JUDGMENT : ( 1. ) THIS order, shall also govern Criminal Appeals Nos. 364 and 395,both of 1966,and Nos. 25, 114, 115, 120 and 165, all of 1967, These appeals have been heard on a preliminary point relating to jurisdiction It would be convenient to deal with it by this common order. ( 2. ) ON 7th May, 1966, the State Government issued the following notification under section 6 (1) of the Criminal law Amendment Act, 1952 (hereinafter referred to as "the Act") :- "no. 15027-2394 /xxt-B. In exercise of the powers conferred by sub-section (1) of section 6 of the Criminal Law Amendment Act, 1952 (XLVI of 1952) and in supersession of this department Notification No. 13443-1404-XXI-B, dated the 29th April, 1961, the State government are pleased to appoint Shri S. R. Ghanekar, 2nd Additional Sessions Judge, indore, as a Special Judge for the area comprised within the revenue districts of Gwalior, morena, Bhind, Shivpuri, Guna, Vidisha, Shajapur, Ujjain, Dewas, Indore, Dhar, Ratlam, jhabua, Mandsaur, Rajgarh, West Nimar (Khargone), Sehore and Raisen. By order and in the name of the Governor of Madhya Pradesh sd - G. C. Saksena, deputy Secretary to Government. " By Notification No. 15031/2394/xxi-B of even date, the State Government issued an order under section 7 (2) of the Act for allotment of these cases for trial to Shri S. R. Ghanekar, 2nd Additional Sessions Judge, Indore, as a special Judge under the Act. ( 3. ) THE proceedings of the learned Special Judge of 26th May, 1966, mention that on that day he took cognizance of these offences as a Special judge. The order sheet of that day reads,- "as per M. P. Government Law Deptt. Notification No. 15027/2327/xxi-B, dated 7-5-66 and Notification No. 15031/2394/xxi-B dated 7-5-66, this case has been transferred under the orders of the District and Sessions Judge, Indore, to me for trial and disposal according to law. Accordingly, today the case has been taken in hand. .-" Eventually, the trials concluded with the conviction of the appellants for the various offences with which they were charged, i. e. , with respect to offences specified in section 6 (1) of the Act. ( 4. Accordingly, today the case has been taken in hand. .-" Eventually, the trials concluded with the conviction of the appellants for the various offences with which they were charged, i. e. , with respect to offences specified in section 6 (1) of the Act. ( 4. ) UNFORTUNATELY, the Notification No. 15027/2394 /xxi-B, issued under section 6 (1) of the Act, appointing Shri S. R. Ghanekar as a Special Judge, was not published in the Madhya Pradesh Rajpatra till 26th January, 1968, i. e. , till after the conclusion of these trials. No objection was raised before the learned Special Judge at any stage of the trial that due to the non publication of the notification in the Official Gazette he had no jurisdiction to try these cases. ( 5. ) IT is urged that in terms of section 6 (1) of the Act the appointment of a Special Judge must be by a notification in the Official Gazette. The contention is that merely because a person qualified for appointment is so appointed, the appointment does riot take effect until the notification is published. Until then, the person appointed as a Special Judge is not vested with any jurisdiction to try any of the offences specified in section 6 (1), as a Special judge. And the notification appointing Shri S. R. Ghanekar as a Special judge not having been published on or before the 26th May, 1966, or at any stage during the pendency of the trials, he had no jurisdiction to take cognizance of the offences or to proceed with the trials as a Special Judge and therefore the proceedings before him were null and void. In support of the contention, reliance is placed on certain observations in The United Commercial Bank Ltd. v. Their Workmen ( AIR 1951 SC 230 . ). My attention was also drawn to the provisions of section 44 of the Motor Vehicles Act, 1939 and section 9 of the Prevention of Food. Adulteration Act, 1954, the language of which, it is said, if not identical, is more or less the same. Reliance is placed on Sudarshan Transport Services (P) Ltd. v. The State Transport Appellate Authority, Madhya Pradesh and another ( 1967 MPLJ 45 .), and Parmeshwar Prasad Chaudhury v. The State (1964 (l) Cr. L J 605. ). ( 6. Adulteration Act, 1954, the language of which, it is said, if not identical, is more or less the same. Reliance is placed on Sudarshan Transport Services (P) Ltd. v. The State Transport Appellate Authority, Madhya Pradesh and another ( 1967 MPLJ 45 .), and Parmeshwar Prasad Chaudhury v. The State (1964 (l) Cr. L J 605. ). ( 6. ) IN reply, it is urged on behalf of State that the appointment of Shri s. R. Ghanekar took effect the moment it was made, i. e. , on 7th May, 1966. He, therefore, had jurisdiction to try the cases allotted to him under section 7 (2) of the Act. It is further urged that this was not a case where there was no appointment at all. Nor is it a case where there was no notification of the appointment in the Official Gazette. This was a case where there was a delayed publication of the appointment in the Official Gazette. It is also urged that the Act, as stated in the preamble, amends the Indian Penal Code and the Code of Criminal Procedure, 1898. Section 6 of the Act, it is said, deals with the mode of appointment of a Special Judge and not with the mode of discharge of functions and duties by him. The contention is that there is a marked difference between the language employed in section 6 of the Act and that in section 44 of the Motor Vehicles Act or in section 9 of the Prevention of Food Adulteration Act. Under section 44 of the Motor Vehicles Act, the exercise of powers, functions and duties by the Regional Transport Authority is dependent upon the publication of notification in the Official Gazette. Similarly, under section 9 of the Prevention of Food Adulteration Act, the government has not only to notify the appointment of Food Inspectors but also to define the local areas assigned to them. Even assuming the word "may" was mandatory, it is urged, there is a distinction between the appointment of a Special Judge and the discharge of duties and functions by him as such. Under section 39 (2) of the Code of Criminal Procedure, the person so appointed, is invested with powers from the date of communication of the appointment. Even assuming the word "may" was mandatory, it is urged, there is a distinction between the appointment of a Special Judge and the discharge of duties and functions by him as such. Under section 39 (2) of the Code of Criminal Procedure, the person so appointed, is invested with powers from the date of communication of the appointment. The publication of notification, it is said, is not a matter of substance but of form, and therefore, the publication of the notification, though belated, does not affect the validity of the trials. ( 7. ) SECTION 6 of the Act runs thus: "6. Powers to appoint Special Judges.- (\) The State Government may, by notification in the Official Gazette, appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences namely: - (a) an offence punishable under section 161, section 162, section 163, section 164, section 165 or section 165-A of the Indian Penal Code or section 5 of the Prevention of Corruption Act, 1947. (b) Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a ). (2) A person shall not be qualified for appointment as a special Judge under this Act unless he is, or has been a Sessions Judge or an Additional Sessions Judge or an Assistant sessions Judge under the Code of Criminal Procedure, 1898. " Sub-section (1) contemplates appointment of Special Judges. Sub-section (2) mentions the qualifications of a person for appointment as a Special Judge. The section deals with two things ; (1) The issue of a notification appointing one or more Special Judges, as may be necessary, for such area or areas as may be specified; and (ii) the publication of the notification in the Official Gazette. If a person, who is appointed under section 6 (1) has the qualifications prescribed under section 6 (2), the requirements of section 6 would be satisfied. In my view, the publication of the notification in the Official Gazette is a purely ministerial act. ( 8. ) IT is strange that at no stage during the trials the appellants raised the objection which they have now taken, namely, that Shri S. R. Ghanekar had no jurisdiction to take cognizance of the offences or to proceed with the trials as a Special Judge. ( 8. ) IT is strange that at no stage during the trials the appellants raised the objection which they have now taken, namely, that Shri S. R. Ghanekar had no jurisdiction to take cognizance of the offences or to proceed with the trials as a Special Judge. To permit these appellants, who have deliberately submitted to a jurisdiction, to raise the objection of want of jurisdiction at the appellate stage is not only to permit something which shocks judicial conscience, but which would have grave potentialities for miscarriage of justice since, if there are retrials as a result of the objection succeeding, much of the evidence by that time may either not be available or may be tampered. It is pertinent to note that some of the trials relate to commission of offences in the early sixties. In Jhakar Abir and others v. Province of Bihar (AIR 1945 Pat. 98 (FB ).), while dealing with the Special Criminal Courts Ordinance, 1942, Shearer J. , observed,- "the jurisdiction of every Criminal Court to try a particular offence is derived from statute, either from the statute which creates the Court or from the statute which defines the offence (see Bailey on Jurisdiction, Vol. 1, p. 486 ). . . . . . . . Where a Court has jurisdiction to try an offence it is, as a rule, immaterial whether it has taken cognizance of the offence without being empowered to do so or whether the case has been transferred to it by another Court which was not empowered to make the order of transfer. " The latter observation may not be of much relevance. That is because a special Judge is not a Magistrate and, therefore, section 529 (e) of the Code of criminal Procedure has no application. ( 9. ) TURNING to the construction of section 6 (1) of the Act, the phrase "by notification in the Official Gazette" also occurs in section 16 of the Criminal Law Amendment Act, 1908 and section 22 of the Code of Criminal Procedure. In Balkrishna Anant v. Emperor (AIR 1931 Bom. ( 9. ) TURNING to the construction of section 6 (1) of the Act, the phrase "by notification in the Official Gazette" also occurs in section 16 of the Criminal Law Amendment Act, 1908 and section 22 of the Code of Criminal Procedure. In Balkrishna Anant v. Emperor (AIR 1931 Bom. 132.) Beaumont C. J. , while dealing with section 16 of the Criminal Law Amendment Act, 1908, which empowered the local Government by notification in the Official Gazette, to declare an association unlawful on the grounds mentioned therein, which are in effect, that the association constitutes a danger to the public peace, observed- "the word used in section 16 is "notification" and not "insertion". "notification" is defined in Websters Dictionary as-"act of notifying; act of making known; an intimation or notice; especially, act of giving official notice or information by words, by writing, or by others means;" so that the essence of notification is the giving of notice, and, in my opinion, the words "by notification in the Official Gazette mean simply by giving notice in the Official Gazette. " In the context of section 16 of the Criminal Law Amendment Act, 1908, the court required a stricter proof that all the formalities requisite to the act of notifying, or, in other words, publishing the notification, had actually been carried out. That was because the law under which it was issued trenched upon the rights and liberties of the citizens. ( 10. ) IN Earla v. The State of Rajasthan ( AIR 1951 SC 467 .), their Lordships were dealing with the promulgation of laws. Bose J. , after adverting to the legislative practice observed: "the thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential. . . The principle underlying this question has been judicially considered in England. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential. . . The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargent ( (1918) 1 K B 101.), that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917, does not become operative until it is made known to the public, and the difference between an order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now over the wireless. Not so Royal Proclamation and orders of a food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary, what is a good method in one country may not necessarily be the best in another. " The decision of their Lordships in Harlots case, though not directly in point, is relevant to the extent that they state that the mode of publication can vary. ( 11. ) THE decision more in point is the one reported in Nawab Jam Khambulkhan v. Emperor (AIR 1949 Sind 39 (F B ). ). Davis, C. J. , speaking for the Full Bench stated,- "after all, there is no particular virtue in a formal Notification. The Notification does not confer the powers. Section 9 Criminal Procedure Code, confers the necessary powers, so does section 7. A Government Notification merely declares or records the acts of government. The powers themselves are conferred by and exercised under the sections. Neither section 7 nor section 9 of the Code, requires formal publication in the Government gazette. Whether a Court of Session is established is a question of fact, whether the limits of a sessions division or district are altered is a question of fact. The powers themselves are conferred by and exercised under the sections. Neither section 7 nor section 9 of the Code, requires formal publication in the Government gazette. Whether a Court of Session is established is a question of fact, whether the limits of a sessions division or district are altered is a question of fact. It is true it is particularly desirable that in questions of jurisdiction the acts of Government should be declared with precision and particularity by a formal notification which places the matter above all dispute or argument or doubt. " ( 12. ) THERE is, therefore, no magic in the word "notification"; all that it mean is a public notice. The appellants had full knowledge that Shri S. R. Ghanekar had been appointed as a Special Judge under section 6 (1) of the act. The mistake lay with the Government Press in not publishing the notification in time in the official Gazette. Under Endorsement No. 15028-30-2394-IB, the State Government had forwarded a copy of the notification under section 6 (1) of the Act to the Government Printing Press for publication in the Official Gazette. It appears that for nearly two years, i. e. , till 26th January 1968, until the Government moved in the matter the notification was lost sight of. It does not speak well of the Government Printing Press. In any view, the defect, if any, was only a procedural defect which is cured by section 537 of the Code of Criminal Procedure. There is no suggestion that the appellants did not have a fair trial. Nor that the non-publication of the notification has caused prejudice or occasioned failure of justice. In dealing with the objection, the Court must have due regard to the fact that the objection was not taken at an earlier stage, which it could and should have been taken. That is a material consideration which must weigh heavily against the appellants, in view of the explanation to section 537 of the Code, ( 13. ) EVEN assuming that the publication of the notification in question was a sine qua non to the exercise of the jurisdiction, powers and duties by the learned Special Judge, the objection regarding jurisdiction must fail for another reason. ) EVEN assuming that the publication of the notification in question was a sine qua non to the exercise of the jurisdiction, powers and duties by the learned Special Judge, the objection regarding jurisdiction must fail for another reason. In view of the fact that the objection was raised for the first time in appeal, I was constrained to send for the relevant file concerning appointment of Special Judges at Indore, from the Sessions Judge, Indore. I find that right upto the issue of the notification in question, that is, till 7th May 1966, the two governing notifications issued by the State Government under section 6 (1)of the Act were to the following effect: "bhopal, the 9th May 1959. No. 17059-2741-XXI-B.-In exercise of the powers conferred by sub-section (1) of section 6 of the Criminal Law Amendment Act, 1952 (XLVI of 1952), the State Government are pleased to appoint the following Sessions Judges to be the Special Judges in their respective sessions divisions for the trial of offences specified therein:- (1) Sessions Judge, Gwalior. (2) Sessions Judge, Nimar (Mandleshwar.) (3) Sessions Judge, Indore. (4) Sessions Judge, Dhar. " (Published in Madhya Pradesh Rajpatra dated 12th June 1959 ). "bhopal, the 9th September, 1960. No. 26097 9170-XXI-B.-In exercise of the powers conferred by sub-section (1) of section 6 of the Criminal Law Amendment Act, 1952 (XLVI of 1952), the State Government are pleased to appoint all the Additional Sessions Judges of the sessions division mentioned below to be the Special Judges in their respective sessions divisions for the trial of offences specified therein:- (1) Guna. (2) Bhind. (3) Ujjain. (4) Ratlam. . . . (5) Gwalior. (6) Nimar (Mandleshwar.) (7) Indore. (8) Dhar. (9) Bhopal. (10) Rewa. (11) Chhatarpur. (12) Hoshangabad. (13) Nimar (Khandwa ). " (Published in Madhya Pradesh Rajpatra dated 23rd September, 196th) ( 14. ) IT may be mentioned that hither to fore the appointment qf Special judges under section 6 (1) of the Act used to be by office and. not by name. The practice obtaining was that the State Government used to pass orders of allotment under section 7 (2) of the Act in regard to particular cases having advertence to, the notifications quoted above. Incidentally, these notifications were never cancelled. This was legally permissible. ( 15. ) SECTION 15 of the General Clauses Act, 1897 reads,- 15. not by name. The practice obtaining was that the State Government used to pass orders of allotment under section 7 (2) of the Act in regard to particular cases having advertence to, the notifications quoted above. Incidentally, these notifications were never cancelled. This was legally permissible. ( 15. ) SECTION 15 of the General Clauses Act, 1897 reads,- 15. Where, by any Central Actor Regulation, a,power to appoint any person to fill any office or execute any function is conferred, then, unless,, it, is otherwise, expressly, provided, any such appointment, if it is made after the commencement of this Act, may be Wide either by name or by virtue of office. " In view of this prevision, the appointment of the Session Judges and the Additional Session Judges, by virtue of their office as Special Judges under section 6 (1) of the Act in their respective sessions division was perfectly valid. ( 16. ) IT is noteworthy that in both the notifications the words "in their respective sessions divisions" appear. Shri S. R. Ghanekar, Second Additional sessions Judge, Indore, was, therefore very much a Special Judge duly appointed under section 6 (1) of the Act with respect to the sessions division, indore. That being so, he had jurisdiction to try Special Cr. Case No. 4 of 1966 (State of Madhya Pradesh v. 1 Virendra Kumar, 2. Mohanlal, 3. Ramchandra) as it pertains to that sessions division. The convictions and sentences of these accused have given rise to Criminal Appeals Nos. 114, 115 and 120, all of 1967. ( 17. ) WITH respect to Special Case No. 3 of 1965 (State v. Ramchandra verma) giving rise to Criminal Appeal No. 397 of 1966, Special Case No. 4 of 1965 (State v. Shrikrishna) giving rise to Criminal Appeal No. 323 of 1966, special criminal case 5 of 1965 (State v. Ramchandra Verma) giving rise to criminal Appeal No. 364 of 1966, Special Cr. Case No. 2 of 1966 (Special police Establishment v. Chandra Prakash Sharma) giving rise to Criminal Appeal no. 25 of 1967, and Special Cr. Case No. 6 of 1966 (State v. Ramprasad Solanki)giving rise to Criminal Appeal No. 165 of 1967, there can be no doubt that these prosecutions launched by the Special Police Establishment Jabalpur, did not pertain to the Indore Sessions Division. 25 of 1967, and Special Cr. Case No. 6 of 1966 (State v. Ramprasad Solanki)giving rise to Criminal Appeal No. 165 of 1967, there can be no doubt that these prosecutions launched by the Special Police Establishment Jabalpur, did not pertain to the Indore Sessions Division. That only means that the accused in the respective cases were tried in a wrong sessions division. But that does not mean that their convictions or sentences can be set aside on that ground, unless it was proved that such error has in fact occasioned a failure of justice. ( 18. ) SECTION 531 of the Code of Criminal Procedure reads as follows: "531 No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, subdivision or other local area unless it appears that such error has in fact occasioned a failure of justice. " On a plain meaning of the section, the trial of a case in a wrong sessions division is not a defect of jurisdiction, but only of venue. It is not suggested that the wrong assumption of territorial jurisdiction has, in fact, occasioned any failure of justice. In Ramchandra Prasad v. State of Bihar (AIR 1961s C 1629.), in precisely similar circumstances, their Lordships observed,- "in view of section 531 of the Code of Criminal Procedure, the order of the Special judge, Patna, is not to be set aside on the ground of his having no territorial jurisdiction to try this case, when no failure of justice has actually taken place. " They repelled the contention that section 531 of the Code has no application, in these words,- "it is contended for the appellant that section 531 of the Code of Criminal Procedure is not applicable to this case in view of sub-section (1) of section 7 and section 10 of the criminal Law Amendment Act. We do not agree. The former provision simply lays down that such offences shall be triable by Special Judges and this provision has not been offended against. We do not agree. The former provision simply lays down that such offences shall be triable by Special Judges and this provision has not been offended against. Section 10 simply provides that the cases triable by a Special Judge under section 7 and pending before a Magistrate immediately before the commencement of the Act shall be forwarded for trial to the Special Judge having jurisdiction over such case. There is nothing in this section which leads to the non-application of section 531 of the Criminal procedure Code. " ( 19. ) BEFORE parting with the case, I would note the circumstances in which the notification in question came to be issued. The file that I sent for from the Sessions Judge, Indore, contains correspondence between the High court and Government. The High Court by Registrars Memorandum no. 3204/iii 6-4 /57, VII dated 4th May, 1966, addressed to the State Government made a proposal to appoint Shri S. R. Ghanekar, Second Additional sessions Judge, Indore, as a Special Judge, and requested that the necessary notification for his appointment be issued, adding,- "i may further add that appointment of Shri Ghanekar, should be by name and not merely by designation only. " That was wholly superfluous as Shri Ghanekar, by virtue of his office was already a Special Judge for the Indore Sessions Division. Incidentally, the notification in question was in supersession of Notification No. 13443-1404-XX1-B dated 29th April, 1961 which related to the appointment of the Fourth additional Sessions Judge, Indore, as a Special Judge for the areas specified therein. The effect of the notification in question was to constitute the Second additional Sessions Judge, Indore, as a Special Judge for the areas in question, instead of the Fourth Additional Sessions Judge, Indore. But, irrespective of this, under Notification No. 26097-9170-XXI-B, dated 9th September, 1960, quoted above the Additional Sessions Judges continued to be Special Judges for their respective sessions divisions. ( 20. ) ON the view that I have taken, the preliminary point regarding the validity of the trials held by Shri S. R. Ghanekar, Second Additional Sessions judge, Indore as a Special Judge under the Criminal Law Amendment Act, 1952, must be overruled. Pre. objection overruled.