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Emperor Vs. Krishnaji Prabhakar Khadilkar - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Criminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 61 of 1929
Judge
Reported in(1929)31BOMLR602
AppellantEmperor
RespondentKrishnaji Prabhakar Khadilkar
Excerpt:
criminal procedure code (act v of 1898), sections 347, 267 and 254-indian penal code (act xlv of 1860) section 124 a-section-trial-commitment to high court sessions- accused, editor of a widely circulated newspaper in bombay.;it is not open to a magistrate to decline to commit a case to the court of session on the ground that there is congestion of work in the latter court.;in committing a case to the court of session, the magistrate has to bear in mind not only the fact whether he could pass an adequate sentence, but has also to pay regard to the gravity of the offence, the effect of the article, subject of the charge, on the public mini (where the accused is charged with sedition), and the public importance of the case.;the high court directed the chief presidency magistrate to commit.....mirza, j.1. the applicant is the editor of a marathi daily called the nava kal which has a circulation of about ten to twelve thousand copies per day amongst the marathi speaking public. he is being tried before the chief presidency magistrate, bombay, for an offence under section 124 a of the indian penal code in respect of an article which appeared in the issue of the nava kal of february 9, 1929.2. the offence is triable, as would appear from schedule ii of the criminal procedure code, either by a court of session or by the chief presidency magistrate. the punishment which may be imposed on conviction is transportation for life or for any term and fine, or imprisonment of either description for three years and fine, or fine. the applicant was arrested on february 14, 1929, on process.....
Judgment:

Mirza, J.

1. The applicant is the editor of a Marathi daily called the Nava Kal which has a circulation of about ten to twelve thousand copies per day amongst the Marathi speaking public. He is being tried before the Chief Presidency Magistrate, Bombay, for an offence under Section 124 A of the Indian Penal Code in respect of an article which appeared in the issue of the Nava Kal of February 9, 1929.

2. The offence is triable, as would appear from Schedule II of the Criminal Procedure Code, either by a Court of Session or by the Chief Presidency Magistrate. The punishment which may be imposed on conviction is transportation for life or for any term and fine, or imprisonment of either description for three years and fine, or fine. The applicant was arrested on February 14, 1929, on process issued by the Chief Presidency Magistrate. On February 15, 1929, this Court on an application made in that behalf released the applicant on his furnishing bail. On February 16, 1929, when the trial commenced before the Chief Presidency Magistrate, the applicant applied that his case may be inquired into on the footing of its eventual committal by the Magistrate to the High Court Criminal Sessions, The Crown having objected the application was refused. The Magistrate gave a two-fold reason for disallowing the application:-(I) that there was congestion of work in the High Court Criminal Sessions; and (2) the Magistrate himself was competent adequately to deal with the case.

3. The applicant applies for a review of the Magistrate's order and as an alternative invokes our jurisdiction under Article 561, Criminal Procedure Code, on the ground that it would be expedient for the ends of justice to have this ease tried before the Sessions Court.

4. It has been urged before us by Mr. Desai on behalf of the applicant that the article complained of does not constitute an offence under Section 124 A, Indian Penal Code, and that a jury of nine persons as directed on points of law by a Judge of this Court would be the best judges of its meaning and effect. The applicant is willing to incur the risk of having a more substantial punishment meted out to him should he be convicted by the Court of Session and to forego an advantage a trial before the Chief Presidency Magistrate gives him of coming on conviction to this Court in appeal or revision. The maximum punishment which the Chief presidency Magistrate is competent by law to impose is two years' rigorous imprisonment and Rs. 1000 fine.

5. The Government Pleader on behalf of the Crown has opposed the application. His main contention is that it is a matter of discretion for the Chief Presidency Magistrate to decide whether he should try the case himself or commit it to the Court of Session, and this Court should not interfere with the discretion unless it is shown that the discretion has been wrongly exercised, The decision of the Magistrate to try the case himself, it is contended, is not final as, under Section 847 of the Criminal Procedure Code, it is open to him, at any stage of the proceedings before signing the judgment, to commit the case to the Court of Session and that there are no materials before the Court which would justify the apprehension that the learned Magistrate will not do so during some further stage of the proceedings.

6. The Government Pleader has called our attention to various rulings of this and other Courts which lay down that a Magistrate competent under the law to try a case himself should not commit it for trial to the Court of Session unless he is of opinion that the sentence he is empowered to pass would not be an adequate punishment for the offence.

7. The ruling in King-Emperor v. Pema (1902) 4 Bom. L.R. 85 on which reliance has been placed by the Government Pleader in this connection, is based upon facts which are materially different from those disclosed by the present application. There the Magistrate had committed the case of an offence under Section 323, Indian Penal code, for trial to the Sessions Court. The maximum punishment provided for that offence is imprisonment of either description for one year, or fine of Rs. 1000, or both all which the Magistrate himself was competent to impose. In dealing with these facts the Court observed that a case which ought to be tried by a Court of Session is one which the Magistrate is not competent to try or for which in his opinion adequate punishment cannot be inflicted by him. Neither condition which would have justified the Magistrate in committing the case to the Court of Session was found to exist in that case. The case was exclusively triable by the Magistrate and the procedure laid down in Section 254, Criminal Procedure Code, clearly applied to it There was no question there of the Court of Session having an alternative jurisdiction to try the case. The Government Pleader has relied also on the ruling in Queen-Empress v. Kaysmullah Mandal (1897) I.L.R. 24 Cal. 429 which lays down that there is nothing in Section 254 of the Criminal Procedure Code which would prevent a Magistrate from committing a case under Section 257, Indian Penal Code, to the Court of Session provided he finds that the accused has committed an offence which in his opinion cannot be adequately punished by him. The accused in that case were charged with an offence under Section 147, Indian Penal Code the maximum punishment for which is imprisonment of either description for two years, or fine, or both. The offence is triable in the first instance exclusively by a Magistrate. The limit of the Magistrate's power in respect of the sentence of fine is Rs. 1,000. The sentence of fine for an offence under Section 147, Indian Penal Code, is not limited to that amount but may exceed it to any extent provided it is not excessive, The Magistrate would, be justified in committing the case for trial to the Court of Session if he is of opinion that the sentence he is empowered by law to pass would be inadequate. There was no question in this case of the alternative jurisdiction of the Court of Session to try the case. The committal to the Court of Session was quashed merely on the ground as stated in the judgment, that the Magistrate's reason for the committal was not based on the inadequacy of the sentence of fine he was empowered to impose. The Government Pleader has relied also on the ruling in Emperor v. Bindeshri Goshain I.L.R(1919) . Cal. 454 . That is a ruling of a single Judge of that High Court. It was given on a reference by the Sessions Judge of Gorakhpur. The parties were not represented. The offence for which the accused was committed for trial before the Sessions Court was an offence under Section 222(iii), Indian Penal Code. The maximum punishment for that offence is imprisonment of either description for three years, or fine, or both. It is triable by a Court of Session, a Presidency Magistrate or a Magistrate of the First Class. The learned referring Judge in recommending the quashing of the committal relied upon the ruling in Queen-Empress v. Kayemullah Mandal I.L.R(1897) . Cal. 429 . The view of the referring Judge is referred to and accepted in the High Court judgment. The essential difference between this case and Queen-Empress v. Kayemullah Mandal which it followed has not been noted in the judgment. Queen-Empress v. Kayemullah Mandal was exclusively triable by the Magistrate. That seems to have been lost sight of in applying it to a 0a8e which in the alternative could be tried by the Court of Session. With great respect this case does not appear to me to be a conclusive authority on the point. The learned Government pleader has relied also upon two rulings of the Sind and Nagpur Judicial Commisssoner's Courts. Under the practice of our Court I regret it is not permissible for me to consider the rulings of these Courts.

8. Mr. Desai has relied upon the observations of Beaton J. in Emperor v. Bhimaji Venkaji (1917) I.L.R. 42 Bom. 172 which are as follows (p 178):-

It appears to me that when a Magistrate cornea to consider whether ha shall or shall not commit a case, he has to consider the gravity of the offence; the punishment with which in his opinion it ought to be met and the section under which he charges the accused person. Ho may no doubt properly consider any special difficulties in the case or that it is a matter of some peculiar public importance, and no doubt other matters also might enter into his consideration, such as the wish of the parties.

9. Mr. Desai has relied also on the case of Emperor v. Achaldas Jethatmal (1925) 28 Bom. L.R. 293 where Marten J. (now Chief Justice) cites with approval the following observations of Batchelor J. in Emperor v. Asha Bhathi : (1913)15BOMLR998 :-

It is for many reasons undesirable in practice that our already overburdened Courts of Session should be still further burdened with the weight of cases committed to them by Magistrates where such Magistrates are themselves Competent to decide the cases and no overriding reasons exist for committal to the higher Court.

Mr. Desai has contended that an over-riding reason exists in the present case for making a departure from what may be regarded as a general rule and that over-riding reason is the gravity of the offence having regard to the wide circulation of the applicant's paper.

10. Mr. Desai has relied also on the observations of Sadasiva Ayyar J. in The Crown Prosecutor v. Bhagavathi I.L.R(1918) . Mad. 83 which are as follows (p. 85):-.Section 347...gives very wide powers to a Magistrate. In any trial or pro-Deeding before him and at any stage he can, oven just before signing judgment, commit a case before him to a Court of Session or the High Court (provided, of course, he is empowered to commit cases to that Court).if it appears to him that the case is one which ought to be tried by a part of Session or the High Court)' It does not restrict the grounds on which he should arrive at his opinion to want of jurisdiction himself or to his inability in his own opinion to sentence the accused adequately. If he considers, for instance, that a complicated question of law arises or that some connected matter is already before the Court of Session or that the facts are such that trial with the aid of a jury or with the aid of assessors (who may be chosen from experts in the particular matters involved in the case) would be a more satisfactory procedure, I see nothing in Section 347 to prevent a Magistrate from committing the case to a Court of Session.

11. Mr. Desai has relied also on the recent ruling of the Rangoon High Court in King-Emperor v. Ishahat (1924) I.L.R. 3 Ran, 42 which lays down that Section 347 of the Criminal Procedure Code gives a Magistrate very wide powers of commitment, and there is no suggestion that the only possible reason for a competent Magistrate to commit a case to Sessions is that he will not be able to pass a sufficiently severe sentence. The discretion vested in him, it is there stated, cannot clearly be limited by the provisions of Section 254 of the Criminal Procedure Code.

12. Following these later rulings of our Court and the Madras and Rangoon High Courts I am of opinion that an over-riding reason has been made out in this case which makes it desirable that it should be tried before the Sessions Court and not before the Chief Presidency Magistrate, although he would be competent to try it. The offence with which the applicant is charged is a serious offence punishable with transportation for life. The paper he edits enjoys a large circulation. Having regard to this large circulation the case can be said in my opinion to have assumed a public importance. If what is alleged against the accused's articles is proved and results in his conviction the Court of Session would be in a better position than the Chief Presidency Magistrate to pass an adequate sentence. From the point of view of the accused too, it is important that he should have a fair and fall trial. His desire to be tried before a Judge and jury cannot, in my opinion, be considered to be unreasonable. The opinion of a jury as to whether the contents of the article complained of are or are not of a seditious nature is entitled to much weight. However competent a Magistrate may be in interpreting the effect of an article on the public mind, a jury which will be chosen from the lay public is likely to be more representative of the general public mind. We must not be understood to lay down a general proposition that in every case where a person is charged under Section 124 A he would be entitled on his application in that behalf as a matter of course to be tried before a Court of Session. Each case in this respect must necessarily depend upon its own particular facts and circumstances.

13. We direct that the Chief Presidency Magistrate do conduct the proceedings before him in this case on the footing that he will at the end of the proceedings commit the case to take its trial before the High Court Criminal Sessions and that he do at the end of the proceedings before him commit the applicant to take his trial before the High Court Criminal Sessions.

Patkar, J.

14. This is an application to revise the order of the Chief Presidency Magistrate declining to commit the case against the accused under Section 124A of the Indian Penal Code to the Court of Session. It is urged on behalf of the applicant that the learned Magistrate declined to commit the case to the Court of Session on two grounds: (1) that there is congestion of work in the High Court, and (2) that the Magistrate was of opinion that he could pass an adequate sentence. With regard to the first ground it is urged that it is an extra-judicial ground and not a legal and valid ground for rejecting the application of the accused to commit him to the Court of Session. With regard to the second ground it is urged that though the Magistrate has a large discretion in trying the case himself on the ground that he could pass an adequate sentence, it is not the sole criterion in the decision of the question, and that the gravity of the offence, the punishment, the effect of the article, the subject of the charge, on the public mind, and the public importance of the case are also matters for consideration in coming to a decision on the question, In the alternative it is suggested that the case should be ordered to be committed for the Court of Session on the ground that it is expedient in the ends of justice under Clause (e) of Section 526 of the Criminal Procedure Code.

15. It is contended on behalf of the Crown that under Section 207 of the Criminal Procedure Code in the case of offences which are not exclusively triable by a Court of Session the Magistrate can commit to the Court of Session any case if in the opinion of the Magistrate it ought to be tried by a Sessions Court, and that if the Magistrate is of opinion that the offence can be adequately punished by him, it is incumbent upon him to frame a charge under Section 254, and he cannot commit the case to the Court of Session. If, however, after the framing of the charge it appears to the Magistrate at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or the High Court, he has power to commit the case under Section 847, and that Section 207 and s. B47 are controlled by Section 251 It is further urged that it is a matter solely within the discretion of the Chief Presidency Magistrate to decide whether he can adequately punish the accused and, therefore, he should try the case himself, or not commit it to the Court of Session, and that there are no special circumstances in this case to interfere with the discretion of the Magistrate.

16. In Queen-Empress v. Kayemullah Mandal I.L.R.(1897) Cal. 429 it was held that, although the case was shown to be triable only by a Magistrate under the second schedule of the Criminal Procedure Code, there was nothing in Section 234 of the Criminal Procedure Code which prevented the Magistrate in committing the case under Section 147 of the Indian Penal Code to the Court of Session provided he was of opinion that the accused committed an offence which in his opinion could not be adequately punished by him. In that case, the offence under Section 147, Indian Penal Code, was triable by a Magistrate and was punishable with imprisonment for two years or with fine. The Magistrate passed an order of to committal to the Court of Session on the strength of a certain circular. The learned Sessions Judge, to whom the case was committed, made a reference for quashing the commitment on the ground that the commitment of the case under Section 147, Indian Penal Code, was illegal as the offence was one triable by a Magistrate, It was held that under Section 207 a Magistrate has the power to commit cases triable exclusively by the Court of Session and cases which in the opinion of the Magistrate ought to be tried by that Court, and, therefore, the commitment was not illegal, It was held that the Magistrate was himself competent to pass the maximum sentence of imprisonment for the offence under Section 147, but might have committed the case to the Court of Session if he had considered that the fine which he could impose would not be an adequate punishment, but the Magistrate did not commit the case to the Court of Session for that reason, and therefore, the commitment was quashed. In King-Emperor v. Pema (1902) 4 Bom. L.R. 85 the decision in Queen-Empress v. Kayemullah Mandal I.L.R(1897) .Cal. 429 was followed by this Court. The offence in that case was one under Section 323 of the Indian Penal Code which was punishable with the maximum punishment of imprisonment for one year and a fine of Rs. l,000 which was within the competence of the First Class Magistrate trying the ease to impose on the accused. It was, however, held, in that case that the words 'ought to be tried'(by the 'Court of Session) in Sections 207 and 347 of the Criminal Procedure Code must be read with Section 254 of the Code; and a case which ought to be tried by a Court of Session is one which the Magistrate is not competent to try or in which, in his opinion adequate punishment cannot be inflicted by him, In W29 both the cases referred to above the Magistrate was competent to pass the maximum sentence of imprisonment precribed for the offence. Section 124A is punishable with transportation for life or for any shorter term and fine or imprisonment of either description for three years and fine or only fine. In Emperor v. Bindeshri Goshain I.L.R(1919) . All. 454 it was held that it is not competent for a Magistrate to commit a case which is within his jurisdiction to try unless he is of opinion that the accused, if guilty, cannot be adequately punished by him. The offence in that case was under Section 222(iii) and was punishable with imprisonment of either description for three years or fine or both. The reasons in support of the conclusion have not been set forth in the judgment but the reasons given by the Sessions Judge in his order of reference were accepted and the commitment of the accused to the Court of Session was set aside.

17. The reasoning, however, of the cases referred to above proceeds on the somewhat broad ground that Sections 207 and 347 are controlled by Section 254 of the Criminal Procedure Code and that it is a matter largely within the discretion of the Magistrate to decide whether he should commit a case to the Court of Session, and in coming to that conclusion he is to be guided solely by the question whether he could pass an adequate sentence. On the other hand, in the case of Emperor v. Bhimaji Venkaji (1917) I.L.R. 42 Bom. 172 Heaton J. observed as follows (p. 178):-

It appears to me that when a Magistrate comes to consider whether he shall or shall not commit a case, he has to consider the gravity of the offence. the punishment with which in his opinion it ought to be met and the section under which he charges the accused person. He may no doubt properly consider any special difficulties in the case or that it is a matter of some peculiar public importance, and no doubt other matters also might enter into his consideration, such as the wish of the parties. But a Magistrate must not determine this important matter whether he is to commit the case or to try it himself solely by the wish of the parties and the terms of a Government Resolution.

18. There is thus a conflict between the decision in Emperor v. Bhimaji Venkaji and the decision in King-Emperor v. Pema as to whether a Magistrate's powers of committal are confined to cases where he considers that he cannot give adequate punishment or whether he may take Into consideration other grounds such as the gravity of the offence, the punishment, the section under which the accused is charged, the special difficulties in the case, the peculiar public importance of the case and other matters. This conflict is emphasised by Mr. Justice (now Chief Justice) Marten in his judgment in Emperor v. Achaldas Jethamal I.L.R(1926) . 28 Bom. L.R. 293 .

19. In The Crown Prosecutor v. Bhagavathi I.L.R.(1918) Mad. 83 it was held that the terms of Article 347 of the Criminal Procedure Code are general and give a Magistrate, who is empowered to commit, a discretion in committing cases for trial which is not limited by Section 254 so as to make it obligatory on him to try every case which ha can adequately punish. Sadasiva Ayyar J. observes (p. 85):-

[Section 347] does not restrict the grounds on which he should arrive at his opinion to want of jurisdiction himself or to his inability in his own opinion to sentence the accused adequately. If he considers, for instance, that a complicated question of law arises or that some connected matter is already before the Court of Session or that the facts are such that trial with the aid of a jury Or with the aid of assessors (who may be chosen from experts in the particular matters involved in the case) would be a more satisfactory procedure, I see nothing in Section 347 to prevent a Magistrate from committing the case to a Court of Session.

20. Napier J. observes (p. 87):-

A more reasonable hypothesis seems to me to be that this allocation of this offence to the Court of Session as well as Magistrates of the first class is an indication that in some circumstances a Court of Session would be the proper tribunal to try the case.

21. In King-Emperor v. Ishahat I.L.R(1924) . Ran. 42 it was held that Section 347 of the Criminal Procedure Code gives the Magistrate very wide powers of commitment, and there is no suggestion that the only possible reason for a competent Magistrate to commit a case to Sessions is that he will not be able to pass a sufficiently severe sentence, and the discretion vested in him cannot clearly be limited by the provisions of Section 254 of the Code.

22. There appears, therefore, a conflict of judicial opinion on the question as to whether inability to pass an adequate sentence is the sole criterion in deciding the question as to whether the case should be committed to a Court of Session or whether the Magistrate should not consider the other circumstances such as the gravity of the offence, the punishment prescribed for the offence, the special difficulties in the case and other matters including the wish of the parties. The trend of opinion as disclosed in the later decisions is in the direction of not unduly restricting the discretion of the Magistrate in committing a case to the Court of Session. Each case, however, is to be decided on its own merits. The first ground, namely, that there is congestion of work in the High Court, is clearly not a legal ground on which the Magistrate can decline to commit a case to the Court of Session, The ability to impose an adequate punishment is no doubt a legal ground for refusing to commit the case to the Court of Session. But, in my opinion, according to the view of Heaton J, in Emperor v. Bhimaji Venkaji (1917) 20 Bom. L.R. 89 that would not be the sole ground for coming to a decision on the question. In Queen Empress v. Abdul Rahiman I.L.R.(1891) 16 Bom. 580 the accused was tried by a Presidency Magistrate on a charge of voluntarily causing grievous hurt with a cutting instrument under Section 326, Indian Penal Code. Not only a charge was framed under Section 254 of the Criminal Procedure Code on the ground that the Magistrate thought that he could pass an adequate sentence, but he convicted and sentenced the accused to rigorous imprisonment for two years, and on an application by the Crown it was held that the offence of which the prisoner was convicted being one punishable under Section 826, Indian Penal Code, with transportation for life or rigorous imprisonment for ten years and fine, the Presidency Magistrate ought to have committed the accused for trial to the High Court, Parsons J. observed (p. 585):-

It is only a qualified jurisdiction which is conferred by Section 28 on a Magistrate to try an offence which is shown in the eighth column of the second schedule to be triable by him. Section 207 lays down the procedure to be adopted, not only where the case is triable exclusively by a Court of Session or High Court, but also where the case, in the opinion of the Magistrate, ought to be tried by such Court. Section 254 is still more restrictive, for it provides that the Magistrate shall try an accused person only for an offence which, in hi opinion, can be adequately punished by him. These two sections show-that a Magistrate has to exercise a discretion in the matter of every case that is brought before him, and his proceedings in the exercise of this discretion are clearly subject to examination and review by a superior Court, either on appeal, or in revision.

23. It would, therefore, follow that even on the question as to the adequacy of punishment a Magistrate's discretion is subject to examination by this Court in revision. Ordinarily the High Court would not interfere in revision with the discretion exercised by the Magistrate. The accused in this case states in his application that his paper has a circulation of about ten or twelve thousand copies among the Marathi speaking public. That statement is not controverted on behalf of the Crown. The offence, therefore, under Section 124A of the Indian Penal Code committed by an editor of a newspaper of such a large circulation would be a grave offence and the gravity of the offence would, therefore, be ii ground for commitment to the Court of Session according to the view taken in Queen-Empress v. Abdul Rahiman and Emperor v. Bhimaji Venkaji. Other arguments have been advanced before us in support of a trial of this case before a Court of Session. On the whole I think that this is a fit case which ought to be tried by a Court of Session.

24. We are not laying down a general proposition that every offence under Article 124A or any offence in which the punishment exceeds the maximum sentence which a Magistrate is competent to inflict must be committed to the Court of Session. On the other hand it is the duty of the Magistrate to try cases which, in his opinion, could be adequately punished by him and not shirk his responsibility by committing them to the Court of Session in the absence of any overriding reason justifying the departure from the ordinary rule. Having regard to the large circulation of this paper, the gravity of the offence and the other circumstances which have been brought to our notice in the arguments before us, we think that the accused in the present case ought to be tried by the Court of Session.

25. I agree, therefore, with the order just proposed directing that the Magistrate should conduct the inquiry with a view to commit the accused to the High Court Sessions.


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