STATE OF GUJARAT v. FULSINH BHIMSINH — 1969 DIGILAW 80 (GUJ)

J. M. SHETH, J. ( 1 ) THIS is a reference made by the learned Sessions Judge Ahmedabad Rural at Himatnagar recommending that the order of committing the accused for sever offences under the Indian Penal Code and for offences punishable under secs. 5 and 6 of the Child Marriage Restraint Act. 1929 (which will be hereinafter referred to as the Act) passed-by the Judicial Magistrate First Class Idar in Criminal Case No. 1170 of 1968 so far as it relates to offences punishable under secs. 5 and 6 of the Act be quashed. It is so recommended on the ground that the Court of Sessions has no jurisdiction to try the accused for the said offences but only a Magistrate of the First Class has got jurisdiction to try the accused for the said offences. It is further recommended that the learned Judicial Magistrate First Class Idar be directed to proceed further with the trial of the accused for the offences punishable under secs. 5 and 6 of the Act according to law. ( 2 ) THE facts leading rise to this reference briefly stated are as under:- The prosecution case is that accused Nos. 1 and 2 kidnapped one girl Bai Vada daughter of Bhikhsingh Kalusingh with intent that she might be compelled to marry against her wi11 or in order that she might be forced or seduced to illicit intercourse and that accused Nos. 3 to 8 abetted the commission of the said offence and further accused No. 3 married Bai Vada aged below 16 years and thereby committed an offence punishable under sec. S of the Act the other accused failed to prevent the said marriage being performed and thereby committed an offence punishable under sec. 6 of the Act. Bai Vadas father lodged a complaint at Vadali Police Station. After the necessary investigation a charge-sheet was sent by the police against all eight accused for the offences punishable under secs. 366-362-376 read with secs. 511 and 34 of the Indian Penal Code and also under secs. 5 and 6 of the Act. The Judicial Magistrate First Class Idar after making a preliminary inquiry committed the accused to the Court of Sessions to stand their trial. ( 3 ) WHEN the Sessions case came for hearing before the learned Additional Sessions Judge Ahmedabad (Rural) at Himatnagar the order of committal came to be challenged. 5 and 6 of the Act. The Judicial Magistrate First Class Idar after making a preliminary inquiry committed the accused to the Court of Sessions to stand their trial. ( 3 ) WHEN the Sessions case came for hearing before the learned Additional Sessions Judge Ahmedabad (Rural) at Himatnagar the order of committal came to be challenged. The learned Additional Sessions Judge found that in view of the provisions of sec. 8 of the Act and sec. 29 (1) of the Criminal Procedure Code the Court of Sessions had no jurisdiction to try the accused for the offences punishable under secs. 5 and 6 of the Act. ( 4 ) ANOTHER contention raised before him was that the offences under the Act were alleged to have been committed within the jurisdiction of the Judicial Magistrate First Class at Himatnagar. In view of it ordinarily the Judicial Magistrate First Class Himatnagar would be a Magistrate competent to inquire into and try the accused for the said offences. In view of the provisions of sec. 12 (2) of the Criminal Procedure Code the learned Additional Sessions Judge negatived the second contention. Furthermore he found that committal order cannot be quashed on that ground In view of the provisions of sec. 531 of the Criminal Procedure Code unless it appears that such error has in fact occasioned a failure of justice. It was only in view of the aforesaid first contention that the learned Additional Sessions Judge has made the aforesaid recommendation in this Reference. ( 5 ) MR. J. U. Mehta learned Hon. Assistant Government Pleader appearing for the State and learned Advocate Mr. G. D. Bhatt appointed as Amicus Curiae supported the recommendation made by the learned Additional Sessions Judge. ( 6 ) A short but interesting question which is no doubt a ticklish question that arises in this case is whether accused so for as the offences under sec. 5 and 6 of the Act are concerned if the committal order is made by a Magistrate competent to commit the accused for trial can be tried by Sessions Court in view of the provisions of sec. 8 of the Act and sec. 29 (i) of the Criminal Procedure Code. ( 7 ) I will first refer to sec. 8 of the Act which is very material for our purposes. It reads:-NOTWITHSTANDING anything contained in sec. 8 of the Act and sec. 29 (i) of the Criminal Procedure Code. ( 7 ) I will first refer to sec. 8 of the Act which is very material for our purposes. It reads:-NOTWITHSTANDING anything contained in sec. 190 of the Code of Criminal Procedure 1898 no Court other than that of a Presidency Magistrate or a Magistrate of the first class shall take cognizance of or try any offence under this Act. A plain reading of this section indicates that it is not only that the cognizance of any offence under this Act is to be taken by the Courts mentioned therein but it is also to be tried by the Courts mentioned therein. Furthermore this section does not only mention that offences under this Act shall be tried by a particular Court or by a particular category of magistrates. There is an express prohibition. The express prohibition is that no Court other than that of a Presidency Magistrate or a Magistrate of First Class shall take cognizance of or try any offence under this Act. The prohibition is in regard to the cognizance as well as trying of an offence under this Act. The Child Marriage Restraint Act is a special law. Under this Special law a provision has been made as to the Court that shall take cognizance of as well as try such offences and all other Courts are prohibited from taking cognizance of as well as trying any such offences under this Act. This is Act No. 19 of 1929. ( 8 ) WE will now refer to the relevant provisions of the Criminal Procedure Code (which will be hereinafter referred to as the Code ). ( 9 ) IN sec. 1 (2) of the Code it is stated that it extends to the whole of India except the State of Jammu and Kashmir and the Union territory of Manipur; but in the absence of any specific provisions to the contrary nothing herein contained shall affect any special or local law now in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force or shall apply to. . . . . provided that the State Government may if it thinks fit by notification in the official Gazette extend any of the provisions of this Code with any necessary modifications to such excepted persons. ( 10 ) SEC. 4 sub-sec. (1) clause (O) of the Code defines offence as under:-OFFENCE means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under sec. 20 of the Cattle-trespass Act 1871 it is therefore evident that the definition of the word Offence includes an act or omission made punishable even by special law and not only an act or omission punishable under the Indian Penal Code the general law. 11 Sec. 5 of the Code reads:- (1) All offences under the Indian Penal Code shall be investigated inquired into tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated inquired into. tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying on otherwise dealing with such offence. In the instant case there is such a clear provision in sec. 8 of the Act which states that offences under the Act shall not be tried by any Court other than the Court mentioned therein. ( 11 ) SECS. 28 and 29 of the Code fall in Chapter 111 which deals with powers of Courts under the heading-A.-Description of offences cognizable by each Court. ( 12 ) SEC. 28 reads:-SUBJECT to the other provisions of this Code any offence under the Indian Penal Code may be tried (a) by the High Court or (b) by the Court of Sessions or (c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable. The eighth column of the Second Schedule refers to offences punishable under the Indian Penal Code in Part 1 and in Part 1i it refers to offences punishable under other laws. Column VIII of that Schedule mentions By what Court those offences are triable. It is no doubt true that this sec. 28 is subject to the other provisions of the Code. But sec. Column VIII of that Schedule mentions By what Court those offences are triable. It is no doubt true that this sec. 28 is subject to the other provisions of the Code. But sec. 28 of the Act only refers to offences under the Indian Penal Code. It indicates that any offence under the Indian Penal Code may be tried by the High Court or Court of Sessions or by any other Court by which such offence is shown in the Second Schedule to be triable. The illustration given is:-A is committed to the Sessions Court on a charge of homicide. He may be convicted of voluntarily-causing hurt an offence triable by a Magistrate. Even though this offence is triable by a Magistrate as per the Second Schedule if A is committed to the Court of Sessions on a charge of culpable homicide the Sessions Judge can convict a person of voluntarily causing hurt. That does not mean that the Sessions Court will be in a position to take cognizance of such a case directly without an order of commitment by a competent Magistrate and try that offence. The reason is that sec. 28 is subject to other provisions of the Code. ( 13 ) SEC. 193 (1) of the Code which is material for our purposes reads:-EXCEPT as otherwise expressly provide in by this Code or by any other law for the time being in force no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless accused has been committed to it by a Magistrate duly empowered in that behalf. Similarly sec. 194 of the Code provides:-THE High Court may take cognizance of any offence upon a commitment made to it in manner hereinafter provided. It is thus evident that the High Court and the Sessions Court can take cognizance of any offence upon the commitment made to ill in the manner thereinafter provided so far as the High Court is concerned and so far as the Sessions Court is concerned if the accused is committed to it by a Magistrate duly empowered in the It behalf. No doubt if there are express provisions in the Code or there are such provisions in any other law for the time being in force the Court of Sessions can take cognizance of any offence as a Court of original jurisdiction. No doubt if there are express provisions in the Code or there are such provisions in any other law for the time being in force the Court of Sessions can take cognizance of any offence as a Court of original jurisdiction. In the absence of any such express provisions it cannot take cognizance of any offence unless the accused had been committed to it by a Magistrate duly empowered in that behalf. ( 14 ) SEC. 29 (1) of the Code reads:-SUBJECT to the other provisions of this Code any offence under any other law shall when any Court is mentioned in this behalf in such law be tried by such Court. No doubt in view of the provisions of this sec. 29 (1) of the Code any offence under special law like the Act shall when any Court is mentioned in that behalf in such law be tried by such Court. No doubt that position is qualified as it is made subject to the other provisions of the Code. In the instant case as said earlier in the special law the Court has been mentioned. It is not only that the Court has been mentioned which is competent to try such offences and to take cognizance of. But there is an express prohibition that no other Court will be entitle (i to take cognizance of and be entitled to try such offence. ( 15 ) WE are not concerned with sec. 29 (2) of the Code and hence it is not necessary to refer to it. ( 16 ) SECS. 206 and 207 are two other material sections falling in Chapter 18 of the Code which deal with of inquiry into cases triable by the Court or Sessions or High Court. Sec. 206 reads:- (I) Any Presidency Magistrate or Magistrate of the first class or any Magistrate not being a Magistrate of the third class empowered in this behalf by the State Government in consultation with the High Court may commit any person for trial to the Court of Session or High Court for any offence triable by such Court. This sub-sec. (1) of sec. This sub-sec. (1) of sec. 206 of the Code gives power to the categories of Magistrates refereed to therein to commit any person for trial to the Court of Sessions or High Court for any offences triable by such Court The question that arises for consideration is as to what is meant by any offence triable by such Court. ( 17 ) SUB-SEC. (2) of sec. 206 or the Code reads:-BUT save as herein otherwise provided no person triable by the Court of Session shall be committed for trial to the High Court. It therefore means that in the absence of any express provision to the contrary no person triable by the Court of Session can be committed for trial to the High Court. ( 18 ) SEC. 207 of the Code reads:-IN every inquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court or in the opinion Magistrate ought to be tried by such Court the Magistrate shall (a) in any proceeding instituted on a police report follow the procedure specified in sec. 207a; and (b) in any other proceeding follow the procedure specified in the other provisions of this Chapter. A plain reading of these two sections indicates that even though a particular offence is not triable exclusively by the Court or Sessions and is an offence triable by a Magistrate the Magistrate can commit the accused to the Court of Sessions to stand his trial for the offence if the is of opinion that such a case ought to be tried by the Court of Sessions. ( 19 ) THERE is similar Sec. 347 of the Code falling in Chapter 24 which relates to General Provisions as to Inquiries and trials. It therefore appears that it is a supplementary provision and that section reads:- (I) If in any inquiry before Magistrate or in any trial before a Magistrate before signing judgment it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court and if he is empowered to commit for trial he shall commit the accused under the provisions hereinbefore contained. Reading these three secs. 206-207 and 347 of the Code in conjunction it appears that even though the offence is triable by a Magistrate the Magistrates referred to in sec. Reading these three secs. 206-207 and 347 of the Code in conjunction it appears that even though the offence is triable by a Magistrate the Magistrates referred to in sec. 206 of the Code can commit the accused to the Court of Sessions for trial. At the same time one has to bear in mind that the Magistrate is empowered to commit any person for trial for any offence triable by such Court. Secs. 207 and 347 of the Code indicates that such committal can also be made even though the case is not triable exclusively by the Court of Sessions or by the High Court if the Magistrate is of opinion that such a case ought to be tried by such Court i. e. Court of Sessions. ( 20 ) THE question for consideration. therefore is whether these provisions would control the provisions of secs. 28 and 29 of the Code. So far as the offences under the Indian Penal Code are concerned even though such offences are triable by the Magistrate only and they are not offences exclusively triable by the Sessions Court or triable both by the Sessions Court as well as by the Magistrate the Court of Sessions can try them if the magistrates referred to in the provisions of sec. 206 of the Code commit the accused for trial. The provisions of sec. 28 of the Code make that position quite clear. So far as the provisions of sec. 29 (1) of the Code are concerned it appears that any offence under any other law has to be tried by a Court which is mentioned in this behalf in such law. No doubt that position is also subject to the other provisions of this Code. . ( 21 ) WHETHER these secs. 206 207 and 347 of the Code can be said to be such other provisions of the Code to which that sec. 29 (1) is subjected ? It may be that these provisions may have been intended to be such other provisions of the Code. That matter is not absolutely free from doubt. But in the instant case it is not necessary for me to decide that question finally as it appears to me that the present case stands on a little different footing. In sec. It may be that these provisions may have been intended to be such other provisions of the Code. That matter is not absolutely free from doubt. But in the instant case it is not necessary for me to decide that question finally as it appears to me that the present case stands on a little different footing. In sec. 8 of the Act which is special law there is not only that a Court is mentioned by which such offences under the Act would be tried bur there is also an express prohibition that no Court other than the Court mentioned therein shall take cognizance of such offences and further they will not be entitled to try such offences. It therefore means that there are clear provisions in the special law which prohibits taking cognizance of such offences as well as trying such offences. One should bear in mind the distinction between taking cognizance of and the competence of Court to try a particular offence. ( 22 ) IN Basdeo v. Emperor A. I. R. 1945 Allahabad 340 at page 342 Braund J. has made the following observations which can be referred to with advantage at this stage:-THERE is I think a great deal of difference between a case in which the Sessions Court is enjoined in certain circumstances not to take cognizance of an offence and a case in which the Sessions Court is not a Court of competent jurisdiction in relation to that offence. A committal by a Magistrate to another Court does not confer jurisdiction on that other Court. Jurisdiction is given to Courts by the statutes which create them. Jurisdiction is the definition of their legal powers in contradistinction to the machinery and procedure in accordance with which those legal powers are to be exercised. Moreover cognizance of an offence or a case is I think something quite different from jurisdiction to deal with that case. A Court may very well be a Court of competent jurisdiction in regard to any particular offence or any particular case without being in a position to take cognizance of it; and to my mind it is a confusion of ideas to treat competence to take cognizance of an offence as the same thing as competence in respect of jurisdiction in relation to that offence. The two things are as T see it quite different. The two things are as T see it quite different. Sec. 193 of the Code no doubt entitles the Sessions Court to take cognizance of an offence when the accused has been committed to it by a Magistrate duly empowered in that behalf. But the Magistrate is empowered to commit the accused for trial only in regard to the offence triable by such Court. ( 23 ) A Division Bench of Hyderabad High Court in State v. Chand Khan A. I. R. 1956 Hyderabad 39 observes:-THE powers of a Magistrate to commit are not limited to cases exclusively triable by a Court of Sessions. The words any offence triable by each Court in sec. 206 (1) are general and of wide application. They do not necessarily mean any offence which is exclusively triable by a Court of Session as shown in column 8 of Schedule (2) of Criminal Pro. Code. Thus it is not merely in cases which are exclusively triable by a Court of Session but also in cases which in the opinion of the Magistrate ought to be tried by such Court that the Magistrate has wide discretion to order commitment. The general powers under sec. 206 are not in any way limited in this regard by the provisions of sec. 207. A committal order cannot therefore be said to be without power or even an unsound exercise of discretion because the offence is triable by a Magistrate empowered under sec. 30 and the order is not liable to be quashed. At page 40 in the body of the judgment the pertinent observations made are:-IT is not merely in cases which are exclusively triable by a Court of Sessions but also in all cases which in the opinion of the Magistrate ought to be tried by such Court that the Magistrate has wide discretion to order commitment. The general powers under sec. 206 Criminal Pro. Code are not in any way limited in this regard by the provisions of sec. 207 Criminal Procedure Code. The words used in that section are express and admit of no other interpretation than the one stated above. Sec. 347 Criminal Pro. Code lends further support to this view. The general powers under sec. 206 Criminal Pro. Code are not in any way limited in this regard by the provisions of sec. 207 Criminal Procedure Code. The words used in that section are express and admit of no other interpretation than the one stated above. Sec. 347 Criminal Pro. Code lends further support to this view. In Rex v. Matoley A. I. R. 1949 Allahabad 1 (F. B.) (F) the Full Bench of the Allahabad High Court has observed:- the reasons for which a Magistrate who is otherwise competent may commit a case to the Court of Session are not in any way limited either to a case which he cannot try or to a case in which he cannot adequately punish. A Magistrate otherwise competent may commit any person for trial to the Court of Session for any offence. Thus the contention that the Magistrate had no power to commit or hold preliminary inquiry for commitment as the case was not exclusively triable by the Sessions Judge fails. ( 24 ) IT is also contended that as the Additional District Magistrate Adilabad was invested with powers under sec. 30 Criminal P. C. such offences as are not punishable with death ought not to be tried by the Court of Session and such the Magistrate could not commit this case. We cannot accept this view either. Sec. 28 (2) Criminal P. C. makes it abundantly clear that the Court of Session is empowered to try every offence. It is true that the provisions of sec. 28 Criminal P. C. are subject to other provisions of the Code including sec. 30 Criminal P. C. But the investment of powers under sec. 30 Criminal Pro. Code by the State Government does not oust the jurisdiction of the Court of Session nor the powers of such a Magistrate especially empowered and those of the Sessions Judge become mutually exclusive. Powers under sec. 30. Criminal Pro Code only enable the District Magistrate to try cases which otherwise on account of column 8 Schedule 2 of Criminal Pro. Code he could not try. Mr. Bhatt had pointed out to me a decision of a Division Bench of the Allahabad High Court in Emperor v. Subedar Singh 47 Criminal Law Journal 804 wherein it was observed that the words 6triable by such Court refers to entries in column 8 of the Second Schedule. Code he could not try. Mr. Bhatt had pointed out to me a decision of a Division Bench of the Allahabad High Court in Emperor v. Subedar Singh 47 Criminal Law Journal 804 wherein it was observed that the words 6triable by such Court refers to entries in column 8 of the Second Schedule. It has expressed a view which is contrary to the view expressed by a Division Bench of the Hyderabad High Court in the aforesaid case but that decision has been over-ruled by the Full Bench of Allahabad High Court in Rex v. Matoley A. I. R. 1949 Allahabad 1 (FB ). It is also significant to note that the decision earlier referred to by me Basdeo v. Emperor A. I. R. 1945 Allahabad 340 has also been over-ruled so far as this particular point is concerned. ( 25 ) A Full Bench of Allahabad High Court in Rex v. Matoley A. I. R. 1949 Allahabad 1 (FB) has relied upon the decisions of the various High Courts some of which were also the decisions of the Bombay High Court and it over-ruled its earlier decisions and made the following observations:-THE provisions contained in secs. 346 347 and 349 are generally applicable to all inquiries and trials. They should be looked upon as supplemental to the provisions contained in Chapters 20 21 and 22. The reason for which a Magistrate who is otherwise competent may commit a case to the court of session are not in any way limited either to a case which he cannot try or to a case in which he cannot adequately punish the accused. A Magistrate otherwise competent may commit any person for trial to the Court of Session or the High Court for any offence; hut he must give adequate reasons for committing a person for an offence which is not exclusively triable by the Court of Session or the High court. At page 7 it has been observed in para 32 as under :-IT is therefore clear that there is a weighty volume of judicial opinion in India which runs counter to the view so far taken by this Court. I shall however revert to this question after examining the relevant provisions contained in the Code of Criminal Procedure. At page 7 it has been observed in para 32 as under :-IT is therefore clear that there is a weighty volume of judicial opinion in India which runs counter to the view so far taken by this Court. I shall however revert to this question after examining the relevant provisions contained in the Code of Criminal Procedure. ( 26 ) CERTAIN observations made by a Division Bench of the Bombay High Court in Bansappa Kallappa and others v. Emperor A. I. R. (31) 1944 Bombay 148 (45 Cr. L. J. 701) are quoted therein indicating that in cross cases accused can be committed to the Court of Sessions even though in one of them offences were triable by Magistrate to avoid conflicting decisions. At page 9 in para 48 the relevant observations made are:-THE provisions of secs. 346 347 and 349 clearly indicate that a Magistrate who takes cognizance of a case may try it himself if he has jurisdiction. But if he is of opinion that he cannot inflict an adequate sentence he may act under sec. 346 or sec. 349 and send the case to a higher Magistrate. Lastly he may if he thinks that it is a fit case for trial by a Court of Session commit the accused for trial or if he has no power to commit himself he may send it by reason on the provisions of sec. 346 to another Magistrate for proceedings for commitment. The words the case is one which should be tried or committed for trial show that there is a clear reference for the discretion or opinion of the Magistrate concerned. Similarly the expression it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court clearly indicates that the Magistrate has full discretion at any stage of the proceedings in any case before him to decide whether or not the case is a fit one for commitment to the Court of Session. The next point which requires serious consideration is whether there is any provision in the Code of Criminal Procedure which in any way restricts the discretion of the Magistrate vested in him by sec. 347. The next point which requires serious consideration is whether there is any provision in the Code of Criminal Procedure which in any way restricts the discretion of the Magistrate vested in him by sec. 347. There is undoubtedly a serious conflict of judicial opinion on this question as would appear from a long line of cases briefly noticed in an earlier part of this judgment. Sec. 254 has bean interpreted in such a way as to make it obligatory for the Magistrate to frame a charge and proceed with the trial when once he has found that the offence is one which he is competent to try and which he can adequately punish. At page 10 the observations made are:-IN many of the above-mentioned cases it seems to me-I again speak with the utmost respect that the real significance of the general provisions contained in Chapter 24 and in particular provisions of sec. 347 has been lost sight of. Then again it appears to me that the provisions of secs. 206 and 207 Criminal Pro. Code. which imply the existence of a power in the Magistrate concerned to commit a person for trial to the Court of Sessions or High Court have not been given due consideration in the determination of these questions. It is important to note that the words used in this section give a wide discretion to the Magistrate to commit any person for trial to the Court of Session for any offence triable by such Court. The words triable by such Court do not in my judgment necessarily mean an offence which is shown as triable by the Court of Session in column 8 of Schedule 2 of Criminal Pro. Code. The words are quite general and they mean that any case involving any offence triable by the Court of Session should be committed by a Magistrate for trial to the Court. Sec. 2x Criminal Procedure Code makes it abundantly clear that the Court of Session is empowered to try every offence under the Penal Code. It is thus evident that for any such offence a Magistrate is empowered to commit the accused to the Court of Sessions for trial even though the offence is triable by a Magistrate as sec. 28 of the Code makes it abundantly clear that the Court of Sessions is empowered to try every offence under the Indian Penal Code. It is thus evident that for any such offence a Magistrate is empowered to commit the accused to the Court of Sessions for trial even though the offence is triable by a Magistrate as sec. 28 of the Code makes it abundantly clear that the Court of Sessions is empowered to try every offence under the Indian Penal Code. In the instant case sec. 28 of the Code cannot be pressed into service. It is only sec. 29 (i) of the Code which can be considered. As said earlier in the special law itself there is an express prohibition that offences under the Act cannot be tried by any Court other than the Courts referred to therein. Even any other Court cannot take cognizance of such offences. In view of this express prohibition in the special law which has an overriding effect it is evident that even though the committing Magistrate has committed the accused to stand their trial for offences under the Penal Code which are triable by the Sessions Court Sessions Court will not have jurisdiction to try these offences under the Act. The reason underlying it is that there is an express prohibition in special law which has got an over-riding effect over the provisions of general law. ( 27 ) THERE is only one old solitary case which had to deal with a similar question. It was in relation to the interpretation of sec. 9 of the Opium Act 1878 The relevant part of it reads:-ANY person who in contravention of this Act or of made and notified under sec. 5 or sec. 8 shall on conviction before a Magistrate be punishable for each such offence with imprisonment which may extend to three years with or without fine. In Queen-Express v. Schade 19 I. L R. Allahabad 455 it has been observed therein that inasmuch as a conviction of an offence punishable under Act No. 1 of 1878 must be by a Magistrate a Magistrate taking cognizance of such an offence has no power to commit to the Court of Session. It was a reference under sec. 213 of the Code made by the Sessions Judge of Allahabad. It was a reference under sec. 213 of the Code made by the Sessions Judge of Allahabad. Two persons one of them a European British subject had been charged before a Magistrate of the first class with being on different places in the possession of opium in contravention of the rules made by Government under Act No. 1 of 1878. The Magistrate committed both the accused to the Court of Sessions. The Sessions Judge being of opinion that having regard to sec. 9 of the Opium Act 1878 a conviction if any could only be arrived at by a Magistrate referred the case to the High Court with a view to the commitment being quashed. ( 28 ) IT has been observed in that judgment:-IT is quite clear from sec. 9 of Act No. 1 of 1878 that the Court of Session has no jurisdiction in the matter. The conviction if there is one must be before a Magistrate for a Magistrate and not the Judge of the Court of Session is the person empowered to pass sentence. ( 29 ) IN State of Uttar Pradesh. Sabir Ali A. I. R. 1964 Supreme Court 1673 the Supreme Court has interpreted sec. 29 of the Code and has made the following observations:-SEC. 29 of Criminal Pro. Code says that offences under any other law shall be tried by that Court which that law mentions and it is only when no Court is mentioned that the eighth column of the second schedule is applicable. Sub-sec. (2) of sec. 15 of U. P. Private Forests Act 1948 mentions the Courts by which offences under sec. 15 (1) are triable and sec. 29 (1) of Criminal Pro. Code excludes the application of the second part of the second Schedule. The words of sub-sec. (1) of sec. 29 are peremptory. There is no escape from them. They say that subject to the other provisions of the Code any offence under any other law shall be tried by the Court when such Court is mentioned in that law. A case under sec. 15 (1) of the U. P. Private Forests Act therefore is triable only by the two Courts named therein namely Magistrates of the second and the third class and not by any other Magistrate. The words subject to the other provisions of the Code occurring in sub-sec. (1) of sec. 29 Criminal Pro. A case under sec. 15 (1) of the U. P. Private Forests Act therefore is triable only by the two Courts named therein namely Magistrates of the second and the third class and not by any other Magistrate. The words subject to the other provisions of the Code occurring in sub-sec. (1) of sec. 29 Criminal Pro. Code cannot be referred to bring in the provisions of Third Schedule of Criminal Pro. Code. What sec. 15 (2) of the U. P. Act does is to prescribe a particular Court and in view of the words of sec. 29 (1) of Criminal Pro. Code no other Court can try offences under sec. 15 (1) of the U. P. Act even though the power of those Courts may be superior to those of Magistrates of the Second and the Third Class. If the second schedule of Criminal Pro. Code itself which prescribes the Court for the trial of offences under laws other than the Penal Code is excluded the Third Schedule cannot bring about the same result indirectly. The provisions of the Third Schedule must therefore be taken to define general powers and not to create jurisdictions to try offences which the second schedule does. As there is no jurisdiction in the Magistrate of first class to try an offence under sub-sec. (1) of sec. 15 of the U. P. Private Forests Act 1948 the trial by such a Magistrate is void under sec. 530 (P) of Criminal Pro Code dictum-It was argued before us that there is no point in prescribing (in sec. 15 (1) of the U. P. Act) that the Magistrates of the second and the third class can try subsequent offences because their powers under sec. 32 Criminal Pro. Code do not extend as far as the punishment prescribed by sec. 15 (1 ). This question does not arise directly but it may be said that two views are possible; one is that by implication the powers of these Magistrates are extended beyond what is prescribed under sec. 32. The other is that in a case where the Magistrate feels that a heavier punishment should be imposed he can take recourse to the provisions of sec. 349 of the Code and make a recommendation to a Magistrate who can impose adequate punishment in the case. 32. The other is that in a case where the Magistrate feels that a heavier punishment should be imposed he can take recourse to the provisions of sec. 349 of the Code and make a recommendation to a Magistrate who can impose adequate punishment in the case. The words subject to the other provisions of the Code would enable this to be done. It is significant to note that these are the two views suggested at pages 1675 and 1676 in para 5. No final decision has been arrived at on that point. Further more it is significant to note that sec. 15 (2) of the Forests Act reads:-OFFENCE under this section shall be triable by a Magistrate of the second or third class and proceedings under this section may be instituted on a complaint made by the land-lord of the notified area of the forest in respect of which the offence is alleged to have been committed or by any right-holder of such a notified area or forest or by the Forest Officer or by any officer specially empowered by the Provincial Government in this behalf. That section only states that offences under sec. 15 shall be triable by the Magistrate of the Second or Third Class. There was no express prohibition in that section as we find in sec. 8 of the Act. ( 30 ) IN State of Uttar Pradesh v. Khushi Ram A. I. R 1960 Supreme Court 905 the Supreme Court has observed:-SEC. 21 of the Prevention of Food Adulteration Act 1954 is not a disabling provision. All that it does is to authorise a Magistrate of the First Class to award a sentence beyond the limits prescribed for him under sec. 32 of the Code. It does not affect the provisions of secs. 207 and 347 of the Code nor has it anything to do with the jurisdiction of a Course of session. The section does not mike the commitment by a Magistrate competent to award the full sentence prescribed by the Act a nullity; nor does the section interfere with the jurisdiction of a Court of Session to deal with a matter committed to it in spite of its provision. Thus where a judicial Magistrate competent to award full sentence under sec. 16 (1) (g) (iii) by virtue of sec. Thus where a judicial Magistrate competent to award full sentence under sec. 16 (1) (g) (iii) by virtue of sec. 21 or the Act (Prevention of Food Adulteration Act) commits the accused to stand his trial before the Court of Sessions presumably acting under see. 347 of the Criminal Procedure Code under impression that his power as a Magistrate of the First Class to impose sentence was limited by sec 32 of the Code and the Sessions fudge tries the case and convicts and sentences the accused neither is the commitment void nor is the trial by the Sessions Judge without jurisdiction. At page 906. it is observed:-THE jurisdiction of a Court of Session depends upon the Code. It has jurisdiction to try any case which is committed to it. The case against the respondent had been committed to a Court of Session by a Magistrate having power to commit. Further the Magistrate did not lack territorial jurisdiction to commit. It may be that the Magistrate was competent to try the case and award all punishment prescribed by law. It is also true that the Magistrate was not compelled to commit the case to a Court of Session. We are unable to subscribe to the view that a commitment in such circumstances is itself void. These observations may prima facie indicate that the view expressed therein is contrary to the view that I propose to take. But on critical examination it appears that that is not the correct position. Sec. 20 of the Prevention of Food Adulteration Act (Act No 37 of 1954)) sub-sec. (2) reads:-NO Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence under this Aci. It only indicates that a Court inferior to that of Presidency Magistrate or first class cannot try any offence under that Act. There is no express prohibition in that Act that the offence under that Act cannot be tried or cognizance of that offence cannot be taken of by any Court other than the Courts mentioned therein. In the Act with which we are concerned there is such express prohibition. That decision therefore does not run counter to the view that is propose to take. ( 31 ) ONE has therefore to fall back on the provisions of sec. 29 (1) of the Code and the provisions of sec. In the Act with which we are concerned there is such express prohibition. That decision therefore does not run counter to the view that is propose to take. ( 31 ) ONE has therefore to fall back on the provisions of sec. 29 (1) of the Code and the provisions of sec. 8 of the Act for deciding the question whether any superior Court like the Sessions Court was competent to try these offences or not. Ill the instant case there is express prohibition in sec. 8 which debars any other Court to take cognizance of such offences under the Act as well as to try such offence under the Act. In my opinion the necessary consequence of it is that such offences cannot be tried by the Sessions Court even though the Magistrate has committed the accused for trial. The result is that the commitment order itself would not be legal. The power to take cognizance of and jurisdiction to try such offences by any other Court being excluded by clear prohibition in the provisions of sec. 8 the order of commitment so far as these offences under the Act are concerned is bad and it cannot be sustained in law. The result is that the reference has to be accepted. ( 32 ) BEFORE I part with the case it may be noted that Mr. Bhatt had submitted before me that the order made by the learned Additional Sessions Judge at the time of making his reference indicates that the offences under the Act were committed within the jurisdiction of the Judicial Magistrate First Class Himatnagar and not within the jurisdiction of the Judicial Magistrate First Class Idar who made the committal order in question. It was therefore contended by him that this Court should send the case to the Court of Judicial Magistrate First Class Himatnagar for trial of the offences under secs. S and 6 of the Act. The committing Magistrate made the committal order after making a preliminary inquiry as contemplated by sec. 208 of the Code. The learned Additional Sessions Judge found that the part of this committal order was bad in law as the Sessions Court had no jurisdiction to try offences under secs. 5 and 6 of the Act. It will not be proper for this Court therefore in such a case to decide this question urged by Mr. Bhatt. 208 of the Code. The learned Additional Sessions Judge found that the part of this committal order was bad in law as the Sessions Court had no jurisdiction to try offences under secs. 5 and 6 of the Act. It will not be proper for this Court therefore in such a case to decide this question urged by Mr. Bhatt. It will be open to the Court where this case is sent back to decide the question whether that Court has jurisdiction to try these offences or it is the Court of Judicial Magistrate First Class Himatnagar which has got jurisdiction to try these offences. That question is kept open. ( 33 ) REFERENCE is accepted. The order of committal passed by the learned Judicial Magistrate First Class in Criminal Case No. 1170 of 1968 is set aside so far as it relates to committal of the accused to stand their trial for the offences under secs. 5 and 6 of the Child Marriage Restraint Act. The learned Judicial Magistrate First Class Idar is directed to dispose of the case in relation to the offences punishable under secs. S and 6 of the Child Marriage Restraint Act against these eight accused according to law. ( 34 ) THE question whether that Magistrate has jurisdiction to try those offences or the Judicial Magistrate First Class Himatnagar 11as jurisdiction to try these offences is kept open. The accused will be at liberty to raise this question regarding jurisdiction before the Judicial Magistrate First Class Idar. ( 35 ) IT is my duty to note that valuable assistance is rendered by Mr. Mehta appearing for the State and Mr. G. D. Bhatt appearing as Amicus Curiae for the accused. Reference accepted. .