SUDHAKAR SHASTRI Vs. STATE

JUDGEMENT

(1.) This is an application in revision against an order passed by the Sessions Judge, Faizabad on appeal from a judgment of Shri Mahabir Prasad, a Special Magistrate first class convicting the opposite-parties under Section 379, I. P. C. The learned Sessions Judge has set aside the judgment of the Special Magistrate as a nullity and ordered the case to be retried by another Magistrate in the following circumstances. The Special Magistrate was conferred first class magisterial powers under some notification. On 30-11-1950 another notification was issued by the State Government extending those powers for a further period ending on 31-12-1953. The Special Magistrate tried the case against the opposite-parties and convicted them on 20-3-1953. In the Gazette of 21-3-1953, a notification dated 14-3-1953 was published; it was stated in the notification that the first class powers conferred upon the Special Magistrate under the notification of 30-11-1950 were withdrawn under Section 41 (1) of the Code of Criminal Procedure. The date with effect from which the powers were withdrawn is not mentioned in the notification. The Special Magistrate was not aware of this withdrawal of his powers on 20-3-1953; he became aware for the first time on 28-3-1953 when the contents of the notification were communicated to him through the District Magistrate. He cased to exercise the powers since 28-3 1953. In the Gazette of 16-5-1953 another notification dated 6-5-1953 was published under which first class magisterial powers were conferred upon the Special Magistrate, but not with retrospective effect.

(2.) The learned Sessions Judge was of the view that the Special Magistrate ceased to be a Magistrate with effect from 14-3-1953 and had no jurisdiction to try the case against the opposite-parties and the judgment of 20-3-1953 was a nullity. He, therefore, ordered re-trial. The complaint, , at whose instance the opposite-parties were prosecuted under Section 379, I. P. C., has come up in revision. He contends that the notification withdrawing the powers became effective or operative on the date on which its contents were brought to the notice of the Special Magistrate and, in any case, on the date on which the notification was published in the Gazette and that consequently he had every jurisdiction to pronounce judgment on 20-3-1953. Magisterial powers are conferred upon a person under Section 14 of the Code of Criminal Procedure. It is laid down in Section 39 of the Code that 'every order conferring powers will take effect from the date on which it is communicated to the person so empowered. Withdrawal of magisterial powers is done by Government Under Section 41 which, however, contains no provision, analogous to that in Section 39, laying down when the order of withdrawal takes effect. There is thus no statutory provision fixing the date on which an order of withdrawal takes effect. It was contended on behalf of the State that the order under consideration took effect on 14-3-1953, the date on which it is presumed to have been signed by some person. In the absence of any statutory provision, the Court will have to decide the matter by applying the principles oil justice, equity and good conscience. Common sense requires that before a Magistrate can cease to exercise his magisterial powers, he must know that they have been withdrawn. He may not become aware of the withdrawal at the moment the powers are withdrawn by the authority conferring them and unless he knows that they have been withdrawn, he cannot possibly cease to exercise them. The withdrawal can be brought to his notice either by sending a copy of the order to him or by publishing it in the Gazette. But unless either of the two steps are taken, it cannot be said that he has ceased to be a Magistrate. It is clear that the notification, though, it might have been signed by some person on 14-3-1953, could not take effect immediately. It was argued on behalf of the State that the Special Magistrate Ceased to have jurisdiction on 14-3-1953 and that the only effect of his not being aware of the fact on 20-3-1953 was that his exercising jurisdiction on that date would be deemed to be bona fide and he would not be liable criminally or civilly. We do not think that this is the correct view. We have no reason to think that the Legislature was content with only making a Magistrate not liable criminally or civilly. Why should it have allowed him to do an act without Jurisdiction at all ? To one Who has suffered by imprisonment or otherwise under an act done by a person in authority without jurisdiction, it is no consolation that the person had acted bonafide. Nor would it be equitable or just to place the person, for no fault of his, in the wrong (by considering him as having acted without Jurisdiction) . He may not be liable to criminal prosecution for the damages, but why should it be thought at all that he usurped jurisdiction? The mere fact that it is not laid down in Section 41 when the order of withdrawal would take effect does not mean that the Legislature did not intend it to take effect on communication. It might have been a case of mere omission on the part of the Legislature. If an order conferring powers is to take effect on the date on which it is communicated to the person concerned, an order withdrawing powers should all the more take effect on the date on which it is communicated to him. It may be that the Legislature made the special provision in Section 39 so that a person who exercises powers between the date/ of the notification conferring them and the date, on which they are communicated to him may next at his sweet will take shelter behind the notification. The legislature might have thought that a Magistrate may cease to exercise powers on coming to know of their withdrawal even before the withdrawal is notified in the Gazette or is formally communicated to him, but might not have considered it advisable to give such option in the matter of conferment of such powers and might have decided that the powers should not be exercised unless the conferment is communicated to the person.

(3.) We are, therefore, not prepared to say that the Legislature never, intended to make the withdrawal of powers dependent on communication of the withdrawal. The learned Government Advocate also contended that if an Act of Legislature can come into effect on the date on which it receives assent, there is no reason why an order should not come into effect on the date on which it is signed. It is true that in some cases an Act comes into effect on the date on which it receives assent, even though it is impossible for the public to know at the moment of its coming into effect that it has come into effect. But as pointed out by the Supreme Court there is a distinction between an Act and an order. In Harla v. State of Rajagthan, AIR 1951 SC 467 (A), Bose J., said at p. 468 :