NARENDRA AMRATLAL DALAL v. STATE — 1977 DIGILAW 93 (GUJ)

D. P. DESAI, J. ( 1 ) IN peculiar circumstances this petition has come to be filed. In fact at the bar a grievance was made as regards practice in vogue in some Courts of sending a criminal case from the Metropolitan Magistrates Court to the Sessions Court and from the Sessions Court to the Chief Metropolitan Magistrates Court and from there again to the Metropolitan Magistrates Court. This exactly seems to have happened in the present case with the result that as stated by the learned Advocate for the petitioner at the bar the petitioner had to execute fresh bail and surety bond four times. ( 2 ) THE following facts will be quite eloquent on this grievance and they now call for true and correct interpretation of the relevant provisions bearing upon the powers of the Magistrate and the Chief Metropolitan Magistrate (which interpretation would cover Judicial Magistrate and Chief Judicial Magistrate also) as regards sending of cases from one Court to another on the ground that the sentence which could be imposed by the Magistrate would not be adequate. ( 3 ) THE petitioner was a cashier and he was charge-sheeted before the Metropolitan Magistrate Second Court Ahmedabad with two separate offences viz. criminal breach of trust punishable under sec 408 and falsi- fication of accounts punishable under sec. 477a of the Indian Penal Code. Those two cases were numbered separately as Criminal Cases Nos. 1894 and 1896 of 1976. The amount involved as per the prosecution allegation in both the cases was about Rs. 6 lacs. The learned Metropolitan Magistrate being of the opinion that he cannot pass adequate sentence in the case co- mmitted the case to the Court of Sessions for the City of Ahmedabad This was done in spite of the fact that the maximum sentence for the aforesaid two offences was imprisonment for seven years and in spite of the provisions of sec. 29 of the Code of Criminal Procedure 1973 (new Code) which conferred power on the Chief Metropolitan Magistrate to impose the sentence of seven years Therefore at least this case could have been sent to the Chief Metropolitan Magistrate under the provisions of sec. 325 of the new Code. Instead the learned Metropolitan Magistrate straightway committed the case to the Court of Sessions. 325 of the new Code. Instead the learned Metropolitan Magistrate straightway committed the case to the Court of Sessions. Even the Sessions Court could not have imposed a sentence of more than seven years for these two offences. Before this order of commitment was passed both the above cases were amalgamated into one case and then that case was committed to the Court of Sessions. It was numbered as Sessions Case No. 7 of 1977 in the Sessions Court. When that case came up for hearing after framing charge before the Sessions Court the learned Sessions Judge having found that both the offences were punishable with the maximum sentence of seven years acted under sec. 228 (1) (a) of the new Code. He framed a charge as contemplated by that section for offences punishable under sec. 408 and sec. 477a of the Indian Penal Code and sent the case for trial to the Chief Metropolitan Magistrate. Speaking with respect the Chief Metropolitan Magistrate rather adopted an unusual course purporting to exercise powers as regards distribution of business conferred upon him under sec. 19 of the new Code. By his Office Order No. A (VI) 11/77 he transferred the case to the Court of the Metropolitan Magistrate Second Court. The result was that the petitioner found himself in the same Court again which had sent him to the Sessions Court. This is really unhappy and it has impelled this Court to construe the relevant provisions so as to see that in future an accused person is not unduly tossed from one Court to another by exercise of powers conferred upon the Court with regard to sending of the case to another Magistrate or the Sessions Court on the ground that the accused cannot be adequately punished by the concerned Magistrate. ( 4 ) THE narration of facts will not be complete without stating that after sending of this case to the Metropolitan Magistrate Second Court the petitioner applied to the Chief Metropolitan Magistrate by Transfer Application No. 14 of 1977 stating that the case should be transferred back to the Chief Metropolitan Magistrates Court pointing out therein that the order was passed by the Sessions Court under sec. 228 of the Code and the Chief Metropolitan Magistrate has to try this matter. 228 of the Code and the Chief Metropolitan Magistrate has to try this matter. This application was heard by the learned Chief Metropolitan Magistrate who by his order dated July 19 1977 dismissed the same. He held that the word shall showing the mandatory nature of the provisions of sec. 228. (1) (a) which required the case sent to him by the Sessions Court to be tried by him should be construed as may. Then he relied upon his powers under sec. 19 of the Code as regards distribution or allocation of business by him amongst the Metropolitan Magistrates. It is against this order that the petitioner has come to this Court by way of this petition. ( 5 ) THE provisions which are relevant upon the controversy raised in the present case are secs. 19 228 (1) and (2) 323 and 325 of the Code. They read as under :19 (1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall subject to the general control of the Sessions Judge be subordinate to the Chief Metropolitan Magistrate (2) The High Court may for the purpose of this Code define the extent of the subordination) if any of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate. (3) The Chief Metropolitan Magistrate may from time to time make rules or give special orders consistent with this Code as to the distribution of business among the Metropolitan Magistrates and as to the allocation of business to an Additional Chief Metropolitan Magistrate. xxx xxx xxx xxx xxx xxx xxx 228 (1) If after such consideration and hearing as aforesaid the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Session he may frame a charge against the accused and by order transfer the case for trial to the Chief judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of Warrant-cases instituted on a police report; (b) is exclusively triable by the Court he shall frame in writing a charge against the accused. (2) Where the Judge firms any charge under clause (b) of sub-sec. (2) Where the Judge firms any charge under clause (b) of sub-sec. (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. xxx xxx xxx xxx xxx xxx 323 If in any inquiry into an offence or a trial before a Magistrate it appears to him at any Stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session he shall commit it to the Court under the provisions hereinbefore contained. xxx xxx xxx xxx xxx xxx 325 (1) Whenever a Magistrate is of opinion after hearing the evidence for the prosecution and the accused that the accused is guilty and that he ought to receive a punishment different in kind from or more severe than that which such Magistrate is empowered to inflict or being a Magistrate of the second class is of opinion that the accused ought to be required to execute a bond under sec. 106 he may record the opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subordinate. (2) When more accused than one are being tried together and the Magistrate considers it necessary to proceed under sub-sec. (1) in regard to any of such accused he shall forward all the accused who are in his opinion guilty to the Chief Judicial Magistrate. (3) The Chief Judicial Magistrate to whom the proceedings are submitted may if he thinks fit examine the parties and recall and examine any witness who has already given evidence in the case and may call for and take any further evidence and shall pass such judgment sentence or order in the case as he thinks fit and as is according to law. The words Chief Judicial Magistrate occurring in sec. 228 (1) (a) and sec. 325 have reference to Chief Metropolitan Magistrate and the word Magistrate occurring in secs. 323 and 325 has reference to Metropolitan Magistrate in view of the provisions of sec. 3 (1) (d) and sec. 3 (1) (a) of the Code. It may also be pointed out that under sec. 228 (1) (a) and sec. 325 have reference to Chief Metropolitan Magistrate and the word Magistrate occurring in secs. 323 and 325 has reference to Metropolitan Magistrate in view of the provisions of sec. 3 (1) (d) and sec. 3 (1) (a) of the Code. It may also be pointed out that under sec. 29 of the new Code the Chief Metropolitan Magistrate can pass any sentence authorized by law except a sentence of death or imprisonment of life or of imprisonment for a term exceeding seven years and the Metropolitan Magistrate can pass a sentence of imprisonment for a term not exceeding three years or fine not exceeding Rs. 5 0 or both. ( 6 ) THE first question which arises for consideration is is it open to a Judicial Magistrate or a Metropolitan Magistrate in a case where he feels that the accused ought to receive a punishment different in kind from or more severe than that which he is empowered to inflict to commit the case straightway to the Court of Sessions under sec. 323 in- stead of exercising his powers in that connection under sec. 325 7 A bare reading of the two sections will show that sec. 323 is general in nature whereas sec. 325 provides for specific category of cases. In case of a Magistrate therefore where he feels that the accused ought to receive a punishment different in kind or more severe than that which he can impose his only course is to resort to sec. 325. That being a specific provision must govern the case. This is a well-known rule of inter- pretation. But then it may well be said though it has not been argued before this Court that the Magistrate may feel that the given case before him deserves punishment exceeding seven years which the Chief Judicial Magistrate or for the matter of that the Chief Metropolitan Magistrate cannot award. Therefore in such a case it may be said that the Magistrate or the Metropolitan Magistrate can exercise his powers to commit the case to the Court of Sessions under sec. 323 of the Code. Of course it must be re-emphasized that in the present case that contingency never arose and still the learned Magistrate committed the case to the Court of Sessions without applying his mind to the provisions of sec. 325 of the new Code. 323 of the Code. Of course it must be re-emphasized that in the present case that contingency never arose and still the learned Magistrate committed the case to the Court of Sessions without applying his mind to the provisions of sec. 325 of the new Code. But this possible contention must also be dealt with by a process of interpretation so that there may not be any uncertainty left as to the scope of the powers of a Magistrate or a Metropolitan Magistrate who wants to act on the ground that the accused before him ought to receive a punishment different in kind from or more severe than the one which he is competent to inflict. It is at this stage that we can refer to sec. 29 of the Code according to which a Magistrate of First Class or a Metropolitan Magistrate can award sentence not exceeding three years) or fine not exceeding Rs. 5 0 or both. The approach that the Magistrate or Metropolitan Magistrate should adopt in such cases is whether the accused before him ought to receive punishment of is not required to consider whether the punishment called for in the case before him is seven years or more than seven years and on that consi- deration to send the case to the Chief Judicial Magistrate or Chief Metropolitan Magistrate in one case and to the Sessions Court in other. There is no indication of legislative intent giving such free play in the exercise of power to a Magistrate or Metropolitan Magistrate in a case which deserves sentence higher than the one he could inflict. In fact sub- sec. (1) of sec. 325 itself gives an indication that the relevant factor for consideration is whether the punishment which ought to be received by the accused in the case before him should be more severe than the punishment which he is competent to inflict ? Therefore this is the only criterion which he has to follow without worrying himself on the question whether the punishment larger than that within the competence of the Chief Judicial Magistrate or Chief Metropolitan Magistrate is required to be in flicted. If this is the correct criterion which the Magistrate or Metropolitan Magistrate should consider in such a situation it is obvious that he cannot commit the case to the Court of Sessions directly. If this is the correct criterion which the Magistrate or Metropolitan Magistrate should consider in such a situation it is obvious that he cannot commit the case to the Court of Sessions directly. He must hear the evidence for the prosecution and the accused form an opinion that the accused is guilty and then also form an opinion that the accused should receive a punishment different in kind or more severe than that which he is competent to inflict. Having formed and recorded these two opinions he has to submit the proceedings to the Chief Judicial Magistrate or to the Chief Metropolitan Magistrate as the case may be to whom he is subordinate. Therefore on a correct interpretation of the relevant provisions no Magistrate can straightway commit a case to the Court of Sessions under sec. 323 on the ground that the punishment that the accused should receive ought to be different in kind and more severe than that which he is competent to inflict. He has got to follow the procedure under sec. 325 of the Code and there is no other alternative left for him in such a case. It follows as a necessary consequence that after following the procedure under sec. 325 if he comes to the opinion contemplated by sub-sec. (1) thereof he has to submit the pro- ceedings to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate as the case may be. ( 7 ) NOW suppose before a Chief Judicial Magistrate or a Chief Metropolitan Magistrate the case involves an offence of a gross nature and the sentence which he ought to award must exceed seven years what is the Chief Judicial Magistrate or the Chief Metropolitan Magistrate to do ? Sub-sec. (3) of sec. 325 in such a case enables the Chief Judicial Magistrate to pass such order in the case as he thinks fit and is according to law. He can therefore commit the case submitted to him under sec. 325 (1) to the Court of Sessions under sec. 323 of the new Code. The word Magistrate occurring in sec. 323 in this connection should he held to include a Chief Judicial Magistrate or a Chief Metropolitan Magistrate as well. It must be made clear however that this interpretation does not affect the power of a Magistrate or a Metropolitan Magistrate to commit under sec. 323 of the new Code. The word Magistrate occurring in sec. 323 in this connection should he held to include a Chief Judicial Magistrate or a Chief Metropolitan Magistrate as well. It must be made clear however that this interpretation does not affect the power of a Magistrate or a Metropolitan Magistrate to commit under sec. 323 of the new Code a case to the Court of Sessions wherein a question other than the quantum of punishment which ought to be received by the accused is involved. It is cases other than the punishment which ought to be received by the accused as contemplated by sec. 325 (1) in which a Magistrate or a Metropolitan Magistrate can have resort to sec. 323 of the new Code. This resolves the first controversy arising from the facts of this case. Viewed in the light of this interpretation the learned Metropolitan Magistrate Second Court was wrong in straightway commit (ing this case to the Court of Sessions ignoring the provisions of sec 325 (1) of the new Code I am told that he did not even record the evidence much less entertain an opinion contemplated under sec. 325 (1) and straightway committed the case to the Court of Sessions on the strength of the evidence disclosed from the police papers. ( 8 ) THE case having come before the Sessions Court the learned Sessions Judge was right in thee facts of this case in exercising its power under sec. 228 (1) (a) in framing the charge under sec. 408 and sec. 477a of the Indian Penal Code and transferring the case for trial to the Chief Metropolitan Magistrate. Offences under both the provisions were triable by a Magistrate of the First Class and looking to the amount involved in the two cases which have been amalgamated there was reasonable ground for the learned Judge to entertain an opinion that a sentence of more than three years can as well be called for in the present case if the accused has been found guilty and is convicted of the aforesaid two offences. But then a very unusual step was taken by the learned Chief Metropolitan Magistrate after receipt of the case papers by him by trans ferring the said case back to the Metropolitan Magistrate) Second Court ignoring the mandate contained in the latter part of sec. 228 (1) (a) which said that. . But then a very unusual step was taken by the learned Chief Metropolitan Magistrate after receipt of the case papers by him by trans ferring the said case back to the Metropolitan Magistrate) Second Court ignoring the mandate contained in the latter part of sec. 228 (1) (a) which said that. . the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report. It is obvious that the power exercisable by the learned Chief Metropolitan Magistrate under sec. 19 of the Code with regard to distribution of business among the Metropolitan Magistrates was an administrative power. He could not have exercised this administrative power in the facts of the present case in the face of a legislative command contained in sec. 228 (1) (a) of the new Code. But in rejecting the application of the petitioner) the learned Chief Metropolitan Magistrate said with regard to the word shall occurring in sec. 228 (1) (a) as under: Merely from the fact that the word shall is used it cannot be said that the provision is mandatory and so the Chief Judicial Magistrate must himself try the said case. The section may be interpreted by construing the word shall as to mean may depending upon the circumstances of the case relevant provisions and the evil which these provisions wanted to avoid. It can be also seen from sec. 228 of the Criminal Procedure Code that that section enables the Sessions Judge to transfer the case to the Chief Metropolitan Magistrate but the emphasis is not on the point that the trial must be done by him personally but the emphasis is on the procedure to be adopted at the trial of such cases. . . . . . . . . . . . . . Such transfer does not take away or restrict the administrative powers of the Chief Metropolitan Magistrate to transfer the case to any of his subordinate Magistrates. . . . . . . . . . There is no good reason given by the learned Chief Metropolitan Magistrate why the word shall occurring in sec. 228 (1) (a) of the new Code should be construed as may. The section speaks of transfer to a designated Magistrate viz. the Chief Judicial Magistrate and not to any Magistrate or Court subordinate to the Sessions Court. . . . There is no good reason given by the learned Chief Metropolitan Magistrate why the word shall occurring in sec. 228 (1) (a) of the new Code should be construed as may. The section speaks of transfer to a designated Magistrate viz. the Chief Judicial Magistrate and not to any Magistrate or Court subordinate to the Sessions Court. Normally a case committed to the Sessions Court pertains to a serious offence or arises out of an incident in the course of which a serious offence or offences are committed. The legislative intent therefore is that the Sessions Judge has to transfer this case to the Chief Judicial Magistrate who would be an experienced and senior officer of the Magist racy working in his district; and the said officer should try the case. The emphasis is both on the point of Chief Judicial Magistrate trying the case and the procedure to be followed at the trial. It is therefore clear in the present case that on its transfer after framing charge by the Sessions Judge the learned Chief Metropolitan Magistrate was bound to try the offence as laid down by the provisions of sec. 228 (1) (a ). The office order passed by him administratively sending back the case to the Metropolitan Magistrate Second Court cannot stand in view of the legislative mandate contained in sec. 228 (1) (a ). In fact sec. 19 (3) of the new Code contemplates rules or special orders to be made by the Chief Metropolitan Magistrate as to the distribution of business to be consistent with Code. The order made by him on the interpretation of sec. 228 (1) (a) is inconsistent with that provision and therefore is not valid. It is thus clear that the present case is required to be tried by the learned Chief Metropolitan Magistrate. ( 9 ) IN the result the petition is allowed and the order passed by the learned Chief Metropolitan Magistrate dated July 19 1977 rejecting the application of the petitioner for transfer of the two Criminal cases to his Court is set aside. Criminal Cases Nos. 1894 of 1976 and 1896 of 1976 which stood transferred to his Court by reason of the order passed under sec. Criminal Cases Nos. 1894 of 1976 and 1896 of 1976 which stood transferred to his Court by reason of the order passed under sec. 228 by the learned Sessions Judge in Sessions Case No. 7 of 1977 are ordered to be re-transferred to the Court of the learned Chief Metro politan Magistrate with a direction that he shall try the offences involved in these two cases as contemplated by sec. 228 (1) (a) of the new Code. Rule is made absolute in these terms. Ad interim stay of the proceedings will stand vacated. .