(1) The respondent who was the accused in C. C. No. 30 of 1956 on the file of the Judicial Magistrate First Class, Sisri, had been charged for offences under Sections 409 and 477 of the Indian Penal Code. The learned Magistrate acquitted the accused. The State has preferred an appeal against this acquittal; that is in Criminal Appeal No. 255 of 1957. The learned Sessions Judge, in the course of his inspection, of the Court of the said Magistrate, found that there was a serious irregularity in the above said criminal case, in view of the fact that the offence under Section 477 of the I.P.C. was tribal only by the Curt of Session and that the Magistrate was not competent to try the same.
The learned Sessions Judge is of the opinion that in view of Section 530(p) of the Cr. P.C., the entire proceedings before the learned Magistrate are void; he has, therefore, made a reference requesting that a fresh trial be ordered. This reference is the subject-matter of Criminal Revision Case No. 40 of 1957. Sri Shankara Chetty the learned Additional Assistant Advocate General has appeared for the State; Sri Gopala Krishna Shetty has appeared for the respondent.
(2) Under Schedule II of the Code of Criminal Procedure, an offence punishable under Section 477 of the Indian Penal Code is triable only by the Court of Session. Sri Gopalakrishna Shetty also does not dispute the fact that the judicial Magistrate, First Class was not competent to try an offence under Section 477 of the I.P.C. When that is so, there cannot be any doubt that the provisions of Section 530(p) are attracted.
But, the question is as to whether the entire proceedings before the learned Magistrate are void; Sri Shankara Chetty who supports the reference, contends that the entire proceedings before the Magistrate are void. Sri Gopalakrishnan Shetty has argued that the acquittal should not at all be disturbed; he has pointed out in particular, that the offence under Section 489 of the I.P.C. was one which the Magistrate was competent to try and that the acquittal in so far as it relates to the said offence should not be interfered with, whatever view we may take in regard to the offence under Section 477 of the I.P.C.
(3) We are unable to accept the view that the entire proceedings before the Magistrate have been void, merely because the Magistrate had not been empowered or competent to try one of the two offences for which the accused had been charged. It appears to us that it is only so much of the proceedings as are vitiated by reason of the Magistrate not being empowered by law, that are rendered void. Referring to the expression 'his proceedings' occurring in Section 530 of the Cr. P. C. the High Court, of Patna, in a case reported in Awadh Singh v. Emperor, AIR 1947 Par 23 observes as follows:
'The word 'proceeding' where used in a statute dealing with legal procedure ordinarily means a step in an action or a trial, and in their context here the words 'his proceedings' must, I think, be taken to refer to what has gone before, that is to say, to the proceedings in respect of which the Magistrate was not empowered by law, and are not in their plain and ordinary meaning to be construed as embracing any other proceeding or proceedings.'
The contention that the words 'his proceedings' must be understood as meaning the trial as a whole was not accepted, in that case. it is only so much of the proceedings as relate to the offence under Section 477 of the I.P.C., that are rendered void, in the present case, by reason of Section 530(p) of the Cr. P. C.
(4) In so far as the offence under Section 409 of the I.P.C., is concerned, the Magistrate was competent to try the same; in regard to this offence it has not been alleged that the Magistrate has improperly clutched at jurisdiction by intentionally ignoring facts of aggravation which make the offence really cognizable by a higher tribunal. It cannot be said that the view taken by the Magistrate in regard to this offence, could not at all have been reached on the evidence in the case.
It was contended by Sri Shankara Chetty that the impression of the learned Magistrate about Ex. 22 Durga Kanna the Ugrani having stated that no amount was paid by N. C. Gowda to the accused when the latter took charge, is due to a misreading of the evidence of Durga Kanna. We got read out to us, the deposition of Durga Kanna and we are unable to say that the view taken by the learned Magistrate in regard to the evidence of Durga Kanna, is wrong. We are not satisfied that there are any good grounds to interfere with the acquittal in respect of the offence under Section 409 of the I.P.C. The State's appeal, in so far as it is relates to the acquittal in respect of the said offence, fails.
(5) But, the proceedings in so far as they relate to the offence under Section 477 of the I.P.C., are void. Therefore, the reference by the learned Sessions Judge and the appeal by the State, in so far as they relate to the acquittal in respect of the offence under Section 477 of the I.P.C., are accepted. The proceedings before the learned Magistrate in so far as they relate to the offence under Section 477 of the I.P.C., being void, are set aside; the acquittal by the learned Magistrate so far as it relates to he offence under Section 477 of the I.P.C., is also set aside.
(6) Sri Gopalakrishna Shetty wanted a direction to be issued under Section 561-A of the Cr. P.C. to the effect that the prosecution should not be allowed to lead any evidence different from that which had been previously led in the case. In support of his argument, he also invited our attention to a decision reported in AIR 1939 Lah 513, Ram Pershad v. Dhanna, where a similar direction had been issued by the Court. We do not, however, think it necessary to issue any such direction, in the present case.
The fear of the respondent's Advocate appears to be, that there may be an improvement in the evidence which the prosecution may adduce at the trial for the offence under Section 477 of the I.P.C. But, the evidence which the prosecution has let in previously, continues to be on record as the proceedings before the Magistrate in so far as they related to the offence under Section 409 of the I.P.C., are not void. The existence of that evidence appears to be a sufficient safeguard against any apprehended improvement in the evidence that may hereafter be adduced in respect of the offence under Section 477 of the I.P.C. The Magistrate shall proceed to dispose of the case in so far as it relates to the offence under Section 477 of the I.P.C., expeditiously and in accordance with law.
Iqubal Hussein, J.
(7) I agree.
(8) Order accordingly.