BANWARI GOPE Vs. EMPEROR

JUDGEMENT

(1.) These are two revision applications by certain persons who have been tried and convicted by Special Magistrates appointed under Ordinance 2 of 1942 and the point which has been urged on their behalf is that the Special Magistrates had no jurisdiction to try them inasmuch as before the Ordinance came into force the Subdivisional Officers of Dinapur and Patna city respectively had taken cognizance of the offences said to have been committed by them and the criminal proceedings against them had started under the ordinary law. Ordinance 2 of 1942 as amended by Ordinance 42 of 1942 empowers the Provincial Governments to constitute Special Courts of criminal jurisdiction on being satisfied of the existence of an emergency arising from a hostile attack on India or a country neighbouring on India or from the imminence of such an attack or from any disorder within the province. The provisions relating to the Special Magistrates, with whom alone we are concerned at present, are to be found in Secs.9 to 14 of the Ordinance. These Secs.provide that any Presidency Magistrate or Magistrate of the first class who has exercised powers as such for a period of not less than two years may be invested by the Provincial Government with the powers of a Special Magistrate under the Ordinance and that these Magistrates shall try such offences or classes of offences or such cases or classes of cases other than offences or cases involving offences punishable under the Indian Penal Code with death, as the Provincial Government, or a servant of the Crown empowered by the Provincial Government in this behalf, may, by general or special order in writing, direct. The Special Magistrate, after he is appointed, is to try cases which are placed before him according to the procedure laid down in Section 6 and may pass any sentence authorised by law except a sentence of death or of transportation or imprisonment exceeding seven years. Where, however, he passes a sentence of transportation or imprisonment for a term exceeding two years, an appeal lies to the Special Judge having jurisdiction in the area or, if there is no Special Judge for the area, to the High Court in a presidency town and elsewhere to the Court of Session.

(2.) It appears that the Ordinance 2 of 1942 was declared to be in force in the province of Bihar on 21 August 1942 and after the Special Courts were duly created, the District Magistrate of Patna, who was presum. ably the Crown Officer empowered by the Provincial Government to direct what classes of eases were to be tried by the Special Magistrates appointed under the Ordinance, first passed an order on 23 August 1942 authorising all the Special Magistrates in the district to try such cases as were specified in the order and then on 27 August 1942 directed certain offences answering the description to be found in Section 10 of the Ordinance to be tried by them. The language of these orders was subjected to certain criticisms, but as those criticisms are of a very minor nature and will not affect the decision of the present case, I will not refer to them but proceed at once to state the relevant facts of the two cases which are before us. The petitioners in Criminal Revision No. 638 are four in number and they have been prosecuted for contravening Rules 56 and 35, Defence of India Act, by taking part in a procession which had been banned by the order of the District Magistrate and by causing damage to the telephone line within the compound of one Mr. Bashir, a Group Warden, on 18 August 1942. In regard to these offences which are said to have been committed by these petitioners on 18 August 1942, the Subdivisional Officer of Dinapur recorded the following order in the order-sheet on 14 August: Received complaint under Section 56 of the Defence of India Rules. Cognizance taken. The accused Banwari Goala, Jagernath Halwai, Girdhari Chamar and Janki Halwai are produced in custody of Dinapur Police. They do not complain of maltreatment by the escorting party. They are committed to custody till 28 August 1942.

(3.) The next order which was recorded on 28 August 1942 is to the following effect: "Put up before Special Magistrate on 1 September 1942." Then comes a third order which is dated 29 August 1942 and it reads as follows: I.O. reports that the accused (1) Jagernath Halwai, (2) Banwari Gope, (3) Girdhari Chamar, (4) lanki Halwai be prosecuted under Section 56, D.I. Rules. Cognisance has already been taken on the previous report. Put up on 1 September 1942 before the Special Magistrate.