STATE OF MYSORE Vs. FAKKRUSAB BABUSAB KARANANDI

JUDGEMENT

(1.) This appeal by special leave raises a short but interesting question of law. The facts giving rise to the appeal are few and briefly stated as follows:

(2.) Now in order to appreciate the contention that has been raised on behalf of the State in support of the appeal, it is necessary to notice the various changes which S.60 of the Principal Act went through from time to time during the relevant period. S.60 cl. (b) as it originally stood provided that no Magistrate shall take cognizance of an offence punishable under any section of the Act other than S.35 or 38 or 46 or 48 "except on his own knowledge or suspicion or on the complaint or report of an Excise or Police Officer". But before the charge-sheet in the present case came to be filed by the police, an amendment was made in S.60 clause (b) by Mysore Ordinance No.4 of 1970 which came into force on 7th August 1970. S.18 of this amending ordinance omitted the words "or police" in clause (b) of S.60. The result was that cognizance of an offence punishable under S.34 could not be taken by a Magistrate "except on his own knowledge or suspicion or on the complaint or report of an excise officer." S.60B was also added at the same time and by this new section inter alia offence under S.34 was made cognizable and the provisions of the Code of Criminal Procedure 1898 with respect to cognizable offences were made applicable to such offence. It was on the basis of the amended cl. (b) of S.60 that the learned Judicial Magistrate as well as the Sessions Judge held that cognizance of the offence under S.34 charged against the respondent could not be taken, since the charge-sheet was filed by the police and not by an excise officer. The learned counsel appearing on behalf of the State contended before us that even on the language of the amended cl. (b) of S.60 without the words "or police", it was competent to the Judicial Magistrate by reason of the enactment of S.60B to take cognizance of the offence, but it is necessary for us to examine this contention since we find that before the Revision Application came to be heard by the High Court, a further amendment was made in cl. (b) of S.60 by Mysore Act I of 1971 and that restored the position which obtained prior to the amendment made by Mysore Ordinance No.4 of 1970. Mysore Act No.1 of 1971 was deem to have come into force on 7th August, 1970 and S.23 of this Act provided inter alia that the amendment to S.60 made by Mysore Ordinance No.4 of 1970 shall be deemed never to have been made and the provisions of S.60 as they stood prior to the said amendment shall be deemed to continue to be in force. The result of the enactment of this provision by Mysore Act 1 of 1971 was that the amendment made in S.60 cl. (b) by deleting the words "or police" by Mysore Ordinance 4 of 1970, was obliterated and wiped out with retrospective effect so that in the eye of the law it was never made at all. It is now settled law that when a legal fiction is enacted by the Legislature, the Court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect to it. We must, therefore, proceed on the basis that the words "or police" were always there in cl. (b) of S.60, even at the time when learned Judicial Magistrate made his order dated 3-10-1970 refusing to take cognizance of the offence and returning the charge-sheet to the police. If these words were in clause (b) of S.60 at that time, then obviously the learned Magistrate was in error in refusing to take cognizance of the complaint on the ground that the charge-sheet was not filed by an excise officer but by the police. That is the clear effect the legal fiction enacted in S.23 of Mysore Act 1 of 1971 and that this would be so in amply supported by the decision of this Court in M. K. Venkatachalam I.T.O. v. Bombay Dyeing and Mfg. Co. Ltd. (1959) SCR 703 : (AIR 1958 SC 875). The High Court as well as the Court of Session, were therefore, clearly in error in affirming the order made by the learned Judicial Magistrate and it must be held that the charge-sheet was validly filed before the learned Judicial Magistrate by the police and the Judicial Magistrate was entitled to take cognizance of the offence on the basis of such charge-sheet.

(3.) We accordingly allow the appeal, set aside the orders made by the learned Judicial Magistrate, Sessions Judge and the High Court.