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Haidarsha Lalsha Pathan Vs. Dhondu Abaji Sandbhor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Revision Application Nos. 287 and 295 of 1941
Judge
Reported in(1942)44BOMLR53
AppellantHaidarsha Lalsha Pathan
RespondentDhondu Abaji Sandbhor
Excerpt:
.....magistrate can refer the case to any subordinate magistrate other than reporting magistrate--district magistrate-powers of revision-limits to powers.;when a case has been submitted by a subordinate magistrate to a superior magistrate under section 346, sub-section (2), of the criminal procedure code, 1898, sub-section (2) of that section empowers the superior magistrate to do one of three things: (1) he can try the case himself, if the offence could be tried by him, or (2) refer it to any magistrate subordinate to him, having jurisdiction; or (3) commit the accused for trial. the superior magistrate cannot revise the view of the subordinate magistrate, and refer the case back to the very magistrate who has reported the case to him:. he must assume the case presented in the report..........as should be committed for trial and the magistrate himself had no power to do so. the learned district magistrate disagreed with that view and passed orders returning the cases to the subordinate magistrate for disposal.2. the material facts may be shortly stated. two different complaints were originally filed before the first class magistrate of khed by the petitioner against the same persons for offences of rioting, voluntarily causing hurt, theft and criminal trespass. those complaints were transferred for trial upon the application of the accused to the court of the second class magistrate of mawal. that magistrate held an inquiry into the allegations made and it seemed to him that an offence of dacoity, which was triable exclusively by the court of session, had been committed......
Judgment:

Wassoodew, J.

1. These are revision applications against the orders of the learned District Magistrate of Poona. Those orders were made in certain cases reported to him by the Second Class Magistrate of Mawal under the provisions of Section 346, Sub-section (I), of the Criminal Procedure Code, 1898, as the evidence appeared to the Magistrate to warrant a presumption that the cases were such as should be committed for trial and the Magistrate himself had no power to do so. The learned District Magistrate disagreed with that view and passed orders returning the cases to the Subordinate Magistrate for disposal.

2. The material facts may be shortly stated. Two different complaints were originally filed before the First Class Magistrate of Khed by the petitioner against the same persons for offences of rioting, voluntarily causing hurt, theft and criminal trespass. Those complaints were transferred for trial upon the application of the accused to the Court of the Second Class Magistrate of Mawal. That Magistrate held an inquiry into the allegations made and it seemed to him that an offence of dacoity, which was triable exclusively by the Court of Session, had been committed. As a Second Class Magistrate, he had no power to commit the cases to the Court of Session. Under the provisions of Section 347(2) of the Criminal Procedure Code, if a Magistrate is not empowered to commit for trial, he has to proceed under Section 346 of the Code. The first clause of that section provides that-

if, in the course of an inquiry or a trial before a Magistrate in any district outside the presidency-towns, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs.

3. The Second Class Magistrate of Mawal in accordance with those provisions stayed the proceedings and submitted the cases with a brief report explaining their nature to the District Magistrate of Poona to whom he was subordinate. The duty of the superior Magistrate upon such submission is Iaid down in Clause (2) of Section 346 as follows:-

The Magistrate to whom; the case is submitted may, if so cmpowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.

4. According to that clause the superior Magistrate is empowered to do one of three things: (1) he can try the case himself, if the offence could be tried by him; or (2) refer it to any Magistrate subordinate to him, having jurisdiction; or (3) commit the accused for trial. If the District Magistrate could not, upon the view of the subordinate Magistrate of the evidence, try the cases himself, there were two alternatives before him,; he could either refer the cases to any Magistrate subordinate to him, having jurisdiction to commit: or to himself commit the accused for trial. He has done neither of these things. What he has done is to revise the opinion of the subordinate Magistrate formed upon the record, and, reappreciating the evidence in his own way, has come to the conclusion that it did not warrant the presumption drawn by the Subordinate Magistrate and that the cases could be disposed of upon the charges as originally made which were triable by a Second Class Magistrate. The question is whether Section 346, Clause (2), of the Criminal Procedure Code, empowers the District Magistrate to do that and to refer the cases back to the very Magistrate who made the submission.

5. Clause (2) of Section 346 of the Criminal Procedure Code gives authority to the superior Magistrate to refer the cases to any Magistrate subordinate to him having jurisdiction. It does not expressly prevent him from referring the cases back to the reporting Magistrate. But at the same time the provisions of the section do not authorize the District Magistrate to revise the order of the Subordinate Magistrate. Prima facie therefore, apart from authority, the expression 'the Subordinate Magistrate having jurisdiction' must mean the Magistrate competent to deal with the cases as submitted. There is, however, authority of this Court in Queen-Empress v. Fakira (1890) Unrep. Cr.C. 499 and Queen-Empress v. Purshotam (1891) Unrep. Cr.C. 554 which shows that the District Magistrate cannot revise the view of the subordinate Magistrate. The facts in the latter case were almost similar, for there a Second Class Magistrate submitted a case, under Section 346 of the Criminal Procedure Code, to the Sub-Divisional Magistrate, being of the opinion on the evidence recorded by him that the offence committed was outside his jurisdiction. The Sub-Divisional Magistrate, to whom the case was referred, returned it on the ground that in his opinion the facts of the case brought it within the jurisdiction of the Magistrate inasmuch as a lesser offence had been committed. There a bench of this Court held that the superior Magistrate was wrong as he had not disposed of the reference under Section 346 of the Code of Criminal Procedure. That ruling is an authority for the view that a superior Magistrate cannot refer the case back to the very subordinate Magistrate who has reported a case to him under Section 346(1). It must follow that the superior Magistrate must assume the case presented in the report as correct for the purpose of dealing with it under Clause (2) of Section 346. The District Magistrate has undoubtedly powers of revision under Sections 435 and 436 of the Criminal Procedure Code. But those powers can be exercised for the limited purpose indicated in those sections. Except for that special purpose he has no power to revise the opinion of the subordinate Magistrate in a case reported to him under Section 346 of the Criminal Procedure Code. When the provisions in the Code confer special powers on the District Magistrate, those powers must be exercised only in the particular way indicated. In our opinion the phraseology of Clause (2) of Section 346 'to any Magistrate subordinate to him having jurisdiction' is intended to mean a subordinate Magistrate other than the Magistrate who made the reference or report and competent to deal with the case as submitted.

A contrary view was adopted by a full bench of the Madras High Court in Pollur Reddi v. Muniswami Reddi (1930) I.L.R. Mad. 16 which dissented from the view of this Court expressed in the cases referred to above. It seems to me that the Madras view is likely to lead to an embarrassing situation if the subordinate Magistrate remains unconvinced. The case might move like a sea-saw unless the superior Magistrate's view were regarded in law as binding on the subordinate Magistrate. That cannot be so as the District Magistrate is not acting under Section 346 of the Code as a revising or appellate authority. With extreme respect to the learned Judges of the Madras High Court, we think the view of this, Court expresses as nearly as possible the real intention of the legislature.

6. Accordingly we make the rules absolute and set aside the orders of the District Magistrate of Poona in the two cases. The papers shall be returned to him with a direction that he should either commit the accused for trial himself or refer the cases to any Magistrate subordinate to him having jurisdiction to commit for trial.


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