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Marakula Agamma and ors. Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ709
AppellantMarakula Agamma and ors.
RespondentThe State of Andhra Pradesh
Excerpt:
.....or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - pc according to him, the learned magistrate is perfectly aware of the heavy amount involved in the case even when he took cognizance of the case and took it on his file after the charge-sheet was filed and it cannot be said that he came to discover this fact only on 25-10-1976 after twelve witnesses were examined......of 25 witnesses cited to be examined and all the witnesses were cross-examined. at this stage, the learned magistrate felt that as the amount involved in the case was rs. 6,38,822-39 and as highest punishment has to be imposed if the accused were to be convicted and also as the case requires speedy disposal, the case has to be committed to the sessions court which is proper court competent to award adequate punishment proportionate to the amounts involved and also dispose of the case speedily. he, therefore, passed an order under section 323 cr.pc committing the accused to the sessions court.3. it is this order that is now challenged in this petition.4. sri raghavarao contends that the grounds on which the learned magistrate has committed the accused to the court of session are not in.....
Judgment:
ORDER

Punnayya, J.

1. Sri Raghava Rao, the learned Counsel for the petitioners, seeks for quashing of the order passed by the IV Metropolitan Magistrate, Hyderabad in C. C. No. 2593 of 1974 committing the accused to the Court of Metropolitan Sessions Judge for taking his trial.

2. The petitioners are A-l to A-4 in C. C. No. 2593 of 1974. According to the prosecution, the petitioners and another who is the 5th accused were alleged to have committed offences punishable Under Sections 120-B. 420, 466, 468 and 471, I. P. C, and charges were framed on 11-10-1974 to that effect. In the trial, the prosecution examined 12 witnesses by 25-10-1976 out of 25 witnesses cited to be examined and all the witnesses were cross-examined. At this stage, the learned Magistrate felt that as the amount involved in the case was Rs. 6,38,822-39 and as highest punishment has to be imposed if the accused were to be convicted and also as the case requires speedy disposal, the case has to be committed to the Sessions Court which is proper court competent to award adequate punishment proportionate to the amounts involved and also dispose of the case speedily. He, therefore, passed an order Under Section 323 Cr.PC committing the accused to the Sessions Court.

3. It is this order that is now challenged in this petition.

4. Sri Raghavarao contends that the grounds on which the learned Magistrate has committed the accused to the Court of Session are not in conformity with the provisions of Section 323 Cr.PC According to him, the learned Magistrate is perfectly aware of the heavy amount involved in the case even when he took cognizance of the case and took it on his file after the charge-sheet was filed and it cannot be said that he came to discover this fact only on 25-10-1976 after twelve witnesses were examined. Hence the ground that the case involves heavy stakes cannot be adequate ground for committing the accused to the Sessions Court He also contends that the ground that he is not competent to give higher sentence if ultimately the accused are to be convicted is also unsustainable. According to him, Section 325, Cr.PC provides to meet this situation. He further contends that Under Section 29, Cr.PC the Chief Judicial Magistrate may pass any sentence except a sentence of death or of imprisonment for life. He also contends that the other grounds that complicated questions of law are involved and that the same shall be disposed of speedily by the Sessions Judge are not sufficient grounds for the Magistrate to commit the case Under Section 323 Cr.PC and hence the order committing the case to the Court of Session Under Section 323 is vitiated with illegality and it should therefore be quashed.

5. I find force in the contention of the learned Counsel for the petitioner. As stated above, the learned Magistrate took cognizance of the case for the offences punishable under Sections 120-B, 420. 466, 468 and 471 IPC These offences are to be tried by the first Class Magistrate, as could be seen from the 1st Schedule given in the Code of Criminal Procedure. The offences Under Sections 420, 466, 468 and 471 IPC can be tried by the First Class Magistrate and the sentence to be awarded for each of the offences is seven years imprisonment. It is therefore, clear that though the offences are triable by a First Class Magistrate or by a Metropolitan Magistrate he is not competent to award maximum sentences to be awarded for these offences. The First Class Magistrate or the Metropolitan Magistrate is competent to award imprisonment up to three years but not beyond that period. Then what is the course open to the First Class Magistrate or Metropolitan Magistrate when he desires or proposes to impose a sentence of imprisonment for four years or five years, or six years or seven years? If the offences are exclusively triable by Sessions Court, the Magistrate is empowered to commit the accused Under Section 209, Cr.PC to the Court of Session. If the offences are exclusively triable by a Magistrate and are to be adequately punishable by a Magistrate then there is no difficulty since the Magistrate himself can dispose of it. But the difficulty arises when the offences, though triable by a Magistrate, cannot be adequately punished by him. In such a case Section 325 Cr.PC comes to his rescue. If the Magistrate, on finding the accused from the evidence guilty, is of opinion that the punishment to be awarded should be more severe than he cam inflict he should (without convicting the accused) submit the case to the Chief Judicial Magistrate Under Section 325 Cr.PC

6. The learned Magistrate in this case did not do so, but resorted to Section 323 Cr.PC and committed the case to Court of Session. The question is whether the Magistrate is justified to do so ?

7. It is true that Section 323 confers in general a wide and comprehensive power on the Magistrate to commit the accused to the Sessions Court at any time before signing the judgment, if it appears to him that the case is one which ought to be tried by a Court of Session. The expression 'ought to be tried by the Court of Session' employed in Section 323 is very significant in the sense that it confers jurisdiction to the Magistrate to commit the accused to Court of Session and also imposes, the conditions under which the power given to the Magistrate under this section has to be exercised. It would mean that though the offences are not exclusively triable by a Court of Session, yet the Magistrate has jurisdiction to commit the accused to Court of Session, if the case, in the Magistrate's opinion, ought to be tried by a Court of Session. Inability to award adequate punishment does not constitute a valid ground for committing the accused to the Court of Session by a Magistrate under this section, since Section 325 gives power to the Magistrate in such a case to submit (without convicting the accused) the case to the Chief Judicial Magistrate who is competent to award a sentence of imprisonment up to 7 years. This benefit was not available for 1st Class Magistrate Under Section 349 of the old Code and it was confined only to Second Class or Third Class Magistrates. A First Class Magistrate has. under the old Code, no other alternative than to commit the case to Court of Session if he is of the opinion that a higher sentence has to be inflicted. But Section 325 is now made applicable to the First Class Magistrate also. The creation of the Chief Judicial Magistrate Under Section 29, Cr.PC (new) if intended to give relief to the Court of Session, as the Chief Judicial Magistrate is empowered to impose a sentence of imprisonment for 7 years. When Section 325 is available in the Code to assist the Magistrate to submit the case to the Chief Judicial Magistrate for awarding adequate sentence prescribed for the offences with which the accused stand charged, the learned Magistrate committed illegality in committing the case Under Section 323 to the Court of Session on the ground that it is the Court of Session that is competent to give adequate sentence in the case on hand. Even the ground that heavy amounts were involved in the case and hence the case ought to be disposed of by Sessions Court is not a proper ground for committing the case Under Section 323 to the Court of Session. A Magistrate cannot be appalled or or awe-striken on finding that the case has involved a large amount and hence he cannot dispose of the case. If heavy amounts are involved, that will be a circumstance to be taken into consideration for awarding higher sentence. But that cannot be a ground for the Magistrate to commit the case Under Section 323, Cr.PC to the Court of Session. The Bombay High Court in Emperor v. Achal Das Jethamal AIR 1926 Bom 251 : (27 Cri LJ 479) held that merely because large amounts were involved in an offence of cheating, the case cannot be committed by a Magistrate to a Court of Session.

8. Another ground that the Magistrate has expressed is that complicated questions of law are involved and the case has to be committed to the Magistrate. But in this case, no complicated questions of law are involved. The learned Magistrate has already framed the charges against the accused under the offences for which the accused are alleged to be triable. Hence this ground also cannot be taken to be proper for committing the accused Under Section 323, Cr.PC In view of the above reasons, I find no difficulty to hold that the order is unsustainable. Hence I accept the contentions raised by the learned Counsel for the petitioners and quash the impugned order.

9. Sri Raghavarao contends that the learned Magistrate has already come to the conclusion that the accused are guilty and that they should, therefore, be committed to the Sessions Court so that the Court of Session can give higher sentence of imprisonment and hence the accused have entertained apprehensions that they cannot have justice at the hands of the Magistrate and it should, therefore be transferred to some other Court. Since the Magistrate has committed the accused to the Sessions Court on this ground, I think the apprehensions are justified. Thus the case is transferred from the file of the IV Metropolitan Magistrate to the file of the V Metropolitan Magistrate for disposal according to law.

10. In the result, the petition is allowed.


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