Holding

A Special Judge is deemed a magistrate, the Adjustment of Jurisdiction Rules are mandatory, and the trial was without jurisdiction; therefore the conviction is quashed and the High Court’s acquittal is not on merits.

Summary

Three Army officers were charged with offences under Section 52 of the Army Act, 1950, which can be tried either by an ordinary criminal court or a court‑martial. They were tried before a Special Judge of the Fourth Additional Special Court, Calcutta, but the trial judge did not follow the Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, which require a magistrate to obtain a request from the appropriate military authority before proceeding. The Calcutta High Court held that the trial was without jurisdiction, quashed the conviction and said the acquittal of the other two officers was on the ground of lack of jurisdiction, not on merits. The State appealed. The Supreme Court affirmed that a Special Judge is deemed a magistrate under Section 8(3A) of the Criminal Law (Amendment) Act, 1952, making the Rules mandatory; consequently the trial was void and the High Court’s "acquittal" was not on merits. The appeal was dismissed, leaving the matter for the competent authority to decide on a fresh trial.

Issues considered

The Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules, 1952, whether they apply to a Special Judge of a Special Court.
Whether a Special Judge is deemed to be a magistrate for the purposes of Section 549 of the Code of Criminal Procedure, 1898.
Whether the trial conducted without compliance with Rules 3 and 4 is void for lack of jurisdiction.
Whether the High Court's order of acquittal is on merits or merely a consequence of jurisdictional defect.
Whether the Criminal Law (Amendment) Act, 1952 is applicable in West Bengal despite the West Bengal Criminal Law Amendment (Special Courts) Act, 1949.

Legislation cited

Army Act, 1950s. 122, s. 52
Code of Criminal Procedure, 1898s. 549
Criminal Law Amendment Act, 1952s. 11, s. 8(3A)
West Bengal Criminal Law Amendment (Special Courts) Act, 1949s. 13
West Bengal Criminal Law Amendment (Special Courts) Amending Act, 1953s. 3

Subjects

jurisdictionspecial judgemagistrateArmy ActSection 52Criminal Courts and Court Martial Rulesconcurrent jurisdictioncourt‑martialprocedural complianceacquittalWest Bengal

Judgment

A

SUPDT. & REMEMBRANCER OF LEGAL AFFAIRS,
WEST BENGAL
v.
USHA RANJAN ROY CHOUDHURY & ANR. B

MAY 21, 1986

[V. BALAKRISHNA ERADI AND M.P. THAKKAR JJ.]

Criminal Courts and Court Martial (Adjustment of Jurisdiction)
Rules, 1952, Rules 3 and 4--0ffences falling within purview of section c
52 of Anny Act, 1950---Trial by Magistrate-Procedure to be follo-
wed-'Specia/Judge", whether deemed to be a Magistrate.

Criminal Law (Amendment) Act, 1952. Section 8(3A). 'Special
Judge'-Whether deemed to be a Magistrate for Trial of offences under D
section 52 of the Army Act, 1950.

The three respondents-accused were charged with offences which
fell within the scope of section 52 of the Army Act of 1950. The ordinary
criminal court and th~ Court Martial both had concurrent jurisdiction to
try the said offences. They were tried by the Judge presiding over the E
Fourth Addi. Special Court, Calcutta. The learned Trial Judge, while
convicting one of the respondents and acquitting the remaining two,
failed to follow the procedure prescribed by the Criminal Courts and
Court Martial (Adjustment of Jurisdiction) Rules, 1952 framed under
Section 549(1) of the Code of Criminal Procedure of 1898.
F
The High Court, in appeal, took the view that the learned Judge
presiding over the Special Court had acted without jurisdiction in tak-
ing cognizance of the case and proceedin~ with the trial of three Army
Officers resulting in the conviction of one of them, and the acquittal of
the remaining two and quashed the proceedings.
G
Dismissing the appeals, by the State,

'
~. HELD: 1. The High Court was right in allowing the appeal of the
officer who was convicted and dismissing the appeal of the State calling
into question the acquittal of the remaining two. However, the acquittal
rendered by the High Court is on the ground of lack of jurisdiction on H
114 SUPREME COURT REPORTS [1986] 3 S.C.R.

A the part of the learned Special Judge who tried the case in the Special
Court and not on merits. The expression 'acquitted' has been employed
by the High Court though it was sufficient to say no more than this,
'that the order of conviction and sentence was without jurisdiction and
was therefore being quashed'. In the eye oflaw, it is not an acquittal
since it is not on merits. It is, therefore, for the competent authority to
B
decide whether or not to subject the accused to a fresh trial after follow-
ing the procedure prescribed by the Rules. I1250-FI \

c
2.1 In order to avoid any conflict of jurisdiction between the
criminal court and the court martial in regard to offenders who are
charged with having committed offences which fall under the purview
of Section 52 of the Army Act, 1950, Section 549(1) of Cr.P .C. provides
that Central Government may make Rules consistent with Cr .P .C. and
J
the Army Act. In pursuance of this provision contained in Section
549(1), Cr.P.C., the Central Government has framed Rules known as
Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rules
1952. l 117H; I ISA-Bl
D·
2.2 Rule 3 of the Rules requires that when a person subject to
military, Naval or Air Force law is brought before a Magistrate on
accusation of an offence for which he is liable to be tried by Court
Martial also, the magistrate shall not proceed with the case unless he is
requested to do so by the appropriate military authority. A combined
E reading of rules 3 and 4 shows that in case the Magistrate is of the
opinion that he should proceed with the case without there being any
such request from the appropriate military authority, the concerned
Magistrate is enjohied to give notice to the commanding officer in this
behalf. Till the expiry of seven days from the service of such notice on
the commanding officer, the Magistrate is prohibited from making any \
}
F order of conviction or acquittal or framing any charges or committing
the accused. Therefore, the ordinary criminal court would have no
jurisdiction to take cognizance of the case and to try the accused in a
matter where the procedure prescribed by the Rules has not been comp-
lied with. The initial lack of jurisdiction to take cognizance and try the
case would, of logical necessity, vitiate the trial and the order of conviction
G and sentence would be liable to be quashed as a result thereof. I1188-FI

In the instant case, admittedly the procedure prescribed by the
Rules was not followed. Under the circumstances it is futile to contend
that the Army authorities had voluntarily abandoned their option to try
the accused person in the court martial. There is no substance in the
H plea and it has been rightly repeUed by the High Court. I 1230-E I
TIIE SUPDT. v. U.R. ROY 115

Delhi Police Establishment, New Delhi v. Lt. Col. S. K. Loraiya. A
[1973] (I) SCR 1010 relied upon.

Major E.G. Barsay v. The State of Bombay [1962] (2) SCR 195
referred.
B
3.1 Section 13 of the West Bengal Criminal Law Amendment
(Special Courts) Act, 1949 in terms accords recognition to the applica-
bility of the Criminal Law (Amendment) Act of 1952 enacted by the
Parliament except and save some of the sections, namely, sections
6, 7 ,8,9 and 10 thereof which, as provided in Section 13, shall not apply
and shall be never deemed to have applied to West Bengal. It is implicit
in Section 13 of the West Bengal Act that the Central Act, namely, c
Criminal Law (Amendment) Act of 1952 is applicable to the State of
West Bengal except and save the aforesaid five sections. There can be
no doubt or debate about this position having regard to the fact that
criminal law is a subject which falls under the concurrent list and the
Criminal Law (Amendment) Act of 1952 enacted by the Parliament is D
applicable subject to inconsistency, if any, between the said Act and the
West Bengal Act. Moreover, the West Bengal Act does not contain any
provision pertaining to personnel governed by the Army Act. It is al-
together silent in re~ard to the matter pertaining to the procedure to
be followed in regard to Army personnel from the perspective of Section
549 Cr .P.C. and the rules framed under the authority thereof. There is E
thus no conflict between the Criminal Law (Amendment) Act of 1952
and the West Bengal Act in so far as this matter is concerned. Such
being the position the provision contained in Criminal Law (Amend-
ment) Act of 1952 with a special eye on the procedure to be followed in
Section 8(3A) and Section 11 of the Criminal Law (Amendment) Act of
(. 1952 will operate in this sphere without any let or hindrance. And F
inasmuch as Section 8(3A) in terms provides that the provision of Sec-
tion 549 Cr.P.C. shall so for as may be applied to the proceeding before
the Special Judge and that for the purposes of that provision a Special Judge
shall be deemed to be a Magistrate, the said provisions remain fully alive and
unaffected by the West Bengal Act. I124C-H; 125A]
G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 170 and 171of1977

From the Judgment and Order dated 29th May, 1975 of the
Calcutta High Court in Criminal Appeal No. 308 of 1972 and Govt.
Appeal No. 5 of 1973. H
116 SUPREME COURT REPORTS [19861 3 S.C.R.

A D.P. Mukherjee and G.S. Chatterjee t!or the Appellant.

Rathin Dass and Pankaj Kalra fo.r the Respondents.

The Judgment of the Court was delivered by
B
THAKKAR, J. The validity of the trial of three Army Officers is
in question.

The High Court has taken the view that the learned Judge presid-
ing over the Special Court had acted without jurisdiction in taking
cognizance of the case and proceeding with the trial of three Army
c Officers resulting in the conviction of one of them, and the acquittal of
the remaining two and has quashed the proceedings. The question
which calls for determination in these two allied appeals by special
leave preferred by the State of West Bengal is whether the High Court
was right in doing so.
D
The following facts are not in dispute:

(1) Three accused persons who were tried by the Judge
presiding over the Fourth Addi. Special Court, Cal-
cutta (hereinafter referred to as the learned Trial Judge
E for the sake of brevity) were Army Officers. They were
charged with offences in respect of which the ordinary
Criminal Court and the Court Martial both had con-
current jurisdiction.

(2) The Learned Trial Judge had failed to follow the pro-
F cedure prescribed by the Criminal Courts and Court
Martial (Adjustment of Jurisdiction) Rules, 1952 (re-
ferred to as Rules hereinafter) framed under Section
549 (1) of the Code of Criminal Procedure of 1898 (Cr.
P.C.)

G The following contentions were urged before the High Court on
behalf of the State with a view to substantiate the contention that the
learned Trial Judge had jurisdiction to take cognizance of the case and
that the trial was not null and void notwithstanding the fact that the
procedure prescribed by the Rules had not been followed.

H (1) The rules framed under Section 549(1) of Cr. P.C.
THE SUPDT. v. U.R. ROY {THAKKAR, J.] 117

tI were not attracted inasmuch as the rules applied to A
Magistrates and not to a Judge presiding over a Special
Court.

(2) Having regard to the provision contained in section 122
of the Army Act, 1950, which prescribes a period of B
limitation of three years, which period had already

I
elapsed during the pendency of the proceedings in the
High Court, the Court Martial would have no jurisdic-
tion to try the accused and that the trial held by the
learned Trial Judge could not be said to have been
I
vitiated in view of this circumstance.
c
(3) In view of a letter addressed by the Brigadier of the
Division concerned to the Police Officer for investigat-
ing the offences, it can be said by necessary implication
that the Army authorities had opted for the trial of the
case by the ordinary Civil Court. D
The High Court repelled all the three contentions, allowed the
appeal of the officer who was convicted, and dismissed the appeal of
the State calling into question the acquittal of the remaining two .
.. Besides reiterating the same three contentions before this Court, E
learned counsel for the appellant has raised a new point which was not
urged before the High Court. We propose to deal with the submissions
which were urged in the High Court before coming to grips with the
new point sought to be raised by the learned counsel for the appellant
~ State.
1,
F
For a proper appreciation of the first point, a quick look at the
~-
statutory provisions and the position emerging therefrom is called for.
In regard to the offences which fall within the purview of Section 70 of
the Army Act of 1950, an offender can be tried only by Court Martial
whereas in regard to offences falling within the purview of Section 52
of the said Act, the offences can be tried both by the ordinary criminal G
court as also by the Court Martial both of which have concurrent
jurisdiction. The offences with which the concerned accused were
~ charged before the learned Trial Judge were offences which fell within
the scope of Section 52 of the Army Act of 1950 and accordingly the
ordinary criminal court as also the Court Martial had concurrent
jurisdiction. In order to avoid any conflict of jurisdiction between the H
118 SUPREME COURT REPORTS [1986] 3 S.C.R.

A criminal court and the court martial in regard to offenders who are
charged with having committed offences which fall under the purview
of Section 52 of the Army Act, 1950, Section 549(1)1 of Cr. P.C.
provides that Central Government may make Rules consistent with
Cr. P.C. and the Army Act. In pursuance of this provision contained
B in Section 549(1) Cr. P.C. the Central Government has framed Rules
known as Criminal Courts and Court Martial (Adjustment of Jurisdic-
\
tion) Rules, 1952. Rule 3 of the said Rules requires that when person
subject to military, Naval or Air Force law is brought before a Magis-
trate on accusation of an offence for which he is liable to be tried by
Court Martial also the magistrate shall not proceed with the case un- J
less he is requested to do so by the appropriate military authority. On
(
c a combined reading of rules 3 and 42 , it is evident that in case the
Megistrate is of the opinion that he should proceed with the case
without there being any such request from the appropriate military
authority, the concerned Magistrate is enjoined to give notice to the
commanding officer in this behalf. Till the expiry of seven days from
D the service of such notice on the commanding officer, the Magistrate is
prohibited from making any order of conviction or acquittal or framing
any charges or committing the accused.

1 "The Central Government may make rules, consistant with this Code and the Army
Act, the Naval Discipline Act ani:l the Indian Navy (Discipline) Act, 1934 and the Air
Force Act and any similar law for the time being in force, as to the cases in which
E persons subject to military, naval or air-force law shall be tried by a Court to which
this Code applies, or by court-martial; and when any person is brought before a
Magistrate and charged with an offence for which he is liable to be tried either by a
Court to which this Code applies, or by a court-martial, such Magistrate shall have
regard to such ru1es, and shall in proper cases deliver him, together with a statement
of the offence of which he is accused, to the commanding officer of the regiment,
corps, ship or detachment to which be belongs, or to the commanding officer of the I
F nearest military, naval, or air-force station, as the case may be for the purpose of )
being tried by the Court-Martial." ' ·.
r
2. "3. Where a person subject to military, naval or Air Force law is brought before a
Magistrate and charged with an offence for which he is liable to be tried by a
court-martial, such magistrate shall not proceed to try such person or to issue
orders for his case to be referred to a Bench, or to inquire with a view to his
G commitment for trial by the Court of Sessions or the High Court for any offence
triable by such Court, unless
(a) he is of opinion, for reasons to be recorded, that he should so proceed
without being moved thereto by competent military, naval or Air Force
Authority, or
(b) he is moved thereto by such authority.
H
THE SUPDT. v. U.R. ROY [THAKKAR, J.] 119

It is in the background of these provisions that the High Court has A
t
' taken the view that compliance with the procedure prescribed by the
Rules is a mandatory requirement and that any proceedings under-
taken by the learned Trial Judge without compliance with the aforesaid

,
mandatory procedure would vitiate the trial before the ordinary crimi-
nal court and the entire proceedings would be rendered null and void. B
Faced with this situation, counsel for the State contended before the
High Court that the procedure embodied in Section 549( 1) of the Cr.
P .C. and Rules framed thereunder were applicable only to the court
•' presided over by a magistrate and not to a Judge presiding over a
l Special Court. This contention was negatived by the High Court. And
I it has now been reiterated before us, it being an admitted position that
the prescribed procedure has not been followed by the learned trial c
judge in the case giving rise to the present appeals. This argument was
possibly inspired by a point debated in Major E.G. Barsay v. The State
i of Bombay. [1962] (2) S.C.R. 195. The view was taken therein that
inasmuch as the aforesaid Rules refer to a Magistrate the Rules were
not attracted with regard to a trial before a Special Judge. It was D
presumably on accout of this decision that the Criminal Law (Amend-
ment) Act of 1952 was amended by incorporating Sections 8 (3A) and
11, reading as under:

..... Sectio!l 8(3A): In particular, and without prejudice to the generality
of the provisions contained in sub-section (3), the pro- E
visions of Sections 350 and 549 of the Code of Crimi-
nal Procedure, 1898 shall, so far as may be, apply to
the proceedings before a Special Judge, and for the
purposes of the said provisions a Special Judge shall
be deemed to be a Magistrate.
\ F
/
Section 11: Military, naval and air force laws not to be affected-
1
4. Before proceeding under clause (a) of rule 3 the Magistrate shall give written
notice to the Commanding Officer of the accused and until the expiry of a period
of seven days from the date of the service of such notice he shall not

(a) Convict or acquit the accused under sections 243, 245, 247 or 248 of the
G
Code of Criminal Procedure, 1898{V of 1898), or hear him in his defence
under section 244 of the said Code, or

•( (b) frame in writing a charge against the accused under section 254 of the said
Code; or

· (c) make an order committing the accused for trial by the High Court or the
Court of Sessions under section 213 of the said Code.'' H
120 SUPREME COURT REPORTS [1986] 3 S.C.R.

A (1) Nothing in this ·Act shall affect the jurisdiction ex-
ercisable by, or the procedure applicable to, any 1
Court or other authority under any military, naval or
air-force law.

This amendement was effected by virtue of Central Act XXII of 1966.
B
Having regard to the provision contained in Section 8 (3A) of the
Criminal Law (Amendment) Act of 1952 as it now stands it is clear that
a Sepcial Judge is deemed to be a Megistrate for the purposes of the
Rules framed under Section 549 (1) of the Code of Criminal Procedure
r
'
with the end in view to eschew the conflict between Court Martial on
the one hand and the ordinary criminal courts on the other. The High ~
c Court was therefore perfectly justified in repelling this contention
urged on behalf of the appellant State, albeit on a reasoning which is
somewhat obscure. Confronted by this situation counsel for the appel-
lant State has raised a new point to which a reference was made in the
earlier part of the judgment. The new point which has been so raised is
that Sections 8(3A) and 11 quoted hereinabove which were incor-
D
porated by Central Act 11 of 1958 as further amended by Central Act
XXII of 1966 were not applicable to the State of West Bengal from
where the matter giving rise to the present. appeals stems. Since no
such argument was advanced before the High Court, initially, we were
reluctant to permit counsel to raise this new point. But having regard
to the fact that it goes to the root of the matter we have permitted
E
counsel to urge this contention. We will however deal with it after
exhausting all the points which were urged before the High Court.

The next point which was unsuccessfully urged before the High
Court was in the context of Section 122 of the Army Act of 1950 which I
prescribes a period of limitation of three years. The High Court did I
F
not accede to the submission in this behalf having regard to the law
enunciated by this Court in Delhi Police Establishment, New Delhi v.
Lt. Col. Loraiya. [1973] (1) S.C.R. 1010. We are of the opinion that
the High Court was right. This Court in the aforesaid case has taken
the view to the effect that the question being essentially one of the
initial jurisdiction of the ordinary criminal court on the one hand and
G
the court-martial on the other: unless the procedure prescribed by the
rules is complied with the ordinary criminal court would not have
initial jurisdiction in regard to the matter, as is evident from the fol-
lowing passage:

H "It is an admitted fact_ in this case that the procedure speci-
THE SUPDT. v. U.R.. ROY [THAKKAR, J.] 121

fied in rule 3 was not followed by the Special Judge, A
Gauhati before framing charges against the respondent.
Section 549 (1) Cr. P.C. and rule 3 are mandatory. Accord-
ingly the charges framed by the Special Judge against the
respondent cannot survive. But counsel for the appellant
has urged before us that in the particular circumstances of
B
this case the respondent is not 'liable to be tried' by a
Court-martial.

Section 122 (1) of the Army Act, 1950, provides that no
trial by court-martial of any person subject to the Army
Act for any offence shall be commenced after the el!jliry of
the period of three years from the date of the offence. The c
offences are alleged to have been committed by the respon'
dent in November-December, 1962. So more than three
years have expired from the alleged commission of the off-
ence. It is claime.d that having regard to Sec. 122(l), the
respondent is not liable to be· tried l>y court-martial.
D
This argument is built on the phrase "is liable to be tried
either by the court to which this Code applies or by a
Court-martial" in section 549(1). According to counsel for
the appellant this phrase cannotes that the ordinary crimi-
nal court as well as the court-martial should not only have
E
concurrent initial jurisdiction to take cognizance of the case
but should also retain jurisdiction to try him up to the last
stage of conviction or acquittal. We are unable to accept
this construction of the phrase.

As regards the trial of offences committed by Army men,
F
the Army Act draws a threefold scheme. Certain offences
enumerated in the Army Act are exclusively triable by a
Court-martial; certain other offences are exclusively triable
by the ordinary criminal courts; and certain other offences
are triable both by the ordinary criminal court and the
court-martial. In respect of the last category both the
G
Courts have concurrent jurisdiction. Section 549 (1) Cr.
P .C. is designed to avoid the conflict of jurisdiction in re-
spect of the last category of offences., The clauase "for
which he is liable to be tried either by the Court to which
this Code applies or by a court-martial" in our view, quali-
fies the preceding clause "when any person is charged H
122 SUPREME COURT REPORTS [1986] 3 S.C.R.

A with an offence" in s. 549 (1). Accordingly the phrase "is
liable to be tried either by a court to which this Code ap-
plies or a court-martial" imports that the offence for which
the accused is to be tried should be an offence of which
cognizance can be taken by an ordinary criminal court as
well as a court-martial. In our opinion, the phrase is in-
B
tended to refer to the initial jurisdiction of the two courts to
take cognizance of the case and not to their jurisdiction to
decide it on merits. It is admitted that both the ordinary
criminal court and the court-martial have concurrent
jurisdiction with respect to the offences for which the res-
pondent has been charged by the Special Judge. So, s. 549
c and the rules made thereunder are attracted to the case at
hand."

Having regard to the enunciation of law to this effect it is evident
that the ordinary criminal court would have no jurisdiction to take
cognizance of the case and to try the accused in a matter where the
D
procedure prescribed by the Rules has not been complied with. The
initial lack of jurisdiction to take cognizance and try the case would of
logical necessity vitiate the trial and the order of conviction and sent-
ence would be liable to be quashed as a result thereof. We are there-
fore unable to accede to the submission urged on behalf of the appel-
lant State that even if the rules are applicable, having regard the fact
E
that more than three years have expired from the date of the commis-
sion of the alleged offence, the trial is not vitiated.

The last contention raised before the High Court was that having
regard to the fact that the investigation which preceded the lodging of
F the complaint before the learned Trial Judge was commenced in
pursuance of a letter written by the Brigadier of the Division, which
contained a request for investigation by the Police into alleged off-
ences, it can be said that the Army authorities had opted for the trial of
the accused person by the ordinary criminal court. The argument was
that by necessary implication this would follow as a logical corollary.
The High Court brushed aside this contention as untenable, taking
G
into account the contents of the letter in question. The said letter was
in the following terms:

"Dear Sir,

H (I) Please refer to Memo No. 8940 dated August 28, 1963
THE SUPDT. v. U.R. ROY (THAKKAR, J.] 123

from Shri R.K. Bhattacharyya, Superintendent of A
Police, D.E.B., Darjeeling.

(2) At appendix 'A' please find a copy of the investigation
that had been carried by us. We request you to take
over the case and submit your detailed report to us at B
your earliest convenience."

The High Court relied on the fact that the Army had called for a
detailed report by the Police which would show that the Army
authorities had not taken any such· decision either expressly or by neces-
sary implication. Counsel for the appellant has not been able to press
this point with any vigour for the obvious reason that it relates to the C
stage of investigation preceding the complaint. The question regarding
exercise of jurisdiction by the court-martial would arise only after the
investigation was completed and the police report was available. What
is more, it is only after the prescribed procedure under Rules 3 and 4 of
the Rules is resorted to by the ordinary criminal court that the ques- D
tion of exercising an option can arise. In the present matter, admit-
tedly the procedure prescribed by the Rules was not followed. Under
the circumstances it is futile to contend that the Army authorities had
voluntarily abandoned their option to try the accused person in the
court-martial. There is no substance in the plea and it has been rightly
repelled by the High Court. E

At Jong last, we come to the last point, the point which was not
urged before the High Court but which we have permitted the learned
counsel for the State to raise before us. It is argued that the Criminal
Law (Amendment) Act of 1952 was not applicable to the State of West
Bengal inasmuch as the State of West Bengal had enacted an Act of its F
own known as West Bengal Criminal Law Amendment (Special
Courts) Act, 1949 which was in operation throughout the whole of
West Bengal. No doubt it is true that Criminal Law is a subject which
falls within the scope of Entry 1 of List III (concurrent list) embodies
in 7th Schedule to the Constitution of India. The Union Government
as well as the State Government both can therefore legislate in regard G
to criminal law. The contention that the Criminal Law (Amendment)
Act, 1952 enacted by the Parliament of India is not applicable to the
State of West Bengal is altogether misconceived. It is necessary to
advert to the legislative history for a proper appreciation of the point
at issue. In 1938 the Government of India had enacted the Criminal
Law (Amendment) Act of 1938. In 1949 the State of West Bengal H
124 SUPREME COURT- REPORTS [19861 3 S.C.R.

A i.n\roduced the State legislation being the West Bengal Criminal Law
Amendment (Sepcial Courts) Act, 1949 (West Bengal Act). This Act
was further amended after the enforcement of the Constitution of
Jndia by incorporating Section 13 in 1953'. The said Section 13 has
great significance from the stand point of the present argument:
B
uCertain Sections of. Act XLVI of 1952, not to apply to
West Bengal:

13. Sections 6, 7, 8, 9 and 10 of the Criminal Law Amend-
ment Act, 1952 shall not apply and shall be deemed
never to have applied to West Bengal."
c It will thus be seen that Section 13 of the West Bengal Act in terms
accords recognition to the applicability of the Criminal Law (Amend-
ment) Act of 1952 except and save some of the sections namely sec-
tions, 6, 7, 8, 9 and 10 thereof which as provided in Section 13 shall not
apply and shall be never deemed to have applied to West Bengal. It is
D implicit in Section 13 of the West Bengal Act that the Central Act
namely Criminal Law (Amendment) Act of 1952 is applicable to the
State of _West Bengal except and save the aforesairr five. sections.
There can be no doubt or debate about this position having regard to
the fact that criminal law is a subject which falls under the concurrent
list and the Criminal Law (Amendment) Act of 1952 enacted by the
E Parliament is applicable subject to inconsistency, if any, between the
said Act and the West Bengal Act. So far as the coverage of the
present point is concerned, there is no such inconsistency. The West
Bengal Act does not contain any provisions pertaining to personnel
governed by the Army Act. It is altogether silent in regard to the
matter pertaining to the procedure to be followed in regard to Army
F personnel from the perspective of Section 549 Cr. P.C. and the rules
framed under the authority thereof. There is thus no conflict between
the Criminal Law (Amendment) Act of 1952 and the West Bengal Act
in so far as this matter is concerned. Such being the position the provi-
sions contained in Criminal Law (Amendment) Act of 1952 with a
special eye on the procedure to be followed in Section 8(3A) and
G Section 11 of the Criminal Law (Amendment) Act of 1952 will operate
in this sphere without any let or hindrance. And inasmuch as Section
8(3A) in terms provides that the provision of Section 549 Cr. P.C. shall
so far as may be applied to the proceeding before the Special Judge
3. This section was added by Section 3 of the West Bengal Criminal Law Amendment
(Special Courts) Amending Act of 1953 (West Bengai Act of 1953).
H
TIIE SUPDT. v. U.R. ROY (TIIAKKAR, J.] 125

and that for the purposes of that provision a Special Judge shall be A
deemed to be a Magistrate, the said provisions remain fully alive and
uneffected by the West Bengal Act. In view of this provision the proce-
dure prescribed by Section 549 Cr. P.C. read with the rules framed
thereunder which have been quoted in the earlier part of the judgment
will be applicable to a proceeding before a Special Judge in West
B
Bengal as well. In so far as the Army personnel are concerned there-
fore the law governing them and the procedure required to be followed
in their case would be the same in West Bengal as elsewhere in India as
it should be. It may incidentally be mentioned that in the West Bengal
Act also the Judge presiding over the Special Court is called a Special
Judge (vide Schedule to the West Bengal Act). He would therefore
deemed to be a Magistrate for the Purposes of the Rules in view of c
Section 8(3A) of the Criminal Law (Amendment) Act of 1952. The
mandatory procedure prescribed by the Rules is accordingly obliga-
tory even in respect of proceedings before a Special Court under the
West Bengal Act. There is thus no substance in this point. We are of
the opinion that this feeble and faint-hearted attempt is. born out of
D
desperation and deserves no more consideration. We have therefore
no hesitation in negativing this plea. No other point has been urged.
The appeal must therefore fail. But before we write 'finis' it may be
made clear that the acquittal rendered by the High Court is on the
ground of lack of jurisdiction on the part of the learned Special Judge
who tried the case in the Special Court and not on merits. The expres-
sion 'acquitted' has been employed by the High Court though it was E
sufficient to say no more than this, that the order of conviction and
sentence was without jurisdiction and was therefore being quashed. In
the eye of law, it is not an acquittal since it is not on merits. It is
thereore for the competent authority to decide whether or not to sub-
ject the accused to a fresh trial after following the procedure pre-
scribed by the Rules. With these observations, we dismiss the appeal. F

M.L.A. Appeal dismissd.