BHAJAHARI MONDAL versus THE STATE OF WEST BENGAL

Citation: [1959] 1 S.C.R. 1276 · Decided: 11-09-1958 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

Septunbtr II. 
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1276 
SUPREME COURT REPORTS 
[1959] 
BHAJAHARI MOXDAL • 
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fl. 
THE STATE OF WEST BE~GAL 
(JAFER IMA.'.11 and J. L. KAPUR JJ.) 
Special Judges jurisdiclio11 of-Convicting of offc11ce 11ot"spccifi-
c11Uy cmpo;oercd lo try-Defect of j11risdictio11, if curable-West 
Bc11gal Criminal Law Amendment (Special Courls) Act, 1919 (W. B. 
XXI of r949), s. 4(2). Schedule-Criminal Law Amendment Act, 
1952 (X l.V I of 1952)--Cude of Criminal Procedure 
(V of 1898), 
s. 529(c)-l11dia11 Penal Code (X LV of 1860). ss. II6, 161 and 
165A. 
On September 6, 1952, the appellant, who was being tried by 
an Assistant Sessions Judge and a jury, was caught while giving 
a hribc to one of the jurors. 
By a notification elated Kovembcr 
27, 19)2, the Government of West Bengal, acting under s. 4(2).of 
the West Bengal Criminal Law Amendment (Special Courts) Act, 
1949, entrusted the case against the appellant under s. 161/116 
Indian Penal Code to the Special Judge, Burdwan, for trial. 
Before this date as a result of the introduction of s. l65A in the 
Indian }Jcnal Corle by the Cri1ninal La\v Amen<ln1ent .·\ct, i952, 
providing for punishment for ahctment of offen<iCS under ss. 161 
and 165, ahetment of s. 161 had ceasccl to be au ofience unc1er 
s. l6(II6 though it was an offeuce specified in the Schedule to 
the West 13eugal Act. 
The records were reccind by the Special 
Judge 011 December 23, 1952,.a:-td he took cognizance of the case. 
On February rn, 1954. a charge under s. 165-A Indian Penal 
Code was framecl by the Special Judge anc! on June 7, 1954, the 
appellant \Va9' con,·icted under s. 165-A and sentenced to rigorous 
imprisonment for six months. An appeal to the High Court of 
Calcutta was dismissed. The appellant obtained special lea\'e 
and appealed. 
Hdd, that the special Judge had no jurisdiction to try and 
convict the appellant for the ofience under s. 1G5A l11clia11 Penal 
Code as \Vhcn the case \Vas distributed to the Special Judge 
s. 1°65A \Vas not one of the offenr,es spccihed in the Sc!)cctulc of 
the \\'est H~ngal Act. 
'!"he case \vhich \vas distributed to the 
Special Judge \\'as oue under s. 1h1f116 Indian Penal Code, an 
offence \vhich \Vas non-existent at that time. Section r651\ 
cannot be deemed to ha\'e heen specified in the Schedule merely 
because al>ttment of the offences u11dtr ss. 161, 162, 163 and i65 
Indian Penal Code \\'as specifically mentioned in the Schedule . 
The offence under s. 165,\ is a distinct offence. 
It is not rnerely 
a rcstate1nent of the offence of abetmcnt under s. 116; it com-
prises also al;etn1eiit under s. 109 and provides for au enhanced 
pe~alty .• 
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This defect of jurisdiction could not be .cured by•'- 529(e) of 
the Co<le of Criminal Procedure. 
Section 529(e) applied to 
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S.C.R. 
SUPREME COURT REPORTS 
t277 
Magistrates and "i)uld not apply to Special Judges whose juris-
I958 
diction arose not on their taking cognizance under s. rgo of the 
Code but on the case for offences'spe~ified in the Schedule being Bhajahari Monda/ 
distributed to them by the State Government by a proper 
v. 
notification. 
The State of West 
CRIMINAL 
APPELLATE 
JURISDICTION: 
Crit11inal 
Appeal No. 29 of 1956. 
Bengal 
"; 
Appeal from the judgment and order dated August 
24, 1955, of the Calcutta High Court, in Criminal 
Appeal No. 196 of 1954, arising out of the judgment 
and order dated June 7, 1954, of the Court of the 
Judge, Special Court, Burdwan, in Special Court case 
No. 10 of 1952. 
8. 0. Issacs and 8. N. Mukherjee, for the appellant. 
13. Sen and P. K. Bose, for the respondent. 
1958. September 11. 
The Judgment of the Court 
was delivered by 
KAPUR J.-This is an appeal by le.ave of the High 
• Court of Calcutta against the judgment and order of 
that Court dismissing the appellant's appeal against 
the order of conviction by the Special Court of 
Bu.rd wan for an offence under'S. 165-A, Indian Penal 
Code and six months' rigorous imprisonment. 
The facts leading to this appeal .are, that one 
Istipada G bosh and his son were being tried in the 
court of an Assistant Sessions Judge, Burd wan, with a 
jury of five. 
During the course of the trial the appel-
lant approached one of the jurors Baidya Nath 
Mukherjee• and offered him illegal gratification as an 
inducement for giving a verdict favourable to Ghoshl'lB. 
On the morning of September 6, 1952, the juror narrat-
ed these facts to the police and thereupon the officer 
in charge sent 

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