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Appeal No. 403 of 1956, and Revision No. 508 of 1956, decided on 17th July 1957.
More Special Judges than one for particular d area‑All have concurrent jurisdiction to try a particular case.
It cannot be the intention of the Legislature that if a particular judge is not nominated to try a particular case, the other Special judge for the area having jurisdiction is debarred from exercising his inherent jurisdiction. Thus where there were more than one Special judge for an area and no nomination was made by the Government to try a case and the case was heard and decided by one of the Special Judges.
that the trial was neither illegal nor without jurisdiction.
The Legislature can be said to have intended that the Special judges having concurrent jurisdiction over a particular area should have powers and jurisdiction to try the offences unless such powers can be said to have been taken away by clear indication to the contrary.
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Government empowered to frame rules for trial of private persons as well.
The power of the appropriate Government to frame rules in respect of private persons for trial of offences which are triable before a Special judge is covered by subsection (1) of section 11 of the Pakistan Criminal Law Amendment Act 1948.
‑Criminal Lazy Amendment Act (XIX of 1948), S. 5 (5)‑Sanction accorded by Superintendent of Police ‑No objection as to, its legality raised in trial Court‑Trial in order‑Evidence Act (1 of 1872), S. 114 illus. (e).
In the present case sanction was given by the Superin tendent of Police. No objection as to its legality was raised in trial Court. It was contended for the first time in the High Court that it not having been proved that the Superintendent of Police, who accorded sanction for the prosecution of the appellant was the appointing authority, the trial was bad.
that sanction accorded will be treated as valid in law as there is a presumption under illustration (e) ‑ of section 114 of the Evidence Act that if an official act is proved to have been done, it will be presumed to have been regularly done unless the contrary is proved.
A. M. Sayem, and S. M. Amin Azhar or Appellants.
Salahuddin Ahmad Deputy Legal Remembrancer for State.
This is an appeal by the accused persons who were tried by Mr. N. Ahmed, Special Judge, Rangpur. He convicted appellant Nirode Chandra Biswas under section 161 of the P. P. C., read with section 5 (2) of Act II of 1947 and sentenced him to rigorous imprisonment for one year and also to pay a fine of Rs. 25, in default to rigorous imprisonment for one month more. He also convicted him under section 342 read with section 5 (2) of Act II of 1947 and sentenced him to rigorous imprisonment for 6 months and also to pay a fine of Rs. 25, in default to rigorous imprisonment for one month more. He convicted appellant Sk. Osman alias Sk. Muhammad Osman under sections 342/109 and sentenced him to rigorous imprisonment for 6 months and also convicted him under section 165 and sentenced him to rigorous imprisonment for 6 months and also to pay a fine of Rs. 25, in default to rigorous imprisonment for one month more. He convicted appellant Asgar Ali alias Muhammad Asgar Ali Mia under section 165 and sentenced him to rigorous imprisonment for 6 months and also to pay a fine of Rs. 25, iii default to rigorous imprisonment for one month more. The sentenceswere ordered to run concurrenty. The sentences awarded to each of the appellants in each of the cases along with the substantive sentences imposed in default of payment of fines in each of the cases were ordered to run concurrently with the sentences passed in Special Cases Nos. R‑30, 31 and 33 of 1955.
The prosecution case briefly stated is that appellant Nirode Chandra Biswas, while attached to Nilphamari police station as Sub‑Inspector of Police, on 31st March 1955, in course of investigation of Nilphamari P. S. case No. 17 dated 27th March 1955, under section 380 of the P. P. C., with the help of appellant Constable No. 587 Sk. Osman and chaukidars arrested Rahman, Jalimuddin, Alauddin and Sakiuddin of village Chapra Saranjani with the help of the pagrees of the chaukidars, the waists of those persons were tied and they were taken to the house of appellant Asgar Ali, a clerk of the Union Board, where the arrested persons were kept confined. Thereafter the appellants consulted amongst themselves and Asgar Ali told the arrested persons that, if each of them paid Rs. 100, then they would be released but ultimately the sum was reduced to Rs. 40 to be paid by each of the arrested persons. The relations and neighbours of the arrested persons came and Abbas Fakir brought Rs. 20 to the house of Rajani Patwari where 3 of the arrested persons had been taken by appellant Nirode Chandra Biswas and accused Constable Sk. Osman and the chaukidars. Abbas Fakir brought Rs. 20 for release of Rahman and paid the same to Bharsha who in his turn made over the same to Asgar Ali who paid it to appellant Nirode Chandra Biswas. Then appellant Nirode wrote Something on a piece of paper and took the signature of Bharsha and released Rahman. The other arrested persons Jalimuddin and Alauddin also .were released on payment of money by their men. After that, all the 4 arrested persons came to Rangpur Sadar and got a petition written by a Mohrar named Mahtabuddin making allegations of taking bribe by the appellants and filed it on 4th April 1955, in the office of the D. A. B. and the Inspector of D. A. B , after getting permission of the Superintendent of Police. D. A. B., held preliminary enquiry and thereafter filed a written ejahar with Nilphamari Police and then he himself started investigating the case and submitted charge‑sheet against all these accused persons after obtaining sanction for their prosecution.
The accused persons pleaded not guilty in the case and they denied having received any money from anybody.
It has been proved that appellant Nirode Chandra Biswas was the Sub‑Inspector of Police attached to Nilphamari police‑station at the relevant time. He investigated, P. S. Case No. 17 dated 27th March 1955, under section 380 and submitted final report.
Mr. Sayem has appeared on behalf of the appellants and: the learned Deputy Legal Remembrancer has .appeared on behalf of the State.
Mr. Sayem has argued certain law points, the first being covered by ground No. 7 to the effect that the trial has been held without jurisdiction, because the learned Special Judge was not legally in seizing of the case in conformity with section 4 of the Pakistan Criminal Law Amendment Act, 1948. He has referred us to that section which is in the following terms
"(1) A Special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Government by notification in the Official Gazette and may take cognizance of any offence committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer.
(2) An offence shall be tried by the Special Judge for the area within which it was committed, or where there are more Special Judges than one for such area, by such one of them as may be specified in this behalf by the appropriate Government Provided . . . . . , ,"
From the records it appears that the district of Rangpur had more than one Special Judge: The order‑sheet of the case reveals that originally the case was pending before a first class Magistrate, presumably the S. D. O. On 16th December 1955, charge sheet was received against the appellants and the sanction order was attached with the charge‑sheet. The Magistrate concerned forwarded the records to the Special Judge, Rangpur, for trial of the case. On 29th December 1955. the Special judge, namely. Mr. N. Ahmed received the records from the S.D.O., Nilphamari, for trial of the accused in the Court of the Special judge, and, on the same day, he transferred the case to the file of Mr. A. S. Khan, Special Judge of Rangpur, for disposal. It appears that on 26th January 1956 the appellants appeared before Mr: A. S. Khan and, as there was no order yet from Government transferring this case to him, he was of opinion that he could not try it and he passed an order that the case be put up when the order of transfer from Government came: On 11th June 1956, the case was put up before Mr. N. Ahmed for fixing a date for trial in his Court. He vacated the .order transferring the case to Mr. A. S. Khan and he proceeded with the trial of the case.
Mr. Sayem has contended that there were more than one Special judge for the district of Rangpur and Mr. N. Ahmed in his capacity as the Sessions judge and ex‑officio Special Judge, having received the records of the case on 29th Decem ber 1955, from the S. D. O., at Nilphamari, had no jurisdiction to try the case though the order, dated 29th December 1955, purporting to transfer the case to the file of Mr. A. S. Khan, special judge of Rangpur, was vacated by his order dated 11th June 1956, inasmuch as the appropriate Government, namely, the Provincial Government, did trot specify in terms of subsection (2) of section 4 of the Criminal Law Amendment Act, 1948, as amended up to‑date, as to which of the two Courts of the Special judges should try the case. His argu ment is that the exercise of jurisdiction for the purpose of trying a case is dependent on the nomination by the Govern ment of a Special judge and the inherent lack of jurisdiction on this score is not curable in the eye of law. The net substance of his argument is that because Mr. N. Ahmed was not nominated by the Government to try this particular case; the entire trial was not merely irregular but illegal and without jurisdiction.
The learned Deputy Legal Remembrancer has in his own way interpreted subsection (2) of section 4 of the said Act. He has referred to Notification Nos. 3530 J. and 3531 J. both dated 17th September 1955, and published in the Dacca Gazette on 29th September 1955. Notification No. 3530 J. is as follows
"In exercise of the powers conferred by subsection (2) of section 3 of the Pakistan Criminal Law Amendment Act, 1948 (Act XIX of 1948), the Governor is pleased to appoint with immediate effect all Sessions judges, all Additional Sessions judges and all Assistant Sessions Judges of East Bengal ex‑officio as Special judges to try and punish offences specified in the First and Second Schedules to the said Act and such other offences as notified and as may, from time to time, be notified by the Provincial Government in the Official Gazette under that Act."
Notification No. 3531 J., is as follows
"In exercise of the powers conferred by subsection (1) of section 4 of the Pakistan Criminal Law Amendment Act, 1948 ( Act XIX of 1948), the Governor is pleased that all Sessions Judges, all Additional Sessions judges and all Assistant Sessions Judges of East Bengal who have been appointed ex‑officio as Special judges under subsection (2) or section 3 of the said Act shall have jurisdiction to try offences under that Act committed within the district in which they are posted from time to time."
The learned Deputy Legal Remembrancer has argued that Mr. N. Ahmed as Sessions Judge and ex‑officio Special judge had the initial jurisdiction, to receive the records of the case from the S. D. O., at Nilphamari. According to him, there was no dispute that Mr. N. Ahmed and Mr. A. S. Khan were vested with powers to exercise jurisdiction as Special judges within the territorial limits of Rangpur district and consequently they had concurrent jurisdiction to take cogniz ance of and try offences punishable under the Criminal Law Amendment Act, 1948, as amended up to date. He has con tended that Mr. N. Ahmed, in his capacity as Sessions judge and ex‑officio Special judge, having such concurrent jurisdiction was competent to try the offences after receipt of the records from the S. D. O., Nilphamari. By Subsection (1) of section 4 of the Act, the Legislature has given powers for the exercise of jurisdiction and taking cognizance in respect of such offences. Subsection (2j of that section, according to the learned Legal Remembrancer, contemplates two possible cases : (1) An offence has been made triable by any of the two or more Special judges assigned for a particular area and whoever among them takes cognizance of the offence is free to exercise jurisdiction and proceed with the trial even though no nomination is made by Government as to which Special judge of the area should try the case ; (2) The other possible case, according to the learned Deputy Legal Remembrancer, is that there may be cases in which the appropriate Govern ment may for various reasons think it necessary to nominate or specify a particular Special judge for trying an offence punishable under the Act. In such cases, the Government will have power to signify its nomination. In other words, the latter part of subsection (2) is an enabling provision which empowers the Government to make a choice of or specify a particular Special judge when there are snore Special judges than one for any particular area. It may be noted that the use of the word "or" is significant. According to the learned Deputy Legal Remembrancer, it cannot be understood except in the sense of making an alternative provision to be availed of in suitable cases by the appropriate Government. If no nomination is made by Government, the trial is intended to proceed, as usual, without waiting for the nomination or an order of transfer from the Government.
We have given our serious consideration to the arguments advanced before us by both the learned Advocates and, in our opinion, the argument advanced by the learned Deputy Legal Remembrancer must prevail. It cannot be the intention of the Legislature that if a particular judge is not nominated to try a particular case, the other Special judge for the area A having jurisdiction is debarred from exercising his inherent jurisdiction, In the present case, the file originally came to the Sessions Judge and it was transferred to the file of Mr. A. S. Khan who did not hear the case as he had not been specially nominated by Government to try this case. The order transferring the case to the file of Mr. A. S. Khan was cancelled and the Sessions judge as Special judge having concurrent jurisdiction in the area heard the case and decided the same. It is impossible to hold that the trial held by g Mr. N. Ahmed for any reason is illegal or without jurisdiction.
Mr. Sayem then based his argument on grounds Nos. 4 and 5 to the effect that the Special Judge ought to have held that the Superintendent of Police had no authority to sanction prosecution of appellant No. 3, a clerk of the Union Board. He has argued in this connection that the rules framed by the Government under section 11 of the Pakistan Criminal Law Amendment Act, 1948, in so far as they relate to authorisation of persons for according sanction for prosecution. under the said Act, have been in excess of powers conferred by the Act oil the Provincial Government, and, as such, ultra vires and of do legal effect.
Section 11 of the said Act relates to powers to make rules. Subsection (1) is to the effect that the appropriate Government may frame rules to carry out the purposes of this Act. Subsection (2) deals with authorisation of persons to exercise the power to sanction prosecution on behalf of the appropriate Government in respect of various grades of public servants, emoluments of Special judges and the place and time of the sitting of Courts presided over by Special judges, and summoning of witnesses and compelling the production of documents, etc., and other matters incidental to the above. By Notification No. 1443 J. dated 15th April 1955, published in the Dacca Gazette on 16th April 1955, certain rules were framed by Government under section 11 of the Act and by rule 3 it was provided that sanction for prosecution of a public servant alleged to have committed any offence under the Act shall be given by the authority who has appointed him. This Notification was amended by Notification No. 2278, dated 13th June 1955, and published in the, Dacca Gazette on 23rd June 1955. Rule 3 of the above Notification was amended as follows
"(3) Sanction for prosecution of a public servant includ ing the sanction for prosecution of any private person acting jointly with the public servant shall be given by the authority who has appointed that public servant and sanction for prosecution of any private person, not acting jointly with any public servant in any case, by the Collector of the district concerned."
Mr. Sayem has contended that section. 11 of the Act empowers the appropriate Government to frame rules in respect of public servants only and does not empower the Government to make any rules regarding private individuals and, therefore, the amending Notification No. 2278 J., is ultra vires of the Act. Reading the entire section 11, we are of opinion that' the power of the appropriate Government to frame rules in respect of private persons is covered by subsection (1) of that section. We are unable to hold that the appropriate Govern ment had not the power to frame any rules in respect of private persons. In the present case, Notification No. 2278 J. amending rule 3, touches the case of appellant Asgar Ali.
Mr. Sayem has further argued basing his argument on grounds Nos. 2 and 3 that the Special judge erred in taking cognizance of the case upon the sanction accorded by the District Superintendent of Police, who was not competent in law to accord sanction for the prosecution, and, as such, the convictions and sentences resulting from the trial of such cognizance are liable to be quashed. He has further argued that the Special judge ought to have noticed that the sanction accorded by the Superintendent of Police was of no legal effect in view of the total absence of proof to the effect that lie was the appointing authority in respect of Sub‑Inspectors of Police, or he, in fact, had appointed Nirode Chandra Biswas a Sub‑Inspector. Subsection (5) of section J of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in any other law, the previous sanction of the appropriate Government shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act. It has already been mentioned that it was provided by Notification No. 1443 J. dated 15th April 1955, that sanction for prosecution of a public servant alleged to have committed an offence shall be given by the authority who appointed him. Mr. Sayem's argument is that the appellant Sk. Osman, a constable, admittedly was appointed by the Superintendent of Police
and, as such, for his prosecution the sanction accorded by the Superintendent of Police is valid. So‑far as appellant Nirode Chandra Biswas is concerned, according to him,' it has not been shown that the Superintendent of Police is the appointing authority of Sub‑Inspectors of Police, and, as such, the sanction given by the Superintendent of Police, so far as he is concerned, is not a proper and legal sanction. So far as the appellant Asgar Ali is concerned, his name is included in the sanction order, Exh. 7, given by Mr. Nuruddin Ahmed, Superintendent of Police, Rangpur, dated 2nd December 1955.
It appears that at the trial stage no attempt was made to challenge this aspect of the prosecution case. It was not contended there that the sanction accorded is invalid for any reason and that the Superintendent of Police is not the appointing authority of appellant Nirode Chandra Biswas. However, at this stage this point has been urged and the learned Deputy Legal Remembrancer has drawn our attention to Rule 741 contained in the Police Regulations, Bengal, 1943, Volume I, at page 741. Under the head "Unarmed Police", it is shown that departmental appointments are made by the Superintendent of Police of the district, or by the Special Superintendent of the Intelligence Branch, or by the Assistant to the Deputy Inspector‑General, Criminal Investigation Department. The sanction order shows that appellant Nirode Chandra Biswas was not a permanent Sub‑Inspector of Police but was officiating in that capacity. As such, his was a departmental appointment and the Superintendent of Police of the district was competent to accord sanction for his prosecution.
As already observed, the sanction, Exh. 7, was accorded by the Superintendent of Police and there is a presumption attached thereto that the official act has been regularly per formed under illustration (e) to section 114 of the Evidence Act. In this connection, we may refer to Sham Sunder Lal v. Emperor (A I R 1926 All. 264), where it was held that there is a presumption in favour of any order of an official being legal until the contrary is proved. In B. Walvekar and others v. The King Emperor (30 C W N 713 (717)), their Lordships observed that the meaning of illustration (e) of section 114 is that if an official act is proved I to have been done, it will be presumed to have been regularly done. In the present case, this point was not agitated in the trial Court and, had it been agitated, evidence possibly would have been adduced to prove that the Superintendent of Police is the appointing authority so far as departmental appoint ments are concerned. The learned Deputy Legal Remem brancer has referred to Rule 741 of the Police Regulations, as already stated, which bears out that fact. There is, therefore, no substance in this objection.
These are all the legal objections that were raised before us and we have given our serious consideration and find against Mr. Salem on all points. There only remains for consideration the merits of the case. Mr. Sayem has taken us through the evidence recorded and, at the outset, we may state that the evidence has fully established the case against the appellants. P. W. 1, is Rahman. the arrested person who has deposed that on the 17th Chaitra
before last on a Thursday he was arrested along with the other arrested persons. They were taken to the house of Asgar Ali Kerani
where the appellants consulted amongst themselves and the arrested persons were told that, if each of them paid Rs. 100, they would be released. Manir, brother of Saki, came there and paid money to the Daroga who released Saki. Thereafter they were taken to the house of Rajani Patwari where Bharsha, Bhola, Kasimuddin, Akbar, Rajkumar and others came. Abbas Fakir brought Rs. 20 for him and he paid Rs. 20 to Bharsha who made it over to Asgar who in his turn paid it to the Daroga. Then the Daroga took a jamin nama and the witness was released. He is a signatory to the petition filed in the D. A. B. Office and written by Mahtabuddin. In cross‑examination, he stated that it was not a fact that after questioning them the Daroga let them off from the house of Asgar which is 10 or 12 drones off from the house of the witness. Bhola, Bharsha, Ganglu, Abbas Fakir also came to the house of Asgar. Sakiuddin is his father‑in‑law. He is a cousin of P. W. 2 Jalimuddin. He deposed in the case of Jalimuddin. P. W. 2 is Jalimuddin, another arrested person. In cross‑examination he stated that it was not a fact tl.at the Daroga did not arrest them and tie them. He also stated that it was not a fact that they had not been taken to the house Rajani Patwari. P. W. 3 is Abbas Fakir, who went home and brought Rs. 20 and, going to Rajani Patwari's house, paid Rs. 20 to Bharsha who made it over to the appellant Asgar who in his turn paid it to the Daroga Nirode. Then Rahman was released. Rahman is a brother of his dost
Jahan. P. W. 2 Jalimuddin is his uncle. Alauddin is his shala
and Sakiuddin is his tahai.
He stated in cross‑examina tion that it was not a fact that they did not pay any money. P. W. 4 is Dabiruddin who is a nephew of P. W. 1 Rahman. P. W. 5 is Jabanulla, a brother of P. W. 1 Rahman. Abbas Fakir wanted Rs. 10 from him for the release of RahVnan and he gave Rs. 10 to Abbas Fakir. P. W. 6 is Bharsha Pramanik, headman of the village and cousin of P. W. 1 Rahman. He went to the house of Asgar Ali and found Jalim uddin, Rahman and Alauddin kept with their waists tied with pagrees.
On query, the appellant Constable told him that if Rs. 100 be paid for each, then the arrested men would be released. He went to his house and then again to the house of Rajani Patwari where the arrested men had been taken in the meantime. There Abbas Fakir brought Rs. 20 for the release of Rahman and handed over the money to him and he made over the money to appellant Asgar who in his turn paid it to the appellant Daroga. The Daroga demanded Rs. 40 for the release of each of the persons but he also stated that on payment of Rs. 20 the arrested men would be released on bail. A jamin nama
was taken from the witness for Rahman's release and thereafter Rahman was released. His cross‑examination shows that as he is the headman, the money was paid in his hand. P. W. 7 is Ganglu, a homestead‑tenant of Bharsha. He deposed in Jalimuddin's case as well. P. W. 8 is Kasimuddin who went to the house of Asgar Ali and saw the occurrence.
We have satisfied ourselves that in spite of the relation ship of some of the witnesses, they are deposing truthfully when speaking of the occurrence. The above‑named witnesses corroborate. P. W. 1 Rahman. It has not been shown that any of the witnesses had any enmity or ail‑feeling with any of the appellants. There is no reason whatsoever for: discarding their evidence on any ground. We are satisfied, having regard to this overwhelming evidence, that the prosecu tion has succeeded in proving the case against the appellants under the various sections.
When this appeal was admitted, a suo mote Rule, being Rule No. 508 of 1956, was issued by the Court calling upon the District Magistrate of Rangpur and the accused opposite parties to show cause why the sentence passed on them should not be enhanced. It may be stated that these appellants are also appellants in Criminal Appeals Nos. 401, 402 and 404 arising out of three other cases arising out of the arrest of Jalimuddin. Sakiuddin and Alauddin. They have been convicted and sentenced in those cases as well. The learned Judge tried all the 4 cases, one after the other, and, while passing sentence in the case out of which this appeal arises, wade the following observation;
"The sentences awarded to each of the accused in each of the cases along with substantive sentences imposed in default of payment of fine in each of the cases will run concurrently with the sentences passed in Special Cases Nos. R. 30, 1 and 33 of 1955.
Appellant Nirode Chandra Biswas is a Sub‑Inspector of Police, though in an officiating capacity. The appellant Sk.Osman is a police constable and appellant Asgar Ali is the clerk of the Union Board. The first two appellants belong to the Police Force whose duty it is to maintain law and order. The facts in this case are extremely ugly and we have believed the prosecution case that the appellants have commuted the offences alleged against them. As members of the Police Force, they bring discredit on the Police Force when appellants Nirode Chandra Biswas and Sk. Osman commit offences. The confidence of the public will be shaken and the Police Force will earn a bad name. The learned Judge has remarked that in awarding the sentences, as he has done, appellants Nirode Chandra Biswas and Sk. Osman would lose their jobs and to meet the justice of the case he has awarded the sentences already mentioned. He has not given any reason whatsoever why the sentences in all the cases were ordered to run concurrently. We have heard Mr. Sayem and the learned Deputy Legal Remembrancer on the question of enhancement of sentence and the sentences passed appear to be inadequate in view of the serious nature of the case. We think this is a fit case where the sentences awarded should be enhanced.
We, accordingly, uphold all the convictions passed on the appellants but enhance the sentences as follows : The sentence on Nirode Chandra Biswas under section 161 read with section 5(2) of Act II of 1947 is enhanced from rigorous imprisonment for one year to rigorous imprisonment for 2 years. The sentence of fine will remain as before. His sentence under section 342 read with section 5(2) of Act Il of 1947 is enhanced from rigorous imprisonment for 6 months to rigorous imprisonment for one year. The sentence of fine will remain as before. So far as appellant Sk. Osman is concerned, the sentence under sections 342/109 is enhanced from rigorous imprisonment for 6 months to rigorous imprison ment for one year. The sentence under section 165 is enhanced from rigorous imprisonment for 6 months to rigorous imprisonment for one year. The sentence of fine will remain as before. Finally, so far as appellant Asgar Ali is concerned, the sentence under section 165 is enhanced from rigorous imprisonment for 6 months to a sentence of rigorous imprison ment for one year. The order of fine will remain as before. The sentences are ordered to run concurrently.
The learned judge has ordered that the sentences in all the 4 cases are to run concurrently. That order will remain.
The result, therefore, is that this appeal is dismissed and the connected Rule, being Rule No. 508 of 1956, is made absolute in terms stated above. The appellants, who are on bail‑ must now surrender to their bail bonds to serve out the sentences now imposed on each of them. They must pay the fine required of them, in default to suffer rigorous impri sonment imposed in lieu thereof.
I agree. I would, however, add a few words to what has been said by my learned brother. On the question of jurisdiction, as raised by Mr. Sayem, it seems clear that the object of the Legislature as indicated in the preamble was to have a speedy trial. While construing the language employed in subsection (2) of section 4, we should not rule that out from our view. The two parts of subsection (2) are connected by the conjunction "or" which should be under stood in its ordinary, plain and natural meaning. The first part can be understood to be an independent, self‑contained provision laying down the procedure for trial of offences under the Act by the Special judge concerned. It is a well‑recognised rule of construction that words sometimes, though used in the singular, are understood in the plural sense. The possibility of meaning Special judge' in the first part of subsection (2) also in the plural sense cannot, therefore, be ruled out. The Legislature can be said to have intended that the Special judges having concurrent jurisdiction over a particular area should have powers and jurisdiction to try the offences unless such powers can be said to have been taken away by clear indication to the contrary. In that view of the matter, the Sessions judge who also acted in his capacity as ex‑officio Special judge had jurisdiction not only to receive the records of the case from the S. D. O. but also to proceed with the trial of the case. On a reference to certain observa tions in the Commentary "Maxwell on Interpretation of Statutes", 9th Edition, we find at page 372
"When a power is conferred to do some act of a judicial nature, or of public concern and interest, there is implied an obligation to exercise it when the occasion for it arises .
If it is conceded, as it ought to be, that a speedy trial was one of the objects of this Act, then, in the absence of any contrary language employed in the subsection itself, it has to be presumed that the learned Sessions judge who was acting in his capacity as a Special judge in the present case was under an obligation to exercise his powers, as the occasion for it arose, on receipt of the records from the S. D. O., Nilphamari. It is a case of new jurisdiction conferred upon him by a special statute and, unless anything to the contrary appears to have been expressed or plainly implied, it was his duty to proceed with the trial according to the general inherent powers of the Court. The following observation may also be quoted from the same page of that volume
"When a new jurisdiction is given to an existing Court to deal with new matter in a different mode and by a different procedure, it is understood, unless the contrary be expressed or plainly implied, to be intended to be exercised according to the general inherent powers of the Court."
In my view, the intention of the Legislature in enacting the Special Statute was to have a speedy trial and not to allow the progress of such a trial to be held up for specification by the appropriate Government of a particular Special judge out of the two Special judges for the area concerned. For these and other reasons. as indicated by my learned brother, I also agree with the order as passed in this case.
Z. A. S.
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