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Emperor Vs. Achaldas Jethamal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Reference No. 73 of 1925
Judge
Reported in(1926)28BOMLR293
AppellantEmperor
RespondentAchaldas Jethamal
Excerpt:
.....procedure code [act v of 1898), section 215-committal orders-quashing of the order-high court.;the committal of an accused to the court of session, either on his own request or because the case has created sensation in his community or on the ground that the amount involved is large, is not proper and is liable to be set aside by the high court. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is..........construction of the words 'on a point of law' in section 215 of the code of criminal procedure. as regards committals in the case of offences either exclusively or not at all triable by the court of session under column 8 of schedule ii to the code, no difficulty arises. but in the case of offences triable either by the court of session or by a first class magistrate, whether an improper exercise of judicial discretion in committing is or is not 'a point of law,' is a question on which there has been some difference of opinion the madras high court in the crown prosecutor v. bhagavathi i.l.r. (1918) mad. 83 is in favour of a narrow and literal restriction of these words. the same view has been taken in a decision of this court in emperor v. suleman ibrahim : (1911)13bomlr201 . if this.....
Judgment:

Marten, J.

1. It is unnecessary in this case to define the reasons for which a Magistrate may properly commit a case to the Sessions. Nor need we decide which of the two conflicting views are correct, namely, whether a Magistrate's powers of commital are confined to cases where he considers he cannot give an adequate punishment, or whether he may take into consideration other grounds such as are enunciated by Mr, Justice Heaton and Mr, Justice Shah in Emperor v. Bhimaji Venkaji I.L.R.(1917) 42 Bom. 172 :and Emperor v. Nanji Samal I.L.R. (1917)42 Bom. 172 :20 Bom. L.R. 89. In either event the Magistrate has to state his reasons for committing to the Sessions a case, which he himself is competent to try. There are authorities in this Court to show that if he gives no reasons whatever as in Emperor v. Nanji Samal I.L.R. (1913) 38 Bom. 114 : 15 Bom. L.R. 999 or if he gives reasons which are bad in law as in Emperor v. Bhimaji Venhaji, then this Court has jurisdiction to quash the committal as being bad in law within the meaning of Section 215, Criminal Procedure Code. In Emperor v. Bhimaji Venkaji, the Magistrate had committed a case at the request of the parties and in reliance on a Government Resolution and this Court held that those were not reasons which the Magistrate could properly take into consideration.

2. Now here the Magistrate has given only two reasons, namely first, that he has been requested be commit the case by one of the accused, and, secondly, that according to the pleader for the accused ' this case has created a sort of sensation in the Marwadi community and the amount of cheating is large.' As regards the request by the accused that is not a ground in law for the Magistrate's order. As regards the case creating a sensation in the Marwadi community, that also seems to us an insufficient ground on which to base a legal discretion. Similarly too, as regards the large amount of rupees, viz. Rs. 4,000, of which the accused are alleged to have cheated the complainant, that in itself is not, in our opinion, a ground for committing the case to the Sessions. But for the grounds I have mentioned, I gather, that the learned Magistrate would have refused to commit the case, for he says: ' Ordinarily, I might not have been induced to grant this request. But coming as it does from the accused, I have come to the conclusion that it should be sent to the Sessions Court.

3. In the view we take the learned Magistrate misdirected himself on a point of law in exercising his discretion as to whether the case should be committed to the Sessions or not. Consequently in law his order is bad and we have jurisdiction to set it aside.

4. As in our opinion we have that jurisdiction, we entirely agree with the order of reference from the learned Sessions Judge of Nasik that this is a case which can properly be tried by the Magistrate himself and that the Sessions Court ought not to be burdened with it. in this respect we may draw attention to the observations of Mr. Justice Batchelor in Emperor v. Asha Bhathi : (1913)15BOMLR998 where he says (p. 999):-

It is for many reasons undesirable in practice that our already over-burdened 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 oases and no overriding reasons exist for committal to the higher Court.

5. We will accordingly quash the order of committal and direct the Magistrate to hear and determine the case according to law.

6. We understand that Mr. S.B. Kale has been transferred from Iagatpuri. We will accordingly leave it to the District Magistrate to say whether the case should be finished before Mr. Kale at the Court where he now is, or whether it should be transferred to Mr. Kale's successor to be heard at Igatpuri.

Madgavhar, J.

1. The question in this reference is the construction of the words 'on a point of law' in Section 215 of the Code of Criminal Procedure. As regards committals in the case of offences either exclusively or not at all triable by the Court of Session under column 8 of Schedule II to the Code, no difficulty arises. But in the case of offences triable either by the Court of Session or by a First Class Magistrate, whether an improper exercise of judicial discretion in committing is or is not 'a point of law,' is a question on which there has been some difference of opinion The Madras High Court in The Crown Prosecutor v. Bhagavathi I.L.R. (1918) Mad. 83 is in favour of a narrow and literal restriction of these words. The same view has been taken in a decision of this Court in Emperor v. Suleman Ibrahim : (1911)13BOMLR201 . If this interpretation is adopted, it is difficult to say how any point of law can possibly arise in the case of offences triable either by a Court of Session or Magistrate. I, therefore, agree with the broader interpretation of these words consistently adopted by this Court in a series of decisions, King-Emperor v. Pema Ranchod (1902) 4 Bom. L.R. 85. Emperor v. Nanji Samal I.L.R. (1913) 38 Bom. 114 and Emperor v. Bhimaji Venkaji I.L.R. (1917) 42 Bom. 172 : 20 Bom. L.R. 89 following a similar view of the Calcutta High Court in Queen Empress v. Kayemullah Mandal (1897) I.L.R. 24 cal. 429.

2. In the present case the sensation-real or supposed-in the Marwadi community and the large amount of Rs. 4000 as alleged to be the subject of cheating, are not proper grounds in the exercise of the judicial discretion which the law imposes on a Magistrate before committing a case which the Magistrate himself is empowered to dispose of.

3. I agree, therefore, that the committal should be quashed and the case remanded to the Magistrate in the terms proposed by my learned brother.


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