(1.) ON the basis of an information lodged by an Assistant Controller, Telegraph Stores, hastings on 28. 7. 73 at the Watgunge police Station alleging, inter alia, that on 24. 7. 73 the accused petitioners were apprehended from a timber godown at 12a, Orphangunge Road and were found in possession of 33 bundles of copper wire, a case under sections 380/411/120b of the Indian Penal Code was registered at the said police station. On completion of investigation the police submitted a charge sheet against the petitioners on 12. 11. 74 under section 5 of the Telegraph Wires (Unlawful Possession) Act, LXXIV of 1950 (hereinafter the Act ). On receipt of the charge sheet the Sub-divisional judicial Magistrate, Alipore took cognizance and transferred the case to the file of another Judicial Magistrate for trial. The transferee Magistrate framed a charge against the petitioners under section 5 of the Act. An objection was then raised on behalf of the petitioners that the cognizance taken by the learned Magistrate was in violation of the provisions of section 7 of the Act and as such, the entire proceeding was bad in law. After hearing both the sides the learned Magistrate by an order dated 22. 12. 75 discharged the accused petitioners. Against the order of the learned magistrate the State preferred a revisional application in the court of the learned Sessions Judge, Alipore and by an order dated 29. 4. 76 Shri D. Banerjee, Additional Sessions Judge, Alipore dismissed the revisional application and upheld the order of the learned magistrate.
(2.) THEREAFTER on 1. 6. 76 the Officer-in-charge Watgunge Police Station submitted a fresh challan under section 5 of the Act which had then be amended by section 3 of Act 44 of 1975, and on its basis the Sub-divisional Judicial magistrate Alipore took cognizance. The same objection was taken and the learned Magistrate again discharged the accused petitioners by an order dated 16. 11. 76. Against this order the state moved the learned Additional sessions Judge, Alipore who by an order dated 16. 5. 77 set aside the order of the learned Magistrate and directed him to try the case in accordance with law and the observations made in the judgment. This order of the learned additional Sessions Judge is the subject matter of this Rule.
(3.) MR. Dilip Kumar Dutta, learned Advocate appearing on behalf of the petitioner, has contended that when the first charge sheet was submitted the cognizance had to be taken in accordance with the provisions of section 7 of the Principal Act. On the date of the submission of the fresh challan on 1. 6. 76 section 7 of the principal Act had been amended by section 5 of Act 44 of 1975 permitting a court to take cognizance of an offence punishable under the Act on a complaint of a public servant, and the Act along with the amending Act being partly procedural and partly substantive, cannot have retrospective operation. As such, cognizance taken under section 7 as amended by Act 44 of 1975 on a challan submitted by a Police officer is bad in law.