STATE OF MYSORE versus FAKRUSAB BABUSAB KARANANDI

Citation: [1977] 2 S.C.R. 544 · Decided: 17-12-1976 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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544 
STATE OF MYSORE 
FAKRUSAB BABUSAB KARANANDI 
December 17, 1976 and March 7, 1977 
v. 
(P. N. BHAGWATI, A. C. GUPTA AND JASWANT SINGH, .IJ.j 
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 ame11di11rt s. 
60(b) a11d introducing a news. 60B; Mysore Amendment Act No. 1 o.f 1971-
Effect of-Competency of the judicial magi5trare ill returning the complaint fried 
by a< Police Officer <1J1d refw;ing to take cogniza11ce of the offence under s. 60(b) 
as amended by Mysore Ordinance 4 of 1970 which represented the law as it that 
stood. 
The Mysore Ordinance 4 of 1970 which came mto 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 know-
ledge 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 ob-
tained 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 4! 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 applica-
tion 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. How-
ever after the dismissal of the revision by the High Court. on a fresh complr.int 
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 offence, convicted the accus-
ed and sentenced him to simple imprisonment for three months und 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 Gour!, 
HELD : ( 1) The High Court as well as the .court of. Session~ were cleady 
in error in affirming the order made by the learnea1uaicia! Magistrate. [547A1 
(2) The charge sheet was validly filed before ~he learned judici~l Magistrate 
by the Police and the Judicial Magistrate was entitled to take cogmzance of the 
offence on the basis of such charge sheet. [547 A-Bl 
( 3) The result of the enactment of s. 23 by Mysore Act I of .~ 971 w:is ,~hat 
the amendment made in s. 60 clause (b) by deletmg 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] 
H 
( 4) It is now well-settled law that when a legal fiction is enacted by the Legis-· 
lature the court should not allow its imagination to boggle but must carry the 
lei:tal fiction to its 1 ogical extent and give full effect to it. 
The clear e~ect t 
the legal fiction enacted in s. 23 of Mysore Act No. 1 of 1971 was t at 1 e 
MYSORE V. F. B. KARANANDI (Bhagwati, J.) 
545 
words "or police" were always there in cl. (b) of s. 60 even at the time when - A 
the charge sheet was presented before the learned Magistrate and if that be so. 
the learned 1Iagistrate was in error in refusing to take cognizance of the com-
plaint on the ground that the charge shiet was not filed by an excise officer but 
by the police. [546G·H, 547A] 
M. K. Venkatachalam l.T.O. & Anr. v. BOmbay, Dyeing & ].,ffg. Co. Ltd. 
: 
(1959) S.C.R. 703, applied. 
' 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 16 
of 1972. · 
Appeal by Special Leave from tbe Judgment and Order dated 
14-6-1971 of the Mysore High Court in Criminal Revision Petition 
L-
No. 229 of 1971. 
• 
N. Nettar, for tbe Appellant. 
K. R. Nataraja, for the Respondent. 
The Judgment of the Court.
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