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Gopal v. State
Judgment Summary
Factual and Procedural Background
This application challenged two orders: (1) an order of the Special Magistrate dated 11 September 1952 forwarding the case to the Special Judge under the provisions of the Criminal Law Amendment Act, 1952 (Act XLVI of 1952), and (2) an order of the Special Judge dated 7 April 1953 summoning witnesses who had been examined before the Special Magistrate and deciding to try the case independently of the prior evidence.
The petitioner's counsel, identified in the text as Mr. Baldeva Sahay (also referred to once as "Mr. Baldeva Sabay"), did not challenge the validity of the Act. He advanced two principal grievances: first, that properly construed section 10 of the Criminal Law Amendment Act, 1952 did not entitle the Special Magistrate to forward the case to the Special Judge; and second, that if the case was properly before the Special Judge, the Special Judge should have acted on the evidence already recorded by the Special Magistrate rather than resummoning witnesses and conducting a de novo trial.
Relevant chronological facts stated in the opinion: the first information report was dated 26 August 1949; the chargesheet was submitted on 13 August 1951; cognizance was taken on 28 August 1951. The Criminal Law Amendment Act came into force on 28 July 1952. The opinion records substantial delay in proceedings before the Special Magistrate (example given: only 13 witnesses examined in seven months), and notes the potential hardship to the accused if evidence were required to be given again at the Special Judge's trial.
Legal Issues Presented
- Whether section 10 of the Criminal Law Amendment Act, 1952, being mandatory in language, required the Special Magistrate to forward cases pending before him immediately before the commencement of the Act to the Special Judge (i.e., was the Magistrate's forwarding of the case lawful?).
- Whether the Special Judge was obliged to act upon the evidence already recorded by the Special Magistrate or whether he could, in law and in the exercise of judicial discretion, resummon witnesses and conduct a fresh trial (i.e., was the Special Judge's decision to hold a de novo trial lawful and a proper exercise of discretion?).
- Whether, for purposes of the Code of Criminal Procedure, the court of the Special Judge is to be regarded (or "deemed") as a court of session and, consequently, whether section 350 of the Code of Criminal Procedure applies to permit a succeeding court to act on evidence recorded by a predecessor.
Arguments of the Parties
Petitioner's Arguments (as presented in the opinion)
- The petitioner (through his counsel) did not question the validity of the Criminal Law Amendment Act, 1952, but contended that section 10 was improperly applied: the Special Magistrate should not have forwarded the case to the Special Judge if section 10 were properly construed.
- Even if the case was properly before the Special Judge, the Special Judge should have accepted and acted upon the evidence already recorded by the Special Magistrate instead of resummoning witnesses and conducting a fresh trial. Resummoning would inflict further harassment and hardship on the accused given the extensive evidence already recorded and the long period the matter had been pending.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| A. Vaidyanatha Iyer (Madras High Court decision) | The Madras High Court took the view that although subsection (3) of section 8 of the Act says the court of the Special Judge "shall be deemed to be a Court of Session", in fact it is not a Court of Session; therefore, procedure for trial of warrant cases (section 350 of the Code) would apply and there is no provision for the public prosecutor to ask the Court to recall and re-examine witnesses already examined. | The court in the present opinion respectfully disagreed with that view (the Chief Justice expressed inability to accept the Madras view) but observed it was not strictly necessary to decide the point finally for the present case. The court treated the Madras decision as a contrary view and analysed both possible legal consequences arising from either characterization (Special Judge as session court or as Magistrate). |
| Ramchandra v. King Emperor | Authority for the proposition that section 350 of the Code of Criminal Procedure applies only to Magistrates and not to Sessions Judges; a Sessions Judge is not competent to pronounce judgment on evidence recorded by his predecessor (or partly by predecessor and partly by himself). | The court relied on this authority to support the position that if the Special Judge is to be treated, for purposes of the Code, as a court of session, then he could not lawfully act upon evidence already recorded by the Special Magistrate, thus supporting the validity of the Special Judge's decision to resummon witnesses. |
Court's Reasoning and Analysis
The court's analysis proceeded in a structured sequence, confined to the statutory text and the specific circumstances described:
- Mandatory nature of section 10: The court observed that section 10 plainly requires that "all 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 language is mandatory and unambiguous. Because some offences alleged against the petitioner fell within the Act, and the case was pending immediately before commencement, the Special Magistrate was compelled to forward the case. There was no requirement to hear the parties prior to forwarding because the provision is mandatory.
- Characterization of the Special Judge's court for procedural law: The court examined clause (3) of section 8 and section 9 of the Act, which provide that the provisions of the Code of Criminal Procedure, so far as not inconsistent, apply to proceedings before a Special Judge and that for such purposes the court of the Special Judge shall be deemed to be a court of session trying cases without a jury. On that statutory language the Chief Justice considered the Special Judge's court to be, for purposes of the Code, a court of session.
-
Two possible consequences and related authorities: The court analyzed alternative positions:
- If the Special Judge is to be treated as a court of session for Code purposes, then section 350 CrPC (which applies only to Magistrates) would not apply; the court cited Ramchandra v. King Emperor to show that sessions judges cannot pronounce judgment on evidence recorded by predecessors, supporting the Special Judge's rejection of prior evidence and resummoning witnesses.
- If, conversely, the Special Judge is to be regarded as a Magistrate (the view taken by the Madras High Court in A. Vaidyanatha Iyer), then section 350 would be applicable; but section 350(1) itself authorizes a succeeding Magistrate to resummon witnesses and re-commence the enquiry or trial. Thus, even under that approach, a succeeding Magistrate has discretion to resummon witnesses and start afresh.
- Discretion and its exercise: The court emphasized that where a statutory provision gives a discretion (as section 350(1) does), the appellate or revisional court will not interfere unless the discretion is exercised in a wholly wrong, arbitrary, capricious, or improper manner. Applying that standard to the present circumstances (extensive oral and documentary evidence and potentially complicated questions of fact), the court concluded that the Special Judge's decision to resummon witnesses was within the scope of lawful discretion and could not be said to be a wrong exercise of jurisdiction.
- Observations about delay and expedition: Although upholding the orders, the Chief Justice expressly lamented the delay that had occurred (matter pending since August 1951), warned of hardship to the accused, and directed the Special Judge to take every step to expedite disposal of the case and to avoid unnecessary adjournments. These directions were presented as exhortations rather than fettering discretion.
- Concurrence (Das, J.): Das, J. agreed, adding that subsection (3) of section 8 is clear in deeming the court of the Special Judge to be a court of session for the purposes of the Code; thus, section 350 would not apply. He also noted that, even if treated as succession from one Magistrate to another, the jurisdiction exercised by the Special Judge to try the case was of a different kind than that of the Magistrate who had only jurisdiction to inquire; section 350 contemplates succession in respect of the same kind of jurisdiction. Finally, Das, J. observed that section 350(1) vests a discretion, which was not exercised improperly here.
Holding and Implications
Holding: The application was dismissed and the rule was discharged. (The court found no illegality in the Special Magistrate forwarding the case under section 10, nor in the Special Judge's decision to resummon witnesses and try the case de novo.)
Implications for the parties and procedure:
- The Special Magistrate's forwarding of the case pursuant to section 10 of the Criminal Law Amendment Act, 1952, was held to be obligatory and lawful.
- The Special Judge's decision to resummon witnesses and hold an independent trial was held to be within his legal powers—either because the Special Judge is to be treated as a court of session (in which event section 350 CrPC would not apply), or, if treated as a Magistrate, because section 350(1) itself permits a succeeding Magistrate to resummon witnesses and re-commence inquiry or trial and confers a discretion which was not exercised improperly here.
- The court emphasized the necessity of expeditious disposal of the case and directed the Special Judge to take steps to minimize delay (try the case as far as possible from day to day and avoid unnecessary adjournments), while noting that these observations do not fetter judicial discretion.
- No express declaration was made that the opinion established a new binding precedent beyond the statutory interpretation undertaken; the decision resolved the application before the court and upheld the impugned orders in that context.
Disposition in the original text: "In the net result, there is no alternative for this Court but to dismiss this application." Followed by the formal statement: "Rule discharged."
Imam, C.J:— This is an application against an order passed by a Special Magistrate on the 11th of September, 1952, whereby he forwarded the case before him to the Special Judge under the provisions of the Criminal Law Amendment Act, 1952 (Act XLVI of 1952). The application is also made against an order of the Special Judge, dated the 7th of April, 1953, whereby he summoned witnesses to attend his court who had been examined before the Special Magistrate. The Special Judge had decided to try the case independent of the fact that some witnesses had already been examined by the Special Magistrate.
It may be stated forthwith that the validity of the Criminal Law Amendment Act, 1952, has not been questioned by Mr. Baldeva Sahay, who has appeared for the petitioner. Mr. Baldeva Sabay's grievance may be stated to be as two in number. His first grievance was that if section 10 of the Criminal Law Amendment Act be construed properly, the Special Magistrate wrongly forwarded the case before him to the Special Judge for trial. His second grievance was that even if the case was properly before the Special Judge, the Special Judge acted wrongly in deciding to hold a de novo trial; he should have acceded to the request of the accused that if he was going to try the case he should act upon the evidence already recorded by the Special Magistrate. The majority of the witnesses for the prosecution had been already examined and a large number of documents had been exhibited and the proceedings before the Special Magistrate had taken considerable time. In such circumstances to start the evidence all over again was to inflict further harassment upon the accused, the accused having suffered grievously while the proceedings were before the Special Magistrate.
It appears that the case of the petitioner was started on a first information report dated the 26th of August, 1949. The matter was under police investigation, it seems, until the, chargesheet was submitted on the 13th of August, 1951. Cognizance was taken by the Magistrate on the 28th of August, 1951. The Criminal Law Amendment Act of 1952 came into force on the 28th of July, 1952. If the case against the accused had been proceeded with diligently without undue delay, in all probability it would have concluded before the Criminal Law Amendment Act, 1952, came into force. For some reason or the other the case proceeded before the Special Magistrate in a leisurely fashion. I have been informed that at one stage only 13 witnesses were examined in seven months. There can be, therefore, no question that there will be hardship upon the accused if at the trial in the court of the Special Judge his trial is prolonged by the court having to re-examine all the witnesses who had already given evidence before the Special Magistrate. Hardship, however, is one thing; to observe the law and to give effect to statutory provisions is another, and it is the bounden duty of a court to carry out the provisions of the law in spite of full knowledge that the enforcement of the law may result in hardship to an accused person. It remains, therefore, to be seen as to whether the orders complained against were invalid in the eye of the law.
section 10 of the Criminal Law Amendment Act, 1952, reads as follows:
“All 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.”
There can be no question that this provision is mandatory and there is no ambiguity in its language. Cases which a Special Judge can try under section 7 are enumerated in section 6 of the Act. There is no question that some of the offences alleged against the petitioner are covered by the provisions of Section 8 of the Criminal Law Amendment Act. The case before the Magistrate against the petitioner was undoubtedly pending immediately before the commencement of the Act and, therefore, on the commencement of the Act had to be forwarded for trial to the Special Judge having jurisdiction over the case. To my mind it makes no difference whether the case against the petitioner immediately before the commencement of the Act was in the stage of enquiry before a Magistrate or whether it was by way of trial. It was a case in either circumstance pending before a Magistrate immediately before the commencement of the Act. It seems to me, therefore, that there was no alternative for the Special Magistrate in this case but to forward the case of the petitioner to the Special Judge. It was said that the order passed by the Special Magistrate was made behind the back of the petitioner without him having been heard. In my opinion when the provisions of section 10 of the Act are mandatory there is no question of hearing any party in the matter. The Magistrate was compelled to send on the case to the Special Judge.
So far as the Special Judge deciding to try the case by resummoning all the witnesses who were examined before the Special Magistrate is concerned, it will have to be seen as to whether he could do otherwise, and that, even if he could do otherwise, then, as to whether he had exercised his discretion wrongly. Section 8 of the Criminal Law Amendment Act provides for the procedure to be adopted by Special Judges. Clause (1) of this section authorises a Special Judge to take cognizance of offences without the accused being committed to him for trial, and that at the trial of an accused person he shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by Magistrates.
Clause (3) of this section reads as follows:—
“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 purposes 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.”
Section 9 of the Act reads as follows:—
“The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act V of 1898) on a High Court as if the court of the special judge were a court of session trying cases without a jury within the local limits of the jurisdiction of the High Court.”
As I read the provisions of clause (3) of section 8 and the provisions of section 9 of the Act, I am satisfied that for the purposes of the Code of Criminal Procedure the court of the Special Judge is to be regarded as a court of session. There is no ambiguity in my mind so far as this is concerned having regard to the language of clause (3) of section 8 and section 9 of the Act. In the case of A. Vaidyanatha Iyer their Lordships of the Madras High Court had the occasion to consider the provisions of clause (3) of section 8 of the Act and they expressed their opinion as follows:—
“We are definitely of opinion that when sub-section (3) of section 8 of the Act says that the Court of the Special Judge shall be deemed to be a Court of Session, it certainly is not in fact a Court of Session. The Court is that of a Special Judge whose procedure in the trial of such cases shall be the procedure prescribed by the Criminal Procedure Code for the trial of warrant cases in which case section 350 of the Code is definitely applicable. If that is so, there is no provision by which the public prosecutor can ask the Court to recall and re-examine the witnesses already examined.”
With great respect to the learned Judges, as at present advised I cannot accept the view expressed by them. It is, however, not altogether necessary in the present case to give a definite decision on the point. Assuming for a moment that the view which I have ventured to express is correct, then for the purposes of the provisions of the Code of Criminal Procedure the court of a Special Judge must be regarded as a court of session. Then in that case no question arises of such a court acting upon evidence recorded by some other court. In the case of Ramchandra v. King Emperor it has been definitely pointed out that section 350 of the Code of Criminal Procedure applies only to Magistrates and not to Sessions Judges, and that a Sessions Judge is not competent to pronounce judgment on evidence recorded by his predecessor, or on evidence partly recorded by his predecessor and partly by himself. If the Special Judge in the present case is a court of session, then it seems to me that the Special Judge could not in law act upon evidence already recorded by the Special Magistrate. On the other hand, if it is assumed that the view taken by their Lordships of the Madras High Court is correct, then one must proceed on the assumption that the Special Judge is a Magistrate and that the provisions of section 350 of the Code of Criminal Procedure would be applicable. Even so, section 350, clause (1), does authorise a succeeding Magistrate, to resummon the witnesses and to re-commence the enquiry or trial held by his predecessor. In the present case the Special Judge decided to resummon the witnesses and to hold his trial independent of any evidence recorded by the Special Magistrate. It was within his discretion, if he is to be treated as a Magistrate, to do so, and unless this Court was satisfied that it was a wholly wrong exercise of his jurisdiction, this Court cannot, in my opinion, interfere with his discretion in the exercise of revisional jurisdiction. It seems to me that in the present case where there is such extensive evidence, oral and documentary, and where questions of fact may be extremely complicated for the purposes of decision, it cannot be said that the Special Judge exercised his discretion wrongly in deciding to examine anew all the witnesses who were examined by the Special Magistrate.
In the net result, there is no alternative for this Court but to dismiss this application. Before, however, I close my judgment I would like to point out to the Special Judge the absolute need for a quick disposal of the present case. The case has been pending in a court of law since August, 1951, and there has been enormous expenditure of time and money already. Further delay in the disposal of this case would be quite unjustified. The Special Judge will, therefore, take every step to expedite the hearing of this case and as far as possible to try the case without interruption and from day to day. Sometimes it may be difficult for the Special Judge to try the case from day to day, but he should devote as much time as he can towards this case. One of the causes for delay in the disposal of a case is the number of adjournments that are granted. The Special Judge will bear in mind this aspect of the matter as well. In making these observations I have no wish in the least to fetter his discretion. My observations are merely to emphasise the great need for expedition in the present case.
Das, J.:— I agree entirely with my Lord the Chief Justice and I need only add that I entertain the same doubt as has been expressed by my Lord the Chief Justice with regard to the decision of the Madras High Court in the case of A. Vaidyanatha Iyer. It seems to me that sub-section (3) of Section 8 of the Criminal Law Amendment Act, 1952, is quite clear. It states that for the purposes of the provisions of the Code of Criminal Procedure 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. If the court of the Special Judge shall be deemed to be a court of session for the purposes of the provisions of the Code of Criminal Procedure, I do not see how section 350 can apply. Section 350 in express terms applies only to the court of a Magistrate and not to the court of session. Even if the expression “shall be deemed to be” creates what is called a statutory fiction, the fiction has to be accepted because the law itself creates a fiction.
Moreover, even if the court of the Special Judge is to be treated as the court of a Magistrate, I doubt if section 350, Code of Criminal Procedure, is of any help. In the case before us the Magistrate who had seisin of the case, before it was forwarded to the Special Judge had jurisdiction only to enquire into the case; he had no jurisdiction to try the case. He is succeeded by a Special Judge, assuming that it is a case of succession, who can try the case. I do not think the jurisdiction exercised by the latter is of the same kind as the jurisdiction exercised by the former. section 350, Code of Criminal Procedure, so far as I can make out, talks of the succeeding Magistrate exercising the same kind of jurisdiction as was exercised by the former Magistrate.
Furthermore, as has been pointed out by my Lord the Chief Justice, sub-section (1) of section 350 of the Code of Criminal Procedure itself gives a discretion to the succeeding Magistrate, and this is not a case in which it can be said that the discretion has been exercised improperly or arbitrarily or capriciously.
S.H
Rule discharged.
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