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1979 DIGILAW 27 (CAL)

State v. Dilip Kumar Das

1979-02-02

MONOJ KUMAR MUKHERJEE

body1979
Judgment This is a reference made by the learned Chief Metropolitan Magistrate. Calcutta under S. 395(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). The facts and circumstances loading to the reference are as follows :- 2. On a charge sheet submitted by the Officer-in-Charge. Taltola Police Station against two accused persons, namely, Dilip Kumar Das and Manik Lal Das, the learned Chief Metropolitan Magistrate took cognizance of the offences punishable under Ss. 120B/420, 420. 467 and 471 of the Indian Penal Code and transferred the case to the Court of the Learned Metropolitan Magistrate, 8th Court, Calcutta for disposal. The transferee Court tendered pardon to the accused No.2 Manik Lal Das and on acceptance of such tender, sent the case back to the learned Chief Metropolitan Magistrate who took cognizance for examination of the approver as a witness. The learned Chief Metropolitan Magistrate examined him and by his order dated August 29. 1977 committed the case to the Court of City Session. Calcutta under S. 306(5)(a)(i) of the Code for trial. The learned Sessions Judge by his order dated November 18. 1977. transferred the case back to the Court of the learned Chief Metropolitan Magistrate under S. 228(1)(a) of the Code of Criminal Procedure for trial as the offences involved were not exclusively triable by the Court of Sessions and as according to the learned Judge, the two see: ions, namely Ss. 228(1)(a) and 306(5)(a)(i) of the Code were not inconsistent with each other. He further held that the accused will not be prejudiced in his trial before the learned Chief Metropolitan Magistrate because the pardon was tendered by the learned Metropolitan Magistrate. 8th Court and not by the learned Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate, in his turn, observed that in view of the provisions of S. 306(5)(a)(i) of the Code be was statutorily obligated to commit the case for trial to the Court of Sessions as he took cognizance, notwithstanding the fact the offences were not triable exclusively by the Court. He bas therefore referred the case to this Court for a proper decision on the question as to whether as per the direction of the learned Judge, City Sessions Court it should be tried by the learned Chief Metropolitan Magistrate or by the City Sessions Court. 3. He bas therefore referred the case to this Court for a proper decision on the question as to whether as per the direction of the learned Judge, City Sessions Court it should be tried by the learned Chief Metropolitan Magistrate or by the City Sessions Court. 3. The general provision for commitment of a case to the Court of Sessions are to be found in S. 209, Chapter XVI of the Code which provides that in a case instituted on a police report or otherwise when the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offences are triable exclusively by the Court of Sessions he shall commit the case to the Court of Sessions after complying with the requirements of the said section. Section 226 in Chapter XVIII provides that when the accused appears or is brought before the Court in pursuance such a commitment the Public Prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence be proposes to prove the guilt of the accused. Under S 227 if. upon consideration of the records of the case by the learned Magistrate under S. 209, the learned Judge considers that there is no sufficient ground for proceeding against the accused be shall discharge the accused and record his reasons for so doing If the learned Judge finds sufficient grounds for proceeding against the accused then he bas to ascertain under S. 228 of the Code as to whether the offences, as disclosed by the materials on record, are exclusively triable by the Court of Sessions. If they are so triable he has to frame a charge under S. 228(b) of the Code and proceed with the trial. If however be finds the offences are not exclusively triable by the Court of Sessions he may transfer the case for trial to toe Chief Judicial Magistrate. 4. Section 306(5)(a)0) of the Code in its turn provides that If the Magistrate taking cognizance is the Chief Judicial Magistrate................in view of the provisions of S. 3(d) of the Code it would refer to Chief Metropolitan Magistrate in the instant case........... ........then he has to commit the case fur trial irrespective of whether the offence are exclusively triable by the Court of Sessions. ........then he has to commit the case fur trial irrespective of whether the offence are exclusively triable by the Court of Sessions. In the: facts of the instant case therefore the learned Chief Metropolitan Magistrate was obliged- to commit the case to the Court of Sessions though the offences were not exclusively triable by such Court, as he himself took cognizance. The learned Sessions judge was also apparently right in holding that offence alleged in the Case were not exclusively triable by the Court of Sessions. It should be noted that S. 228 mandates the Court of Sessions to try offence which is exclusively triable by the Court and note case. If the word case was used in S.228 more particularly in sub-s. (b) thereof there would have been no difficulty in holding that in view of S.306(5)(a)(i), the was exclusively triable by the Court of Sessions notwithstanding the fact that the offences were not but S. 228 refers to offence and not to cases. It should also be noted that S. 228 has not been expressly made 'subject to the other provisions of the Code'. Apparently therefore a plain reading of S. 306(5)(a)(i) and S. 228(1)(a) of the Code creates an anomalous situation in its applicability to the facts of the instant case. While the learned Chief Judicial Magistrate was legally obligated to commit the case to the Court of Sessions under S. 30S(S)(a)(i) of the Code, the learned Court of Sessions apparently seems to be equally justified in holding that the offences of the case committed to it were not exclusively triable by the Court of Sessions and in re-transferring the case to the Court of the Chief Metropolitan Magistrate under S.228(1)(a). 5. Since the above two provisions are apparently inconsistent in its application to the present case an effort must therefore be made to reconcile them and this reconcilition is not difficult on the general principles of interpretation of statutes. Before however we propose to interprete these apparent anamolous provisions it has to be borne in mind that S. 228 is of general application, while S. 306(5)(a) (i) has been enacted for a particular purpose, namely, in case of tender of pardon. 6. Before however we propose to interprete these apparent anamolous provisions it has to be borne in mind that S. 228 is of general application, while S. 306(5)(a) (i) has been enacted for a particular purpose, namely, in case of tender of pardon. 6. Maxwell on the Interpretation of Statutes, 12th Edition page 188, observed :-"Collision may also be avoided by bolding that one section which is ex facie in conflict with another merely provides for an exception from the general rule contained in that other." It has further been observed if two sections of the same statute are repugnant, known rule is that the last must prevail" Craies on Statute Law (6th Edition, page 221) observed: "the general rules which are applicable to particular and general enactments in statutes are very clear; the only difficulty is in their application. The rule is that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must he operative and the general enactment must he taken to effect only the other parts of the statute to which it may property apply.” The above principle was applied by our Court while interpreting two co-ordinate sections which were apparently inconsistent. In the case of Amar Chand Roy v. Prasanna Dassi, reported in AIR 1921 Cal. 603, it has been held, relying upon a number of decisions, "where two co-ordinate sections are apparently inconsistent effort must be made to reconcile them. If this is impossible the latter will generally override the earlier but a particular enactment, whenever found, must be construed strictly as against a general provision. In the case before us there is no doubt an apparent inconsistency between Ss. 18 and 85 (Bengal Tenancy Act); but it is easy to reconcile them in the way we have suggested, namely, that S. 85 should be read as if it contained the introductory words, 'these provisions are to be taken subject to the provisions herein before contained. But if this mode of interpretation is considered objectionable, it is plain that S. 18 refers to a particular class of tenancy, whereas S. 85 lays down the general rule. Consequently, the particular provisions must be taken to clarify the general provisions.................. 7. But if this mode of interpretation is considered objectionable, it is plain that S. 18 refers to a particular class of tenancy, whereas S. 85 lays down the general rule. Consequently, the particular provisions must be taken to clarify the general provisions.................. 7. In the light of the above principles of interpretation of statutes, therefore there is no difficulty in reconciliating the provisions of S. 306(5)(a)(i) and S.228(1)(a) of the Code as the former is a particular enactment while the latter is a general provision and therefore the former will prevail upon the latter. I accordingly hold that notwithstanding the provisions of S. 221(1)(a) of the Code, the Court of Sessions is required to try the cases committed under S. 306(5)(a)(i) even if the offences are not exclusively triable by it. 8. The matter can be viewed from another angle. The power of the Courts to try offences are to be found in Chapter III of the Code and S. 26 thereof provides that 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 tried. The effect of the section is that the Court of Sessions can try any offence, even if the offence is shown in the First Schedule to be triable by a Magistrate, but the Magistrate's Court can try only such offences which are shown in the First Schedule to be triable by it. The provisions of S. 26 however has been made subject to other provisions of this Code. Therefore the powers of the Court to try offences would be subject to the other provisions of the Code. Now S.306(5)(1)(a) is a provision of the Code which has something to do with the powers of the Court and this section mandates that the Sessions Court shall try any offence even if the same is not exclusively triable by the court under the First Schedule. In this connection, we may also refer to S.323 of the Code Under S. 323 during any enquiry or trial a Magistrate may commit a case to the Court of Sessions, if he is of the opinion that the case is one which ought to he tried by the Court of Sessions. In this connection, we may also refer to S.323 of the Code Under S. 323 during any enquiry or trial a Magistrate may commit a case to the Court of Sessions, if he is of the opinion that the case is one which ought to he tried by the Court of Sessions. The provision of S 323 must also therefore be held to be a provision to which S.26 is subject as otherwise it will lead to anamolous results as can be amply proved by an illustration. 9. While trying an offender for an offence under S.326 of the Indian Penal Code the Chief Judicial Magistrate finds that in view of the nature of injuries sustained and consequently the punishment that the offender deserves the case should be committed to the Court of, Sessions and accordingly exercises his power under S. 323 of the Code. Orr such a commitment the Sessions Court cannot, in exercise of the powers conferred under S. 228(&) of the Code, remit the case hack to the self same Magistrate on the ground that the offence under S. 326 is not exclusively triable by the Court of Sessions under the First Schedule of the Code. It therefore appears to me that under S. 26 of the Code the Court of Sessions can try any offence but the Magistrate’s power to try offences are limited to only those offences which are shown in the First Schedule to be triable and the powers of the Court to try offences are subjected to the other provisions of this Code. The Chief Metropolitan Magistrate's power to try the offences in the instant case is barred under S. 306 of the Code and the Sessions Court can and is obligated to try such offences notwithstanding the general provisions of S. 228 of the Code. 10. In view of the discussions as above, I must therefore hold that it is the Sessions Court alone which can try a case committed under S.306 (5)(a)(i) by the Chief Metropolitan Magistrate, notwithstanding the fact that the offences are shown to be triable in the First Schedule of the Code by the Court of the Magistrate and I answer the reference accordingly. I, therefore, set aside the order dated November 18, 1978 passed by the learned Sessions Judge and direct him to proceed with the case from the stage it reached prior to the passing of the impugned order in accordance with law. Let a copy of this order be sent to the learned Chief Metropolitan Magistrate who made the reference. Reference answered.