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Kheraj and ors. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Case No. 525 of 1983
Judge
Reported in1983WLN434
AppellantKheraj and ors.
RespondentThe State of Rajasthan
DispositionApplication rejected
Cases ReferredChittiar and Ors. v. State of Rajasthan
Excerpt:
criminal procedure code - section 10(3)--words 'chief judicial magistrate'--meaning of--additional chief judicial magistrate is chief judicial magistrate for purpose of section 10(3);the additional chief judicial magistrate merta was for the purpose of section 10(3) cr. p.c., a chief judicial magisrate, and, the before, the learned sessions judge could have authorised him to dispose of the urgent criminal matters under section 10(3) cr. p.c. in his absence on may 30, 1983.;(b) criminal procedure code - section 10(3)--remand--endorsements on original warrants addressed to incharge, sub-jail--held, there was order of remand of accused to judicial custody.;these endorsements have been made on the original warrants addressed to the incharge of sub-jail nagaur to whom the accused persons had..........the learned sessions judge was on leave and the case was adjourned by the learned additional chief judicial magistrate who is purported to have been authorised by the learned sessions judge under section 10(3) cr. cp, but as a matter of fact such an authorisation was illegal because no judicial officer below the rack of a chief judicial magistrate could have been so authorised under section 10(3) cr. p.c. (ii) that even if the additional chief judicial magistrate could have been authorised under section 10(3) such authorisation could have been possible only if there was no additional sessions or assistant sessions judge in the sessions division and since there was an additional sessions judge working at nagaur within the sessions division merta on 30-5-83 the additional chief.....
Judgment:

K.S. Lodha, J.

1. This bail application under Section 439 Cr. PC has been moved on behalf of the three accused-petitioners who are standing trial for offence under Sections 147, 148, 302/149, 326 and 325 IPC before the learned Sessions Judge Merta. As the only contention urged for granting bail to the petitioners is their wrongful confinement since May 30, 1983 the facts of the case noted rot be stated. So fas as the plea of wrongful detention is concerned, the earned Counsel for the petitioner has raised three contentions before me namely:

(i) That on May 30,1983, the learned Sessions Judge was on leave and the case was adjourned by the learned Additional Chief Judicial Magistrate who is purported to have been authorised by the learned Sessions Judge under Section 10(3) Cr. CP, but as a matter of fact such an authorisation was illegal because no judicial officer below the rack of a Chief Judicial Magistrate could have been so authorised under Section 10(3) Cr. P.C. (ii) that even if the Additional Chief Judicial Magistrate could have been authorised under Section 10(3) such authorisation could have been possible only if there was no Additional Sessions or Assistant Sessions Judge in the Sessions Division and since there was an Additional Sessions Judge working at Nagaur within the Sessions Division Merta on 30-5-83 the Additional Chief Judicial Magistrate could rot have been authorised by the learned Sessions Judge under Section 10(3) Cr. PC. Therefore, the adjournment of the case and remand of the accused persons to judicial custody from May 30, 1983 was illegal and without jurisdiction, and (iii) that as a matter of fact there was no order or direction of remand of the accused petitioners to judicial custody on May 30, 1983 as the order sheet in this respect is silent.

2. I have heard the earned Counsel for the petitioners and the learned Public Prosecutor and have also gone through the original warrant and the copy of the order sheet dated May 30, 1983. I have also perused the order made by the learned Sessions Judge on May 28, 1983 authorising the learned Additional Chief Judicial Magistrate to dispose of urgent criminal matters in his absence.

3. Having heard the earned Counsel for the petitioners and the learned Public Prosecutor I am clearly of the opinion that the contentions Nos. (i) and (iii) can easily be disposed of without any long discussion. Sub-section (3) of Section 10 of the Criminal Procedure Code reads 'The Sessions Judge may also make provisions for the disposal of any urgent application in the event of his absence on inability to act by an Additional or Assistant Sessions: Judge or if there be no Additional or Assistant Sessions Judge by the Chief Judicial Magistrate and every such Judger Magistrate shall be deemed to have jurisdiction to deal with any such application. Therefore, it is clear that officer who can be authorised under Section 10(3) Cr. PC cannot be an officer below the lank of a Chief Judicial Magistrate and such a view had already been taken by one of the learned Judges of this Court in Basu alias Gurubux Singh v. The State of Rajasthan 1982 RLW 502. The question, however, is, is the Additional Chief Judicial Magistrate lower in rank to a Chief Judicial Magistrate so far as the provisions of Section 10(3) Cr. PC. are concerned. A clear answer to this is furnished by Section 12 Cr. PC. which deals with the appointment of Chief Judicial Magistrate & Addl. Chief Judicial Magistrate & which reads as under:

12 Chief Judicial Magistrate and Additional Chief Judicial Magistrate etc. (1) In every District (not being a metropolitian area), the High Court shall appoint a Judicial Magistrate of the First Class to be the Chief Judicial Magistrate. (2) The High Court may appoint any Judicial Magistrate of the First Class to be an Additional Chief Judicial Magistrate and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under the Code or under any other law for the time being in force which the High Court may direct..

According to Sub-section (2) of Section 12 Cr. PC. noted above, the High Court has power to appoint Additional Chief Judicial Magistrate & may also direct such Additional Chief Judicial Magistrate to have all or any of the powers of a Chief Judicial Magistrate under the Code of Criminal Procedure. The Rajasthan High Court by its order No. 8 dated 18th April 1983 appointed Additional Chief Judicial Magistrates and by the same order it also directed that such Additional Chief Judicial Magistrates shall have all the powers of a Chief Judicial Magistrate under the Code of Criminal Procedure. The Addl. Chief Judicial Magistrate Nagaur with head-quarters at Merta was also appointed under this order & this order was to come into force from April 20, 1983. It is therefore abundantly clear that the Additional Chief Judicial Magistrate Merta was for the purpose of Section 10(3) Cr. PC, a Chief Judicial Magistrate, and, therefore, the learned Sessions Judge could have authorised him to dispose of the urgent criminal matters under Section 10(3) Cr. PC. in his absence on May 30, 1983. It may be pointed out here that the decision in Basil's case (supra) on which reliance has been placed by the earned Counsel for the petitioners to urge that the Additional Chief Judicial Magistrate cannot be authorised under Section 10(3) Cr. PC. is not at all applicable to the present case. In that case the matter did not relate to Additional Chief Judicial Magistrate but related to only a Judicial Magistrate.

4. So far as (iii) contention goes, it may at once be stated that although in the order sheet dated May 30, 1983 there was no mention of the remand of the accused persons to judicial custody but such a direction clearly appears in the warrants. The direction on the warrants on May 30, 1983 is in the following terms:

vfHk;qDr U;kf;d vfHk es mifLFkr iqu% U;kf;d vfHkj{kk es Hkstk tkrk gS A 27-6-83 dks is'k gks A

Those endorsements have been made on the original warrants addressed to the Incharge of Sub-Jail Nagaur to when the accused persons had been first forwarded on September 18, 1982 and on which the subsequent remands were directed first by the Magistrate and after the commitment by the learned Sessions Judge from time to time. In these circumstances it cannot be said that there was no order or direction for the remand of the accused to judicial custody on May 30, 1983. The earned Counsel for the petitioners had placed strong reliance upon Chittiar and Ors. v. State of Rajasthan 1980 Cr. Law Reporter Supplement Vol. 2 page 32 and 1982 RLW 502 Saw's case (supra), but these cases are of no avail in the present circumstances because in both these cases it was found after a careful consideration of the material on record that as a matter of fact, there was no direction or order of remand to judicial custody either, in the order sheet or on the warrant. As already stated above, in the present case there are clear direction of remand on the warrants of the accused persons on May 30, 1983.

5. This brings me to the second question, the answer to which is not free from difficulty. I have already quoted Section 10(i) Cr. P.C. in extenso above. According to this section, the Sessions Judge in the event of his absence or inability to act may make provision for the disposal of urgent applications by Additional or Assistant Sessions Judge or if there be no Additional or Asstt. Sessions Judge by the Chief Judicial Magistrate. There fore, there is no room for doubt that a Chief Judicial Magistrate or for the matter of that Additional Chief Judicial Magistrate can be so empowered only when there is no Additional or Assistant Sessions Judge. The crucial question however, is what is the meaning of the words if there be no additional or Assistant Sessions Judge. Do they mean that there is no additional or Assistant Sessions Judge at the head-quarters of the Chief Judicial Magistrate, or the Additional Chief Judicial Magistrate who is sought to be authorised under Section 10(3) Cr. PC. In order to interpret the meaning of the words if there be no Additional or Assistant we will have to look at them from two different angles. There is no room for doubt that this provision had been made with a view to over come or obviate the difficulties which may be experienced when the Sessions Judge is either absent or is unable to act, so that urgent matters may not be unnecessarily delay and the persons in custody could properly be taken care of. Now if there is a large Sessions Division in which the head-quarters of the Sessions Judge, the Additional Sessions Judge, the Assistant Sessions Judge, the Chief Judicial Magistrate and the Additional Chief Judicial Magistrate are at different places, it would not only be convenient but also proper that the powers under Section 10(3) are delegated in such a manner that the purpose of the delegation should easily and conveniently be carried out. Therefore, if there is an Additional Sessions Judge or an Asstt. Sessions Judge head-quartered at one place & the Chief Judicial Magistrate or the Additional Chief Judicial Magistrate is headquartered at another place it must be deemed that the Additional or Assistant Sessions Judge is not there at the head-quarters of the Chief Judicial Magistrate or Additional Chief Judicial Magistrate and, therefore, in the absence of the Additional or Assistant Sessions Judge the Chief Judicial Magistrate or the Additional Chief Judicial Magistrate can be authorised under Section 10(3) Cr. P.C. If on the other hand, the other view that if there is an Additional or Assistant Sessions Judge working at any place within the Sessions Division then a Chief Judicial Magistrate or Additional Chief Judicial Magistrate who is sitting at a place different from the one at which the Additional or the Assistant Sessions Judge is sitting cannot be so authorised is taken then it would lead to complications and unnecessary inconvenience. The difficulty however, in adopting the first interpretation is that in that case we shall have to read the words at the headquarters of the Judicial Magistrate which are not there in Section 10(3) Cr. P.C. and according to the principles of interpretation of statutes such supply of words can be restored to only when it is absolutely necessary and without doing so a reasonable interpretation of the statute is not possible. In these circumstances as the Section 10(3) Cr. P.C. stands at present it would not be proper or possible to adopt the first interpretation and therefore it will have to be only interpreted in the latter manner, meaning thereby that a Chief Judicial Magistrate can be authorised under Section 10(3) Cr PC only when there is no Additional or Assistant Sessions Judge leaving it for the legislature to suitably amend it. How in this view of the matter we will have to examine the order of the learned Sessions Judge, Merta dated May 28, 1983. By this order the learned Sessions Judge has alternately authorised the Additional Sessions Judge, the Chief Judicial Magistrate Nagaur and Additional Chief Judicial Magistrate Merfa under Section 10(3) Cr. P.C. Now this order again is capable of two interpretations. First that the additional Chief Judicial Magistrate Merta was sought to be empowered under Section 10(3) Cr. P.C. only if the Additional Sessions Judge or the Chief Judicial Magistrate Nagaur was not working it may also be interpreted to mean that as the headquarters of the Additional Chief Judicial Magistrate was different from that of the Additional Sessions Judge or the Chief Judicial Magistrate therefore, even if they were working at Nagaur he was to exercise the powers under Section 10(3) Cr. P.C. at Merta in respect of cases pending before the Sessions Judge Merta or applications of urgent nature filed in that Court in Criminal matters, the difficulty in adopting the second interpretation is obviously there in view of the above interpretation is obviously there in view of the above interpretation of 10(3) Cr. PC. and also because the order of authorisation is in an alternate manner and not with respect to the location of the Courts. Therefore, also it women be reasonable to interpret this order to mean that the Additional Chief Judicial Magistrate was to exercise the powers under Section 10(3) Cr. PC only in the absence of the Additional Sessions Judge and Chief Judicial Magistrate in the Sessions Division. Moreover, the learned Sessions Judge has stated in his letter No. 1291 dated June 18, 1983 that the Additional Sessions Judge and the Chief Judicial Magistrate were on leave on May 30, 1983, so the Additional Chief Judicial Magistrate was authorised by him.

6. Having interpreted Section 10(3) Cr. P.C. and the order of the learned Sessions Judge Merta dated May 28, 1983 in the above manner I have now to consider whether in these circumstances the order of the learned Chief Judicial Magistrate was without jurisdiction or nonest. In this respect I am clearly of the opinion that tae order of remand made by the learned Additional Chief Judicial Magistrate on May 30, 1983 cannot be said to be void or nonest for lack of inherent jurisdiction. As already stated above, an Additional Chief Judicial Magistrate can be authorised by the learned Sessions Judge under Section 10(3) Cr. PC, though, under certain conditions In this case those conditions are fully applicable, as the Additional Sessions Judge was on leave on May 33, 1983. So the order passed by the learned Sessions Judge empowering the learned Additional Chief Judicial Magistrate cannot be said to be without jurisdiction. That being so, the order of remand passed by learned Additional Chief Judicial Magistrate cannot be termed as void without jurisdiction. That being so, the order of remand passed by learned Additional Chief Judicial Magistrate cannot be termed as void, without jurisdiction or nonest. The accused in these circumstances, cannot be deemed to be under illegal detention and therefore, on that ground alone they are not entitled to bail.

7. No other contention has been raised before me.

8. For the reasons stated above, this application for bail fails and is hereby rejected.


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