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1976 DIGILAW 674 (ALL)

Neki Ram v. State

1976-10-11

CHANDRA PRAKASH

body1976
JUDGMENT : Chandra Prakash, J. This is an appeal against the order, dated March 28, 1972, of Shri K.N. Mehra, Magistrate 1st Class, Dehradun, convicting the Appellant Neki Ram Gupta u/s 124A IPC and sentencing him to one year's R.I. 2. The Appellant along with one Radha Krishna Kukreti was tried u/s 124A IPC on the complaint of the Inspector Incharge Kotwali, Dehradun, in the Court of the Additional District Magistrate (Judicial) Dehradun. Both the Appellant Neki Ram Gupta and Radha Krishna Kukreti pleaded not guilty. After taking evidence of the prosecution and the defence the Court below found no case against Radha Krishna Kukreti. The Appellant was, however, found guilty and he was sentenced as noted above. 3. Feeling aggrieved, the Appellant has now come up in appeal before me. 4. A preliminary objection has been raised on behalf of the Appellant that the Additional District Magistrate (Judicial), who tried the case, was not competent to try it. I have heard the learned Counsel for the Appellant as also the learned Counsel appearing on behalf of the State at length. After going through the record and giving the matter my anxious consideration I am of the opinion that the Court below was not competent to try the case giving rise to this appeal. 5. According to column 8 of Schedule II at the end of the Code of Criminal Procedure, a case u/s 124A IPC can be tried by a Court of Session, Chief Presidency Magistrate or District Magistrate or Magistrate of the first Class specially empowered by the State Government in that behalf. It is undisputed that the present case has not been tried either by a Court of Session or a Chief Presidency Magistrate or the District Magistrate or a Magistrate of the first Class specially empowered by the State Government in that behalf. It is, therefore, urged on behalf of the Appellant that the Additional District Magistrate (Judicial), who tried the case, was not competent to try it and the whole proceedings before him must be quashed for want of jurisdiction. On the other hand, it is contended on behalf of the State that the Additional District Magistrate (Judicial) attracted the connotation of the term 'District Magistrate' as given u/s 10 of the Code of Criminal Procedure. Section 10 of the Code is as follows : 10. On the other hand, it is contended on behalf of the State that the Additional District Magistrate (Judicial) attracted the connotation of the term 'District Magistrate' as given u/s 10 of the Code of Criminal Procedure. Section 10 of the Code is as follows : 10. District Magistrate.- (1) In every district outside the Presidency towns the State Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate. (2) The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code, or under any other law for the time being in force, as the State Government may direct. (3) For the purposes of Section 192, Sub-section (1) and 528, Sub-sections (2) and (3) such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate. 6. Sub-section (2) quoted above contemplates the appointment of an Additional District Magistrate who may exercise all or any of the powers of the District Magistrate. No doubt, K.N. Mehra, who tried the case, was the Additional District Magistrate (Judicial) as provided in the scheme of separation of Judiciary from the Executive promulgated in the State of Uttar Pradesh. The term 'Additional District Magistrate' contemplated by Sub-section (2) can hardly apply to an Additional District Magistrate (Judicial). Assuming that an Additional District Magistrate (Judicial) may be conferred the powers of a District Magistrate under Sub-section (2) quoted above no notification was produced before me under which K.N. Mehra, Additional District Magistrate (Judicial) was conferred all or any of the powers of a District Magistrate. The State was granted time to produce that notification. It is the notification contemplated by Sub-section (2) alone which will determine the powers conferred in the Additional District Magistrate (Judicial) who decided the case. It was for the State to produce that notification and to point out that the Court below had jurisdiction to try the case of sedition u/s 124A IPC. The notification has not been produced, probably because no such notification exists. It would, therefore, follow that the Court below was not conferred any power to try the case of sedition u/s 124A IPC. The learned Additional District Magistrate (Judicial) had, therefore, no jurisdiction to try the case. 7. The notification has not been produced, probably because no such notification exists. It would, therefore, follow that the Court below was not conferred any power to try the case of sedition u/s 124A IPC. The learned Additional District Magistrate (Judicial) had, therefore, no jurisdiction to try the case. 7. It was contended on behalf of the State that no such plea was taken by the Appellant in the Court below. This is, no doubt, true. But the absence of any such plea in the Court below will not cure the defect of jurisdiction since the Court below had no jurisdiction to try the case and the proceedings before it have to be quashed. 8. The appeal is allowed and the conviction and sentence of the Appellant are set aside. The Appellant is on bail and he need not surrender. His bail bonds are discharged.