheduled offences by the State Government through a proper notification. Held that the defect of jurisdiction in the present case was not curable under Section 529(e). (Paras 6-8)
Issue of Consideration
Whether the Special Judge had jurisdiction to try and convict the appellant for offence under Section 165A Indian Penal Code when the case was distributed under Sections 161/116 IPC which was non-existent; whether Section 165A IPC is distinct from abetment under Section 116 read with Section 161; whether defect of jurisdiction could be cured under Section 529(e) of the Code of Criminal Procedure, 1898
Final Decision
Appeal allowed; conviction and sentence of the appellant under Section 165A Indian Penal Code set aside; the Special Judge lacked jurisdiction to try the case as distributed, and the defect was not curable under Section 529(e) CrPC.
Law Points
- Legal points not extracted
- Special Judge under West Bengal Criminal Law Amendment (Special Courts) Act
- 1949 has jurisdiction only over offences specified in Schedule and distributed by notification
- Section 165A IPC is distinct offence
- not covered by abetment entry
- defect of jurisdiction of Special Judge not curable by Section 529(e) CrPC
