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1965 DIGILAW 326 (ALL)

State of U. P. v. Ramjani

1965-08-31

J.N.TAKRU

body1965
ORDER J.N. Takru, J. - This appeal by the State of Uttar Pradesh is directed against (sic) order of acquittal, dated the 19th June 1963, passed by the Additional Sub Divisional Magistrate, Kashipur. 2. The brief facts giving rise to it are as follows: On the 21st February 1962, a chargesheet u/s 60 of the Excise Act was submitted against the Respondent is the SDM, Kashipur. On the 24th September 1962, the charge sheet was registered as Criminal Case No. 113 of 1962 and summons were directed as be issued to the Respondent fixing the 25th October 1962. Thereafter on three dates the case had to be adjourned as the summons had not been received back after service. On the 8th January 1963, however, the Respondent was present and he applied for time for filing surety bonds and on that application the case was adjourned to the 30th January 1963. On the 30th January 1963 the Respondent pleaded hot guilty, whereupon the 23rd February 1963 was fixed for the recording of the prosecution evidence. On the 23rd February 1963, the Presiding Officer was on tour and so the case was adjourned to the 15th March 1963. On the 15th March 1963 the Respondent was present, but the prosecution witnesses were absent and the case was, therefore, adjourned to the 8th April 1963. On the 8th April 1963 the prosecution witnesses were again absent, where upon the 20th April 1963 was fixed for the recording of their evidence. On the 20th April 1963 the prosecution witnesses were again absent and on the application of the APP the case was adjourned to the 27th April 1963, on the understanding that no further adjournment would be allowed. On the 27th April 1963 the prosecution witnesses were again absent and notwithstanding the stop order passed on the 20th April 1963, the case was adjourned to the 13th May 1963. On the 13th May, 1963 at the request of the Respondent, that his counsel had gone out, the case was adjourned to the 14th June 1963. On the 14th June 1963 P.Ws. Sujeet Singh, the Excise Inspector Abdul Rashid and Abdul Latif were examined and the written statement of Ghananand was filed. On the 13th May, 1963 at the request of the Respondent, that his counsel had gone out, the case was adjourned to the 14th June 1963. On the 14th June 1963 P.Ws. Sujeet Singh, the Excise Inspector Abdul Rashid and Abdul Latif were examined and the written statement of Ghananand was filed. Thereafter the Sub Divisional Magistrate who was dealing with this case transferred it to the court of Sri B. Dayal, the Additional Sub Divisional Magistrate, Kashipur for trial after fixing the 19th June 1963 for the recording of the rest of the evidence. On the 19th June 1963 the remaining witnesses for the prosecution were not present, whereupon the learned Magistrate passed the impugned order acquitting the Respondent. 3. On behalf of the Appellant, its learned Counsel Sri R.N. Shukla advanced two contentions in support of this appeal. His first contention was that the order dated the 14th June 1963, whereby the Sub Divisional Magistrate, Kashipur, transferred the case for trial to the court of the Additional Sub Divisional Magistrate, Kashipur was illegal and invalid, as it was contrary to the provisions of Section 192(l) of the Code of Criminal Procedure, and hence the order of acquittal passed by the transferee court was without jurisdiction. His second contention was that even if the Addl. Sub Divisional Magistrate had the jurisdiction to try this case he could at the most stop the proceedings and release the Respondent u/s 249 Code of Criminal Procedure, but he could not acquit him. After hearing the learned Counsel for the parties, I am satisfied that while the first contention has no merit, the second has force and this appeal must consequently succeed. I shall, therefore, proceed to deal with those contentions in the order stated above. 4. Section 192(1) of the Code of Criminal Procedure, on which reliance was placed by Sri Shukla, for his first contention, provides for transfer of cases inter alia by Sub Divisional Magistrates, and it reads thus: Any Chief Presidency Magistrate, District Magistrate or Sub Divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him. 5. 5. The contention of Sri Shukla was that as the cognizance in the present case was taken by the Sub Divisional Magistrate, and as the Addl; Sub Divisional Magistrate was not subordinate to the Sub Divisional Magistrate, the order of transfer was illegal and invalid and could not confer jurisdiction on the latter to try this case. I do not agree. Section 12(1) of the Code of Criminal Procedure provides that, The "State Government" may ap-point as many persons as it thinks fit, besides the District Magistrate, to be Magistrates of the first, second or third class in any district outside the presidency towns...." and Section 13(1) lays down that, (1) The "State Government" may place any Magistrate of the first or second class in charge of a sub division.... (2) Such Magistrate shall be called Sub Divisional Magistrates. (3).... Under Section 17(2), Every Magistrate (other than a Sub Divisional Magistrate) and every Bench exercising powers in a subdivision shall also be subordinate to the Sub Divisional Magistrate, subject, however, to the general control of the District Magistrate. 6. A bare reading of the aforesaid provisions of law makes it clear that if there is any other Magistrate besides the Sub Divisional Magistrate, exercising powers of a Magistrate in a sub division, then he shall be subordinate to the Sub Divisional Magistrate. The expression "every Magistrate", with which Section 17(2) opens, is of the widest amplitude and embraces within it every Magistrate whether he be of the first, or the second class, and whether he is designated as an Additional Sub Divisional Magistrate or not. In Lakshmi v. State through Mahendra Pal Singh (1) ( 1961 AWR 664 ), a Division Bench of this Court of which I was a member has held that u/s 13(1) Code of Criminal Procedure only one person and not two or more could be incharge of a sub division, because there if no provision u/s 13, corresponding to Sub-Section 2 of Section 10' which 'provides for the appointment of Additional District Magistrates'. It follows therefore that if an Additional Sub Divisional Magistrate is appointed in a sub division, he is not independent of, but is subordinate to, the Sub Divisional Magistrate besides being subject to the over-all control of the District Magistrate. For all these reasons the first contention of Sri Shukla, has to be rejected. 7. It follows therefore that if an Additional Sub Divisional Magistrate is appointed in a sub division, he is not independent of, but is subordinate to, the Sub Divisional Magistrate besides being subject to the over-all control of the District Magistrate. For all these reasons the first contention of Sri Shukla, has to be rejected. 7. The second contention of Sri Shukla which has been set out earlier may now be noticed. Now, it is not disputed that the procedure which has to be followed in trial of cases u/s 60, Excise Act, is the one applicable to the trial of summons cases as laid down in Chapter XX, Code of Criminal Procedure. The only sections providing for acquittal under this Chapter, are Sections 245, 247 and 248. Under the former section if the Magistrate upon taking the prosecution evidence, hearing the accused and taking all such evidence as he may produce in his defence and such further evidence, if any, as he may of his own motion, cause to be produced, and if he thinks fit examining the accused, finds the accused not guilty, he shall record an order of acquittal. This section is clearly not applicable to the present case. Similarly Section 248, which provides for acquittal on the withdrawal of the complaint by the complainant; is also not applicable. This leaves us in the Section 247, Code of Criminal Procedure. Under this section upon the day appointed for the appearance of the accused or any day subsequently thereto to which the hearing may be adjourned the complainant does not appear, the Magistrate shall, unless for come reason he thinks proper to adjourn the hearing of the case to some other day, acquit the accused. Section 247 is, however, subject to Section 249 which lays down that: In any case instituted otherwise than upon complaint, a Presidency Magistrate, a Magistrate of the first class, or with the previous sanction of the District Magistrate, any other Magistrate, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or (sic) and may thereupon release the accused. 8. The key words in this section are 'otherwise than upon compliant. 8. The key words in this section are 'otherwise than upon compliant. The word 'complaint' is defined in Section 4(h), Code of Criminal Procedure as meaning, 'the allegation made oraity or in writing to a Magistrate with a view to his taking action under this Code (sic) some person whether known or (sic) known has committed an effince but it dees not include the report of a (sic) officer". 9. As the trial in the pre(sic) case was commenced not upon a complaint but upon the report of a police officer the acquittal of the Respondent could not be ordered u/s 247 on account of the absence of the Investigating Officer. If the learned Magistrate was of the opinion that on account of the persistent absence of the Investigating Officer, the trial of the case could not be proceeded with or that it caused undue harassment and vexation to the Respondent, he could stop the proceeding and without pronouncing judgments either of acquittal or conviction, (sic) the Respondent. The word 'may' is this section shows that its provisions are only of a directory nature, and the discretion of the Magistrate as to when the guillotine should be applied, will depend upon the facts and circumstances of each case. But the excent of the action which the Magistrate (sic) is laid down in that section and cannot be transgressed. As the learned Magistrate in this case has clearly (sic)beyond that extent his order acquisting the Respondent cannot be sustained. 10. For the reasons stated a (sic) I allow this appeal, set aside the order of acquittal and remand the case to the learned Sub Divisional Magistrate Kashipur with the direction that he shall readmit it to its original number and and, after giving notice of the (sic) the parties, proceed to deaf (sic) it accordance with law and the (sic)tions made above.