UTTAMBHAI RANCHHODDAS GANDHI v. STATE — 1977 DIGILAW 24 (GUJ)

N. H. BHATT, J. ( 1 ) * * * * ( 2 ) THE first question that arises is whether sec. 323 of the New Code has been correctly interpreted by the learned Sessions Judge. I quote sec. 323 below on one side of the paper and by its side in juxta-position place sec. 347 of the Criminal Procedure Code. 1898. . . . . . . . . . . . . See. 323 of New Code See. 347 of the Old Code If in any inquiry into an offence or a trial (1) If ill any inquiry before a Magistrate before a Magistrate it appears to him or in any trial before a Magistrate beat any stage of the proceedings before fore signing judgment it appears to him signing judgment that the case is one at any stage of the proceedings that the which ought to be tried by the Court of case is one which ought to be tried Session he shall commit it to that court by the Court of Sessions or High Court under the provisions hereinabove con-and If he is empowered to commit for tained: trial he shall commit the accused under the provisions hereinabove contained. (2) If such Magistrate is not empowered to commit for trial he shall proceed under sec. 346. ( 3 ) EVEN a casual glance at the two provisions quoted- above would show that the concerned Legislature had the same situation before its mind when the respective provisions had come to be enacted Sec. 347 of the Criminal Procedure Code of 1898 was the subject-matter of various judicial decisions and those authorities show that the power under sec. 347 could be invoked by the Magistrate in a variety of circumstances like the incompetence of his possibility of his being not able to pass the adequate sentence and the like. One illustration would suffice. An offence under sec. 409 of the Penal Code is punishable with imprisonment for life or with imprison- ment of either description for 10 years. Under the old Criminal Procedure Code the said offence under sec. 409 of the Penal Code can never be committed to the Court of sessions. This means that though an offence under sec. An offence under sec. 409 of the Penal Code is punishable with imprisonment for life or with imprison- ment of either description for 10 years. Under the old Criminal Procedure Code the said offence under sec. 409 of the Penal Code can never be committed to the Court of sessions. This means that though an offence under sec. 409 of the Penal Code is punishable with imprisonment for life or with imprisonment for 10 years the maximum punishment provided by the Legislature would be a matter of only idle formality because according to the learned Sessions Judge this case can never be committed to the Court of Sessions and would be triable at the most by the Chief Judicial Magistrate who can impose sentence only upto one for seven years. It call not he so from the very nature of the things. If in a given case the Magistrate thinks that looking to the enormity of the allegations the offence under sec. 409 of the Penal Code should be visited with a punishment for a life term or for 10 years would he be helpless ? The Legislature could not have contemplated this sort of situation. Therefore only the sec. 323 and 323 alone would step into this situation and enable the Magistrate to commit the case to the Court of Sessions. So the learned Sessions Judge obviously was not right when he confined sec 323 to the cases exclusively triable by a Court of Sessions and not others. ( 4 ) THE difficulty envisaged by the learned Sessions Judge has arisen out of his concept of the new set up of Courts envisaged in the present Code of Criminal Procedure The learned Sessions Judge thinks that the Chief Judicial Magistrate who is empowered to inflict the punishment of imprisonment upto seven years would be the only person who could be approached by the Magistrate in the cases of his feeling that he would not be in a position to impose the adequate punishment. The learned Sessions Judge in terms has referred to sec. 29 of the Code in that con- nection but he has unfortunately lost sight of sec. 26 of the New Code which is in pari-materia with sec. 28 of the Old Code. The learned Sessions Judge in terms has referred to sec. 29 of the Code in that con- nection but he has unfortunately lost sight of sec. 26 of the New Code which is in pari-materia with sec. 28 of the Old Code. Sec. 26 very clearly states that subject to the other provisions of this Code any offence under the Indian Penal Code may be tried by the High Court the Court of Sessions or any other Court by which such offence is shown in the First Schedule to be triable The point would be at once clear by one illustra- tion. Say for instance one person is committed to the Court of Sessions for giving a kick in the abdomen of a victim who has died because of the kick. The Police committed the case labelling it as the one under sec. 302 of the Penal Code and the case is committed to the Court of Sessions. The evidence discloses that the victim was suffering from a diseased spleen and because of the rupture of the spleen he came to court his death. The only conceivable offence in such circumstances of the accuseds not knowing the victims fragile health would be that under sec. 323 of the Penal Code As per Schedule 11 annexed to the Code an offence under sec. 323 is triable only by the Magistrate and not by the Court of Sessions. Can it be said that the Sessions Court in that case would send the case back to the Magistrate for trial and disposal of the offence under sec 323 and by itself would not be able to deal with the matter ? Sec. 26 of the Criminal Procedure Code is a clear reply. It is therefore evident that column No 6 of the 9nd Schedule which mentions the various Courts which are competent to try the various offences is not to be treated as prohibiting other Courts like the Court of Sessions in dealing with the minor offences if it so happens that the Sessions Court comes to take seisin of those cases. The fallacy therefore underlying the reasoning of the learned Sessions Judge is obvious and he is not right in interpreting sec. 323 of the present Code of Criminal Procedure. The fallacy therefore underlying the reasoning of the learned Sessions Judge is obvious and he is not right in interpreting sec. 323 of the present Code of Criminal Procedure. If the learned Magistrate thought that in the facts and circumstances of the case a harsh deterrent punishment than the one that could be imposed by him is necessary he could very well advert to sec. 323 of the Code and com- mit the case to the Court of Sessions. There is no legal bar to it. ( 5 ) ONE difficulty felt by the learned Sessions Judge and that was res- ponsible for his extreme view also deserves to be considered here. The learned Judge thought that if this were the broad interpretation put on sec. 323 of the Code the Sessions Court would be flooded with cases and undiscerning Magistrates would readily resort to this provision to get rid of tough matters. This apprehension is absolutely ill-founded because in such circumstances sec. 228 of the Criminal Procedure Code is there to meet the situation. If the learned Sessions Judge after the case is committed to him finds that in the facts and circumstances of the case which are placed before him the Chief Judicial Magistrate would be a proper person to handle the case it is perfectly within his powers to frame a charge against the accused and by an order transfer the case to the Chief Judicial Magistrate who thereafter would be bound to try the offence as a warrant case instituted on a police report. The apprehension of the learned Sess- ions Judge therefore is completely misplaced. ( 6 ) THE next question is whether the orders passed by the learned Magistrate that had come to be set at naught by the learned Sessions Judge deserve to he restored or the learned Sessions Judge should be directed to treat the cases on his file and proceed in accordance with law including the provision of sec. 328 of the Criminal Procedure Code. The learned Sessions Judge as noted by me unfortunately leveled the charge of dishonesty against the Magistrate in having committed the four cases to his Court. The learned Magistrates two orders when read side-by-side clearly show that the learned Magistrate had passed the latter order on being apprised of the true scope of sec. 323 of the Criminal Procedure Code. The learned Sessions Judge as noted by me unfortunately leveled the charge of dishonesty against the Magistrate in having committed the four cases to his Court. The learned Magistrates two orders when read side-by-side clearly show that the learned Magistrate had passed the latter order on being apprised of the true scope of sec. 323 of the Criminal Procedure Code. Even if the learned Sessions Judge thought that the learned Magist- rate should not have revised his earlier orders not to commit the cases he should have started with the presumption of an honest error on the part. of the Magistrate and not with a clean dishonesty which he has unfortunately attributed to a Judicial officer. I cannot but emphasise the necessity of the higher Courts of maintaining and preserving the dignity of the judicial administration of which even the persons in the lower rungs are as much a part and parcel as the Highest offers in the High Court are. The comments made by the learned Sessions Judge against the learned Magist- rate are therefore expunged by me on my own in the circumstances of the case. On merits I hold that the orders passed by the learned Magistrate were not worthy to be revised by the learned Sessions Judge. Applications allowed. .