Sudhindra Kumar Bose vs The State

Das Gupta, J.—On March 2, 1950, a petition of complaint was filed in the court of the Sub-divisional Magistrate, Darjeeling, against the present Petitioner Sudhindra Kumar Bose and one N.R. Ghosh charging them with offences under Sections 120B/409 and Section 409, Indian Penal Code, and Section 5(2) of Act II of 1947. Before this case could be tried by the Subdivisional Magistrate, it was allotted, by an order of the Government of West Bengal, dated March 13, 1950, purporting to act u/s 4(1) of West Bengal Act, XXI of 1949, to the Special Court of the Special Judge at Calcutta constituted u/s 3 of that Act. The Petitioner was tried by this Court under three charges-a charge under Sections 120B/409 of the Indian Penal Code, Section 5(2) of Act II of 1947 and two other charges for offences u/s 409 of the Indian Penal Code and u/s 5(2) of Act II of 1947. The said court convicted the Petitioner u/s 5(2) of Act II of 1947 and also u/s 409 of the Indian Penal Code and sentenced him to a period of imprisonment and a fine. An appeal was preferred to this Court and was admitted for hearing by an order, dated 1954 Apr, 8 August 21, 1951. This appeal remained pending in this Court from that date until it was disposed of by a Bench of this Court by an order, dated April 9, 1952, which runs as follows:

The Appellant in this case was convicted by a Special Judge to whom the case had been allotted u/s 4(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. That section has been held to be ultra vires by Special Bench of this Court and, therefore, the trial was wholly without jurisdiction.

The appeal must, therefore, be allowed. The conviction and sentence are se aside and the Appellant must be regarded as an undertrial prisoner awaiting retria if Government so decides. He will continue on the same bail until such retria.

Thereafter, proceedings were again started against the Petitioner in the Special Court at Alipore, but as that Special Court was superseded, his trial could not be held there. By a notification dated December 22, 1952, the Government of West Bengal thereafter allotted this case to the Special Court of Jalpaiguri Darjeeling and a petition of complaint was filed in that court by the Public Prosecutor, Special Police Establishment, West Bengal, Calcutta, on March 27, 1953. Thereafter the learned Judge presiding over the Special Court ordered issue on summons on the present Petitioner and one N.R. Ghosh under Sections 120B/409 of the Indian Penal Code and Section 5(2) of Act II of 1947 and an offence u/s 409 of the Indian Penal Code and an offence u/s 5(2) of Act II of 1947 for their appearance on May 13, 1953. The Petitioner thereafter obtained this Rule in consequence of which there could be no further progress in the proceedings in the Special Court.

It is contended before us on behalf of the Petitioner that in view of the provisions of Section 12 of Act XXI of 1949, as it stands after amendment by the West Bengal Act XII of 1952, this case is not tradable by the Special Court. Section 12 of Act XXI of 1949 after the amendment of that Act by Act XII of 1952 is in these words:

Nothing in this Act shall apply to any proceedings pending on the date of the commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance, 1952, in any court other than a Special Court.

It is contended by Mr. Dutta on behalf of the Petitioner that on April 9, 1952, which was the date of the commencement of the West Bengal Criminal law Amendment (Special Courts) Amending Ordinance, 1952, the proceedings were pending against the Petitioner in the High Court and consequently, Act XXI of 1949 could have no application to the proceedings. In my judgment, this contention should prevail. As I have already stated, the appeal by the Petitioner against the conviction by the Special Court for the very offences for which the present proceedings have been started, was pending before this Court from August 21, 1951, when the appeal was admitted for hearing till it was disposed by an order of the Court of April 9, 1952. The fact that some time on April 9, 1952, the appeal was disposed of by this Court cannot alter the position that for some time on that date which was the date of commencement of the West Bengal Criminal Law Amendment (Special Courts) Amending Ordinance, 1952, the proceedings against the Petitioner were pending in appeal before this Court. Clearly, this Court is a Court other that the Special Court. The consequence must be that nothing in Act XXI of 1949 could apply to the proceedings that were pending against the Petitioner. On that late, as we have already pointed out, this Court ordered that here should be retrial of the case. The words "if Government ''so decides" do not, in my judgment, raise any doubt on this question. this Court was clearly ordering retrial and the words ''if Government so decides" were obviously used to state a thing which need not have been stated that it was open to Government to withdraw the case. That this Court directed retrial is further dear from the words "he will continue on the same bail until "such retrial".

The position in law, therefore, was that the proceedings against the Petitioner were pending in appeal before this Court on April 9, 1952 the appeal was disposed of on that date and a retrial was ordered. There has not, therefore, been a termination of those proceedings. If consequently, the Special Courts Act does not apply to those proceedings and those proceedings cannot be tried by a Special Court, that position cannot be escaped by filing a fresh petition of complaint. The filing of a fresh petition of complaint will not institute fresh proceedings distinct from the proceedings that were pending in appeal. So long as these proceedings have not been disposed of in accordance with law, fresh proceedings cannot be instituted against the Petitioner.

The result, in my opinion, is that the Special Court Judge, Darjeeling, has no jurisdiction to try the case instituted before him on a complaint on March 27, 1953. I would, accordingly, quash the proceedings in his court and order that the proceedings now pending against the Petitioner in the court of the Sub-divisional Magistrate, Darjeeling, should now be disposed of in accordance with law.

Debabrata Mookerjee, J.

I agree.