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Narsing Das Lakhotia and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Nos. 783 and 784 of 1953
Judge
Reported inAIR1954Cal451,58CWN769
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 209, 337 and 337(2A)
AppellantNarsing Das Lakhotia and ors.
RespondentThe State
Appellant AdvocateAjit Kumar Dutta and ;Narayan Ranjan Mukherjee, Advs. (in No. 783) and ;N.C. Talukdar, Adv. (in Nos. 783 and 784)
Respondent AdvocateN.K. Sen, Adv.
Excerpt:
- .....prosecution had examined its remaining witnesses and the defence had examined four witnesses the learned magistrate passed the following order :'on perusal of the evidence both oral and documentary and hearing the arguments of the learned public prosecutor and the learned counsel and advocates representing the different accused it appears to me that no offence exclusively triable by the high court sessions has been made out during the enquiry and instead offence for framing charges under section 420/120b, i. p. c. and 420, i. p. c. have been made out, which offences do not come within the ambit of the provisions of section 337, cr. p. c. and as such the pardon tendered to accused md. yusuf under that section loses its legal force and he reverts to his former position as an accused arid.....
Judgment:

Das Gupta, J.

1. The four persons who are the petitioners in Revision No. 783 of 1953 and Kunjalal Goenka who is a petitioner in Revision No. 784 of 1953 and one Muhammad Yusuf were prosecuted for offences under Section 120B read with Sections 420, 467/471 and 403/34, I. P. C. The enquiry under Chapter 18, Criminal P. C., commenced in the court of Mr. P. Ghose, Presidency Magistrate, Calcutta. After some witnesses had been examined, pardon under Section 337, Criminal P. C. was tendered to Mahammad Yusuf and he was examined as a witness in the case. After the prosecution had examined its remaining witnesses and the defence had examined four witnesses the learned Magistrate passed the following order :

'On perusal of the evidence both oral and documentary and hearing the arguments of the learned Public Prosecutor and the learned Counsel and Advocates representing the different accused it appears to me that no offence exclusively triable by the High Court sessions has been made out during the enquiry and instead offence for framing charges Under Section 420/120B, I. P. C. and 420, I. P. C. have been made out, which offences do not come within the ambit of the provisions of Section 337, Cr. P. C. and as such the pardon tendered to accused Md. Yusuf under that section loses its legal force and he reverts to his former position as an accused arid his evidence taken during the Enquiry as P. W. 17 after tendering pardon Under Section 337, Cr. P. C. will stand expunged.

No offence on evidence having been made out against accused Kunjalal Goenka and Harbans Narain Singh they are ordered to be discharged Under Section 209, Cr. P. C.

Framed charge Under Section 120B/420, I. P. C. against accused (1) Narsingdas Lakhotia, (2) Amarchand Lakhotia, (3) Jagabandhu Bose and (4) Md. Yusuf, framed charge Under Section 420, I. P. C., against accused Narsingdas Lakhotia. Charges having been explained to them they pleaded not guilty and claimed to be tried. The trial of the aforesaid offences will proceed in this court assuming the character of a warrant procedure case.

To 10-11-52, for cross-examination of the P. Ws. except P. W. 18 who will be recalled as a remaining P. W. as he was examined after accused. Mr. Yusuf was tendered pardon Under Section 337, Cr. P. C. and examined as a witness. Recall other P. Ws. for cross-examination. Accused Md. Yusuf is to find fresh bail of Rs. 6000/- with 2 sureties of like amount. Other accused as before.'

On 11-11-1952 the learned Magistrate amended the charge to one under Section 120B read with Sections 420 and 406, I. P. C. against the petitioners Narsingdas Lakhotia, Amarchand Lakhotia, Jagabandhu Bose and under Sections 406 and 420, I. P. C. against Narsingdas Lakhotia. He also framed a charge under Sections 120B/420/406, I. P. C. against Muhammad Yusuf. On being moved by Muhammad Yusuf this Court set aside the order revoking the pardon tendered to him and also the order framing charges against Muhammad Yusuf.

2. In disposing of the Rule the following observations were made by Mitter, J.:

'Under Sub-section (2A), when a person has accepted a tender of pardon and has been examined as a witness, the Magistrate, if he believes that a prima facie case against the other accused is established, should commit such accused to the Sessions Court or to the High Court, as the case may be and has no power to try the case himself, even if he is otherwise competent to do so. That being so, the learned Magistrate concerned has no power to proceed with the trial of the other accused.'

It is to be noticed that the question whether the Magistrate had power to proceed with the trial of the other accused was not for consideration before the Court. The observation in the concluding portion 'That being so, the learned Magistrate concerned has no power to proceed with the trial of the other accused' must be treated to be obiter dictum.

3. Apparently, however, in view of this observation the learned Magistrate to whom the case was transferred felt himself bound to treat as a nullity the orders passed by the Magistrate Mr. Ghose on 30-10-1952 discharging Kunjalal Goenka and Harbans Narain Singh and the other order framing charges for different sections for trial in the Magistrate's Court. The conclusion is recorded by the learned Magistrate in these words :

'The result is that the order directing framing of charges for trial in this court or the order of discharge in favour of the 2 accused is both erroneous and without jurisdiction and must be treated as non-existent. This jurisdiction was assumed on 30-10-52 and whatever was done since that date must also be treated as such, and this court must proceed as if no such Jurisdiction was assumed and no such order passed. There being no valid order of discharge, the two accused Kunja Lal Goenka and Harbans Narain Singh must be treated as accused standing trial before me.'

4. It is contended before us on behalf of the petitioners that there is nothing in Sub-section (2-A) of Section 337, Criminal P. C. which made the order passed by the Magistrate Mr. P. Ghose discharging the two accused persons and framing charges against some other accused persons for trial in his court invalid or without jurisdiction. For a proper interpretation of Sub-section (2A) of Section 337, Cr. P. C. it is necessary to remember the terms of the first sub-section of Section 337, Cr. P. C. It is in these words:

'In the case of any offence triable exclusively by the High Court or Court of Sessions or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under Section 211, I. P. C. with imprisonment which may extend to seven years, or any offence under any of the following sections of the I. P. C., namely, Sections 216A, 369, 401, 435 and 477A, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or any Magistrate of the first class may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof;

Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the District Magistrate shall exercise the power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and the sanction of the District Magistrate has been obtained to the exercise thereof.'

5. It is important, to notice that this procedure for tender of pardon is provided under this clause for four classes of offences -- (1) offences exclusively triable by the High Court or Court of Session, (2) offences punishable with imprisonment which may extend to ten years, (3) any offence punishable under Section 211, Penal Code with imprisonment which may extend to seven years; (4) offences under Sections 216A, 369, 401, 435 and 477A. Sub-section (2A) of Section 337, Cr. P. C. is in these words:

'In every case where a person has accepted a tender of pardon and has been examined under Sub-section (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.'

The question is whether when the legislature used the words in Sub-section (2A) 'if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence', the legislature meant 'an offence within any of the classes mentioned in the first sub-section of Section 337, Cri. P. C. or any offence whatsoever'. It seems to me absurd to read the word 'offence' in its literal sense and to hold that even if all that the Magistrate finds is that there are reasonable grounds for believing that the accused is guilty of say -- an offence under Section 352, Penal Code, or offence under the Cattle Trespass Act, he is bound to commit the accused for trial to the Court of Session or High Court.

Looking at the scheme of legislation in Section 337, Cr. P. C. and the subsequent sections it seems to me to be abundantly clear that though the words ''referred to in Sub-section (1)', are not there, these words are clearly intended by the legislature to be read into the section. My conclusion, there-lore, is that it is only where the Magistrate is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence which falls under any of the four classes mentioned in the first Sub-clause of Section 337, Cr. P. C., that the Magistrate has to commit the accused to the Court of Session or High Court.

6. The consequence is that where the Magistrate has no reasonable ground for believing that the accused is guilty of an offence which falls within any of the four classes mentioned in Sub-section (1) of Section 337, Cr. P. C., he has ordinarily no power to commit the accused to the Court of Session or High Court. If in such a case he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence which though not falling within any of the classes mentioned in Sub-clause (1) of Section 337, Cr. P. C. is an offence triable by himself, he ought to proceed to try him. The further consequence of the above interpretation is that the Magistrate retains his right and duty to discharge an accused tinder the provisions of Section 209, Criminal P. C.

7. I have accordingly come to the conclusion that the order of the learned Presidency Magistrate of 15-6-1953 is based on a misconception of law. I would, therefore, set aside that order, hold that the order of the Magistrate Mr. P. Ghose discharging Kunja Lal Goenka and Harbans Narain Singh is a valid order, and direct that the other three petitioners should take their trial in the Magistrate's Court on the charges framed on 11-11-1952.

8. The Rules are disposed of accordingly.

Debabrata Mookerjee, J.

9. I agree.


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