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D.C. Varma Vs. Bhagwanji Virji and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR412
AppellantD.C. Varma
RespondentBhagwanji Virji and ors.
Cases ReferredNarayandas Kedarnath Dage v. The State of Maharashtra
Excerpt:
- - lakhataria was functioning distinctly as the judicial magistrate of all the three districts, namely, rajkot district, jamnagar district and junagadh district, and that the place of his court were respectively at rajkot, jamnagar and junagadh in ordinary course, therefore, shri lakhataria was supposed to discharge his duties at the respective places of his courts in trying the offences which had occurred within the limits of these districts......col. 4 which mentions the places at which the magistrate is supposed to function, states that for rajkot district, the place is rajkot, for jamnagar district the place is jamnagar and for junagadh district, the place is junagadh. in col. no. 5 it is mentioned that for all these three districts, the headquarters of the railway magistrate should be at rajkot. thus, this schedule makes it clear that for the rajkot district, the court of the judicial magistrate is established, and that the place of that court is at rajkot. similarly this schedule shows that there is a court of railway magistrate for jamnagar and the place of that court should be at jamnagar. so far as junagadh district is concerned, the place of that court is at junagadh. thus, according to this notification, there are.....
Judgment:

T.U. Mehta, J.

1. The applicant is the original complainant and on his complaint the opponent No. 1 is sought to be prosecuted for the alleged offence under Section 3 of the Railway Property (unlawful possession) Act of 1966. That case was registered as Criminal Case No. 74/74 and was tried by the concerned Railway Magistrate Mr. Lakhataria. During the course of the trial, a question arose whether the petitioner should be summoned to produce the statements recorded by him during the course of inquiry conducted by the railway protection force. That application was made under Section 91 of the Criminal Procedure Code, 1973 (which is hereinafter referred to as the code) by the opponent-accused. The learned Magistrate rejected that application of the opponent-accused on 16-4-75 at Rajkot. The learned Magistrate has signed the order as Judicial Magistrate, F.C. (Railway) Junagadh at Rajkot.

2. Here it should be mentioned that it is an admitted position that the offence for which the opponent-accused is sought to be prosecuted was committed within the limits of Junagadh District.

3. Being aggrieved by the said order, the opponent-accused preferred Criminal Revision Application No. 15/75 before the Court of the Sessions Judge at Rajkot. One of the contentions which was taken on behalf of the western railway before the learned Sessions Judge, Rajkot, was that since the offence has been committed within the limits of Junagadh district and since the learned Magistrate has passed the order as Judicial Magistrate, F.C. (Railway) Junagadh at Rajkot, it is the court of the Sessions Judge at Junagadh, which has jurisdiction to hear the revision. According to the western railway, therefore, the court of sessions at Rajkot has no jurisdiction to hear the revision application preferred by the accused. This contention as regards the jurisdiction was over-ruled by the learned Sessions Judge and being aggrieved by that, the present petitioner has preferred this application under Section 482 of the code.

4. Apart from the question of jurisdiction, there were other contentions raised on behalf of the petitioner by his learned Advocate Shri Abhichandani his other contentions were that even granting that the learned Sessions Judge at Rajkot had jurisdiction to hear the revision application, no interference of the sessions court was called for in view of the fact that the order sought to be revised, was merely an interlocutory order. On merits it was contended that the opponent-accused was not entitled to any copies of the statements recorded by the railway protection force during the course of the previous inquiry because these are not the police statements. According to the petitioner, therefore, no order for the production of these documents could be made even under Section 91 of the code. So far as these contentions are concerned, the same do not remain to be decided in view of the fact that I find that the learned Sessions Judge at Rajkot had no jurisdiction to deal with the revision preferred by the opponent-accused and also in view of the fact that shri Abhichandani has fairly conceded on behalf of the petitioner that the petitioner has no objection in submitting the papers of the inquiry made by the railway protection force before the Court as and when required by the Court.

5. In view of what is stated above, the only question which remains to be decided is whether the learned Sessions Judge at Rajkot had jurisdiction to deal with the Revision Application No. 15/75 which was preferred by the opponent-accused.

6. Now on this point it is contended on behalf of the petitioner that the learned Magistrate, who is dealing with the case, is the Railway Magistrate for 3 districts, namely, the district of Rajkot, the district of Junagadh and the district of Jamnagar, and though his headquarters are situated at Rajkot, whenever he deals with an offence which has taken place either within the limits of the District of jamnagar or within the limits of the district of Junagadh, he Acts as the Judicial Magistrate of that district and, therefore, it is the Sessions Judge of that respective district, who would have jurisdiction to hear and dispose of revisions against his orders. As against this, it was contended on behalf of the opponent-accused by his learned advocate shri Thakkar, that it is the place of the exercise of the powers by the Judicial Magistrate, which should, govern the jurisdiction of the Sessions Judge and not the place where the offence is committed. Shri Thakkar has pointed out that the order of the learned Magistrate which was sought to be revised was passed at Rajkot and, therefore, it is obvious that the learned Magistrate has exercised his powers at Rajkot and since he has exercised his powers at Rajkot, it would be the sessions court at Rajkot, which would have jurisdiction to hear the revision application. In this connection, it was contended that the Magistrate had jurisdiction over the ureas comprised by all the three districts, namely, the District of Rajkot, the District of Jamnagar and the District of Junagadh and, therefore, he had jurisdiction to try offences committed in any of the three districts at any place situated within the areas of these three districts.

7. It is an admitted fact that the present case is governed by the criminal procedure code, 1973 and not by the provisions of the old criminal procedure code of 1898. This aspect of the matter is important because relevant provisions of the code of 1973 are somewhat different from the corresponding provisions of the old code of 1898. Under the code of 1973, the courts of Judicial Magistrates are established by virtue of Section 11, which is in the following terms: 11. Courts of Judicial Magistrates:

(1) in every district (not being a Metropolitan area), there shall be established as many courts of Judicial Magistrates of the first class and of the second class and at such places, as the State Government may, after consultation with the High Court, by notification, specify.

(2) the presiding officers of such courts shall be appointed by the High Court.

(3) the High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial service of the state, functioning as a judge in a civil court.

Sub-section (1) of Section 11 contemplated two things, namely, (1) establishment of the Courts of the Judicial Magistrate; in every district and (2) the places where these courts should function. Sub-section (2) contemplates the appointment of presiding officers of such courts. So far as this matter is concerned, the provisions of Sub-section (3) are not relevant. Now the State Government has exercised its powers under Sub-section (1) of Section 11, and has issued the notification establishing the courts of the Judicial Magistrates railway and specifying the places where these courts should function. The relevant notification is No. Gk/499/crc-1074/1501-d dt. 1st April, 1974. The body of the notification runs as under:

In exercise of the powers conferred by Sub-section (1) of Section 11 of the code of criminal procedure 1973 (ii of 1974) and after consultation with the High Court of Gujarat, the Government of Gujarat hereby establishes in the districts specified in column 2 of the schedule annexed hereto the courts of Judicial Magistrate of the first class (railway) respectively specified against them in column 3 of the said schedule and specifies the places respectively specified against them in column 3 of the said schedule as the places where such courts shall be located.

(2) the Government also specifies that the headquarters of such courts shall be the places respectively specified against them in column 5 of the said schedule.

Then follows the schedule which consists of 5 columns. Col. 2 describes the various districts, col. No. 3 describes the Court of J.M.F.C. Railway, col. 4 describes the places and col. No. 5 describes the head-quarters. At Sr. No. 10 is the mention of district Rajkot, at. No. 11 is the mention of district Jamnagar and at No. 12 is the mention of District Junagadh. Col. 4 which mentions the places at which the Magistrate is supposed to function, states that for Rajkot district, the place is Rajkot, for jamnagar district the place is jamnagar and for Junagadh district, the place is Junagadh. In col. No. 5 it is mentioned that for all these three districts, the headquarters of the railway Magistrate should be at Rajkot. Thus, this schedule makes it clear that for the Rajkot district, the court of the Judicial Magistrate is established, and that the place of that court is at Rajkot. Similarly this schedule shows that there is a court of railway Magistrate for jamnagar and the place of that court should be at Jamnagar. So far as Junagadh district is concerned, the place of that court is at Junagadh. Thus, according to this notification, there are three different courts for the three different places of its functioning. The schedule col. 5 further shows that though there are three different places for the Courts functioning in these three different districts, the headquarters of the Magistrate should be kept at Rajkot.

9. It is further found that on the same day i.e. on 1st April, 1974, the High Court of Gujarat has issued notification No. A. 0203/74 (e) in exercise of the powers conferred by Sub-section (2) of Section 11 of the Code of Criminal Procedure, 1973 and has made appointments of the presiding officers. Alongwith this notification there is a schedule which shows that Mr. M.K. Lakhatria was appointed as the Judicial Magistrate, first class railway for the districts of Rajkot, Jamnagar and Junagadh and his headquarters, should be at Rajkot.

10. Thus by virtue of the notification issued by the State Government under Sub-section (1) of Section 11(1), three districts for the functioning of the Judicial Magistrates were created with the specification of the places at which the Magistrates should function but by the notification issued by the High Court under Sub-section (2) of Section 11, presiding officers of these three Courts were required to be appointed the High Court, however, appointed only one Magistrate for the purpose of Acting as the Judicial Magistrate for all the three different districts by virtue of the above referred Notification No. A. 0203/74.(e).

11. If these two notifications are read together, it follows that Mr. Lakhataria was functioning distinctly as the Judicial Magistrate of all the three districts, namely, Rajkot District, Jamnagar District and Junagadh district, and that the place of his Court were respectively at Rajkot, Jamnagar and Junagadh in ordinary course, therefore, Shri Lakhataria was supposed to discharge his duties at the respective places of his courts in trying the offences which had occurred within the limits of these districts. If, however, Shri Lakhataria has tried the present case which has arisen within the limits of Junagadh at his headquarters at Rajkot, it must follow that he has done so in his capacity as the Judicial Magistrate of Junagadh district his identity as judicial Magistrate, Junagadh District was quite separate and distinct from his identity as judicial Magistrate of Rajkot district and the Judicial Magistrate of Junagadh district. Under the circumstances, even if Shri Lakhataria has tried this case at his headquarters, he has tried the same not as the Judicial Magistrate of Rajkot district but as the Judicial Magistrate of Junagadh district.

12. This particular aspect of the matter will be evident by reference to Section 177 of the code of 1973 which says that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed according to this section therefore, the place of the trial of every offence should be within the local jurisdiction within which that offence is committed the expression local jurisdiction is defined in Section 2(j) of the code, as under:

(j) local jurisdiction, in relation to a court or Magistrate, means the local area within which the court or Magistrate may exercise all or any of its or his powers under this code.

Looking to this definition Mr. Lakhataria was supposed to exercise his jurisdiction within the local area of Junagadh district and at a place in Junagadh town.

13. As already stated above, it is evident that Mr. Lakhataria has Actually passed the impugned order at Rajkot. The contention of the opponent accused is therefore that it would be the Sessions Judge, Rajkot, who would have jurisdiction to revise the impugned order passed by him. In support of this contention, Shri Thakkar, pointed out to the provisions of Section 397 of the code, which says that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal court situate within its or his local jurisdiction for the purposes specified in that section the argument was that since the court of the Judicial Magistrate, Mr. Lakhataria was situated within the local jurisdiction of the Sessions Judge at Rajkot and since the impugned order was passed by him at Rajkot, it would be the court of Sessions Judge at Rajkot, which would have jurisdiction to hear the revision application in question this contention is not acceptable, because, even though it can not be disputed that the headquarters of the learned Magistrate Mr. Lakhataria were situated within the local jurisdiction of the Sessions Judge at Rajkot the fact remains that in so far as Mr. Lakhataria decided the case which fell within the jurisdiction of Junagadh district, the place of his Court was situate within the limits of the sessions court, Junagadh and he was Acting as court inferior to the court of sessions at Junagadh. The question whether a particular criminal court is inferior to a particular sessions court, is required to be determined with reference to the place mentioned in the notification issued by the State Government under Section 11(1) of the code since this notification read together with the notification issued by the High Court under Sub-section (2) of Section 11, makes it abundantly clear that the place of Shri Lakhatarias court in this case was at Junagadh, the orders passed in the case were subject to appeal or revision which would lie only to the sessions court at Junagadh. Thus, Section 397 of the code does not help the accused.

14. On this point, several decisions were cited at the bar, the principal one of which is the Madras decision in Valia Ambu Poduval and Ors. v. Emperor I.L.R. 30 Mad. 136. The facts of that case were that the petitioners were tried and convicted by the assistant first class Magistrate of malabar for the offences committed within the local limits of the jurisdiction of the sessions court of north malabar. The said Magistrate had his headquarters at calicut situate in the local limits of the south malabar sessions court, but he had criminal jurisdiction over the whole district, comprising the two sessions divisions of north and Suth Malabar. The petitioners-appealed to the court of sessions, north malabar, which rejected the appeal on the ground that the sessions ct. Within whose jurisdiction the Magistrate had his headquarters was the proper appellate authority. The petitioners then appealed to the sessions court of south malabar, but that court held that no appeal lay to it as the offence was committed in North Malabar and the Magistrate must be considered to have decided the case as a first class Magistrate of north malabar. The matter then went to the High Court. The High Court considered the provisions of Section 435 of the code of 1898 which dealt with the powers of revision of sessions court and enacted that the Sessions Judge may call for and examine the records of any inferior court situate within the local limits of its jurisdiction. The High Court found that the word situate means fixed or located and when applied to a court it must be taken to refer to the place where the court ordinarily sits. On this reasoning the High Court found that the sessions court of south malabar, where the headquarter of the Magistrate were situated, had jurisdiction to hear the matter.

15. In my view, this decision is of no help to the opponent-accused in view of the above referred notifications issued by the State Government under Sub-section (1) of Section 11 of the code. It should be repeated here that Section 11 of the code empowers the State Government to specify the place where the court of a Judicial Magistrate should function. Therefore, when that place is once specified, the court should ordinarily hold its sittings at that place and, therefore, the court should be presumed to be ordinarily sitting at that place and not at the headquarters. Since this ordinary place of seat in this case was at Junagadh, it must follow that so far as this case is concerned, the court of the learned Magistrate was situate at Junagadh and not at Rajkot, where the learned Magistrate had his headquarters. In the Madras case, the ordinary sitting of the court was within the limits of south maladar Sessions Division and hence it was held that Sessions Court of south malabar had jurisdiction under Section 14 of the old code, there was no provision to fix the place of courts sittings such a provision is not there in Section 11 the present code, as already noted above.

16. Lucknow bench of the Allahabad High Court has taken the view taken the Madras High Court in the above referred case, in Short Lal v. Slate : AIR1952All193 but even this decision of the Allahabad High Court would not help the contention of the opponent-accused in view of the above referred notification issued by the State Government under Sub-section (1) of Section 11 of the code. It is found that in the same year the Allahabad High Court has given a contrary decision. This is evident by reference to the judgment given by Raghuvar Dayal, J. In Lalta Prasad Saxena v. State : AIR1952All70 . Therein the above referred Madras decision given in valia ambus case is referred to and the view is taken that there should not be any difficulty in interpreting the expression inferior criminal courts situate within the local limits of its or his jurisdiction to mean an inferior court exercising jurisdiction within the local limits of its or his jurisdiction. It is further observed in that case that the code contemplated that the trial court will have territorial jurisdiction over the cases tried and appeals from such court should go to the district Magistrates and Sessions Judges within whose jurisdiction those courts exercised jurisdiction and the cases decided by them arose. Ultimately it is observed that if the Magistrate has jurisdiction over two areas, one of which is within the jurisdiction of one sessions court and the other within the jurisdiction of another sessions court, his orders will be appealable to the Sessions Judge who has territorial jurisdiction over that particular case. The appellate forum cannot be held to be on the basis of the location of the Magistrates court. This ratio has found favour even with the High Court of Bombay in Narayandas Kedarnath Dage v. The State of Maharashtra 66, B.L.R.

In this view of the matter, I find that the learned Sessions Judge at Rajkot had no jurisdiction to deal with and dispose of Revision Application No. 15/75 which was preferred by the opponent-accused. This application is therefore, allowed. The order passed by the learned Sessions Judge, Rajkot, is set aside and the rule is accordingly made absolute.


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