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Madhya Pradesh High Court · body

2002 DIGILAW 903 (MP)

Ramesh and Anr. v. State of M. P.

2002-09-30

S.L.KOCHAR

body2002
Judgment ( 1. ) THIS judgment also governs the disposal of Criminal Revision No. 549/2002. ( 2. ) BOTH the aforesaid criminal revisions have been filed by the applicants against the judgment dated 25th July, 2002 passed by II ASJ, Ujjain, in Criminal Appeal Nos. 105/2002 and 106/2002 arising out of judgment dated 3-7-2002 passed in Criminal Case No. 1959/2002 by learned ACJM, Ujjain, thereby convicting the applicants for the offence under Section 34 (2) of the Madhya Pradesh Excise Act (for short the Act) and sentencing each of them to undergo RI for one year with fine of Rs. 25,000/-, in default of payment of fine, to suffer further simple imprisonment for 3 months each. ( 3. ) THE prosecution case, in nutshell was that on 31st August, 2001, in the night, Excise Officers of the Excise Department were on patrolling duty and checking the motor vehicles. At the relevant time, the applicants were sitting in a tempo - trex - bearing Registration No. MP/14-H-1391, On search of the said tempo - trex, total 240. 88 bulk litres foreign and country liquor, was found and seized. After usual investigation, charge-sheet was filed. The applicants abjured their guilt. According to them, they were falsely implicated in the case, at the instance of the Excise Contractors. Both the Courts below found them guilty for the aforesaid offence and have given concurrent findings of fact, after detail appreciation of the evidence. ( 4. ) LEARNED Counsel for the applicants submitted that initially, charge- sheet was filed before learned Judicial Magistrate, First Class, Ujjain and applicants were also tried by the same Court. Thereafter, by order dated 23-4-2001, the case was transferred to the Court of learned Chief Judicial Magistrate, Ujjain and again, the same was sent, for further trial to the Court of ACJM, Ujjain. Learned ACJM, Ujjain received the case on 10-5-2002. According to Section 29 Sub-section (2), Cr. PC, a Magistrate First Class, cannot pass sentence of fine more than Rs. 5000/ -. Therefore, in view of the Provision of Section 461 (1) of the Cr. PC trial by the learned Judicial Magistrate First Class, Ujjain, was illegal, as he is not having jurisdiction to impose minimum sentence of fine of Rs. 25,000/-, as prescribed under Section 34 of the Act. 5000/ -. Therefore, in view of the Provision of Section 461 (1) of the Cr. PC trial by the learned Judicial Magistrate First Class, Ujjain, was illegal, as he is not having jurisdiction to impose minimum sentence of fine of Rs. 25,000/-, as prescribed under Section 34 of the Act. It is also submitted that part of the trial has been completed by the JMFC and, thereafter, the case was sent to learned ACJM, Ujjain, who has only passed the judgment. Learned Counsel has also submitted that in view of the material contradictions, in the statements of the prosecution witnesses, the applicants could have not been held guilty. ( 5. ) IN contra, Mr. Girish Desai, learned Dy. Advocate General appearing for the State, submitted that in view of Section 325, Cr. PC, when a Magistrate, cannot pass the sentence sufficiently severe, he has jurisdiction to submit his proceedings and forward the accused, to the Chief Judicial Magistrate, to whom he is subordinate. The JMFC was having jurisdiction to try the case but when at the time of passing of the judgment or prior to that he is of the opinion that he cannot pass sentence sufficiently severe, he can send the proceedings/case file and also forward the accused to the CJM. Therefore, no illegality has been committed by the Courts below, while trying and convicting the applicants. ( 6. ) HAVING heard learned Counsel for the parties and after perusing the entire record, this Court is of the opinion that under Section 29 Sub-section (2) of the Cr. PC, powers have been given to the Magistrate about passing of sentence of imprisonment and fine. Whenever learned JMFC finds that more than prescribed sentence is to be passed in a given case, he can exercise powers under Section 325, Cr. PC by sending the proceedings and forwarding the accused to the CJM and the same has been done in the case on hand. It does not mean that framing of charge and recording of statements of the witnesses by the JMFC, would render illegal. In the present case, provision of Section 461 Clause (1) will not be attracted. This Section will apply, only when a Magistrate is not empowered by law to try the case. This Section nowhere says about imposition of severe punishment. There is difference between jurisdiction of trial and jurisdiction to impose sentence. ( 7. In the present case, provision of Section 461 Clause (1) will not be attracted. This Section will apply, only when a Magistrate is not empowered by law to try the case. This Section nowhere says about imposition of severe punishment. There is difference between jurisdiction of trial and jurisdiction to impose sentence. ( 7. ) TO decide the controversy, it would be apposite to reproduce Sections 4, 5 and 26 of the Cr. PC :-- "4. Trial of offences under the Indian Penal Code and other laws.-- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. " "5. Saving.--Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. " "26. Courts by which offences are triable.--Subject to the other provisions of this Code (a) any offence under the Indian Penal Code (45 of 1860) may be tried bythe High Court; or (i) the Court of Sessions; or (iii) any other Court by which such offence is shown in the First Schedule to be triable; (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by-- (i) the High Court; or (ii) any other Court by which such offence is shown in the First Schedule to be triable. " ( 8. ) IN the Madhya Pradesh Excise Act, there is no provision about jurisdiction of Court to try the offence punishable under this Act. Therefore, general provision of Cr. " ( 8. ) IN the Madhya Pradesh Excise Act, there is no provision about jurisdiction of Court to try the offence punishable under this Act. Therefore, general provision of Cr. PC as prescribed under Section 26 (b) (ii) read with Section 4 would apply and according to Schedule, showing classification of offences against other law, if the sentence is punishable with imprisonment of 3 years and upwards but not more than 7 years, is cognizable, non-bailable and triable by the Magistrate First Class. In this Schedule, nothing is mentioned about fine, which may decide the question of jurisdiction of trial. The offence under Section 34 (2) of the Act is prescribing maximum 3 years sentence. Therefore, trial held by the JMFC is well within his jurisdiction. But since minimum fine is prescribed, i. e. , Rs. 25,000/-, which he could not impose. Therefore, in view of the Provision under Section 325, Cr. PC, the matter was considered and decided by the learned CJM/acjm, Ujjain. Section 461 (1), Cr. PC will only apply when the trial is held by a Magistrate, not being empowered by law. This is not a factual and legal position in the present case. Therefore, submissions of the learned Counsel for the applicants have no force. ( 9. ) SO far as appreciation of evidence is concerned, both the Courts below have found, on the basis of the record, that applicants were found in tempo - trax having in possession 245. 99 bulk litres foreign and country liquor. They were not having any valid licence for the same. This Court has also perused the statements of prosecution witness B. S. Raghuwanshi (P. W. 4) who has effected seizure memo and arrest of the applicants. In his statement, nothing has come in cross-examination, on the basis of which, he could be disbelieved. In accused statement, applicants have admitted their presence in the tempo trex at the time of seizure of illicit liquor. Their defence is that they have been falsely implicated at the instance of Excise Contractors. No evidence has been adduced by the applicants to substantiate their defence by preponderance of probabilities. Therefore, appreciation of evidence done by both the Courts below, is well within the provision of law and requires no interference in revisional jurisdiction, there is no illegality, irregularity or impropriety committed by both the Courts below, which may require interference by this Court. No evidence has been adduced by the applicants to substantiate their defence by preponderance of probabilities. Therefore, appreciation of evidence done by both the Courts below, is well within the provision of law and requires no interference in revisional jurisdiction, there is no illegality, irregularity or impropriety committed by both the Courts below, which may require interference by this Court. ( 10. ) CONSEQUENTLY, aforesaid criminal revisions, having no merit, fail and are hereby dismissed. ( 11. ) COPY of this judgment be placed in connected Criminal Revision No. 549/2002.