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1976 DIGILAW 352 (CAL)

Ram Chandra Maity v. Sudhir Chandra Mondal

1976-11-11

P.K.Chanda, Sudhamay Basu

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Judgment 1. THIS rule is directed against an order dated 19th of February, 1975 passed by the Sessions Judge, Midnapore in Criminal Motion No. 4 of 1975 rejecting the same. The said motion was filed by the complainant against an order dated 23rd of November, 1974 passed earlier by the Judicial Magistrate, 1st Class, Contai, in case No. 305c of 1972 rejecting a prayer to commit the case to the Court of Sessions. 2. IT appears that the petitioner, Ram Chandra Maity filed a complaint against the respondents whereupon the s. D. J. M., Contai, took cognizance and directed issue of warrant of arrest against them under S. 467 I. P. C. An enquiry under Chapter XVIII of the old Code of Criminal Procedure was pending before the learned Magistrate as an offence under S. 467 I. P. C. was tribal exclusively by the court of sessions under the old Code. After the new Criminal Procedure Code came into force on the 1st of April, 1974 the petitioner prayed for committal of this case to a court of sessions. On 23.11.1974 the learned Magistrate rejected the prayer and fixed a date namely, 25th of January, 1975 for examination of P. W. S as under the new code the offence under S. 467 I. P. C. has been made tribal by a Magistrate 1st Class. Against that order the petitioner went up in revision to the learned Sessions Judge who also rejected the motion on contest. It is the said order which is challenged before us. Mr. Sengupta, learned advocate, appearing in support of the motion submitted that the Indian Penal Code provides for life imprisonment or a sentence up to 10 years of imprisonment for offence under S. 467 but in terms of the schedule to the new Code of Criminal Procedure the offence is no longer tribal by a court of sessions. In terms of the schedule the offence under S. 467 I. P. C. is now tribal by a Magistrate having 1st class powers. According to Mr. Sengupta, this introduces an anomaly. The punishment contemplated by the Penal Code, according to him, cannot be enforced by the mechanism provided in the Criminal Procedure Code. In terms of the schedule the offence under S. 467 I. P. C. is now tribal by a Magistrate having 1st class powers. According to Mr. Sengupta, this introduces an anomaly. The punishment contemplated by the Penal Code, according to him, cannot be enforced by the mechanism provided in the Criminal Procedure Code. A Magistrate having 1st class powers can sentence a person only up to three years and even if the Magistrate makes over the case to a Chief Judi cal Magistrate even the latter cannot punish a person with imprisonment for more than seven years. In this situation Mr. Sengupta submitted that the Court might construe the sections in such a way as to make effective both provisions. 3. HE submitted for this purpose that when an enquiry under Chapter XVIII of the old Code is pending the operation of the provision that an offence under S. 467 of the Penal Code is tribal by a Magistrate of 1st Class in the new Code may be suspended so that an offence may continue to be exclusively tribal by Sessions Judge as under the old Code of Criminal Procedure. According to him, this would not offend the proviso to the provision of S. 484 (2) (a) namely, that a pending enquiry under Chapter XVIII of the old Code should be dealt with in accordance with the provisions of the new Code. According, to him, if in such cases the new Code is applied the Magistrate has to proceed under 3. 209 which makes it incumbent on a Magistrate to commit the case to the Sessions "when it appears to him that the offence is exclusively tribal by the Court of Sessions." If the Courts hold that in pending cases the old Criminal Procedure Code will apply with regard to S. 467 i.e. to say if an offence under S. 467 is deemed to be exclusively tribal by Sessions in pending cases then proviso to S. 484 (2) (a) would not be in referred with. We are, however, unable to accept the validity of the submissions made by Mr. Sengupta. 4. FIRSTLY his application, it seems, is barred under S. 397 sub-s. 3 under which if a person has already made an application for revision before a High court or a Sessions Court no further application by him shall be entertained by either of them. In the present case Mr. Sengupta. 4. FIRSTLY his application, it seems, is barred under S. 397 sub-s. 3 under which if a person has already made an application for revision before a High court or a Sessions Court no further application by him shall be entertained by either of them. In the present case Mr. Sengupta' s client also made an application to the Sessions Judge. Therefore, his second application on the face of it is barred. We are also unable to hold that the facts and circumstances of this case as such that it would require us to exercise our inherent powers. Secondly even on merit it can hardly be said that the learned Magistrate lacked jurisdiction to pass the order which he did. An offence under S. 467 I.P.C. has been made tribal by a Magistrate of the 1st class by the new code of Criminal Procedure. He was therefore competent to proceed with the trial. There is thus no error of law committed by him. 5. MR. Sengupta, to support his contention, relied on a decision-Adya prasad vs. R. Mahato reported in 1975 cr. Law Journal 997. In that case the impugned order of Sessions Judge dated 22.3.1972 directed a Magistrate to commit the accused persons to the Court of Sessions for facing; trial under S. 386 I. P. C. A formal commitment by the Magistrate in pursuance of the said order would not be effected as there was a stay by the High: Court when the same was moved in revision. The learned Judge thought that "but for the stay the Magistrate would have perhaps recorded his commitment order earlier to 1.4.74". Under the new Code of Criminal Procedure S. 386 was made tribal by a Magistrate of the 1st Class. The Court took the view that the changing law effected by the new Criminal Procedure Code would not make any substantial change so far as the contemplated commitment was concerned. The matter was pending for necessary commitment by the magistrate to do which a firm direction had been given by the Sessions Judge at the time when the offence was exclusively tribal by the court of sessions. On the aforesaid facts and circumstances it was held that it was no longer open to the Magistrate was bound to comply with the directions at the Sessions Judge "notwithstanding the enforcement of the new Code in the meanwhile". 6. On the aforesaid facts and circumstances it was held that it was no longer open to the Magistrate was bound to comply with the directions at the Sessions Judge "notwithstanding the enforcement of the new Code in the meanwhile". 6. IT is patent that the facts of the aforesaid Patna case are quite different from the facts of the present case and the decision, therefore, is distinguishable on that ground in the present case there is no question of compliance by Magistrate of an earlier order of Sessions Judge to commit. With great respect we have also our reservation as to the proposition that an earlier order for commitment by the Sessions Judge would still hold good and was to be followed by a Magistrate in a pending committal enquiry even after coming into force of the new Criminal Procedure Code. That would, in our view, be overriding and not giving effect to express provision of the statute. Our attention was later drawn to a decision of a Division Bench of this Court viz., State v. Abdul Rashid reported in 1976 C. H. N. 569 which express the same view. It can hardly be doubted that the schedule to he new Code is as much an integral part as any other provision contained in the same. The provision in the schedule itself can hardly be ignored. To hold that the committal enquiry commenced by the Magistrate under the old Code should continue in spite of an offence being made tribal by a Magistrate of 1st Class under the new Code is to arbitrarily ignore the existence of the new Code and not to give effect to the same. As to the larger question mooted by Mr. Sengupta, it may be pointed out that adequacy of punishment or sentence really is not a question relating to the jurisdiction of the Court. Nevertheless even if the position is that maximum punishment contemplated by the Indian Penal Code in respect of an offence under S. 467 I. P. C. cannot be inflicted by the mechanism provided in the new Criminal. Procedure Code, the same reveals a lacuna which can only be removed by the Parliament itself. The way out suggested by Mr. Nevertheless even if the position is that maximum punishment contemplated by the Indian Penal Code in respect of an offence under S. 467 I. P. C. cannot be inflicted by the mechanism provided in the new Criminal. Procedure Code, the same reveals a lacuna which can only be removed by the Parliament itself. The way out suggested by Mr. Sengupta would involve suspending the operation of the new Criminal Procedure Code in cases of pending committal enquiry a step which would be contrary of the express provision of the new Criminal Procedure Code. In an attempt to harmonies two acts of Parliament the Court cannot arbitrarily refrain from giving effect to a patent and express provision of the legislature in the garb of harmonizing the two statutes the court cannot indirectly legislate and arrogate to itself power which do not belong to it. 7. WE are also unable to accept the contention of Mr. S. Pal who appeared on behalf of the Central Government that the apparent anomaly between the Penal Code and the Criminal Procedure Code would be resolved by taking recourse to the provision of S. 323 which, according to him, enable a Magistrate to commie to a Court of Sessions any case which would be thought ought to be tried by that court. We do not see how a case which is made tribal by a Magistrate, 1st Class, could be thought of by a learned Magistrate as one "which ought to be tried by a Court of Sessions." The decision of the Supreme Court in the case of State of U. P. vs. Khusi Ram reported in A. I. R. 1960 S. C. 905 to which Mr. Pal drew our attention after the hearing was over was a case on Prevention of Food Adulteration Act, S. 21 of which authorise a Magistrate of the 1st Class to award the sentence beyond the limits prescribed for him under S. 32 of the old Code of Criminal Procedure under the impression that the power of the Magistrate of 1st class to impose sentence was limited by S. 32 of the Code the Judicial Magistrate in. that case committed the respondent to stand his trial before the court of Sessions Under S. 347 of the Old Code of Criminal Procedure. Therefore the Sessions Judge convicted and sentenced the accused. that case committed the respondent to stand his trial before the court of Sessions Under S. 347 of the Old Code of Criminal Procedure. Therefore the Sessions Judge convicted and sentenced the accused. He, however, observed that the learned Judicial Magistrate was competent to award the punishment by the Act as offence was committed for the second time and not the third time. In an appeal the allahabad High Court thought that as the learned Magistrate was competent to award all punishments he had no reason to commit the respondent to a court of sessions. The Supreme Court, however, set aside the judgment oil the Allahabad High Court and held that S. 21 of the Prevention of Food Adulteration Act was not a disabling provision. It only authorizes the Magistrate of the 1st Class to award sentence beyond the limits prescribed by S. 32 of the Code. It held that the case; had been committed to a court of sessions by a Magistrate having powers to commit. The conviction was upheld. It is true that present S. 323 corresponds to old S. 347 but we do not prima facie, find any reason why the present case might appear to a Magistrate as one "which ought to be tried by the court of sessions". In the face: of the schedule attached to the new Code that would in our view prevent the application of S. 323 but we may make it clear that this aspect of apparent anomaly between the maximum punishment of a life sentence provided in the Indian Penal Code for an offence under S. 467 I. P. C. and the provision in the schedule which makes the offence tribal by a Magistrate of the 1st Class is not one which directly calls for a solution in this case. As we pointed out earlier in case of such anomaly it is for the Parliament and its wisdom to rectify the same for which its attention may be drawn. The petition is rejected and the rule is discharged.