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State Of Mysore v. Kashambi And Another Accused
Structured Summary of the Opinion (Hegde, J.)
Factual and Procedural Background
This is a reference under Section 438 Cr. P.C. made by the learned Judicial Magistrate, First Class, Saundatti, asking this Court to decide whether the Government of Mysore Notification (Order No. H.D 24 C.I.P 48 dated 18-12-1958) is valid. The learned trial Magistrate considered the Notification invalid in law.
Material facts: Two accused (Kashambi and Mohadinbi) were prosecuted under Section 8(a) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (the “Act”) in Criminal Cases Nos. 337 and 339 of 1961 before the Judicial Magistrate, First Class, Saundatti. When the cases were taken up for trial, learned counsel for the accused contended that the learned Magistrate had no jurisdiction to try the cases. After hearing arguments on that point, the learned Magistrate made the reference to this Court.
The Notification in question declared that, in exercise of clause (c) of Section 2 of the Act, the Government of Mysore “hereby specially empowers all the First Class Magistrates in the State, to exercise jurisdiction under the said Act.” The trial Magistrate treated that Notification as a general conferment (and therefore not a “special” empowerment as required by Section 2(c)), and doubted its validity.
Legal Issues Presented
- Whether the Notification of the Government of Mysore (Order No. H.D 24 C.I.P 48 dated 18-12-1958) validly "specially empowers" First Class Magistrates under Section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956.
- Whether the learned Judicial Magistrate, First Class, Saundatti has jurisdiction to try the prosecutions under Section 8(a) of the Act in Criminal Cases Nos. 337 and 339 of 1961, in light of that Notification.
Arguments of the Parties
Accused's Arguments (as recorded)
- Learned counsel for the accused contended that the learned Magistrate had no jurisdiction to try the cases under the Act.
Learned Magistrate's View (as recorded)
- The learned trial Magistrate concluded that the Notification did not “specially empower” any First Class Magistrate but rather conferred power on all First Class Magistrates as a class. He treated such a general conferment as inconsistent with the requirement of “specially empowered” in Section 2(c), and therefore held the Notification invalid.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mahomad Kasim v. Emperor, AIR 1915 Mad 1159 | Interpreted the meaning of “specially empowering” in relation to a definition of “Magistrate” in Section 3 of the Opium Act; relied on Section 39 Cr. P.C to hold that empowering a class is "general" and not "special". | The Court discussed this decision at length but rejected the Madras High Court's interpretation of Section 39 Cr. P.C for the purposes of the present Act, observing the definitions at issue were not identical and expressing disagreement with the interpretation that “specially” cannot apply to a class. The decision influenced the trial Magistrate but was not followed. |
| Alaga Pillai v. Emperor, AIR 1924 Mad 256 | Considered a Notification empowering some Second Class Magistrates by virtue of their offices to try Opium Act cases; held the listed Second Class Magistrate was specially empowered. | The Court noted this decision is of no assistance to the present case because of differing statutory language; the judgment is recorded but not applied to change the outcome here. |
| Sundar Lal v. Emperor, AIR 1933 All 676 | Questioned jurisdiction where Government had authorised all First Class Magistrates to take action under a provision; contention that such general empowerment could not be "special". | The Court recorded that Kendall, J. rejected the contention (without reasons provided in that report). The decision was considered but did not control the Court's reasoning. |
| State v. Judhabir Chetri, AIR 1953 Assam 35 | Full Bench held valid a Notification empowering all Magistrates of the First Class in Assam to exercise power under Section 17 of the Assam Opium Prohibition Act of 1947; contrasted with Madras view. | The Court observed this Full Bench decision upheld a class-wide empowerment and noted it differed from Mahomad Kasim. The present Court said this decision does not conflict with its view and recorded a partial disagreement with one aspect of the Assam judgment. |
| Polubha Vajubha v. Tapu Ruda, AIR 1956 Sau 73 | Held that Section 39 indicates special empowering applies to individuals and that empowering a class is general; concluded Taluka Magistrates were not "specially empowered" and orders were without jurisdiction (followed Mahomad Kasim). | The Court discussed and partly disagreed with this decision. It rejected the restrictive reading of Section 39 that precluded conferring powers on a class of Magistrates. |
Court's Reasoning and Analysis
The Court's analysis proceeds from the statutory text and the scheme of the Criminal Procedure Code (Cr. P.C.) as follows:
- Textual interpretation of Section 2(c) of the Act: The Court emphasised that Section 2(c) defines “Magistrate” to include “a Magistrate of the First Class specially empowered by the State Government by notification ... to exercise jurisdiction under this Act.” The Court held the word “specially” is adjectival to the verb “empowered” (i.e., it qualifies the manner of empowering) and not to the noun “Magistrate”. It reads “specially” as meaning “specifically” or “for a particular purpose.”
- Context from the Cr. P.C.: The Court examined Sections 36, 37 and 39 Cr. P.C.:
- Section 36 describes ordinary powers of various Magistrates (district, sub-divisional, first/second/third class).
- Section 37 allows additional powers to be conferred (from the Fourth Schedule) by the State Government or District Magistrate.
- Section 39 prescribes modes of conferring additional powers — it permits empowering persons by name, by virtue of their office, or empowering classes of officials by their official titles.
- Meaning of “specially” and “generally”: The Court reasoned that within Section 39 the word “specially” means “specifically” (i.e., a specific conferment on named individuals or offices) and “generally” refers to conferment on a whole class. The Court emphasized that both are modes of conferment provided by the statute; neither mode is excluded.
- Evaluation of precedents: The Court reviewed earlier decisions (Madras, Saurashtra, Assam, etc.). It found the Madras interpretation that precluded class-wide “special” empowerment unpersuasive in the present statutory context. The Court agreed with aspects of some decisions (e.g., the Saurashtra Judge's textual reading) but expressly disagreed with the conclusion that a class of Magistrates cannot be conferred additional powers under Section 39. It noted the Assam Full Bench decision upholding a class-wide Notification as valid and stated that Section 39 gives wide discretion to State Governments.
- Conclusion from statutory structure and precedents: Interpreting Section 2(c) with the aid of Sections 36–39 Cr. P.C., and taking into account the modes of conferment in Section 39, the Court concluded that empowering all First Class Magistrates by notification falls within the statutory modes and discretion. Consequently, the Government of Mysore's Notification was validly made and the Magistrate has jurisdiction to try the cases under the Act.
Holding and Implications
Holding: The Court held that the Notification (Order No. H.D 24 C.I.P 48 dated 18-12-1958) was validly made and therefore the learned Magistrate has jurisdiction to try the cases in question.
Implications:
- Direct effect on the parties: The papers are to be returned to the learned Magistrate for disposal of the cases according to law; the reference is answered.
- Broader implications: The opinion explains and applies the meaning of “specially empowered” in Section 2(c) of the Act in the context of the Cr. P.C.'s provisions (Sections 36–39). The judgment endorses the proposition that a State Government may, within the modes provided by Section 39 Cr. P.C., confer powers on a class of Magistrates. The opinion does not state that it is laying down any further or distinct precedent beyond the analysis and conclusions recorded in the judgment.
Other Notable Procedural and Formal Points
The Court recorded appreciation for assistance rendered by Sri G. Shankara Chetty (learned Additional Asst. Advocate-General) and Sri T. Radhakrishna (appearing as amicus curiae). The Court directed that the papers be returned to the trial Magistrate and expressly recorded "Reference answered."
Hegde, J.:— This is a reference under Section 438 Cr. P.C, made by the learned Judicial Magistrate, First Class, Saundatti, requesting this Court to decide whether the Notification issued by the Government of Mysore under its Order No. H.D 24 C.I.P 48 dated 18-12-1958 is valid or not. The learned trial Magistrate is of the opinion that the said Notification is not valid in law.
2. The facts material for the purpose of deciding the reference in question are as follows: One Kashambi and another Mohadinbi were prosecuted under Section 8(a) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, which will be hereinafter referred to as the “Act” in Criminal Cases Nos. 337 and 339 of 1961 on the file of the learned Judicial Magistrate First Class, Saundatti. When those cases were taken up for trial, the learned Counsel for the accused contended that the learned Magistrate had no jurisdiction to try the cases in question. After hearing arguments on that point, the learned Magistrate has made the above reference. The Magistrates who can try cases arising under the “Act” are mentioned in Section 2(c) of the “Act”, which says:
“‘Magistrate’ means a District Magistrate, a Sub Divisional Magistrate, a Presidency Magistrate, or a Magistrate of the First Class specially empowered by the State Government fey notification in the official gazette, to exercise jurisdiction under this Act.”
3. In view of this provision all District Magistrates, Sub Divisional Magistrates and Presidency Magistrates are competent to try cases arising under the “Act” without any further conferment of power. But so far as the other First Class Magistrates are concerned, they can try cases under the “Act” only if they are “specially empowered”. Then there is Section 22 which says that no Court inferior to that of a Magistrate as defined in clause (c) of Section 2 shall try any offence under Sections 3 to 8. The Government of Mysore, acting under Section 2(c) of the “Act” has notified in the Official Gazette the Order No. H.D 24 C.I.P 48 dated 18-12-1958 which reads:
“In the exercise of the powers conferred by clause (c) of Section 2 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Central Act 104 of 1956) the Government of Mysore hereby specially empowers all the First Class Magistrates in the State, to exercise jurisdiction under the said Act.”
4. It was contended before the learned trial Magistrate, which contention has found favour with him, that the Notification in question did not “specially empower” any First Class Magistrate to try cases under the “Act” but it has conferred power to try cases under the “Act” on all first Class Magistrates, which amounts to a general conferment of power as opposed to special conferment of power as required by Section 2(c). It was contended that the order of the Government results in enlarging the scope of Section 2(c) and therefore the same is beyond the competence of the Government.
5. The language of Section 2(c) of the “Act” does not justify the contention in question. It speaks of “Magistrate of First Class specially empowered”. Herein the word “specially” is an adjective to the verb “empowered” and not to the noun “Magistrate”. The word “specially” therein means “specifically” or “for a particular purpose” as explained at page 822 of Corpus Juris.
6. The view taken by the learned Magistrate was largely influenced by the decision of the Madras High Court in Mahomad Kasim v. Emperor, AIR 1915 Mad 1159 wherein the scope of Section 3 of the Opium Act came up for consideration. For interpreting the scope of Section 3 of the Opium Act, the learned Judges of the Madras High Court took the aid of Section 39 Cr. P.C As regards the true scope of Section 39 Cr. P.C there is sharp conflict of judicial opinion.
7. At the very outset, it is necessary to mention that the conferment of power under Section 2(c) of the “Act” is not made by having recourse to S. 39 Cr. P.C.S 39 Cr. P.C deal with conferment of additional powers under the Cr. P.C and these powers are set out in sch. IV of that Code. In order to understand the true scope of S. 39, one has to bear in mind the other provisions found in Chapter III which deals with powers of Courts. Section 36 of the Code says that “all District Magistrates, Sub-Divisional Magistrates and Magistrates of the first, second and third classes, have the powers hereinafter respectively conferred upon them and specified in the third schedule; such powers are called their “ordinary powers”. Section 37 deals with additional powers conferrable on Magistrates and that provision says that “in addition to his ordinary powers, any Sub-Divisional Magistrate or any Magistrate of the first, second or third class may be invested by the State Government or the District Magistrate, as the case may be, with any powers specified in the fourth schedule as powers with which he may be invested by the State Government or the District Magistrate.”
8. Then comes Section 39 which prescribes the mode of conferring powers. That provision prescribes three ways by which additional powers can be conferred on the Magistrates. They are: (i) empower persons (obviously referring to Magistrates as Chapter III deals with powers of Courts, Sections 36, 37 and 38 deal with powers of Magistrates and Section 39 is a corollary to Section 37) by name; (ii) empower them by virtue of their office; and (iii) empower classes of officials generally by their official titles. In other words, the section says that whenever additional powers are to be conferred, it is for the State Government to decide whether they should empower a class or classes of Magistrates generally or one or more Magistrates specially or one or more Magistrates by virtue of their office. In other words, wide power is given to the State Governments to confer additional powers on the Magistrates, under the Criminal Procedure Code. The word “specially” in Section 39 Cr. P.C means “specifically” and “generally” means to a whole class. To put it differently the State Government can confer additional powers either specifically on some Magistrates by name or specifically on some Magistrates presiding over some Courts or generally to a class or classes of Magistrates. In whatever manner the State may confer powers, there would be no difference in the contents of the powers conferred. To my mind the word “specially” does not convey the idea of picking and choosing of the Magistrates and whether additional powers should be conferred on some or all depend on the exigencies of the situation and not on any other test, as Section 39 speaks of empowering powers on Magistrates by virtue of their office and of empowering powers on a class or classes of Magistrates.
9. I shall now proceed to consider the several decisions cited at the Bar. The earliest decision to which our attention was invited is that of the Madras High Court in AIR 1915 Mad 1159. Therein a Bench of that High Court consisting of Spencer and Seshagiri Aiyar, JJ., considered the scope of the expression “Magistrate” found in Section 3 of the Opium Act (1 of 1878), which says that “Magistrate” means in the present context “a Presidency Magistrate, a Magistrate of the First Class or when specially empowered by the Local Government to try cases under this Act, a Magistrate of the Second Class”. The question that arose for decision was whether the State Government had power to empower all Second Class Magistrates to try cases under the Opium Act.
10. For finding out the true scope of the definition of “Magistrate” found in the Opium Act, their Lordships took the aid of Section 39 Cr. P.C This is what Spencer, J., observed in that connection:
“Section 39 Cr. P.C throws light on what is meant by specially empowering persons.
It declares that the Local Government may empower classes of officials generally by their official titles or persons specially by name or in virtue of their office. When therefore a class of officials is invested with powers to try certain offences, it would appear that they are “generally” empowered. The word “generally” is in contrast to the word “specially” which is used in speaking of individuals.”
11. The same view was expressed by Seshagiri Aiyar, J. It may be seen that the definition of “Magistrate” found in Section 3 of the Opium Act is not ad idem with the definition of “Magistrate” in Section 2(c) of the “Act”. Therefore, the decision as such is not relevant for our present purpose. But I am unable to agree, for the reasons already mentioned, with the interpretation placed by the learned Judges on the language of Section 39 Cr. P.C
12. The next case to which reference was made at the Bar is Alaga Pillai v. Emperor, AIR 1924 Mad 256. This decision is of no assistance for our present purpose. The Notification which their Lordships considered in that case empowered some Second Class Magistrates by virtue of their offices to try cases under the Opium Act. The Second Class Magistrate of Thirumangalam was mentioned in the list appended to that Notification. The Court held that the Magistrate was specially empowered to try cases under the Opium Act.
13. In Sundar Lal v. Emperor, AIR 1933 All 676, the jurisdiction of the Magistrate concerned to try a case under Section 110 Cr. P.C was questioned on the ground that the Government had authorised all First Class Magistrates to take action under Section no and therefore it could not be said that the First Class Magistrate in question was “specially empowered”. Kendall, J., rejected that contention, though no reasons were given in support of his, conclusion.
14. At this stage it may be mentioned that the expression “specially empowered” is found in several sections of the Criminal Procedure Code, viz., Sections 108, 110, 144, 164 and 260. The practice of conferring powers under these provisions to a class of Magistrates is wide-spread.
15. In State v. Judhabir Chetri, AIR 1953 Assam 35, a Full Bench of the Assam High Court held that the Notification empowering all Magistrates of the First Class in the State of Assam to exercise power under Section 17 of the Assam Opium Prohibition Act of 1947 is a valid Notification. The learned Judges differed from the view taken by the Madras High Court in Mahomed Kasim's case, AIR 1915 Mad 1159. This decision does not conflict with the view taken by me. But I am unable to subscribe to the view expressed by Thadani C.J, that Magistrates are not a “dags of officials” within the meaning of that expression found in Section 39 Cr. P.C
16. The last decision cited before us is the decision of the Saurashtra High Court in Polubha Vajubha v. Tapu Ruda, AIR 1956 Sau 73. Therein a Bench of that High Court held that the language of Section 39 plainly indicates that special empowering can take place only where some individuals are empowered and that where a class of officials is invested with powers, for trying certain offences, the empowering is general. It held that powers conferred by the Notification No. H/Spl/25-2- dated 14-5-53 on all Taluka Magistrates to try cases under Section 145 Cr. P.C does not amount to specially empowering them within the meaning of Section 39 and therefore a Taluka Magistrate is not empowered to hold proceedings under Section 145; hence the order made by him is without jurisdiction. In arriving at that conclusion the learned Judges followed the decision of the Madras High Court in Mahomed Kasim's case, AIR 1915 Mad 1159.
17. Dealing with Section 39 Cr. P.C this is what Shah, C.J, who spoke for the Bench stated:
“The contrast in Section 39 is really between empowering persons on the one hand and empowering classes (of officials) on the other hand, the underlying ideas being that it is Courts which are to be empowered. What the section provides is that where persons (that is to say Magistrates or Judges) are to be empowered the empowering shall be by name or in virtue of their office and this empowering will be special empowering, as against general empowering, which empowering is to be of the whole class of officials (who would also be Magistrates or Judges) by their official titles.”
18. Thus for I am in agreement with the learned Judge.
19. But I am unable to agree with the learned Judge when he says in paragraph 6 of the judgment.
“Agreeing with Mohamad Kasim's case, AIR 1915 Mad 1159, therefore, we hold that the powers conferred by the Notification in the present case on all Taluka Magistrates does not amount to specially empowering them within the meaning of Sec. 39 Cr. P.C and therefore the Taluka Magistrate of Talaja was not empowered to hold proceedings under Section 145 Cr. P.C and that the order made by him was without jurisdiction.”
20. I see no justification for the view that under Section 39 Cr. P.C a class of Magistrate cannot be conferred with additional powers.
21. To repeat myself, when power is conferred on one or some Magistrates only it is a special conferment of power or a specific conferment of power, when it is conferred on a class or classes of Magistrates it is general conferment of power. In either case it is a mode of conferment as the marginal note to Section 39 shows. Section 39 Cr. P.C in my opinion does not limit the power of the State Government. On the other hand it gives a wide discretion to, the State Government.
22. For the reasons mentioned above, I hold that the Notification referred to in the order of reference has been validly made and therefore the learned Magistrate has jurisdiction to try the case in question.
23. Before closing this judgment, it is necessary to place on record our appreciation of the valuable assistance rendered by Sri G. Shankara Chetty the learned Additional Asst. Advocate-General and Sri T. Radhakrishna, who has appeared as amicus curiae in this case.
24. The papers will now go back to the learned Magistrate for disposal of the cases according to law.
KF/I/D.V.C
25. Reference answered.
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