The Criminal Law Amendment Act, 1952, mandates the transfer of pending cases triable by a Special Judge to the Special Judge's Court upon the Act's commencement, and the Special Judge is deemed a Court of Session for the purposes of the Code of Criminal Procedure.

Imam, J.

1. This is an application against an order passed by a Special Magistrate on 11-9-1952, whereby he forwarded the case before him to the Special Judge under the provisions of the Criminal Law Amendment Act, 1952 (Act 46 of 1952). The application is also made against an order of the Special Judge, dated 7-4-1953, whereby he summoned witnesses to attend his Court who had been examined before the Special Magistrate. The Special Judge had decided to try the case independent of the fact that some witnesses had already been examined by the Special Magistrate.

2. It may be stated forthwith that the validity of the Criminal Law Amendment Act, 1952, has. not been questioned by Mr. Baldeva Sahay, who has appeared for the petitioner. Mr. Baldeva Sahays grievance may be stated to be as two in number. His first grievance was that if Sec.10, Criminal Law Amendment Act, be construed properly, the Special Magistrate wrongly forwarded the case before him to the Special Judge for trial. His second grievance was that even if the case was properly before the Special Judge, the Special Judge acted wrongly in deciding to hold a de novo trial; he should have acceded to the request of the accused that if he was going to try the case he should act, upon the evidence already recorded by the Special Magistrate. The majority of the witnesses for the prosecution had been already examined and a large number of documents had been exhibited and the proceedings before the Special Magistrate had taken considerable time. In such circumstances to start the evidence all over again was to inflict further harassment upon the accused, the accused having suffered grievously while the proceedings were before the Special Magistrate.

3. It appears that the case of the petitioner was started on a first information report dated 26-8-1949. The matter was under police investigation, it seems, until the charge-sheet was submitted on 13-8-1951. Cognizance was taken by the Magistrate on 28-8-1951. The Criminal Law Amendment Act of 1952 came into force on 28-/- 1952. If the case against the accused had been proceeded with diligently without undue delay, in all probability it would have concluded before the Criminal Law Amendment Act, 1952, came into force. For some reason or the other the case proceeded before the Special Magistrate in a leisurely fashion. I have been informed that at one stage only 13 witnesses were examined in seven months. There can be, therefore, no question that there will be hardship upon the accused if at the trial in the Court of the Special Judge his trial is prolonged by the Court having to re-examine all the witnesses who had already given evidence before the Special Magistrate. Hardship, however, is one thing; to observe the law and to give effect to statutory provisions is another, and it is the bounden duty of a Court to carry out the provisions of the law in spite of full knowledge that the enforcement of the law may result in hardship to an accused person. It remains, therefore, to be seen as to whether the orders complained against were invalid in the eye of law.

4. Sec.10, Criminal Law Amendment Act, 1952, reads as follows:

"All cases triable by a Special Judge under Section 7 which, immediately before the commencement of this Act, were pending before any Magistrate shall, on such commencement, be forwarded for trial to the Special Judge having jurisdiction over such cases.

There can be no question that this provision is mandatory and there is no ambiguity in its language. Cases which a Special Judge can try under Section 7 are enumerated in Sec. 6 of the Act. There is no question that some of the offences alleged against the petitioner are covered by the provisions of Section 6, Criminal Law Amendment Act. The case before the Magistrate against the petitioner was undoubtedly pending immediately before the commencement of the Act and, therefore, on the commencement of the Act had to be forwarded for trial to the Special Judge h