MOHAMMAD SALEUDDIN Vs. EMPEROR

JUDGEMENT

(1.) The appellants have been found guilty of conspiracy with each other; the accused Romesh Das who has not appealed, P.W. 2, Peara Hossain and others to commit offences punishable under Secs.387 and 506, I.P.C. In brief the prosecution case is that they are members of a gang of revolutionaries, who extort money from persons by terrorising them. The modus operandi is said to be as follows: A letter is sent demanding the payment of money, which is said to be required for the purchase of firearms and for other revolutionary purposes. The letter contains a threat to the effect that, if the money is not forthcoming, the recipient and the members of his family will be murdered. There is a further direction to hand over the money to a messenger, who will come with another letter on some subsequent date. This letter is then followed by another one containing a direction in these terms. The prosecution case is that in pursuance of this conspiracy specific offences were committed against P.W. 3, Radhika Prosad Mukherjee, P.W. 10, Satish Chandra Roy Choudhury and P.W. 13, Manmatha Nath De.

(2.) A pardon was tendered to the accused Piara Hossein and he was examined as a prosecution witness. It has been contended by Mr, Manowar on behalf of the appellants that this procedure has resulted in an illegality. This argument has two branches: in the first place it was contended that the Magistrate, having once taken action under this section, was bound to commit the accused for trial to the Court of Session: in the second place it was contended that if the Magistrate did not commit, S, 337, Criminal P.C., has no application and the evidence so taken was inadmissible, On behalf of the Crown Mr. Khundkar argued that a special Magistrate has no jurisdiction to commit and that he has power to tender a pardon under the provisions of this section, It may be noted here that the appellants were tried by a Special Magistrate under the provisions of Section 25, Bengal Act 12 of 1932. It was not disputed that under the Criminal Procedure Code a Magistrate, who takes action under Section 337, must commit. the accused for trial to the Court of Session. It is also clear that a Special Magistrate has no jurisdiction to commit; this is apparent from the terms of Section 25 to the following effect, viz.... The Local Government... may, by order in writing, direct that such person shall be tried by a Special Magistrate.

(3.) The direction to the Magistrate is that he is to try the accused, not to send him elsewhere to be tried by some other tribunal. Indeed it is difficult to see what useful purpose would be served by appointing a Special Magistrate to do what could be done by an ordinary Magistrate of the first class. We could only give effect to this argument made on behalf of the appellants by holding that when the Code is inconsistent with the special Act, the former is to prevail. This contingency is provided for in Section 34, Bengal Act, which is in these terms: the provision of the Code... in so fay as they may be applicable and in so far as they are not inconsistent with the provisions of this Chapter, shall apply to all matters committed with... a trial by Special Magistrate.