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imperatrix Vs. Gowdapa BIn Venkugowda - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in(1878)ILR2Bom534
Appellantimperatrix
RespondentGowdapa BIn Venkugowda
Excerpt:
.....with the reasons given for the order of discharge, sent the record to another first class magistrate, mr. the magistrate of a district, if not satisfied with the order of discharge passed by one subordinate magistrate, might refer the case for fresh inquiry to every one of his subordinates in succession;.....by the magistrate, and was discharged by him under section 216 of the criminal procedure code. the district magistrate thereupon called for the record of the case; and, not being satisfied with the reasons given for the order of discharge, sent the record to another first class magistrate, mr. campbell, with an order directing him to try the case afresh. mr. campbell convicted the accused; but, on appeal to the sessions court, the conviction was reversed, on the ground that it was not competent to the district magistrate to revive the proceedings, after gowdapa had been discharged by mr. ramchandra bapuji. in support of this conclusion the sessions judge relied on the decision of the calcutta high court in the case of mohesh mistree and another i.l.r. 1 cal. 282.2. the district.....
Judgment:

Melvill, J.

1. In this case Gowdapa bin Venkugowda was accused before a First Class Magistrate, Mr. Ramchandra Bapuji, of an offence triable by the Magistrate, and was discharged by him under Section 216 of the Criminal Procedure Code. The District Magistrate thereupon called for the record of the case; and, not being satisfied with the reasons given for the order of discharge, sent the record to another First Class Magistrate, Mr. Campbell, with an order directing him to try the case afresh. Mr. Campbell convicted the accused; but, on appeal to the Sessions Court, the conviction was reversed, on the ground that it was not competent to the District Magistrate to revive the proceedings, after Gowdapa had been discharged by Mr. Ramchandra Bapuji. In support of this conclusion the Sessions Judge relied on the decision of the Calcutta High Court in the case of Mohesh Mistree and another I.L.R. 1 Cal. 282.

2. The District Magistrate professes to have acted under Section 142 of the Criminal Procedure Code, and he referred the case to Mr. Campbell under Section 44.

3. Although the terms of Section 142 are very wide, yet, looking to the position of that section in chapter XI, which is headed: 'Of complaints to a Magistrate,' we think that, in enacting that section, all that the Legislature was at the moment intending, was to draw a distinction between different classes of Magistrates, and to declare that, while Magistrates generally are not competent to try a case without complaint, certain Magistrates are empowered, without any complaint and on mere suspicion, to take cognizance of offences. Whatever may be the effect of the words, we do not think it was the intention of the section to give to the District Magistrate any power of interference with, or revision of, the decision of the Subordinate Magistrates, which is not conferred upon him by other portions of the Code. We do not think, therefore, that we should be justified in holding that the District Magistrate derives any such power of interference or revision from the very extensive words of Section 142, if it appears from other portions of the Code that it was intended to restrict his powers in that respect.

4. Now, Section 296 expressly empowers the Magistrate of the District to interfere in cases of discharge by a Subordinate Magistrate in Sessions cases only. In such cases the Magistrate of the District may order a committal to the Sessions Court, or in certain cases may order the Magistrate, who has discharged the accused, to make a new inquiry. According to the ordinary rules of construction, the conclusion from this express provision is that in cases other than those specified in Section 296, the Magistrate of the District cannot order a fresh inquiry, when there has been a discharge by a Subordinate Magistrate. It would be to render Section 296 meaningless and useless if we were to hold that the District Magistrate could, by means of the fiction of taking up a case 'upon suspicion,' exercise the same power in all cases, which is expressly given to him in a certain class of cases only.

5. It is not necessary for us to say whether there might not be circumstances under which the Magistrate of the District might take up a case under Section 142, after a discharge by a Subordinate Magistrate. It is sufficient to say that that section cannot empower him, as he has done in this case, to call for the record of a case in which there has been a discharge by a Subordinate Magistrate, and merely on the ground that he differs from the conclusion arrived at by the Subordinate Magistrate on the evidence, to direct another Subordinate Magistrate to make a fresh inquiry into the case. An accused person might, if this were permitted, be harassed beyond all measure. The Magistrate of a District, if not satisfied with the order of discharge passed by one Subordinate Magistrate, might refer the case for fresh inquiry to every one of his subordinates in succession; and, if each inquiry resulted in the discharge of the accused, the District Magistrate might, as a last resource, proceed to try the case himself.

6. The Magistrate of the District in this case professes to have called for the record under Section 142. That section gives no power to call for proceedings. The only section which gives that power is Section 295, and under that section the District Magistrate must be held to have acted. And we agree with the decision of the Calcutta Court in Mohesh Mistree's case I.L.R. 1 Cal. 282, to the effect that if a case come before the Magistrate under Section 295, the proper and only course for him (except in Sessions cases) is to report it for the orders of the High Court.

7. The pleader, who has supported this appeal on behalf of the Government, has pressed upon our consideration the argument that, if this view of the law be correct, there is no remedy in the case of a perverse discharge by a Magistrate, in the face of evidence which demanded a conviction. A perverse acquittal, he argued, might be rectified by an appeal; but an order of discharge would be practically irreversible, unless it involved some error in law. To this it is sufficient to answer that, if the Legislature had intended to give to the District Magistrate a power to order a fresh trial in all cases of discharge, it would not have expressly conferred that power in Sessions cases only; and that the powers given to the High Court by Section 297 are probably sufficiently extensive to enable this Court to deal with every case in which an order of discharge could properly be regarded as perverse.

8. For these reasons we think that the order of the Sessions Court, reversing the conviction of Gowdapa, was a right order, and we accordingly reject the appeal made by the Government of Bombay.


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