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1951 DIGILAW 58 (KER)

Ulahannan v. State

1951-07-02

GOVINDA PILLAI

body1951
Judgment :- 1. The petition by accused 1 and 2 is to transfer a case (P.E. 4 of 1125) committed for trial to the Sessions Court, Quilon, by the Special First Class Magistrate, Quilon. The case is against eight persons for the offences under S.492(a) to (d) T.P.C. for counterfeiting ten rupee currency notes, using them as genuine etc. The occurrence is said to have taken place at Sherthallai so that the Police there registered this case as crime No. 52 of 1124 and investigated the same. Sherthallai is within the jurisdiction of the Alleppey Sessions Court. Since a Special First Class Magistrate's Court was established at Quilon, to try certain cases expeditiously, the District Magistrate, Quilon, within whose jurisdiction are the courts at Sherthallai and Quilon, transferred this case to that Special Court for enquiry. After concluding the enquiry the Magistrate committed the accused to the Sessions Court, Quilon, to stand their trial in that Court. In the petition for transfer, the accused had alleged only the general convenience of the parties and witnesses in support thereof. No accused lives within the jurisdiction of the Quilon Court, whereas, most of them, as well as most of the prosecution witnesses, live within the jurisdiction of the Alleppey Court. 2. At the time of argument, Sri Mathew Muricken, the learned Advocate for the petitioner, had also questioned the jurisdiction of the Quilon Sessions Court to try the case. Both sides were prepared to argue this question as well. 3. It was admitted by both sides that the offences alleged were committed within the jurisdiction of the Sessions Court, Alleppey. Most of the accused and the witnesses also live there. There is therefore no doubt that, looking to the convenience of the parties, Alleppey Sessions Court has to be preferred. 4. The jurisdiction of the Sessions Court, Quilon, to try the case has now been questioned. The procedure prescribed by the Indian Criminal Procedure Code is in S.177 (S.175, Travancore Code) and it lays down that every offence shall ordinarily be enquired into and tried by a court within the local limits of whose jurisdiction it was committed.. An enquiry Magistrate is under S. 213 directed, if a case is made out against the accused, to commit him for trial to the Sessions Court. An enquiry Magistrate is under S. 213 directed, if a case is made out against the accused, to commit him for trial to the Sessions Court. The Sessions Court, to which the commitment is made, should necessarily be a court competent to try the case. So, strictly, the accused in this case should have been committed to the Sessions Court, Alleppey for trial. An order of commitment by a Magistrate who has no local jurisdiction over the offence is cured by S.531 Crl. Procedure Code (Indian) and cannot be quashed on that ground unless there has been a failure of justice. If the order of commitment was to a Sessions Court which had no jurisdiction over the offence, and if such Court of Sessions tried the case on such commitment, its finding, sentence or order would also be cured by the said section if there has been no failure of justice. (Vide In re Ganapathy Chetty - AIR 1920 Mad. 824). But if the defect is discovered before the trial begins, should the commitment be quashed? On this point there is a conflict of opinion. The High Courts of Madras in Sadaya Pillai v. Emperor, 12 I.C. 301, In re Ganapathy Chetty, AIR 1920 Mad. 824 and Assistant Sessions Judge N. Arcot v. Ramammal, ILR 36 Mad. 387; Calcutta Qeen v. Asger Mallich 19 Sutt. W.R. Crl. 31, and Empress v. Alim,11 Cal. L. Report 55 and Patna (in Mt. Bhagavathy v. Emperor, AIR 1925 Pat. 187); and the Judicial Commissioner's Court of Oudh (in Emperor v. Shee Dayal AIR 1919 Oudh 69) have held that it should be quashed. The High Courts of Bombay (in Queen Empress Thakku ILR 8 Bom. 312) and Allahabad (in Queen v Ram Dei ILR 18 All. 350) held that in such cases the commitments need not be quashed, but that the case should be transferred to the court to which it ought to have been committed. The view expressed by the two latter courts appears to be more acceptable than that of the other High Courts. 350) held that in such cases the commitments need not be quashed, but that the case should be transferred to the court to which it ought to have been committed. The view expressed by the two latter courts appears to be more acceptable than that of the other High Courts. The powers of the Magistrate to commit the accused to the proper court are not questioned; but in passing the order, the Magistrate said, that the accused are to stand their trial not in court A where they were to be tried but in court Q. Even if the commitment was to court A, if is open to the High Court on proper grounds being shown to transfer the case for trial to the Sessions Court Q. It is more a matter of procedure than one affecting substantially the merits of the case. I am therefore of the view that the irregularity committed by the Magistrate could be cured by ordering the transfer of the case to the file of the Sessions Judge, Alleppey, for trial. 5. It has also to be mentioned here that this question in a different form had been before the Travancore High Court in Crl. Proceedings No. 184 of 1087 (3 TLJ 76) and Crl. Reference 19 of 1090 (6 TLJ 29 F.B.). In the first case the offences were said to have been committed within the jurisdiction of the Alleppey Sessions Court. The case was however enquired into, after successive transfer of the case by the District Magistrate, Quilon, by the First Class Magistrate, Quilon. The enquiry court committed the accused to the Quilon Sessions Court for trial. On objection being raised, as to jurisdiction, the Sessions Judge, Quilon, made a reference to the High Court. Without discussing the questions raised, and in accordance with the consent expressed by both sides before the High Court, the Quilon Judge was allowed to try the case. A similar matter again came up before the High Court and it was placed before a Full Bench for decision. One of the judges who took part in the 3 TLJ case was among the judges who decided the latter case; i.e. 6 T.L.J. 29. A similar matter again came up before the High Court and it was placed before a Full Bench for decision. One of the judges who took part in the 3 TLJ case was among the judges who decided the latter case; i.e. 6 T.L.J. 29. It was accepted there that the principle that could be inferred from the 3 T.L.J. case was wrong and that the forum of trial in criminal cases was determined by the scene of the alleged occurrence. The Court of Sessions mentioned in S.213 Crl. P.C. (S.184 of the Travancore Code in force then) is the court which would have territorial jurisdiction over the place where the offence is alleged to have been committed. Thus the accused should have been committed to the Alleppey Sessions Court for trial. 6. If the First Class Magistrate, Quilon, had tried the accused for an offence committed outside his jurisdiction because of the transfer of the case to his file by a competent authority, and convicted them, then the court where an appeal against the conviction has to be filed would have been the Sessions Court, Quilon and Sehi Lal v. The State (1950) 5 DLR Allahabad (Luck-B) 397 would be an authority for that position. In that case also a distinction had been made by his Lordship Mr. Justice Waliullah between cases of commitment and appeal. 7. It is therefore my view that since the question of jurisdiction has been raised before the trial began in the Quilon Sessions Court, there is no necessity to quash the order of commitment, but it is only proper and legal to order the transfer of the case in question to the file of the Sessions Judge, Alleppey, for trial. The order of commitment would be deemed to be one made to the Sessions Court, Alleppey, and not to the Sessions Court, Quilon. Allowed.