PETITIONER:
STATE OF MYSORE
Vs.
RESPONDENT:
FAKRUSAB BABUSAB KARANANDI
DATE OF JUDGMENT17/12/1976
BENCH:
BHAGWATI, P.N.
GUPTA, A.C.
SINGH, JASWANT
CITATION:
1977 AIR 1336 1977 SCR (2) 544
1977 SCC (1) 666
ACT
Cognizance of an offence under s. 60(b) of the Mysore
Excise Act, 1965 for an offence under s. 34 thereof--Mysore
Ordinance No. 4 of 1970 amending s. 60(b) and introducing a
new s. 60B; Mysore Amendment Act No 1 of 1971 Effect
of---Competency of the judicial magistrate in returning the
complaint filed by a Police Officer and refusing to take
cognizance of the offence under s. 60(b) as amended by
Mysore Ordinance 4 of 1970 which represented the law as it
that stood.
HEADNOTE
The Mysore Ordinance 4 of 1970 which came into effect
from 7th August 1970 omitted the words "or police" in s.
60(b) of the Mysore Excise Act, 1965 which provided for
taking of cognizance by the Magistrate "on his own knowledge
or suspicion or on the complaint or report of an excise or
police officer". It also inserted a new s. 60B whereby
offence under s. 34 was made cognizable and the provisions
of the Criminal Procedure Code 1898 with respect to cogniz.
able offences made applicable to such offence. The earlier
position which obtained prior to the said Ordinance was
restored by the Mysore Amendment Act No. 1 of 1971 which
received the President’s assent on 20th January 1971 but
which was deemed to have come into force on 7th August 1970.
Section 23 of the 1971 Act provided that the amendment to s.
60 made by the Ordinance of 1970 shall be deemed never to
have been made and the provisions of s. 60 as they stood
prior to the said amendment shall be deemed to continue to
be in force.
The judicial Magistrate, Badami, on a complaint filed by
a police officer refused to take cognizance of an offence
for the illegal Possession of 41/2 tolas of ganja under
section 34 of the Mysore Excise Act 1965 in view of the
provisions if s. 60(b) ibid which represented the law as it
then stood. The revision application before the Sessions
Court was dismissed on 15-1-1971. A further revision filed
before the High Court on 14-6-1971 was also dismissed in
limine. However after the dismissal of the revision by the
High Court on a fresh complaint filed by the police in
respect of the same offence as per the amending Act I of
1971, the judicial Magistrate took cognizance of the of-
fence, convicted the accused and sentenced hun to simple
imprisonment for three months and also to pay a fine of Rs.
100/-. Notwithstanding the conviction the State pressed its
appeal by special leave against the judgment of the High
Court dismissing the revision.
Allowing the appeal, the Court,
HELD: (1) The High Court as well as the court of Ses-
sions were clearly in error in affirming the order made by
the learned judicial Magistrate. [547A]
(2) The charge sheet was validly filed before the
learned judicial Magistrate by the Police and the judicial
Magistrate was entitled to take cognizance of the offence on
the basis of such charge sheet. [547A-B]
(3) The result of the enactment of s. 23 by Mysore Act I
of 1971 was that the amendment made in s. 60 clause (b) by
deleting the words "or police" by Mysore Ordinance No. 4 of
1970 as oblitarated and wiped out with retrospective effect
so that in the eye of the law it was never made at all.
[546F]
(4) It is now well-settled law that when a legal fiction
is enacted by the Legislature the court should not allow its
imagination to boggle but must carry the legal fiction to
its logical extent and give full effect to it. The clear
effect of the legal fiction enacted in s. 23 of Mysore Act
No. 1 of 1971 was that the
545
words "or police" were always there in cl. (b) of s. 60 even
at the time when the charge sheet was presented before the
learned Magistrate and if that be so, the learned Magistrate
was in error in refusing to take cognizance of the complaint
on the ground that the charge sheet was not filed by an
excise officer but by the police. [546G-H, 547A]
M.K. Venkatachalam I.T.O. & Anr. v. Bombay Dyeing &
Mfg. Co. Ltd. [1959] S.C.R. 703, applied.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 16
of 1972.
Appeal by Special Leave from the Judgment and Order
dated 14-6-1971 of the Mysore High Court in Criminal Revi-
sion Petition No. 229 of 1971.
N. Nettar, for the Appellant.
K.R. Nataraja, for the Respondent.
The Judgment of the Court was delivered by
BHAGWATI, J.--This appeal by special leave raises a
short but interesting question of law. The facts giving
rise to the appeal are few and briefly stated as follows:
On 1st October, 1970 the police filed a chargesheet
against the respondent in the court of the Judicial Magis-
trate, First Class, Badami, charging him with having commit-
ted an offence punishable under Section 34 of the Mysore
Excise Act, 1965. The learned Judicial MagiStrate by an
order dated 3rd October, 1970 refused to take cognizance of
the offence on this charge-sheet, since it was filed by the
Police and not by an Excise official. The view taken by the
learned Magistrate was that under Section 60 clause (b) as
amended by Mysore Ordinance No. 4 of 1970 which represented
the law as it then stood, it was not competent to him to
take cognizance of an offence punishable under Section 34,
except on the complaint or report of an Excise Officer and
since the charge:sheet in the present case was filed by the
police and not by an Excise Officer, he was precluded from
taking cognizance of the offence. The learned Judicial
Magistrate on this view directed that the charge-sheet be
returned to the police and ordered release of the respond-
ent. The State thereupon preferred a Revision Application
to the Sessions Court, Bijapur. The learned Sessions Judge
agreed with the view taken by the Judicial Magistrate and
holding that the Judicial Magistrate was right in refusing
to take cognizance of the offence on the charge-sheet filed
by .the police, rejected the Revision Application summarily.
This led to the filing of a Revision Application by the
State before the High Court. The High Court too summarily
rejected the Revision Application and hence the State pre-
ferred the present appeal with special leave obtained from
this Court.
Now in order to appreciate the contention that has been
raised on behalf of the State in support of the appeal, it
is necessary to notice the various changes which Section 60
of the Principal Act went
546
through from time to time during the relevant period.
Section 60 clause (b) as it originally stood provided that
no Magistrate shall take cognizance of an offence punishable
under any Section of the Act other then Section 35 or 38 or
46 or 48 "except on his own knowledge or suspicion or on the
complaint or report of an Excise or Police Officer". But
before the charge,sheet in the present case came to be filed
by the Police, an amendment was made in Section 60 clause
(b) by Mysore Ordinance No. 4 of 1970 which came into force
on 7th August 1970. Section 18 of this amending ordinance
omitted the words "or police" in clause (b) of Section 60.
The result was that cognizance of an offence punishable
under Section 34 could not be taken by a Magistrate "except
on his own knowledge or suspicion or on the complaint or
report of an excise officer". Section 60 (B) was also added
at the same time and by this new Section inter-alia offence
under Section 34 was made cognizable and the provisions of
the Code of Criminal Procedure 1898 with respect to cog-
nizable offences were made applicable to such offence. It
was on the basis of the amended clause (b) Section 60 that
the learned Judicial Magistrate as well as the Sessions
Judge held that cognizance of the offence under Section 34
charged against the respondent could not be taken, since the
charge,sheet was filed by the police and not by an excise
officer. The learned counsel appearing on behalf of the
State contended before us that even on the language of the
amended clause (b) of Section 60 without the words "or
police", it was competent to the Judicial Magistrate by
reason of the enactment of Section 60(B) to take cognizance
of the offence, but it is necessary for us to examine this
contention since we find that before the Revision Applica-
tion came to be heard by the High Court, a further amendment
was made in clause (b) of Section 60 by Mysore Act 1 of 1971
and that restored the position which obtained prior to the
amendment made by Mysore Ordinance No. 4 of 1970. Mysore
Act No. 1 of 1971 was deemed to have come into force on 7th
August 1970 and Section 23 of this Act provided inter-alia
that the amendment to Section 60 made by Mysore Ordinance
No. 4 of 1971 shall be deemed never to have been made and
the provisions of Section 60 as they stood prior to the said
amendment shall be deemed to continue to be in force. The
result of the enactment of this provision by Mysore Act 1 of
1971 was that the amendment made in Section 60 clause (b) by
deleting the words "or police" by Mysore Ordinance 4 of
1970, was obliterated and wiped out with retrospective
effect so that in the eye of the law it was never made at
all. It is now settled law that when a legal fiction is
enacted by the Legislature, the Court should not allow its
imagination to boggle but must carry the legal fiction to
its logical extent and give full effect in it. We must,
therefore, proceed on the basis that the words "or police"
were always there in clause (b) of Section 60, even at the
time when the learned Judicial Magistrate made his order
dated 3rd October, 1970 refusing to take cognizance of the
offence and returning the charge-sheet to the police. If
these words were in clause (b) of Section 60 at that time,
then obviously the learned Magistrate was in error in refus-
ing to take cognizance of the complaint on the ground that
the charge-sheet was not filed by an excise officer but by
the police. That is the clear effect of the legal
547
fiction enacted in Section 23 of Mysore Act 1 of 1971 and
that this would be so is amply supported by the decision of
this Court in M.K. Venkatachalam I.T.O. and Another v.
Bombay Dyeing and Mfg. Co. Ltd.(1) The High Court as well
as the Court of Sessions, were therefore, clearly in error
in affirming the order made by the learned Judicial Magis-
trate and it must be held that the charge-sheet was validly
filed before the learned Judicial Magistrate by the police
and the Judicial Magistrate was entitled to take cognizance
of the offence on the basis of such charge-sheet.
We accordingly allow the appeal, set aside the orders
made by the learned Judicial Magistrate, Sessions Judge and
the High Court and remand the case to the Judicial Magis-
trate with a direction to him to deal with the charge-sheet
filed by .the police in accordance with law in the light of
the observations contained in this judgment.
ORDER
After we delivered the judgment in this case, our atten-
tion was drawn to the fact that subsequent to the decision
of the High Court, a fresh charge-sheet for .the same of-
fence was filed by the police against the respondent and in
view of the amendment made in section 60, clause (b) by
Mysore Act I of 1971, the learned Judicial Magistrate took
cognizance of the offence and tried the respondent and
ultimately as a result of the trial, the respondent was
convicted and sentenced to imprisonment and in fact by :the
time the appeal came to be heard by us, he had already
served out his sentence of imprisonment. In view of this
fact, it is unnecessary to remand the case to the learned
Judicial Magistrate for taking cognizance of the offence.
We accordingly direct that the last part of the final order
made by us which commences with the words "and remand the
case" be deleted.
S.R. Appeal allowed.
(1) [1959] S.C.R. 703.
548