1. The facts of this case make a most unpleasant impression and had it not been for a very substantial question of law which is obviously implied, we would not have entertained an application for leave to appeal to the Supreme Court at all. There is however a point of a fundamental character which appears to us to require further consideration.
2. The facts are as follows : There was a case under Section 304 read with Section 324, Penal Code, pending before the Sessions Judge of Burdwan in which two persons, named Istipada Ghosh and Gopiraman Ghosh, were among the accused. Their interests were being looked after by a person called Bhajaharl Mandal, who is the petitioner before us. The prosecution case is that Bhajahari did not confine his activities to supervising the progress of the case in an open and normal way, but also formed the idea of corrupting the jurors and winning over a majority of them by payment of illegal gratification. He was said to have approached one of the jurors, named Baidyanath Mukherjee, on the second day of the trial which had commenced on 2-9-52 & also approached two other jurors, one Dharanidhar Misra who was the foreman & another, named Gangadhar Dawn, independently. Baidyanath who appears to have been approached first is said to have communicated to one Sri Durgapada Choudhuri, the local Public Prosecutor, the attentions he had been receiving from the petitioner and was advised that if he could get the petitioner apprehended in the act of offering a bribe, he would be doing a service to the cause of justice. Baidyanath is said to have contacted the Police thereafter and completed arrangements for laying a trap. So far as the petitioner is concerned, Baidyanath pretended to be willing to consider his proposal and asked him to come with money on 6-9-3952, before the hour when the Court would commence its sittings for the day. The place of meeting fixed was the house of one Dibakar Banerji, a lawyer's clerk, where Baidyanath was temporarily residing. It was alleged that in accordance with that arrangement, the petitioner did go to the house of Dibakar on 6-9-1952, and just as he was handing cover to Baidyanath four ten rupee notes, a Sub-Inspector of Police, who had been hiding in the neighbourhood, appeared on the scene and placed the petitioner under arrest. That in short is the prosecution story.
3. The defence was that the petitioner was not guilty and further that instead of his having approached the jurors with offers of bribe, he himself had been pestered by members of the jury with requests for gratification. The four ten-rupee notes, it was said, belonged to Baidyanath himself and they had been foisted upon him in pursuance of a plan to wreak vengeance on him,, because of his refusal to entertain the proposal of the jurors.
4. Cognizance of the case was taken on 23-12-1952, by a Judge of a Special Court appointed under Act 21 of 1949, the Criminal Law Amendment (Special Courts) Act. The trial was also held by him and resulted in the conviction of the petitioner under Section 165-A, Penal Code, and a sentence of rigorous imprisonment for six months being passed upon him. I have omitted to state that the charge sheet mentioned Sections 161/116, Penal Code, and it was an offence under those sections of which the Special Judge purported to take cognizance.
5. No objection to the jurisdiction of the Special Judge seems to have been taken in the course of the trial, but at the hearing of an appeal to this Court, it was contended that on 23-12-1952, when the Special Judge purported to take cognizance of the offence charged against the petitioner, he had no Jurisdiction to take cognizance of any offence under Section 165-A, Penal Code, which was the only offence that the facts alleged against him constituted. It is this point, which the learned Judges of the Appeal Court repelled, that has been urged before us in support of the present application for leave to appeal.
6. Broadly stated, the petitioner's contention is as follows : On 28-7-1952, an Act called the Criminal Law Amendment Act, being Act 46 of 1952, was passed by the Central Legislature. By Section 7 of that Act a new section, namely Section 165-A, was introduced into the Indian Penal Code, the subject-matter being abetment of the offence under Section 161. The Act provided further that on and from the date on which it came into force, offences under Sections 161 and 165, Penal Code, would be triable exclusively by Special Judges appointed under the Act.
7. Two days later, on 30-7-1952, the West Bengal Legislature passed Act 12 of 1952 by which Act 21 of 1949, namely the Criminal Law Amendment (Special Courts) Act, was amended. The amending Act provided that offences mentioned in the schedule thereto would be tried exclusively by Special Courts constituted under the Act. The Schedule, however, while it mentioned Section 161, Penal Code, and also abetment of the offence under that section, did not mention section 165-A. The section last named was included in the Schedule about ten months afterwards by Act 15 of 1953 which amended Act 21 of 1949 further and came into force on 9-5-1953. Besides including Section 165-A in the Schedule to the principal Act, the amending Act provided that the provisions of the Central Act of 1952, directing certain offences to be exclusively triable by Special Judges appointed under that Act, could not apply to West Bengal and would be deemed never to have applied. Section 165-A obviously came under that provision.
8. The argument of the petitioner before the Appeal Court and repeated before us was that on 23-12-1952 when cognizance of the case was taken, Section 165-A had already come into force & since there was then a special provision in the Indian Penal Code regarding the punishment of the offence of abetment of the offence under Section 161, Section 116, in so far as that form of abetment was concerned, ceased to be applicable. Consequently, when the Judge of the Special Court took cognizance of the offence charged against the petitioner, he could only have taken cognizance of an offence under Section 165-A which, however, he had no jurisdiction on that date to do, inasmuch as Section 165-A had not yet been included in the Schedule to Act 21 of 1949 or rather Act 12 of 1952. The steps of reasoning leading up to that conclusion have been set out in detail in the judgment of the Appeal Court. It appears to us that the learned Judges agreed with the petitioner's Advocate regarding the true construction of the successive Acts.
"It must be held," they observed, "that the offence under Section 165-A was always triable by a Special Judge only, from 28-7-1952, to 9-5-1953, under Section 7 of the Central Act, and from 9-5-1953, under the West Bengal Act 15 of 1953."
The learned Judges in the sentence I have just quoted were obviously not contemplating trials for offences under Section 165-A which had commenced before 9-5-1953 and were continuing thereafter. They were thinking of the initiation of proceedings.
9. Having, however, held that on 23-12-1952, the Judge of the Special Court of Burdwan could have no jurisdiction to take cognizance of an offence under Section 165-A and having also held that the offence charged against the petitioner could come only under that section, the learned Judges, nevertheless, declined to hold that the trial had been without jurisdiction. They relied upon Section 529(e), Criminal P. C. and also on the ground that Sections 161 and 165, Penal Code, which were included in the Schedule to Act 12 of 1952 could fairly be regarded as including an offence under Section 165A. It has been contended by Mr. Dutt that in relying upon Section 529 (e), the learned Judge completely overlooked the very limited scope of that section which contemplated only the taking of cognizance by Magistrates and that they also overlooked the fact that when, by an Act of the Central Legislature, all Courts other than the Courts named in the Act had been precluded from taking cognizance of or trying a particular offence, there could be no question of any other Court on Magistrate taking cognizance of the same offence in good faith. It was also contended that the second reason given by the learned Judges was equally bad since if Section 161 or Section 165 really included the offence under Section 165-A, there could be no reason, for including that section specifically by a subsequent amending Act.
10. Mr. Banerjee, who appears on behalf of the State, does not seriously dispute that a debatable question of considerable importance is involved in the case. He does not concede, as he could not possibly do, that the petitioner's contention is right, but he does not say that the contention does not raise a serious question of law which deserves further consideration by the Supreme Court.
11. In the above circumstances, this application is allowed and leave to appeal to the Supreme Court "under Article 134(1)(c) of the Constitution is granted.
12. Let a formal certificate be drawn up and issued.
13. It appears that pending the hearing of this application, the petitioner was released on bail by the Vacation Bench. Mr. Dutt has prayed that he may remain enlarged on bail. He cannot, however, remain so enlarged on the bond furnished by him and his sureties in pursuance of the order made by the Vacation Bench, since they will be inappropriate to his remaining on bail till the disposal of the appeal by the Supreme Court. We accordingly direct that he may be released on bail to the satisfaction of the learned Judge, Special Court, Burdwan, on his executing a fresh bond with such sureties as the learned Judge may deem fit to ask for.
14. I agree.