The King vs Mrinal Kanti Chatterjee alias Tuku

Das Gupta, J.—The Appellant has been convicted by the Judge of Special Court established under the West Bengal Special Courts Ordinance, West Bengal Ordinance No. III of 1949, under sec. 307, Indian Penal Code and under sec. 19 (f) read with sec. 19A of the Indian Arms Act. He has been sentenced to rigorous imprisonment for seven years for the offence under sec. 307 of the Indian Penal Code, and to rigorous imprisonment for five years for the offence under the, Arms Act. It was ordered that the two sentences would run concurrently. The prosecution case, briefly stated, was that on the 14th July, 1949, when Pandit Jawaharlal Nehru was addressing a gathering at the Calcutta Maidan, the Appellant who was in the crowd gathered there, fired three shots from a revolver he had with him at Major Moitra, a Police Officer who was on duty there, just after the latter had arrested one person when a section of the crowd became violent. After firing these shots, the Appellant, it is said, tried to escape by mixing with the crowd; but he was chased by a number of mounted Policemen, who had seen him firing, and was overtaken and arrested, before he could go far. From inside the right hand-pocket of his trouser, the Policeman who arrested him, recovered, it is said, a six chambered, 38 bore revolver, which was found to have three live cartridges, and three spent cartridges. After arrest, the Appellant was taken to the Police headquarters on the Maidan, and there on search of his person, a card board box containing six more live cartridges was found in his shirt pocket. Information was lodged at the Hastings Police Station next morning, and after investigation, charge-sheet was sent up under sec. 307, Indian Penal Code, and sec. 19 (f) read with sec. 19F of the Arms Act. On the 20th September, 1949, an order was passed by the Governor of West Bengal, under sec. 5 of the West Bengal Special Courts Ordinance, 1949, that this case shall be tried by the Special Court constituted under sec.3 of the Ordinance. The case was thereafter tried by the Special Court, with the result as mentioned above.

The Appellant pleaded not guilty. His case is that he was an innocent member of the gathering, and was assaulted in course of the trouble that broke out between Bengalees and Non-Bengalees, and that he was caught by the Mounted Police, when they were returning after having charged through the crowd, and that no revolver or cartridges were found on him.

Before proceeding to consider the evidence on the record to see whether it justifies a conclusion that the accused committed the offences complained of, it will be convenient to consider the two questions of law that have been raised by the learned Counsel for the defence. The first is that cognisance was not taken, in accordance with law, of the offences with which the accused was charged. The second is that the West Bengal Special Courts Ordinance, 1949, is invalid, being ultra vires.

On the first point, it is argued that the consequence of sec. 17 of the Ordinance is that the provisions in sec. 190 (1), Criminal Procedure Code, as regards the taking cognisance of cases apply in this case, but no cognisance was taken of the offences in this case under sec. 190 (1) of the Criminal Procedure Code. There is, in my opinion, no substance in this contention. Sec. 190 (1) of the Criminal Procedure Code provides for cognisance being taken by Magistrates. Sec. 193 provides that a Court of Sessions cannot take cognisance of cases without commitment by a Magistrate. In cases which are tried by a Sessions Court, it is, therefore, necessary, first that the Magistrate should take cognisance under sec. 190 (1) of the Criminal Procedure Code, for otherwise, the Magistrate cannot hold an enquiry under the chapter, and cannot commit, and secondly, that the Sessions Judge takes cognisance on the commitment by the Magistrate.

Sec. 6 of the Ordinance provides that a Court constituted under the Ordinance, may take cognisance of offences without the accused being; committed to sessions for trial. Sec.193 of the Criminal Procedure Code does not, therefore, apply to trials under the Ordinance. As no commitment is necessary, it is not necessary that any Magistrate should take cognisance of the offence under sec. 190 (1), Cr. P.C. Consequently, the fact that no Magistrate took cognisance of the offences tried in this case, does not make the cognisance taken under sec. 6 of the Ordinance illegal.

On the second point it is argued that sec. 3 of the Ordinance is legislation on jurisdiction of Courts, not only with regard to offences in connection with matters in the Provincial list, but also with regard to offences in connection with matters in the Federal List. This is clearly so. An offence under the Arms Act is a matter in Item 29 of the Federal List. Sec. 5 of the Ordinance is clearly intended to give jurisdiction to a Special Court to try offences under the Arms Act; and in fact, in this very case, the Special Court tried the Appellant for offence under the Arms Act as well. It is contended by Mr. Gupta that legislation in a matter of jurisdiction of Courts with respect to matters in the Federal List, was legislation under Item 53 of the Federal List, and so beyond the power of the Provincial Legislature, and Consequently of the Governor.

The matter of jurisdiction of Courts appears under three items in the Legislative lists:--

(a) Item 53 of the Federal list.

(b) Item 2 of the Provincial list, which is in the Provincial List.

(c) Item 15 of the Concurrent List.

A consideration of these lists makes it clear that the Provincial Legislature or the Governor has no power in law to legislate in the matter of jurisdiction with respect to any matter in the Federal List, e.g., the Arms Act. Consequently, Mr. Gupta''s contention that the Ordinance is ultra vires, would be unanswerable unless the power to legislate on the matter dealt with in sec. 5 is given under some other items of the legislative lists.

On examination of the concurrent list, we find that Item 2 thereof is in the following words: "Criminal Procedure including all, matters included in the Code of the Criminal Procedure, at the dale of the passing of the Act." In 1935, when the Government of India Act was passed, one of the matters dealt with under the Code of Criminal Procedure was, what Courts would try what offences.

The legislation in sec. 5 of the Ordinance is thus clearly legislation on Criminal Procedure, on a matter included in the Code of the Criminal Procedure, at the date of the passing of the Government of India Act, and is thus legislation under Item 2 of the Concurrent List. The fact that this matter falls also under Item 53 of the Federal list cannot alter the fact that the Provincial legislature, and consequently, the Governor, has power to make this legislation under Item 2 of the Concurrent List. The contention that the Ordinance is ultra vires must, therefore, fail.

[His Lordship then discussed the evidence led in the case and concluded as follows:--]

After careful consideration of the entire evidence, I am of opinion that the evidence that this Appellant was caught by Mounted Policemen after a chase, and was found to have in his possession a six-chambered revolver--with three spent bullets and three unspent bullets, should be believed.

My further conclusion on the evidence is that it was this Appellant who fired three shots from a revolver at Major Moitra and his party of policemen.

It is absolutely clear that by this act, the Appellant committed an offence under sec. 307 of the Indian Penal Code.

Mr. Gupta has argued that assuming that the Appellant did fire, the fact that no person was actually his justifies the conclusion that he did not intend to cause death, but merely wanted to scare away certain people. This in my judgment is an absurd argument. When the accused fired three shots with a revolver, it is clear as day that he intended to cause death; at least he had knowledge that his act was so imminently dangerous that it would in all probability cause death. If, death had resulted from the firing, his act would have been murder under the first or the fourth clause of sec. 300, Indian Penal Code.

He is, therefore, clearly, guilty under sec. 307, Indian Penal Code. That the possession of the revolver was without licence, has also been proved. The revolver, which has been identified to be the revolver found in his possession is 38 bore revolver, and P. W. 3, the Arms Expert attached to the Calcutta Police, has given evidence that no license for 38 bore revolvers are issued to anybody except the military and the police. I find, therefore, that the accused has been rightly convicted under sec. 19 (f) read with sec. 19A of the Arms Act.

The sentences passed on the Appellant are not in my opinion too severe. I would, therefore, dismiss the appeal.

Lahiri, J.

I agree.