JHAKAR ABIR Vs. PROVINCE OF BIHAR

JUDGEMENT

(1.) The four petitioners have been convicted of participating in a dacoity at the house of Ramsewak Eai on the night between 19 and 20 October 1942, and have each been sentenced to four years rigorous imprisonment and to pay a fine of Rs. 50 each. The trial, which commenced on 12 January 1943, was held by a Special Magistrate of Bettiah purporting to act under the Special Criminal Court Ordinance (2 of 1942), the case having been sent to him for trial by the Subdivi- sional Magistrate. Judgment was pronounced, on 8 February 1943. Subsequently, on aisfc June 1944,, the petitioners made an application to this Court under Section 491, Criminal P. C, for their release. This application-was heard by Chatterji and Shearer JJ., on 6 October 1944. In consequence of the order made by those learned Judges the application was ordered to be placed before this Bench.

(2.) The difficulty of the case arises by reason of orders passed by two District Magistrates, of Champaran and of the view taken of those: orders by a previous Bench of this Court of which I was a member. The first order is that , of Mr. Dhar, the then District Magistrate of Champaran, directing that certain "offences or classes of offences, or cases or classes of cases,, arising out of the civil disobedience movement, should ordinarily be tried by the Special Judge unless otherwise specially directed." Among the offences specified in the order was the offence of dacoity. This order was issued with Memo No. 141314, dated 4th September 1942. Subsequently, Mr. Dhar issued another order, expressed to be in continuation of the order of 4 September 1942, directing that offences under Secs.386 and 395, Indian Penal Code, and offences under the Criminal Law Amendment Act, should ordinarily be tried by Special Magistrates unless otherwise directed. This order was issuedv with Memo No. 15448-49, dated 22nd/23rd September 1942. It will be observed that, while the first order related to specified offences and cases arising out of the civil disobedience; movement, the second order applied to certain specified offences generally. There is nothing to indicate that Mr. Dhar meant his first order to apply to offences therein specified if they did not arise out of the civil disobedience movement. It is obvious that at the time that that order was made there must have been many cases having nothing to do with the civil disobedience movement pending investigation before the police or pending in the Courts of Magistrates who had not yet taken cognizance of them. And even after that movement had begun, many offences were committed which had nothing to do with the movement. One may assume that the ordinary activities of the criminal classes (including dacoits) did not cease by reason of that movement, and, on a strict reading of Mr. Dhar's orders, it would appear that he directed offences of dacoity to be tried by Special Judges when arising out of the civil disobedience movement and by Special Magistrates when they did not so arise. Mr. Dhar was succeeded by Mr. Lucas as District Magistrate of Champaran. Mr. Lucas made an order expressed to be in continuation of Mr. Dhar's order of 22 September, 1942, directing that offences under Secs.395, 397, 398, 399 and 411 to 414, Indian Penal Code, should ordinarily be tried by Special Magistrates unless otherwise specially directed. This order is dated 5 November 1942, and was issued with Memo No. .20288-39, dated lo December, 1942. On the same date, that is to say, 5 November 1942, Mr. Lucas made another order, also expressed to be in continuation of Mr. Dhar's order of 22 September, 1942, directing that offences under Secs.395, 397, 398, 399 and 411 to 414, Penal Code, should ordinarily be tried by the Special Judge unless otherwise specially directed. This was issued with Memo No. 20258, dated 10 December 1942. It will be observed that Mr. Lucas did not cancel or rescind Mr. Dhar's order of 4th and 22 September, 1942, under the latter of which the offence of dacoity (without any qualification as to its arising out of the civil disobedience movement) was triable by Special Magistrates unless otherwise directed. After Mr. Lucas's orders had been made, the position was, so far as dacoity is concerned, that there were in existence an order of Mr. Dhar dated 4 September 1942, directing that offences of dacoity arising out of the civil disobedience movement should ordinarily be tried by the Special Judge, and another order of Mr. Dhar dated 22nd/23rd September 1942, directing that offences of dacoity (without reference to their origin) should ordinarily be tried by Special Magistrates, and the two orders of Mr. Lucas directing, on the one hand, that offences of dacoity (without reference to the origin) should ordinarily be tried by Special Magistrates and another directing that they should be tried by the Special Judge. This being the state of affairs, Criminal Appeal No. 531 of 1943 was preferred to this Court in a case in which persons in the district of Champaran had been convicted of dacoity the offence having been committed on 3 August 1942.

(3.) The appeal came before my. brother Eeu-ben and myself, and the view we then took was that the last of Mr. Lucas's orders gov-erned the matter, and that as the order of Mr. Lucas which was issued with Memo. No. 20258-59, dated 10th December 1942, was the last order, the offence of dacoity in the district of Champaran was triable by the Special Judge. That view was followed without question in a number of cases which came to this Court subsequently in which the appellants had been convicted of dacoity by Special Courts in the district of Champaran. When the present application came for hearing before my learned brothers Chatterji and Shearer however Shearer J. pointed out that the numbering of the forwarding memos, accompanying the various orders of the District Magistrate of Champaran was not an indication of the chronological order in which the orders were made. I have not experience of my learned brother Shearer in the matter of the routine followed in the offices of District Ma^ gistrates. I have no doubt that he is right in this respect. I regret however that I do not find myself able to accept the view which he and my brother Chatterji took with regard to the effect of the orders made by Mr. Lucas. The view they took was that the effect of the orders was to confer concurrent jurisdiction on Special Magistrates and Special Judges to try the offences mentioned in Mr. Lucas's orders. Apart from the fact that Mr. Dhar appears to have made a distinction between dacoities arising out of the civil disobedience movement and other dacoities, and that Mr. Lucas's orders were expressed to be merely in continuation of Mr. Dhar's and not in supersession of them, there is a further difficulty with which I now propose to deal.