Judgment 1. THE facts in this case are shortly as follows: on or about 17th December, 1956 an information was lodged at the Hare, Street Police Station regarding a missing book of sales tax declaration forms. On the basis of this information, case Mo. 30 of 1957 was started and investigation commenced under Chapter XIV of the Criminal Procedure Code. Various persons were arrested including the petitioner, and on the 26th February, 1959 a charge-sheet was submitted against 77 accused persons including the petitioner, Mahal Chand Sethia, in respect of offences under sections 120b 280/411/414/420/471/474 of the Indian Penal Code 822 witnesses were named in the charge-sheet including two public servant, Sudeb Chandra Auddy and Amalendu Roy Chowdhury. On the 20th March, 1959 a supplementary charge sheet was submitted against another accused Bhagawandas Chetlangi On the 25th September, 1959 a second supplementary charge sheet was submitted against five additional accused persons, two of them being the two public servants above mentioned who had been cited as witnesses. In their case, the charges were entirely different. On the 8th December, 1959 there was ft notification issued by the Government of West Bengal, being Notification No. 10216j purporting to be under section 4 (2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W. B. Act XXI of 1949. This was an Act for the more speedy trial and more effective punishment of certain offences. It came into operation on the 23rd June, 1949, section 2 (1) of the said Act provides that the State Government shall from time to time as it deems necessary, constitute by notification in the Official Gazette, one or more Special Courts and may by like notification abolish any such Court, if it deems such Court to be no longer necessary. Under section 4 (1) of the said Act, notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law, the offences specified "in the Schedule shall be tribal by Special Courts only ; Provided that when trying any case, a Special Court may also try any offence other than an offence specified in the Schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial. Sub-section (2) of section 4 is important and is set out below: - "the distribution amongst Special Courts of cases involving offences specified in the Schedule, to be tried by them, shall be made by the State Government. " Section 7 of the said Act provides that no Court shall have jurisdiction to transfer any case from a Special Court or, save as provided in section 6, have any jurisdiction of any kind in respect of proceedings of a Special Court. Under section 6, the High Court may, subject to the provisions of section 7 regarding transfer of cases, exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898, on a High Court as if a Special Court were a Court of Session trying cases without a Jury within the local limits of the High Court's jurisdiction. Under section 9 of the said Act, if for any reason the services of the person appointed as a Judge to preside over a Special Court ceases to be available, the State Government shall as often as may be necessary, appoint another person having the qualifications referred to in clause (a) or clause (b) of sub-section (2) of section 2, as a Judge to preside over such Special Court. 2. A person appointed under subsection (1) as a Judge to preside over a Special Court may act on the evidence recorded by his predecessor or predecessors or partly recorded, by his predecessor or predecessors and partly recorded by himself. As I have stated above, on the 8th December, 1959 a notification wag issued under section 4 (2) of the said Act. By the said notification the case of the petitioner and his co-accused was allotted to a Special Court which was constituted by notification d 27,8. 52. The accused Nos. 1 and 2 being the two public servants mentioned above, were to be tried on a charge under section 417/120b and the accused No. 1 on a charge under section 409 of the Indian Penal Code, All other accused persons were to be tried on charges under section 417 120b and 409/109 of the Indian Penal Code. On the 1st March, 1960 a rule was issued by Mitter, J. on an application made by Mahal Chand Sethia. On the 1st March, 1960 a rule was issued by Mitter, J. on an application made by Mahal Chand Sethia. The grievance of the petitioner was that the charges under sections 467, 471 and 474 of the Indian Penal Code were tribal by a Sessions Court and if the case against the petitioner had gone on before the Chief Presidency Magistrate he would have got the advantage of a Sessions trial of which he was being deprived His further grievance was that with the case pending before the Chief Presidency Magistrate, he could not be asked to stand his trial before a Special Court. This application came up for hearing before Banerjee, J. At the hearing, the learned Additional Government Pleader made a certain concession. It will be convenient to set this out from the judgment of the learned Judge dated 12th September, 1962: - "Mr. Jajneswar Majumdar, learned Additional Government Pleader, made my task easier in this case by conceding that the charges preferred before the Chief Presidency Magistrate must be taken as abandoned by the State Government. He further stated that the State Government did not want to proceed with the case before the Chief Presidency magistrate. The result of this will be that the petitioner shall be deemed to have been discharged before the Chief Presidency Magistrate. The charges which the petitioner is to face before the Special Court is a completely different set of charges. Whether he can be tried before the Special court along with the public servants accused persons I need not decide in this Rule. With the clarification aforesaid this Rule is discharged. There will be no order as to costs. All interim orders stand vacated. " On the 17th October, 1962 the Special Public Prosecutor applied before the Chief Presidency Magistrate for an order of discharge of all the said accused persons. The learned Chief Presidency Magistrate thereupon issued notices on the said accused persons and by an order dated 7th November, 1962, discharged all of them. All interim orders stand vacated. " On the 17th October, 1962 the Special Public Prosecutor applied before the Chief Presidency Magistrate for an order of discharge of all the said accused persons. The learned Chief Presidency Magistrate thereupon issued notices on the said accused persons and by an order dated 7th November, 1962, discharged all of them. On the 16th October, 1962 the Government of West Bengal issued a notification No. 7525-J the relevant part whereof is as follows:- "in super session of the orders contained in this Department notification No. 10216-J, dated 8th December, 1959, and in exercise of the power conferred by sub-section (2) of section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949), the Governor is pleased to distribute to the Calcutta 4th Additional Special Court, constituted by notification No. 7432-J., dated the 1st October, 1962, under section 2 of the said Act, the following case involving "offences specified in the schedule to the said Act, to be tried by the said Special Court" 3. ON the 12/14th December, 1962 an Inspector of the Enforcement Branch of the Calcutta Police filed a petition of complaint before the Judge, 4th Additional Special Court, Calcutta, Thereupon the learned Judge took cognizance of the offences under section 120b 417/409/109 of the Indian Penal Code and issued summons on the petitioner. On the 11th January, 1963 this application was moved before Banerjee, J., under Art. 226 of the Constitution. The learned Judge summarily rejected the application. Against the order of summary rejection an appeal was taken and on the 9th April, 1963 the Court of Appeal reversed the order of summary dismissal and issued a rule which is now before me for hearing. Two points have been taken before me which are as follows: - (a) That after issuing a notification No, 10216-J dated 8-12-59 under section 4 (2) of the said Act, the State Government had no jurisdiction to supersede the said reference and to redistribute the case of the petitioner to the Calcutta 4th Additional Special Court. (b) That after abandoning the charges before the Chief Presidency Magistrate, a fresh complaint could not be laid before the Special Court on charges based on the same materials. Coming now to, the facts of the present case, there is nothing in the second point. (b) That after abandoning the charges before the Chief Presidency Magistrate, a fresh complaint could not be laid before the Special Court on charges based on the same materials. Coming now to, the facts of the present case, there is nothing in the second point. What happened before Banerjee, J., was that at the time when the application in the writ jurisdiction was being heard, it appeared that a aeries of charges had been preferred against the petitioner and the other accused persons before the Chief Presidency Magistrate, before whom the proceedings were pending. At the same time, their cases were allotted to a Special Court. It was argued that in respect of some of the charges which were preferred before the learned chief Presidency Magistrate, they were tribal by a Court of Session and further, the Magistrate could have taken cognizance of the cases and might have discharged the accused persons under section 207a (6) of the Code of Criminal Procedure, or committed the accused before a Court of Session. The complaint was that the accused could not be simultaneously tried before a Special Court where they would be deprived of the advantages. It was because of this complaint that Mr. Majumdar agreed to withdraw the charges before the Chief Presidency Magistrate, In other words, if that was done, there would only be the case pending before the Special Court and not simultaneously before two courts, one of which was more advantageous to the accused than the other, It was never contemplated that the charges will be wholly abandoned. 4. I now come to the first point which is really the point which has been pressed before me. As will appear from the facts stated above, the case of the petitioner was allotted to a Special Court by an order made under section 4 (2) of the said Act, contained in notification No. 10216-J dated 8-12-59. By a further notification, No. 7525-J dated 16-10-62 the previous notification was superseded and a fresh order was made redistributing the case to the Calcutta 4th Additional Special Court. The question is whether the State Government has jurisdiction to do so. I have discussed above the relevant provisions of the said Act. Under it, the State Government may constitute one or more special courts. The question is whether the State Government has jurisdiction to do so. I have discussed above the relevant provisions of the said Act. Under it, the State Government may constitute one or more special courts. Certain offences which have been set out in the Schedule to the said Act are solely tribal by such Special Courts. Under sub-section (2) of section 4, the State Government can distribute cases amongst the special courts which have been constituted under section 2. Once, however, there has been such an allotment, the Special Court gets jurisdiction and there is no provision in. the said Act for transfer of the cases or redistribution thereof from one special court to another. As I have mentioned above, there is special provision in section 7 that no court shall have jurisdiction to transfer any case from a special court and the High Court's power to do so has been taken away or not conferred by the said Act. Therefore, the framers of the Act did not contemplate transfer of a case, once it referred to a particular special court. There is provision, however, for abolishing any such court if the State Government deems that it was no longer necessary. There is also a provision dealing with the situation where the services of a Judge presiding over a special court ceased to be available. In the instant case, the special court which had originally been constituted and to which the petitioner's case had been referred, has not been abolished and there is no material to show that the Judge presiding over it is not available. The learned Advocate-General tried to say that the particular special court was not functioning any longer, but he admitted that there was no material in support of that proposition before the court in the present application. He was constrained to argue that after all the first special court had really done nothing in the matter and, therefore, under section 21 of the General Clauses Act, 1897 the original notification could be rescinded. So far as the first proposition is concerned namely, that the special court had done nothing, there is no material before me. In other words, I do not know what in fact had taken place in. that court before the super session order was made. So far as the first proposition is concerned namely, that the special court had done nothing, there is no material before me. In other words, I do not know what in fact had taken place in. that court before the super session order was made. As regards section 21 of the General Clauses Act, my attention has been drawn to a Supreme Court decision which deals with a similar situation State of Bihar v. D, N. Ganguly and ors. (1) A. I. R. (1958) S. C. 1018, That was a case under the Industrial Disputes Act, 1947. The facts in that case were as follows: On 8. 10. 1964, by Notification No. III/ DI-1602/ 54 L-15225, the Government of Bihar referred an industrial dispute between the management of the Bata Shoe Co,, Ltd, Dighaghat (Patna) and their 31 workmen mentioned therein, in exercise of the powers conferred on the said Government by section 7 read with s. 10 (1) of the Industrial Disputes Act. The dispute was whether the dismissal of the workman in question was justified; if not, whether they were entitled to reinstatement or any other relief. For the adjudication of this dispute, an Industrial tribunal with Mr. Ali Hassan as the pole member was constituted. By another notification dated 15. 1. 1955, a similar industrial dispute between the same company and 29 other workmen was referred by the Government of Bihar to the same tribunal. While the proceedings in respect of the two references, which had been consolidated by the tribunal, were pending before it, and bad made some progress, the government of Bihar issued a third notification No. III/di-1601/55-L-13028 dated 17. 9. 1955 by which it purported to supersede the two earlier notifications, to combine the said two disputes into one dispute, to impaled the two sets of workmen involved in the two said disputes together, to add the Bata Mazdoor Union to the dispute, and to refer it to the adjudication of the Industrial Tribunal of Mr. Ali Hassan as the sole member. The dispute thus referred to the tribunal was, "whether the dismissal of the 60 workmen, mentioned in annexure 'b' was justified or unjustified and to what relief, if any, those workmen are entitled?" On receipt of this notification, the tribunal passed an order on 19. 9. Ali Hassan as the sole member. The dispute thus referred to the tribunal was, "whether the dismissal of the 60 workmen, mentioned in annexure 'b' was justified or unjustified and to what relief, if any, those workmen are entitled?" On receipt of this notification, the tribunal passed an order on 19. 9. 1955, cancelling the hearing of the two prior references and directing that the files of the said references should be closed. Thereupon, the Bata Company and its workmen filed two separate applications before the Patna High Court urging that the last mentioned notification should be quashed as being illegal and ultravires, The High Court at Patna held that the Government of Bihar had no power or authority to supersede the earlier notifications, and allowed both the applications, quashing the impugned notification dated 17.9.1955. From this order the Government of Bihar appealed to the Supreme Court, Gajendragadkar, J, (as he then was) said as follows:- "it is conceded by Dr. Banerjee that the Act does not expressly confer any power on the appropriate Government to cancel or supersede a reference made under s. 10 (1) of the Act, He, however, argues that the power to cancel or supersede such a reference must be held to be implied, and in support of his argument he relied on the provisions of section 21 of the general Glauses Act, 1897 (X of 1897) Section 2 provides that 'where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject, to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or byelaws so issued'." It is well settled that this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and the effect, of the relevant provisions of the said statute. In other words, it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by section 21, the appellant's contention is justified that the power to cancel the reference made under section 10 (1) can be said to vest in the appropriate Government by necessary implication. If we come to the conclusion that the context and effect of the relevant provisions is repugnant to the application of the said rule of construction, the appellant would not be entitled to invoke the assistance of the said section." The learned Judge then proceeded to consider the provisions of the Industrial Disputes Act, 1947. It was pointed out that the Government had the discretion to make a reference to a tribunal, but if the dispute was so referred, during the continuance of the reference proceedings it was the tribunal which was seized of the dispute and which could exercise jurisdiction. The only case in which the appropriate Government could interfere with the course of the proceedings, was to add a dispute under section 10 (5), but it could do nothing else. Apart from section 10 (5), the appropriate Government stood outside the reference proceedings which was completely under the control and jurisdiction of the tribunal. It was held that neither was there an express power to cancel or supersede a reference nor was there any such implied power. 5. IT is, therefore, necessary in the instant case to refer to the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 to find out whether there is an express or implied provision for superseding a reference which has once been made. As I have pointed above, there is no such express provision. On the other hand, the provisions of the said Act indicate an intention that cases once referred to a special court shall not be transferred. Indeed, the jurisdiction of all courts including this High Court of transferring cases from one court to another has been made inapplicable to eases pending before the special court constituted under the said Act. Provisions have been made for abolishing a special court and for dealing with cases where the services of a Judge presiding over a special court ceases to be available. Provisions have been made for abolishing a special court and for dealing with cases where the services of a Judge presiding over a special court ceases to be available. Apart from that, there is no provision either express or implied, for superseding a reference to a special court or redistribution of work once a special court acquires jurisdiction as a result of an action taken under section 4 (2) of the said Act. It might be recollected that in the case of the Industrial Disputes Act, after the Supreme Court decision mentioned above, the Act had to be amended by the introduction of a specific section namely, section 33b conferring power upon the appropriate Government to transfer certain proceedings pending before a labour court, tribunal or national tribunal by withdrawing the same and transferring it to another labour court, tribunal or national tribunal as the case may be. 6. IN my opinion, this point taken by the petitioner must succeeds and this rule must be made absolute and there will be a writ in the nature of certiorari quashing the impugned notification No, 7525-J dated 16. 10. 62 so far as the petitioner is concerned and there will be issued a writ in the nature of mandamus prohibiting the respondents from continuing any proceedings under the said notification against the petitioner. There will be no order as to costs.