Bhajahari Mondal vs The State Of West Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 29 of 1956

Decision Date: 11 September 1958

Coram: J. L. Kapur, Syed Jaffer Imam

In the matter titled Bhajahari Mondal versus the State of West Bengal, the Supreme Court of India delivered its judgment on 11 September 1958. The opinion was authored by Justice J. L. Kapur, and the bench consisted of Justice J. L. Kapur together with Justice Syed Jaffer Imam. The petitioner in the appeal was Bhajahari Mondal and the respondent was the State of West Bengal. The case is reported in the 1959 volume of the All India Reporter at page 8 and also appears in the 1959 Supreme Court Reports at page 1276, with later citations including 1963 SC 765, 1965 SC 706, 1987 SC 1140, and 1988 SC 1531. The legal issues centered on the jurisdiction of special judges appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, particularly section 4(2) of that Act, and on the applicability of provisions of the Criminal Law Amendment Act, 1952 and the Code of Criminal Procedure, 1898. The statutes relevant to the dispute included sections 116, 161 and 165A of the Indian Penal Code, as well as section 529(e) of the Code of Criminal Procedure.

On 6 September 1952, while Bhajahari Mondal was being tried before an Assistant Sessions Judge and a jury, he was caught offering a bribe to one of the jurors. By a notification dated 27 November 1952, the Government of West Bengal, acting under section 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, transferred the case to the Special Judge at Burdwan for trial on the basis of sections 161 and 116 of the Indian Penal Code. The Criminal Law Amendment Act, 1952 had earlier introduced section 165A, creating a new offence of abetment of certain offences, and consequently the earlier offence of abetment covered by section 161 ceased to be punishable under sections 161/116, although it remained listed in the Schedule of the West Bengal Act. The Special Judge received the case records on 23 December 1952 and took cognizance. On 10 February 1954 the judge framed a charge under section 165A of the Indian Penal Code, and on 7 July 1954 the appellant was convicted of that offence and sentenced to six months’ rigorous imprisonment. The appellant appealed to the Calcutta High Court, which dismissed the appeal. Special leave to appeal was subsequently obtained before this Court.

The Court held that the Special Judge lacked jurisdiction to try and convict the appellant for the offence under section 165A of the Indian Penal Code because, at the time the case was assigned to the Special Judge, section 165A was not among the offences enumerated in the Schedule of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. The case that had been distributed concerned an offence under sections 161/116, an offence that, by the date of distribution, no longer existed. The Court explained that the mere inclusion of abetment of offences under sections 161, 162, 163 and 165 in the Schedule does not imply that section 165A is also specified therein; section 165A is a distinct offence and is not simply a restatement of the abetment offence under section 116. Accordingly, the conviction was set aside for lack of jurisdiction.

It also includes abetment under section 109 of the Indian Penal Code and provides for an enhanced penalty for such conduct. The defect of jurisdiction arising from the inclusion of that offence could not be remedied by invoking section 529(e) of the Code of Criminal Procedure. Section 529(e) was intended to apply to magistrates exercising powers under chapter 1277 and therefore does not extend to special judges whose authority derives not from taking cognizance under section 190 of the Code but from the distribution of cases involving offences enumerated in the Schedule by a proper notification of the State Government. The present judgment is rendered under criminal appellate jurisdiction, specifically Criminal Appeal No 29 of 1956, which is an appeal by special leave from the Calcutta High Court. The High Court had dismissed the appellant’s challenge to the order of conviction pronounced by the Special Court of Burdwan for an offence under section 165‑A of the Indian Penal Code, imposing six months’ rigorous imprisonment. The factual background leading to this appeal concerns the trial of Istipada Ghosh and his son before an Assistant Sessions Judge in Burdwan, where a jury of five persons was empaneled. During that trial the appellant approached one of the jurors, Baidya Nath Mukherjee, and offered him an illegal gratification with the intention of securing a verdict favorable to the Ghoshes. On the morning of 6 September 1952 the juror disclosed the bribery attempt to the police, prompting the officer in charge to dispatch a Sub‑Inspector to arrest the appellant should he attempt to deliver the bribe. Shortly thereafter the appellant arrived at the designated spot and handed the juror four ten‑rupee notes amounting to Rs 40; while he was passing the notes, the police officer arrested him. A First Information Report was lodged for an offence under sections 161 and 116 of the Indian Penal Code soon after the arrest. Following investigation, the officer in charge of the Burdwan police station prepared a report that resulted in the case being forwarded to the Special Judge at Burdwan. Consequently, on 27 November 1952 the Government issued notification No 6603J under subsection 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, whereby the Governor, exercising the power conferred by that subsection, directed that the Burdwan Special Court—constituted by notification No 4632J dated 22 August 1952 under section 2 of the same Act—receive the following cases involving offences specified in the Schedule.

The notification issued under the Schedule of the West Bengal Criminal Law Amendment Act listed the case titled ‘The State versus Bhajhari Mondal, son of Bhuson Chandra Mondal.’ The appellant’s address was recorded as Katwa Station Bazar Police Station, Katwa, district Burdwan, and the offence alleged against him was under sections 161 and 116 of the Indian Penal Code. This notification therefore confirmed that the charge framed against the appellant originated from sections 161 and 116 of the Indian Penal Code. The order sheet of the Special Court recorded that the case file identified as State v. B. C. Mondal under those sections was received by the Special Judge on December 23, 1952. The Special Court subsequently took cognizance of the matter, summoned the appellant to appear on January 22, 1953, and the appellant complied with that summons. After several adjournments, the hearing was scheduled for January 29, 1954, and on that date the examination of witnesses commenced. On February 10, 1954, the Special Judge framed a charge against the appellant under section 165A of the Indian Penal Code. The trial concluded on June 7, 1954, resulting in the appellant’s conviction under section 165A and the imposition of six months’ rigorous imprisonment. The appellant appealed this conviction to the High Court of Calcutta, which dismissed the appeal and upheld the conviction. The High Court held that the conviction under section 165A was proper. It also held that the Special Court possessed jurisdiction to try the offence from July 28, 1952, to May 9, 1953, under section 7 of the Central Act (XLVI of 1952). From May 9, 1953, onward, the Court found that jurisdiction derived from the West Bengal Act (W. B. XV of 1953). The High Court further observed that any defect in the taking of cognizance could be cured under section 529(e) of the Criminal Procedure Code. It clarified that the Special Judge had actually taken cognizance under section 165A and not under sections 161 or 116 of the Indian Penal Code. On December 16, 1955, the High Court granted the appellant leave to appeal this decision to the Supreme Court. Counsel for the appellant did not dispute any factual issue but limited his arguments to the question of jurisdiction. He argued that the Special Judge lacked jurisdiction for four distinct reasons, each relating to the applicability of the relevant statutes.

First, he submitted that at the time the Special Judge took cognizance, section 165A of the Indian Penal Code was not listed among offences specified in the Schedule of the West Bengal Act XXI of 1949. He emphasized that the Schedule of the West Bengal Act defined the scope of offences that could be tried by Special Courts, and any omission from that list meant lack of jurisdiction. Second, he contended that the case distributed to the Special Judge was framed under sections 161 and 116, offences that no longer existed in the Indian Penal Code at the relevant time. Accordingly, he submitted that the original charge under sections 161 and 116 could not form the basis for a trial on section 165A. Third, he argued that the Special Judge was exercising jurisdiction under the West Bengal Act XXI of 1949 and not under the Central Act XLVI of 1952. He supported this argument by noting that no Special Judges had been appointed by the State Government pursuant to the Central Act. Consequently, he argued that the jurisdictional ground relied upon by the High Court was inapplicable to the Special Judge in this case. Fourth, he maintained that the appellant could not be tried under the West Bengal Act XV of 1953 because there was no distribution of a case against him under section 165A of that Act. He further submitted that without a proper distribution under the relevant provision, the Special Judge could not lawfully proceed against the appellant. These contentions, presented by counsel, formed the sole basis of the appeal that was now before the Supreme Court for determination of jurisdiction. The principal issue before this Court therefore concerned whether the Special Judge had the authority to try the appellant under section 165A.

In this matter, the Court explained that to resolve the jurisdictional questions it was essential to list the dates when the relevant statutes became law and to describe the provisions contained in each. The Prevention of Corruption Act, identified as Act 11 of 1947, was passed by the Central Legislature on 11 March 1947. Subsequently, the West Bengal Legislature passed the West Bengal Criminal Law Amendment Act of 1949, cited as W. B. XXI of 1949, which obtained the Governor‑General’s assent on 23 June 1949. The preamble of that Act declared that its purpose was to secure faster trials and more effective punishment for certain offences. Section 2 of the West Bengal Act created Special Courts in the State, and section 3 required that each of those courts be presided over by a Special Judge. Section 4 dealt with the allocation of cases to the various Special Judges; it also empowered the Provincial Government to transfer a case from one Special Judge to another and to amend the description of a case, including the name of the accused, the charges framed, or any other detail, whenever such amendment was deemed necessary. Under section 4(1) a Special Judge possessed jurisdiction to try the cases that had been allotted to him, insofar as the charges related to offences listed in the Schedule of the Act and that were preferred against the accused. Any case that was pending before any other court or before another Special Judge was deemed to have been transferred to the Special Judge to whom it was allotted. While trying a case that had been assigned to him, a Special Judge was also permitted to try any offence, whether or not it appeared in the Schedule, if the accused could be charged with that offence in the same trial. Section 5 authorized a Special Judge to take cognizance of a case even when the case had not been committed; the Special Judge was to follow the procedure applicable to warrant cases, and the court of a Special Judge was deemed to be a Session Court trying the matter without a jury. Section 8 amended the rules of evidence in certain respects, and section 9 introduced provisions for enhanced punishment. Through a subsequent provision, the provisions of the Prevention of Corruption Act were made applicable to the Special Courts. The Schedule to the West Bengal Act listed the offences that could be tried by a Special Judge; among them were offences punishable under sections 161, 162, 163 or 165 of the Indian Penal Code, and item 8 covered any conspiracy, attempt or abetment of any of the offences described in items 1 to 7. Later, on 28 July 1952, the Central Legislature enacted the Criminal Law Amendment Act, identified as Act XLVI of 1952. Section 3 of that Act inserted a new offence of abetment, designated as section 165A, with a provision for a higher punishment. Section 165A declared that “whoever abets any offence punishable under section 161 or section 165, whether or not that offence is committed in consequence of the abetment, shall be punished with imprisonment of either description for a term …”.

Section 5 of the Criminal Law Amendment Act stated that the punishment for the offence created by section 165A could be imprisonment for a term that might extend to three years, a fine, or both. Under section 6, the State Government received authority, by way of a notification, to appoint Special Judges for different regions so that those judges could try certain offences. The offences listed included, first, any offence punishable under section 161, section 165 or the newly inserted section 165A of the Indian Penal Code (Act XLV of 1860), as well as subsection (2) of section 5 of the Prevention of Corruption Act (II of 1947). The second category covered any conspiracy to commit, any attempt to commit, or any abetment of any offence specified in the first category. Section 7 then granted exclusive jurisdiction to the Special Judges over those matters. The overall result of these provisions was two‑fold: the Criminal Code was amended to introduce the offence of section 165A, and a scheme was established whereby the State could appoint Special Judges to adjudicate those offences. Subsequently, on 12 August 1952, the Central Legislature enacted the Prevention of Corruption (Second Amendment) Act, 1952 (Act 59 of 1952). Section 3 of that amendment altered the evidential rules concerning presumption and burden of proof by inserting sub‑section 2 into section 4 of the principal Act. It provided that, in any trial for an offence punishable under section 165A of the Indian Penal Code, if it is established that the accused gave, offered, or attempted to give any gratification that is not lawful remuneration, or any valuable thing, such act shall be presumed—unless the contrary is proved—to have been given, offered, or attempted as a motive or reward as described in section 161 of the Indian Penal Code, or to have been made without consideration or for consideration known to be inadequate. On 30 July 1952, the West Bengal Criminal Law Amendment (Special Court Amending) Act, 1952 (West Bengal Act XII of 1952) received presidential assent and became effective. Section 3 of this Act replaced the existing section 2 of the West Bengal Act XXI of 1949, thereby empowering the State Government to constitute Special Courts and to appoint Special Judges to preside over those courts throughout West Bengal. Section 5 of the same Act substituted new provisions for section 4 of the 1949 Act. The new clause (1) declared that, notwithstanding any provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) or any other law, the offences listed in the Schedule could be tried only by Special Courts, though a Special Court, when trying a case, was also permitted to try any other offence not listed in the Schedule with which the accused could be charged under the Code of Criminal Procedure at the same trial. Clause (2) dealt with the allocation of cases involving Schedule offences among the Special Courts, a matter to be determined by the State Government.

The Court explained that the provision requiring the State Government to allocate cases specified in the Schedule to the Special Courts was contained in the West Bengal Amending Act of 1952. The Schedule to the West Bengal Act (West Bengal Act XXI of 1949) was first amended by inserting section 164 of the Indian Penal Code. Subsequently, the West Bengal Criminal Law Amendment (Special Courts) Amending Act, 1953 (Act XV of 1953) received the President’s assent and came into force on 9 May 1953. That amendment added section 165A of the Indian Penal Code to item 1 of the Schedule of the 1949 West Bengal Act. The combined effect of these State enactments and the Central Special Courts Act (Act XLVI of 1952) was to create Special Courts empowered to try offences that were listed in the Schedule of the West Bengal Act and, in the case of the Central legislation, offences enumerated in the body of that Act. The original West Bengal Act XXI of 1949 had provided for the appointment of Special Judges who could try cases involving offences specified in the Schedule, but only after the State Government had allotted those cases to them. Likewise, the Central Act authorised the State Government to appoint Special Judges, and section 7(2) of that Act stipulated that the offences mentioned therein were triable by those Judges. The procedure applicable to the Special Judges was the same as that prescribed for the trial of warrant cases, so the jurisdiction of a Special Judge appointed under the State law arose only when the Government assigned a particular Schedule offence to that Judge. By the West Bengal Amending Act of 1952 (West Bengal Act XII of 1952), the term “Special Judges” was replaced with “Special Courts”. The amendment also stipulated two essential conditions for a Special Court to acquire jurisdiction: first, the case must involve an offence that appears in the Schedule; and second, the State Government must distribute the case to a particular Special Court. Consequently, no Special Court could try a case unless both conditions were satisfied. In the present matter, the notification identified the accused, specified the offence as one punishable under section 161/116 of the Indian Penal Code, and directed that the case be assigned to the Special Court at Burdwan for trial. At the time the notification was issued, both section 161 and the offence of abetment of section 161 were listed in the Schedule. However, the Criminal Law Amendment Act 1952 (Act XLV of 1952) had inserted section 165A into the Code, providing a separate punishment for the abetment of offences mentioned in sections 161 or 165. Section 165A thus created a distinct offence, meaning that the abetment of an offence under section 161 was no longer covered by section 161/116. Moreover, section 165A was not incorporated into the Schedule of the West Bengal Act XXI of 1949.

The State’s counsel argued that, although section 165A was not expressly listed, it was nevertheless deemed to be included in the Schedule to the West Bengal Act (W. B. XXI of 1949) because item 8 of the Schedule specifically referred to the abetment of offences enumerated in items I to 7, and because section 165A merely prescribed punishment for the abetment of offences under sections 161 or 165 and therefore could not be characterised as a new or distinct offence. The counsel further explained that section 165A was not simply a re‑statement of the offence of abetment provided in section 116 of the Indian Penal Code; it also covered abetment under section 109 and imposed an enhanced penalty of three years’ imprisonment instead of the quarter‑of‑three‑years penalty that applied under section 116. In addition, the counsel pointed out that section 165A attracted the operation of section 4(2) of the Prevention of Corruption Act (11 of 1947) as subsequently amended. The Court, however, rejected the proposition that the mere inclusion of abetment of an offence under section 161 in the Schedule of the West Bengal Act of 1949 could automatically bring section 165A within the Schedule, noting that section 165A did not exist in the Penal Code at the time of the original Schedule. The Court observed that the West Bengal Act was later amended on 9 May 1953 by Act XV of 1953 to expressly incorporate section 165A into the Schedule. Consequently, the Court held that the notification which sent the appellant’s case to the Special Court described a non‑existent offence, because when the Special Judge took cognizance there was no offence defined as sections 161/116 of the Indian Penal Code. The notification failed to mention section 165A, and at the moment the Special Judge purported to take cognizance he lacked jurisdiction, since the offence under section 165A was not included in the Schedule of the West Bengal Act, 1949, as amended in 1952. The Court emphasized that the decisive date for determining the Court’s jurisdiction was the date on which the Court received the record and formally took cognizance, not the date when witness testimony was recorded. According to section 4 of the West Bengal Act (W. B. XXI of 1949) as amended by the 1952 Act, jurisdiction arises only when a notification is issued that distributes the case to a particular Special Court, specifies the accused’s name, and sets out charges that fall within offences listed in the Schedule. In the absence of any of these essential elements, the Special Court would be without jurisdiction. The High Court had held that the offence under section 165A was triable by a Special Judge only from 28 July 1952 to 9 May 1953 under section 7 of the Central Act.

In the earlier portion of the judgment, the Court had explained that the offence under section 165A of the Indian Penal Code was tried by a Special Judge only from 28 July 1952 to 9 May 1953 under section 7 of the Central Act, and thereafter under West Bengal Act XV of 1953. The Court observed that the case assigned to the Special Judge was originally charged under sections 161 and 116 of the Indian Penal Code, which at that time were not part of the Code, and that section 165A was not listed in the Schedule of offences that a Special Judge could try. Consequently, the Court concluded that the Special Judge could not have been trying the appellant for an offence under section 165A. No evidence was found to show that the appellant was being tried up to 9 May 1953 under section 7 of the Central Act, and no notification from the State Government appointing a Special Judge under section 6 of the Central Act (Act XLVI of 1952) was presented. Counsel for the State even admitted that such a notification did not exist. Likewise, there was no proof that the Special Judge of Burdwan was hearing the appellant’s case under section 7 of that Act. The Court therefore held that the trial could not have been conducted under the Central Act of 1952, nor under West Bengal Act XV of 1953, because the appellant’s case had not been distributed to the Special Judge by a notification specifying a charge under section 165A. The High Court had previously stated that if section 165A were treated as a distinct offence, a Special Judge appointed under the West Bengal Act lacked jurisdiction in December 1952, and only a Special Judge appointed under the Central Act could have taken cognizance. The High Court further suggested that an error made in good faith by such a Special Judge would fall under section 529(e) of the Criminal Procedure Code and would not vitiate the proceedings. However, the present Court found that application to be erroneous. Section 529(e) applies only to Magistrates who act erroneously in good faith when taking cognizance under section 190 of the Code of Criminal Procedure. A Special Judge’s jurisdiction, by contrast, arises not from taking cognizance under section 190 but from the State Government’s distribution of a case involving an offence listed in the Schedule. Therefore, the jurisdictional defect could not be cured by invoking section 529(e), and the Special Judge’s lack of jurisdiction rendered the trial invalid.

In this case the judge who had originally taken charge of the matter was not a court possessing the competence required by law, and consequently every step taken by that judge was ineffective. The Court therefore concluded that the very source of jurisdiction for the Special Court arose from the statutory distribution of the case to that Court. The distribution order specified that only offences listed in the Schedule could be tried by the Special Court. Section 165A of the Indian Penal Code was not among those listed offences. Because the offence for which the appellant had been charged was not included in the Schedule, the Special Court lacked authority to conduct the trial or to pronounce a conviction. As a result, the conviction that had been recorded was rendered by a tribunal that had no jurisdiction over the matter, rendering the entire proceeding void from the beginning. The judgment therefore declares that the proceedings are of no legal effect and must be treated as if they never occurred. Accordingly, the appeal was allowed, the conviction under section 165A of the Indian Penal Code was set aside, and the sentence that had been imposed was cancelled. No further orders regarding costs or other ancillary matters were made. The appeal was therefore allowed.