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Emperor Vs. Girish Chunder Kundu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in123Ind.Cas.433
AppellantEmperor
RespondentGirish Chunder Kundu and ors.
Cases ReferredIn Charoo Chunder Mullick v. Empress
Excerpt:
criminal procedure code (act v of 1898), sections 215, 273, 432, 532 - commitment to high court sessions--power of presiding judge to quash commitment--procedure to be followed by magistrate--stage from which trial should be resumed--fresh complaint, whether necessary--reference by presidency magistrate under section 432--duty of magistrate to refer only such points as are necessary for disposal of case. - order1. this is a reference by the chief presidency magistrate under section 432 of the code of criminal procedure under the following circumstances. on the complaint of one of the judges of this court presiding over the insolvency court, the accused in this case were placed for trial before the chief presidency magistrate on a charge under section 103 of the presidency insolvency act. the learned magistrate thought that the case was one which was fit to be tried in the high court sessions and committed the accused to the sessions. on the matter coming up before mr. justice buckland presiding then over the high court sessions, the learned judge, being of opinion that the commitment was illegal, quashed it and sent the case back to the trial magistrate with the following order: 'the order.....
Judgment:
ORDER

1. This is a Reference by the Chief Presidency Magistrate under Section 432 of the Code of Criminal Procedure under the following circumstances. On the complaint of one of the Judges of this Court presiding over the Insolvency Court, the accused in this case were placed for trial before the Chief Presidency Magistrate on a charge under Section 103 of the Presidency Insolvency Act. The learned Magistrate thought that the case was one which was fit to be tried in the High Court Sessions and committed the accused to the Sessions. On the matter coming up before Mr. Justice Buckland presiding then over the High Court Sessions, the learned Judge, being of opinion that the commitment was illegal, quashed it and sent the case back to the trial Magistrate with the following order: 'The order will be that the commitment be quashed. The record with a copy of the judgment will be returned to the Chief Presidency Magistrate in order that he may deal with the complaint according to law. ' On the matter going back to the Chief Presidency Magistrate it was urged on behalf of the accused that the effect of the order of Mr. Justice Buckland was that the accused stood discharged and that the proceeding could not be continued against them without a fresh complaint. The learned Chief Presidency Magistrate feeling doubtful about the matter has made this Reference and has submitted the following points for the decision of this Court: '(i) What is the correct interpretation of Section 215 of the Code of Criminal Procedure? (ii) Does it give power to the Judge presiding at the Sessions to quash a commitment made to him by a competent Magistrate? (iii) Does it refer to a power of the High Court in its Revisional Jurisdiction?: (iv) Does it refer to both of these powers? (v) if it gives the power referred to in (ii), what is the effect when the Judge so presiding quashes a commitment? Has it, as suggested by the accused in their petition, the effect of a discharge, so that the Committing Magistrate has no further jurisdiction in the matter, in the absence of a fresh complaint or can the Magistrate proceed with the case as it stood prior to his passing the order of commitment? (vi) Subsidiary to the question raised in (v) is the question whether the Judge presiding at the Sessions has power to direct what shall be the effect of his order quashing the commitment. (vii) The learned Judge in the present case has quashed the commitment on a point of law, vis., that the charge in the case under Section 103 of the Presidency Towns Insolvency Act is one punishable with a maximum imprisonment of two years, that this being not more than the maximum punishment the Magistrate could award, his order of commitment was illegal.'

2. It is to be noted that the offence under Section 103 of the Presidency Insolvency Act is punishable with imprisonment for two years and is within the competency of the trial Magistrate.

3. Two principal points emerge out of the facts of this case for determination--(1) Whether the learned Judge presiding over the High Court Sessions had power under the law to quash the commitment. (2) Whether the commitment by the Chief Presidency Magistrate was illegal and ultra vires.

4. As regards the first point, we have grave doubts as to the powers of a Judge presiding over the High Court Sessions to quash a commitment, made by a competent Magistrate. The learned Judge purported to act under Section 215 of the Code of Criminal Procedure, That section says that the commitment once made by a competent Magistrate can be quashed by the High Court only. Now, the learned Judge is of opinion that the expression ' High Court' in that section includes a Judge presiding over the Sessions of this Court and in support of that view he has referred to Section 266 of the Code of Criminal Procedure. That section, to our mind, does not include within the term 'High Court' a Judge presiding over the Criminal Sessions of that Court. There is no complete definition of 'High, Court ' in the Code but in Section 4, Clause (j) it is said to include several Courts which are not ordinarily called High Courts but which exercise the powers of the highest Criminal Court of appeal. Section 266 does not extend or limit the connotation of the expression 'High Court' in Section 4 but enumerates certain Courts for the purpose of Chap. XVIII excluding certain other Courts which are mentioned in Section 4. Section 266 enumerates the Courts which are to be considered as High Courts for the purpose of Section 267 which lays down that all trials before a High Court shall be by a Jury. In Section 273 the terms ' High Court' and ' Judge ' are both used. It says that when it appears to the High Court--meaning High Court as enumerated in Section 266--that any charge is clearly unsustainable the Judge (who is appointed to carry out the functions of the High Court under Chap. XVIII) may make on the charge an entry to that effect. It seems to us that the High Court as mentioned in Section 215 is the High Court the powers of which are exercised by a Bench appointed by the Chief Justice. The proper Court, therefore, which can quash the commitment under Section 215 is a Criminal Bench so constituted. This point has not come up for decision up to now, but it was adumbrated in the case of Phanindra Nath Mitra v. King-Emperor 1 Ind. Cas. 469 : 36 C. 48 : 12 C.W.N. 1014 : 8 Cr.L.J. 221 where one of the Judges constituting the Bench expressed Ms doubt as to whether, in the exercise of the ordinary Appellate Jurisdiction the Criminal Bench had power to quash a commitment made to the High Court for trial under its ordinary Criminal Jurisdiction. But the point was left undecided as the application before the learned Judges failed upon some other ground. We do not see any reason why this Criminal Bench being constituted by the Chief Justice for trial of criminal cases has no jurisdiction to quash a commitment to the High Court Sessions in view of the fact that the commitment was made by the Chief Presidency Magistrate who is amenable to our ordinary Appellate and Revisional Jurisdiction, We are clearly of opinion that the learned Judge presiding over the High Court Sessions had no power under Section 215 to quash the commitment.

5. The second point adverted to above raises a question of some difficulty on which there is a considerable divergence of opinion. If, as we are of opinion, the learned Judge presiding over the High Court Sessions could not act under Section 215, he had jurisdiction to quash the commitment under Section 532 The proper object of the enactment appears to be that where a commitment has been made a Magistrate who is not competent under Section 266 to make it the Court of Session or the High Court may quash the commitment if it is of opinion that it has injured the accused or if objection was taken to the legality of the commitment at an earlier stage. The section, as has been observed in Emperor v. Mahdav Luxman 48 Ind. Cas. 871 : 43 B. 147 at p. 153 : 20 Bom. L.R. 607 : 20 Cr.L.J. 71, has no application where the Magistrate who committed had the power, and the proper procedure would be to make a reference to the High Court with a recommendation that the commitment should be quashed presumably under Section 215 of the Code. But if it is construed as including a case of a Magistrate having jurisdiction to commit but making a commitment not warranted by law the question that falls for determination is whether in the present case the learned Chief Presidency Magistrate acted without jurisdiction in committing the case to the Sessions. Mr. Justice Auckland has held relying upon the decision of this Court in Queen-Empress v. Kayemullah Mandal 24 C. 429 : 1 C.W.N. 414 that the maximum punishment awardable under Section 103 of the Presidency Insolvency Act being within the competence of the Magistrate he had no power to make the commitment unless he was of opinion that he could not inflict adequate punishment which opinion he could not entertain in the present case. In Queen-Empress v. Kayemullah Mandal 24 C. 429 : 1 C.W.N. 414 the commitment was made by a Magistrate on a charge under Section 147, Indian Penal Code. The case was heard by a Division Bench of this Court, and it was held that the commitment was not necessarily illegal inasmuch as the offence under Section 147 is punishable with an unlimited amount of fine which might be beyond the power of the Magistrate to impose. But the learned Judges went on to say that as the Magistrate did not think that he considered that case to be one in which he was not competent to inflict an adequate punishment he could not under Section 254 of the Criminal Procedure Code commit the case to the Sessions. The view taken in Queen-Empress v. Kayemullah Mandal 24 C. 429 : 1 C.W.N. 414 has been followed in several cases in Bombay and Allahabad of which it is enough for our present purpose to refer to two of the latest decisions, namely, Emperor v. Athaldas Jethamal : AIR1926Bom251 and Emperor v. Bindeshri Goshain 50 Ind. Cas. 161 : 41 A. 454 : 17 A.L.J. 456 : 20 Cr.L.J. 273. On the other hand, several other High Courts have taken quite a different, view. Crown Prosecutor v. Bhagavathi 48 Ind. Cas. 337 : 42 M. 83 : 35 M.L.J. 559 : (1918) M.W.N. 870 : 19 Cr.L.J. 997 : 9 L.W. 14, Emperor v. Ali 39 Ind. Cas. 492 : 13 P.R. 1917 Cr : 18 Cr.L.J. 524 and Emperor v. Ishahat 89 Ind. Cas. 525 : 3 R. 42 : A.I.R. 1925 Rang. 07 : 26 Cr.L.J. 1389. We have given our anxious consideration to this point due to the conflict of opinions, and we feel disposed to agree with the view taken in the Madras, the Punjab, and the Rangoon High Courts. The authority of Queen-Empress v. Kayemullah Mandal 24 C. 429 : 1 C.W.N. 414 is to a great extent weakened by the absence of reference to an earlier decision of this Court, in which the point came up for decision. In the case of Empress v. Kudrutoollah 3 C. 495 : 2 C.L.R. 2 the prisoners were charged with rioting under Section 147. The Sessions Judge made a reference to this Court with a recommendation to quash the commitment on the ground that as the Magistrate had framed charges under Section 220 of the old Code (corresponding to Section 254 of the new Code) he was bound either to convict or acquit the accused but had no power to commit him to the Sessions. The learned Judges held that the Magistrate had ample power under Section 221 (347) to commit the accused at any stage. Kayemullah's case 24 C. 429 : 1 C.W.N. 414 and the order of Mr. Justice Buckland relied on Section 254 of the Code and the opinion was expressed that when a Magistrate frames a charge under Section 254 of the Code and the opinion was expressed that when a Magistrate frames a charge under Section 254 he must either convict or acquit the accused. With great respect we think that Section 254 has no bearing on this question. If it is held that after charge is framed by a Magistrate under a, 254 he is bound to try the accused himself and either to acquit or convict him, Section 247 becomes to a great extent nugatory. Under that section the Magistrate can commit the accused at any stage of the proceedings before he has signed his judgment, if he is of opinion that it is a case which ought to be tried by a Court of Session or High Court. If the Magistrate is empowered to commit the accused before he has signed his judgment that stage must arise after he has framed the charge under Section 254 and finished the trial. The answer to the argument advanced in Kayemullah's case 24 C. 429 : 1 C.W.N. 414 that the Magistrate having framed the charge must either convict or acquit the accused is given in Kudrutoollah's case 3 C. 495 : 2 C.L.R. 2 where the view is expressed that Section 347 must be read as a proviso to Section 254, namely, that the Magistrate must either acquit or convict the accused provided he decides not to commit him to the Court of Session. The learned Judges in Kudrootllah's case 3 C. 495 : 2 C.L.R. 2 have very pertinently observed that though the explanation to Section 220 of the old Code provided that if a charge is drawn up the prisoner must either be convicted or acquitted, it did not require that the conviction or acquittal must be by the Magistrate who drew it. We may in passing refer to the words 'who in this opinion should be adequately punished by him.' Those words were intended to cover a case when the Magistrate is of opinion that he could not sufficiently punish the accused. But they were not intended to put restrictions upon the power of the Magistrate given so widely under Section 347 to commit for any reason whatsoever. The power to commit is conferred by Sections 207 and 347. Under Section 207 the Magistrate will commit the case to the Court of Session where it is exclusively triable by that Court or if in the opinion of the Magistrate it ought to be tried by such Court. The same words are repeated in Section 347 which empowers a Magistrate to commit if he finds that the case which is not exclusively triable by the Court of Session should be tried by the Court. There is no limitation in law on the power of the Magistrate to commit if he is of opinion that the case ought to be tried by the Court of Session. There is, in our opinion, no justification for holding that the Magistrate can commit a case to the Court of Session only when he cannot award adequate punishment. There may be cases where other considerations than adequacy of punishment may prevail upon the Magistrate to commit the case to the Sessions. One of such circumstances arose in the Punjab case where in a case of mutual riot the case against the other party was committed to the Sessions and the Magistrate thought that the case before him which was under Section 147 should also be committed to the Sessions in order to avoid conflict of decisions on the same facts. Such cases came up for consideration before the Allahabad High Court also, and the learned Judges were of opinion that-the procedure adopted by the Magistrate was proper [Empress v. Behari A.W.N. (1886) 256 and Queen-Empress v. Salamat Ullah Khan A.W.N. (1900) 206]. It must, of course, be conceded that when a Magistrate has committed a case which he should not have in the circumstances of that case committed such commitment may be quashed under Section 215 on the merits. We may also refer to In Re: Anunto Koyburt 17 W.R. Cr.14. where a commitment under Section 147 was quashed, on the recommendation of the Sessions Judge, by a Criminal Bench of, this Court without assigning any reason. It may be noted here that in the case before as the Chief Presidency Magistrate had made up his mind at the beginning of the trial to commit the accused and proceeded with it under Chap. XVIII. But we are not concerned now with the question of the propriety or otherwise or the procedure adopted or of the order passed by him.

6. In the view that we entertain on the questions raised before us we answer the points enumerated in the letter of reference by the Chief Presidency Magistrate in the following way:

Points Nos. 1-4.--In our opinion the Judge presiding over the High Court Sessions has no power to quash a commitment made to him by a competent Magistrate. It can only be quashed by the High Court in the exercise of its Revisional Jurisdiction.

Points Nos. 5 and 6.--If the Judge has the power to quash the commitment and if he acts under Section 215, it seems to us that the accused should stand discharged but if the Judge acts under Section 532 of the Code of Criminal Procedure, he has power to direct a fresh enquiry by a competent Magistrate.

Point 7.--According to the view we have expressed above the learned Judge was not right in quashing the commitment on the ground that the Magistrate had no power to commit unless he was satisfied that he could not award adequate punishment.

7. As the questions that were submitted before us for determination are all of general importance touching the right of the subject to claim the privilege of a trial by Jury even in a case which is triable by a Magistrate, and where the Magistrate is also of the same opinion, we refer the following questions for determination to a Full Bench:

(1) Has a Judge presiding over the Sessions of the High Court power under Section 215 of the Code of Criminal Procedure to quash a commitment made to him by a competent Magistrate?

(2) Where in a case triable by a Magistrate and not exclusively triable by a Court of Session the Magistrate commits to the Court of Session being of opinion that it should be tried by that Court without saying that he could not award adequate punishment or the case is such where maximum punishment is within the competency of the Magistrate is the commitment without jurisdiction?

8. Under the High Court Rules (Appellate Side) the case is referred to a Full Bench for orders.

9. The case was heard by a Full Bench.

George Claus Rankin, C.J.

10. On the 19th September 1928, Lort-Williams, J., exercising the jurisdiction of the High Court under the Presidency Towns Insolvency Act (III of 1909 as amended by Act IX of 1926) and being of opinion that there were grounds for thinking that certain insolvents had committed offences under Section 103 of the said Act, made a complaint under Section 104 thereof to the Chief Presidency Magistrate of Calcutta. The Magistrate issued process on the accused and from the earliest stage of the proceedings determined to conduct them under Chap. XVII of the Code of Criminal Procedure, being of opinion that the case was one which ought to be tried at the High Court Sessions. On the 17th December 1928, he formally committed the three accused, Girish Chandra Kundu, Sudhir Chandra Kundu and Pramatha Nath Kundu accordingly. On the 8th of March, 1929, the case came before Buckland J., in the Ordinary Original Criminal Jurisdiction of the Court. The learned Judge took the view that as on conviction for an offence under Section 103 of the Act of 1909, the maximum punishment to which the accused is liable is imprisonment for a term which may extend to two years and as there is no provision for imposition of a fine in addition to imprisonment, it was not possible to say of the offence charged that it could not be adequately punished by the Magistrate who has power to impose two years' imprisonment. In this view, being of opinion that the commitment was illegal, Buckland, J., directed that the commitment be quashed and that the record, with a copy of his judgment, be returned to the Chief Presidency Magistrate in order that he might deal with the complaint according to law. The accused persons had an opportunity before Buckland, J., of being heard upon the question whether the commitment should be quashed, but nothing was urged upon this point on their behalf. When the matter went back to the Magistrate, they filed a petition contending that the order of Buckland, J., read as a whole amounted to a discharge of the petitioners. The Magistrate thereupon has acted under Section 432 of the Code of Criminal Procedure with a view to obtaining a decision upon certain questions of law which he has indicated.

11. Section 432 provides that a Presidency Magistrate may, if he thinks fit, refer for the opinion of the High Court any question of law which arises in the hearing of any case pending before him; and Section 433 provides that when a question has been so referred the High Court shall pass such order thereon as it thinks fit and shall cause a copy of such order to be sent to the Magistrate by whom the reference was made who shall dispose of the case conformably to the said order. It will be observed that while the power of the Magistrate is to refer any question of law, the power of the High Court is So pass such order thereon as it thinks fit. In the present case the Magistrate has formally stated seven questions:

(i) What is the correct interpretation of Section 215 of the Code of Criminal Procedure?

(ii) Does it give power to the Judge presiding at the Sessions to quash a commitment made to him by a competent Magistrate?

(iii) Does it refer to a power of the High Court in its Revisional Jurisdiction?

(iv) Does it refer to both of these powers?

(v) If it gives the power referred to in (ii), what is the effect when the Judge so presiding quashes a commitment? Has it, as suggested by the accused in their petition, the effect of a discharge, so that the Committing Magistrate has no further jurisdiction in the matter, in the absence of a fresh complaint or can the Magistrate proceed with the case as it stood prior to his passing the order of commitment?

(vi) Subsidiary to the question raised in (to) is the question whether the Judge presiding at the Sessions has power to direct what shall be the effect of his order quashing the commitment.

(vii) The learned Judge in the present case has quashed the commitment on a point of law, viz., that the charge in the case under Section 103 of the Presidency Towns Insolvency Act is punishable with a maximum imprisonment of two years, that this being not more than the maximum punishment the Magistrate could award, his order of commitment was illegal....Is the Magistrate bound by that order, so that in. due course when the matter comes on again, he must not commit the case though with all respect, he differs from the view of the law thereby expressed, and is of opinion that he has power to commit the case?

12. Upon the reference coming before a Division Bench, the learned Judges have intimated their opinion and have referred two questions to this Full Bench for determination. Their opinion in substance is that Buckland, J., had no power to quash the commitment; that the ground upon which he decided to quash it was erroneous and that if he acted under Section 215 of the Code of Criminal Procedure, the accused should stand discharged. The two questions which they have referred to us are as follows:

(1) Has a Judge presiding over the Sessions of the High Court power under Section 215 of the Code of Criminal Procedure to quash a commitment made to him by a competent Magistrate?

(2) Where in a case triable by a Magistrate and not exclusively triable by a Court of Session the Magistrate commits to the Court of Session being of opinion that it should be tried by that Court without saying that he could not award adequate punishment or the case is such where maximum punishment is within the competency of the Magistrate, is the commitment without jurisdiction?

13. Now, it appears to me that the power of reference conferred upon the Presidency Magistrate by Section 432 of the Code is confined to questions of law which the Magistrate requires to decide in order to perform his duty in disposing of the case before him; and that the Magistrate ought not to refer to this Court questions of law unless they are matters upon which he has a duty to make up his mind. In substance the Chief Presidency Magistrate has in this case asked this Court to express its opinion upon three questions.

(1) Whether the learned Judge at Sessions had power to quash the commitment;

(2) whether he was right in law in quashing the commitment for the reasons given by him; and

(3) whether it is competent for the Magistrate to proceed in the absence of a fresh complaint or whether he can proceed with the case as it stood prior to his passing the order of commitment.

14. I have some difficulty in seeing that either of the first two questions is a question which arises in the hearing of the case pending before the Magistrate. I should have thought that for the purposes of this case the Magistrate had amply discharged his duty if he had taken the order of the High Court as an effective order quashing the commitment and had proceeded to deal with this case upon the footing that it was for him to deal with it himself as warrant case under the provisions of Chap, XXI of the Code of Criminal Procedure.

15. Assuming, however, that the first question which has embarrassed the Magistrate is the question whether it is open to him to ignore the order of the learned Judge and to treat it as null and void. I am of opinion that the answer to this question is in the negative.

16. Prior to Act XIII of 1865 which abolished Grand Juries in the Presidency towns, Original Criminal Jurisdiction of the High Court over an individual accused was based upon the presentment of the Grand Jury. Act XVIII of 1862 contained elaborate provisions for the amendment of indictments and provided that every verdict and judgment should be of the same force and effect in all respects as if the indictment had originally been in the amended form. It contained also various provisions according to which an offence might be dealt with, tried and punished by the Supreme Court according as the offence had been either commenced or completed, or as the consequence had ensued, within the local jurisdiction of the Court. It gave jurisdiction in the case of offences committed on a journey or on a voyage in British India. It provided that every objection to an indictment for uncertainty or for any formal defect apparent on the face thereof should be taken by demurrer or motion to quash such indictment before the Jury had been sworn and not afterwards. It defined the word 'indictment' to include information, inquisition or presentment as well as indictment; and also plea application or other pleading.

17. Act XIII of 1865 provided that any Magistrate who shall commit to custody or hold to bail any person for trial before the High Court for an offence committed, or which according to law may be dealt with as having been committed, within the local limits of its Ordinary Original Civil Jurisdiction, should deliver to the Clerk of the Crown a written instrument of charge signed by him stating for what offence such person is so committed or held to bail. It empowered the Clerk of the Crown to alter, amend or add to the charge and directed that the charge, with such amendments, alterations or additions, if any, should be recorded in the High Court. Section 6 enacted that upon the charge being recorded as aforesaid, the persons committed to custody or held to bail shall be deemed to have been brought before the High Court in due course of law and should be arraigned at suit of the Crown and the verdict recorded thereupon. Under this Act it is evident that the foundation of the jurisdiction of the High Court was the written instrument of charge signed by the Magistrate and delivered by him to the Clerk of the Crown. It was only after charges so made had been recorded that the accused were to be deemed to have been brought before the High Court in due course of law.

18. Between 1865 and the enactment of the Criminal Procedure Code of 1872 the effect of these provisions of the Act of 1885 was considered in Queen v. Thompson 1 B.L.R.O.Cr. 1. The accused was tried for an offence committed on board a British ship on the high seas. The written instrument of charge in that case had in fact been made by a Magistrate but the fact did not appear from the instrument itself. Peacock, C.J., made it clear that if in fact it had not been preferred by a Justice of the Peace it could not have been supported. But with reference to the provisions which I have already cited from Act XVIII of 1862, he held that 'although we do not see on the face of the record that the charge has been preferred by a Justice of the Peace, we know that it was so preferred and that the Judge presiding at the trial would not have quashed the charge for the defect now relied upon but would have caused the charge to be amended ' He refers to Section 41 of Act XVIII of 1862 and to Section 7 of Act XIII of 1865 which provided that in the former Act the word 'indictment' should be understood to include the word 'charge' and that all the provisions of the said Act should apply to charges recorded as aforesaid and the trial of such charges. It is clear, therefore, both on authority and on the terms of the Statutes themselves, as well as upon principle that after 1865 the power of the Court to quash an indictment had become a power to quash the charge comprised in the written instrument of charge delivered by a Justice of the Peace to the Clerk of the Crown.

19. The written instrument of charge, or as it is now called the order of commitment has from 1865 onwards a double aspect : it is in the first place an order of the Magistrate; it is in the second place the foundation of the jurisdiction of the superior Court. It may be regarded in either of these ways and it may have to be dealt with under either aspect.

20. This was the position when the Legislature passed the Criminal Procedure Code of 1872 which purported to be 'an Act for regulating the procedure of the Courts of Criminal Judicature, other than the High Courts in Presidency towns in the exercise of their Original Criminal Jurisdiction.' Chapter XV of that Code dealt with the procedure to be adopted in enquiries before Magistrates in cases triable by Courts of Session or High Courts. Section 196 provided that when evidence has been given before a Magistrate which appears to justify him in sending the accused person to take his trial for an offence which is triable exclusively by the Court of Session or High Court, or which in the opinion of the Magistrate is one which ought to be tried by such Court, the accused person shall be sent for trial by such Magistrate before the Court of Session or High Court as the case may be. Section 197 was as follows:

If such accused person (not being a European British subject) is accused of having committed an offence conjointly with a European British subject who is about to be committed for trial, or to be tried, before the High Court on a similar charge and the evidence appears to justify the Magistrate in sending the accused person for trial, he shall commit such accused person to take his trial before such High Court, and not before a Court of Session; and such High Court shall have jurisdiction to try such person.

Explanation.--A commitment once made by a competent Magistrate can be quashed by the High Court only, and only on a point of law. This explanation applies also to section one hundred and ninety-six.

21. It may well be that in this Code, as in the subsequent Codes, the definition of 'High Court' (which is the same as that now appearing in Section 4 of the Code of 1898) is one that does not always fit in with the meaning of the words as used. This is no great matter in the Code of 1872 as Section 4 of the Act qualifies the definition therein contained by the phrase 'unless a different intention appears from the context.' Remembering, however, that it was no part of the purpose of the Act of 1872 to regulate the procedure of High Courts in the exercise of their Original Criminal Jurisdiction, we will find it impossible to suppose that an 'explanation' appended to Section 197 of this Code which itself speaks of 'trial before the High Court' was intended to alter the law under which a High Court Judge at Sessions had the right and the duty to quash the charge if the prisoner had not been brought before him in due course of law. In the Code of 1882 this explanation re-appears as Section 215. In that Code the old definition of 'High Court' is still applicable to Chap. XVIII. Section 215 re-appears in the Code of 1898 in which Code the definition applicable to Chap. XVIII is the definition in Section 266.

22. In my judgment the question is put upon a wrong footing if it be asked in the form whether the power conferred by Section 215 is conferred upon the Judge exercising the Ordinary Original Criminal Jurisdiction. To begin with the internal arrangements of the High Court are dealt with by its Rules and the Code does not decide what functions can be exercised by a single Judge or must be exercised by a Division Bench. It deals with the High Court as one and the definitions of High Court are not intended to do more than to point to the Court itself so as to distinguish it from other Courts. In the second place Section 215 is a negative or restrictive section. It is intended to negative the existence in Sessions Court of power to quash a commitment and it is intended to restrict the High Court to cases in which it can be said that the commitment is bad in law. This last restriction is a restriction put upon all powers which the High Court might otherwise possess. I have no doubt at all that it is a restriction which attaches to the powers of the High Court in revision. Indeed as a Court of trial there could be no question of the High Court quashing a commitment on the ground that the evidence would not support the charge. But it is a very different matter to contend that it takes away by implication any other power to quash a commitment for illegality which the High Court may have had. If a Judge of the High Court trying a prisoner discovers that the accused or the offence is, for any reason, outside the jurisdiction of the Committing Magistrate or that the accused has been brought before him by an illegal order of an inferior Court, it is clearly his duty to take some action upon these considerations. His concern with Section 215 is, in my judgment, only this that he is bound to see that he does nothing which the section prohibits.

23. The question of what he has to do takes us first to Section 532 of the Code. This section, it is to be observed, is one of a series which give power to remedy defects of procedure, which otherwise might result in criminal proceedings being set aside for errors not productive of injustice. Section 532, in my opinion, is directed to the case of commitments that are bad by reason of a defect personal to the Committing Officer. It envisages a Magistrate purporting to exercise powers duly conferred upon him and this in my judgment is a reference to Section 206. The case supposed is one in which every thing that has been done has been regular but the person who has committed the accused for trial is not empowered so to do. In these circumstances Section 532 provides that if the Court of Session or High Court considers that the accused has not been injured by the irregularity, it may accept the commitment, provided, however, objection had not been made to the jurisdiction of the Magistrate before the order of commitment was made. This section, in my opinion, has no reference to a case in which a Magistrate who has general powers to commit an accused person to the High Court commits an accused over whom he has no jurisdiction or commits him for an offence which, upon a true construction of the Code, is not triable by a Court of Session or High Court. Section 532 has, in my judgment, no application to the present case but it does remind us that an order of commitment has a double aspect, being at once an order of the committing Court and an order which is the foundation of the jurisdiction of the higher Court. For the limited purposes of the section the Court of Session as well as the High Court has to make up its mind whether to accept a commitment or to quash a commitment. The section is a curing or remedial section and it must be strictly interpreted in the interests of accused persons. It is idle to argue from the provisions of this section that it assumes or implies that the High Court at a trial has no other authority to quash a commitment.

24. The next section to be considered is Section 273. This is a special power given to High Courts. If it appears to the High Court at any time before the commencement of the trial 'that any charge or any portion thereof is clearly unsustainable, the Judge may make on the charge an entry to that effect' and 'such entry shall have the effect of staying proceedings upon the charge or portion of the charge as the case may be.' In my judgment this section has no reference to cases of illegal commitment. The reference to portions of a charge and to the charge or portion thereof being clearly unsustainable is sufficient to show that the section is intended to provide a short and effective way by which charges which have no merits may be disposed of.

25. The prohibition in Section 215 by which the High Court is limited to a point of law as a reason for quashing a commitment, has, in my opinion, a plain purpose. In Charoo Chunder Mullick v. Empress 9 C. 397 the Court refused an application under Section 147 of the High Courts Criminal Procedure Act (X of 1875) finding that the object of the application was to get an order quashing a commitment on the ground that there was an insufficient case upon the evidence. The Judges pointed out that if a commitment may be quashed upon the merits and application to this effect may be made, it would in practice be made only in doubtful cases. If such an application were entertained and refused the result would be that a prisoner committed upon evidence sufficiently weak to make the result of a trial doubtful would come to his trial prejudiced by the opinion of the High Court pronounced' against him to the effect that the commitment ought not to be quashed. Applications of this character would clearly be objectionable. But Section 273 provides suitably for this very class of case. The charge must be 'clearly' unsustainable or else the Judges will not take into his own hands the functions of the Jury.

26. If these Sections 5325 and 273 are not addressed to a case in which the High Court as a Court of trial has before it a prisoner whose commitment is contrary to law in the sense that he is not amenable to the jurisdiction of the Court at all, it would seem that there is no express provision in the Code to direct the Judge's action. The Sessions Judge has a power of reference to the High Court. In the High Court Judge left in such a case to some irregular or informal arrangement by which he may call in aid a different jurisdiction of the Court--the revisional jurisdiction over the Committing Magistrate? Or is he to say to the prisoner, 'You have made a very good plea in bar but I cannot listen to it. I will try you though I see have no right to try you but I will let you take your objection on the general issue'? One may well hesitate to impute either intention to the Legislature.

27. As it appears to me to be clear that prior to the Code of 1882 at all events, the right and duty of the High Court at Sessions to quash a charge is plain, I am of opinion that before it could be held that the Judge in the exercise of the Original Criminal Jurisdiction of this High Court is unable to quash a commitment, it must be shown from the language of the Code or from the scheme of the Code that the Legislature has taken away this power prima facie incident to any superior Court receiving commitments from lower Courts as the basis of its own jurisdiction. In my opinion no construction that could properly be placed upon a. 215 of the Code could be put so high. The Legislature in this matter has, I think, been somewhat wiser than has been supposed. It has been content, in view of the revisional powers of the High Court, to take away the power of quashing a commitment, save under Section 532, from Courts of Session on which formal powers of reference have been conferred, and to leave the powers of the High Court upon this matter unaffected by special provisions save that commitments are not to be quashed except upon a point of law. The Code of 1882 intends no more than the Code of 1872 intended. It was unnecessary for the purpose of Legislature in any of the Codes and it was no part of its scheme, to analyse High Courts as though they were a complex of jurisdictions or to set forth the different ways and occasions which might present the question of quashing a commitment for the consideration of High Courts.

28. In the present case the High Court has in fact quashed the commitment and I think in answer to this reference the Chief Presidency Magistrate may be informed that it is his duty to treat that order as a valid and subsisting order.

29. The next question raised by the Magistrate is whether the order of Buckland, J., has the effect of a discharge so that the Magistrate has no further jurisdiction in the matter in the absence of a fresh complaint, or whether the Magistrate can proceed with it as it stood prior to the passing of the order of commitment. To this question I would reply that while the primary effect of the order quashing the commitment is to supersede any action taken by the Magistrate under Section 210, and his proceedings subsequent thereto, it is necessary for the Magistrate in this case to go back to the point at which he took cognizance of the complaint, There is no need whatever for a fresh complaint, but it is necessary for the Magistrate to treat the case as a warrant case and not as a subject-matter of an enquiry under Ch. XVIII. The Magistrate must begin the trial afresh under Section 252.

30. The last question raised by the Magistrate concerns the merits of the order of Buckland, J., and raises the question whether the learned Judge was right in holding that it is illegal for a Magistrate to commit the accused to trial when the offence is neither exclusively triable on commitment nor one of which it is possible to hold that the Magistrate has insufficient power to inflict adequate punishment.

31. That the Magistrate should think fit to raise this question is presumably to be explained by the circumstance that he entertains a doubt whether or not the order of the learned Judge was without jurisdiction. That doubt having been resolved, it is not to be supposed that the Magistrate will entertain a suggestion that when he rehears the case, he should again commit the accused to the High Court Sessions. Such a procedure would in this case be in the highest degree disorderly. The question whether it is lawful for the Magistrate to commit this case to the High Court Sessions has been decided by this Court once. This Full Bench is not sitting on appeal from the order of the learned Judge. Whatever be the difficulties in the question raised and whatever be the answer, there is only one order which could in this case be correct and I am of opinion that it is open to us on this reference to direct the Chief Presidency Magistrate to proceed with the case as a warrant case and to try it as such in conformity with the decision which has already been given in the presence of the accused.

32. This reference to the Full Bench has been made under Rule 5 of Ch. VII of the Rules of the' Appellate Side. Under this rule the whole case is referred to the Full Bench for such orders as to the Full Bench may seem fit. The order which I would propose is as follows:

1. Declare that the order of Buck-land, J., is a valid and subsisting order.

2. Direct the Chief Presidency Magistrate to try the accused under Oh. XXI of the Criminal Procedure Code upon the basis of the complaint already made.

3. Direct the Magistrate that he is not again to commit this case for trial at the High Court Sessions.

4. Save as aforesaid, this Court does not think fit to make any further order upon this reference.

Charu Chunder Ghose, J.

33. I agree.

Lindsay Philip Buckland, J.

34. I agree

B.B. Ghose, J.

35. I agree.

Mukerji, J.

36. I agree.


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