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1954 DIGILAW 190 (MAD)

Sowbagiammal v. Rapheel

1954-04-15

SOMASUNDARAM

body1954
Order.- This reference is by the District Magistrate (Judicial), Vellore, under the following circumstances. A complaint was filed before the Sub-Magistrate, Tiruvannamalai and was taken on the file and numbered as C.C. No.1534 of 1952. The complaint was for an offence under sections 525, 147, 426, 323 and 447, Indian Penal Code. The Sub-Magistrate, Tiruvannamalai, after recording the sworn statement of the complainant took the complaint on file on 2nd September, 1952, for offence under sections 323 and 447, Indian Penal Code, against Accused 1, Accused 2, Accused 3 and Accused 7 and adjourned it to 23rd September, 1952. On 23rd September, 1952, the Magistrate ordered the return of the complaint under section 201, Criminal Procedure Code, to the complainant for presentation to the proper Court on the ground that the offence relates to a village within the jurisdiction of the Sub-Magistrate, Polur and that it was taken by him on file by mistake. The complainant then took the complaint and presented it to the Sub-Magistrate, Polur. But the Sub-Magistrate, Polur, refused to receive the complaint stating that he could receive the same only if it is forwarded to him by the District Magistrate as the case has been taken cognizance of by the Magistrate at Tiruvannamalai and process also has been issued by that Court. Thereupon the complainant presented a petition to the District Magistrate, asking the District Magistrate to set aside the order of the Sub-Magistrate, Tiruvannamalai and transfer the case to the Sub-Magistrate at Polur. On that the District Magistrate has made this reference to this Court. In his opinion section 201(1), Criminal Procedure Code, does not apply to the facts of this case and that the Sub-Magistrate should have submitted the papers under section 346(1). Since he has not done so he asks this Court to set aside the order of the Sub-Magistrate and transfer the case to the Sub-Magistrate, Polur. The question now is whether the order of the Sub-Magistrate, Tiruvannamalai, returning the complaint for presentation to the Court of the Sub-Magistrate, Polur, is illegal or whether he should submit the papers under section 346(1) to the District Magistrate and ask him to transfer the case to the Sub-Magistrate, Polur. The question now is whether the order of the Sub-Magistrate, Tiruvannamalai, returning the complaint for presentation to the Court of the Sub-Magistrate, Polur, is illegal or whether he should submit the papers under section 346(1) to the District Magistrate and ask him to transfer the case to the Sub-Magistrate, Polur. Section 346(1) is as follows:- “If, in the course of an inquiry or a trial before a Magistrate in any district outside the Presidency towns, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district, be shall stay proceedings and submit the case with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs.” It is clear from the wordings of the above sub-section that the Magistrate can act tinder this section only under the following circumstances:- (1) It must be in the course of an enquiry or trial. (2) There must be evidence to warrant a presumption that the case is one which should be tried or committed by some other Magistrate. Now, what is meant by “the case is one which should be tried or committed by some other Magistrate”. Does it mean that the Magistrate can take action only when he has no jurisdiction to try the case, or does it include cases where he has jurisdiction but for other reasons the Magistrate thinks that the case should be tried or committed by some other Magistrate. In this connection it is worthwhile considering the history of this section. In the Code of 1872 the corresponding section was section 45. The relevant words in that section are these: “If, in the course of a proceeding before a Magistrate, the evidence appears to him to warrant a presumption that the accused person has been guilty of an offence which such Magistrate is not competent to try, or for which he is not competent to commit the accused person for trial (italics is mine) before the Court of Session, he shall stay proceedings, etc.” Then, in the Code of 1861 section 276 is the corresponding section to the present section 346. In section 276 the relevant words are: “If, in the course of a trial before a Subordinate Magistrate, the evidence shall appear to him to warrant a presumption that the accused person has been guilty of an offence which such Magistrate is not competent to try, or for which he is not competent to commit the accused person for trial (Italics is mine) before the Court of Session, he shall stay proceedings, etc.” But in the present section 346 the words “not competent to try” or “not competent to commit” have been omitted with certain other alterations. But we are concerned here with the omission of the words “not competent to try” or “not competent to commit”. What does this omission signify? In the Codes of 1861 and 1872 the provisions of this section can be invoked by the Magistrate only when he was not competent to try or commit for trial. What is meant by competent to try or commit? Does competency refer to territorial jurisdiction or to the powers of the Magistrate as defined in Schedule III of the Code of Criminal Procedure. It seems to me competency referred to in the earlier enactments refers to the powers of the Magistrate as defined in Schedule III of the Code. If it refers to territorial jurisdiction also then in section 403 of the Code of Criminal Procedure “Court of competent jurisdiction” would mean “a Court which has territorial jurisdiction”. But a Full Bench of our High Court in Ratnavelu v. K.S. Iyer1has held that even though the accused was tried by a Magistrate who had no territorial jurisdiction still section 403, Criminal Procedure Code, will apply. This means that even though the Magistrate has no territorial jurisdiction still it is a Court of competent jurisdiction. The competency here therefore can only mean competency on account of powers it has under Schedule III of the Code of Criminal Procedure and not territorial jurisdictional competency. This section is therefore one not restricted to cases of want of competency. In District Magistrate of Cuddapah v. Abdul Kareem2, the Sub-Magistrate heard the prosecution witnesses and the defence witnesses and at the close of the trial one of the objections raised on behalf of the accused was about the territorial jurisdiction of the Magistrate to try the case. This section is therefore one not restricted to cases of want of competency. In District Magistrate of Cuddapah v. Abdul Kareem2, the Sub-Magistrate heard the prosecution witnesses and the defence witnesses and at the close of the trial one of the objections raised on behalf of the accused was about the territorial jurisdiction of the Magistrate to try the case. There was also another objection, but it is not necessary to refer to that for the purpose of this case. The Magistrate acting under section 346 submitted the papers to the Sub-Divisional Magistrate, and the Sub-Divisional Magistrate submitted the records to the District Magistrate for instructions. The District Magistrate then referred the case to this Court. In the reference he said that the Sub-Magistrate was correct in upholding the objection but he ought to have returned the complaint in the first instance under section 201(1), Criminal Procedure Code, for presentation to the proper Court but as the Stationary Sub-Magistrate inquired into a case in which he had no jurisdiction he wanted the High Court to quash the proceedings of the Sub-Magistrate. In dealing with this reference Horwill, J., held that the procedure of the Sub-Magistrate in forwarding the papers to his immediate superior the Sub-Divisional Magistrate, Jammalamadugu, under section 346(1) instead of returning the complaint for presentation to the Magistrate having jurisdiction was not the proper way to dispose of the matter. In short, the decision is to the effect that section 346(1) does not apply to cases where the Magistrate has no jurisdiction to try the case. In such a case, as pointed out by the learned Judge, the proper course seems to be to retain the complaint under section 201(1). If even in a case where after recording the evidence of the prosecution witnesses the Magistrate, if he finds he has no territorial jurisdiction over the case he cannot submit the records under section 346(1) but should only act under section 201(1), I do not think how even before recording the evidence as in this case it will be proper for him to submit the papers under section 346(1). The Sub-Magistrate, Tiruvannamalai, has acted very properly under section 201(1), Criminal Procedure Code, in returning the complaint for presentation to the proper Court. The reference, in the circumstances, is not accepted. The order of the Sub-Magistrate returning the complaint for presentation to the proper Court is upheld. The Sub-Magistrate, Tiruvannamalai, has acted very properly under section 201(1), Criminal Procedure Code, in returning the complaint for presentation to the proper Court. The reference, in the circumstances, is not accepted. The order of the Sub-Magistrate returning the complaint for presentation to the proper Court is upheld. The Sub-Magistrate, Polur, will take the complaint on his file and dispose of the case according to law. Crl. R.C. Mo. 75 of 1953.-The same order as in Cr.R.C. No.74 of 1953. The reference is not accepted. R.M. ----- Reference not accepted.