ANANTA KUMAR MUKHERJI Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal from a decision of the learned Chief Presidency Magistrate purporting to act as a Special Magistrate under Ordinance 10 of 1932, whereby ho found the appellant Ananta Kumar Mukherji guilty of an offence under Section 20, Arms Act, and sentenced him to five years rigorous imprisonment. In this appeal various points have been argued on the merits. It appears that certain officers of police were watching out with an informer and saw the accused accompanied by another man. The police officers challenged the accused who tried to run away. They seized him and the evidence was that he had tucked up in the top part of the dhoti where the folds were, the kocha of the dhoti, a heavy revolver which was not in perfect working order as the trigger did not engage the hammer but it was quite capable of being used by the well-known method of pressing back the hammer and then letting it go again without the assistance of the trigger. It appears that he had a cap of a 12 bore cartridge which would not in the least fit in with this revolver in one of his pockets. The suggestion of the defence was that the other man had the revolver and had managed to throw it into the dhoti of this accused.

(2.) It appears to me that the learned Chief Presidency Magistrate on this evidence has very rightly scouted that suggestion. There can be no doubt that the revolver was carefully tucked up inside this man's dhoti and was being carried in such a way that it might not come to the notice of the police. On the merits therefore in my judgment there is nothing to be said. At the trial it does not appear that any such point was raised but by the notice of appeal it was suggested that under Section 36, Ordinance 10 of 1932, Mr. Sinha had not been invested with the powers of a Special Magistrate. We have had that matter looked into and it appears to stand thus, Secs.36 and 37, Ordinance 10 of 1932 are repetitions of Secs.35 and 36, Ordinance 2 of the same year. Under Section 35, Ordinance 2, there was a notification of 6th January 1932 investing the Chief Presidency Magistrate with the powers of a Special Magistrate. By Section 80 of the later Ordinance, which has been extended to Bengal, it is provided that: Anything done in pursuance of any provision of the Emergency Powers Ordinance, 1932, shall, where the corresponding provision of this Ordinance has come into force before 4 July 1932, be deemed on the expiry of the said Ordinances to have been done in pursuance of the corresponding provision of this Ordinance, and shall have effect, and the provisions of this Ordinance shall have effect accordingly.

(3.) In my judgment that means that it is not necessary for the Government to issue another notification under the later Ordinance. The notification under the earlier Ordinance operates as a notification under the corresponding provision of the later Ordinance and by the new Ordinance the powers vested under the older Ordinance are given to the officer in question. That point fails. It has been suggested that the point under Section 36 of the Ordinance may be bad but no inquiry having been made on the subject, there may be a possible defect as regards Section 37 of the Ordinance. As regards that, before we come to any conclusion as to whether this matter should be allowed to be introduced or not we propose to adjourn the ease but subject to our allowing it to be introduced, (the Crown having laid before us no document relating to the matter) this appeal is disposed of. For that purpose it is adjourned till Monday next. (The appeal was then dismissed.). Ameer Ali, J.