1. This is a petition under Section 526 Cr. P. C. filed by Hari Singh for the transfer to some other court of a case which is pending against Hari Singh and two others under Section 326/34 I. P. C. in the Court of a Honorary Magistrate 1st Class at New Delhi.
2. It seems -that the case in which Hari Singh is involved as an accused is one of two cross cases, the other of which is based on a complaint filed by Hari Singh against certain persons who are prosecution witnesses against him under Sections 323/325/504 I. P. C. One of the grounds on which the transfer is sought is that Hari Singh's complaint was dismissed in default on 24-4-1957 when he had gone 4way to fetch his counsel. This dismissal is the subject of revision petition which is already pending in this Court, and it does not seem to me that it would be proper to go into the rights and wrongs of a matter already pending in a court in this way for the purpose of deciding whether it can be a ground (or transferring the case. The other allegations of partiality on the part of the learned Magistrate are denied by him and in any case do not amount very much.
3. A legal ground has however been raised in a supplementary petition filed after the original petition namely that the case being under Section 326 I. P. C. cannot be tried by a First Class Magistrate who has not been given special powers under Section 30 of the Criminal Procedure Code, Before the Criminal Procedure Code was amended by Act No. 26 of 1955 the amendments contained in which came into force on 1-1-1956, Section 30 empowered the Governments of certain States which included Delhi to invest the District Magistrate or any First Class Magistrate with power to try as a Magistrate all offences not punishable with death, and Section 34 empowered the Magistrate so invested to pass a sentence up to seven years' imprisonment. The effect of the amendments introduced in 1956 was that the Magistrate empowered under Section 30 could only try cases not punishable with a term of imprisonment exceeding 7 years. Section 28 remains unaltered. It reads:
'28. Subject to the other provisions of this Code any offence under the Indian Penal Code may be tried.
(a) by the High Court, or
(b) by the Court of Session, or
(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable'.
Section 326 I. P. C. is punishable with imprisonment for life or imprisonment of either description up to 10 years and the entry in column 8 of the Second Schedule of the Criminal Procedure Code still stands as before namely that an offence under this section is triable by the Court of Session, Presidency Magistrate or a Magistrate of the First Class. It thus seems quite clear in the terms of the Code that an offence under Section 326 I. P. C. still remains triable by a First Class Magistrate.
4. However, reliance was placed on behalf of the petitioner on a recent decision of Chopra J. in Criminal Revn. No. 226 of 1957, D/-11-10-1957 (Punj) (A) in which the conviction of five petitioners under various sections including Section 326 I. P. C. read with Section 149 I. P. C. was set aside simply on the ground that as the law now stood an offence under Section 326 I. P. C. could not be tried by a First Class Magistrate even invested with powers under Section 30 of the Criminal Procedure Code. With all due respect I do not consider that this is a correct view of the matter since it ignores the plain words of Section 28 (C) and the entry relating to Section 326 I. P. C. in column 8 of the Second Schedule of the Criminal Procedure Code.
5. The ordinary limit of the powers of First Class Magistrate has always been two years but in column 8 in the Second Schedule First Class Magistrates have always been empowered to try cases in which the maximum sentence was a good deal heavier than this. The practice, in fact, has always been that less serious offences under the various Sections in which a sentence not exceeding two years was thought by the prosecuting authority to be appropriate have been sent to the courts of First Class Magistrate, and the Code already contained provisions for the reference to a court possessing larger powers of any case in which the Magistrate feels that the appropriate sentence exceeds his powers. This practice in my opinion was quite sensible since it saved the time of courts intended for the trial of serious offences and allowed the less serious cases to be dealt with by courts with lesser powers. As an instance, a reference may be made to the sentence now under discussion i.e. Section 326 I. P. C. which can relate to anything from a broken tooth or a broken finger to a case in which the victim has been seriously injured and has barely escaped with his life. It would obviously be a waste of the time of the superior courts if they were entrusted with comparatively trivial cases which only technically fall under Section 326 I. P. C.
6. As I understand the position, before the Code was amended, a case under Section 326 I. P. C. could either be sent to a First Class Magistrate if it was not a serious case, or to a Section 30 Magistrate if it was more serious, but the appropriate sentence would not exceed seven years, and to a Sessions Court if a sentence of more than seven years appeared to he called for and the only effect of the amendment is that the degrees of seriousness of cases under Section 326 are reduced from three to two and a minor case under Section 326 I. P. C. can still be tried by a First Class Magistrate, butif it is more serious it has now to be sent to theSessions Court to be tried either by a Sessions Judgeor by an Assistant Sessions Judge and nothing inthe amendment can detract in any way from theForce of the words of Section 28 and the appropriateentry in the 8th column in the Second Schedule. Iaccordingly see no reason to interfere and dismissthe petition.