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Bee Bnn and Co. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1973CriLJ391
AppellantBee Bnn and Co.
RespondentThe State
Cases ReferredSamaila v. Emperor
Excerpt:
- .....presidency magistrate chief judicial magistrate.3. district magistrate4. magistrate of the first class judicial magistrate 5. sub-divisional magistrate of the first class6. magistrate of the second class judicial magistrate7. magistrate of the third class of the second class.8. magistrate (except where it occursin any expression mentioned above) judicial magistrate.(2) when. no court is so mentioned, it may be tried by the high court or subject as aforesaid by any court constituted under this code by which such offence is shown to be triable in the 6th column of the second schedule under the heading offences against other laws.4. the corresponding section 29 in the central code of criminal procedure is to the following effect:subject to the other divisions of this code, any offence.....
Judgment:

Mufti Baha-Ud-Din Farooqi, J.

1. This is an application for transfer in 24 criminal cases mentioned annexure-A to the application, pending on the file of Sub Judge Judicial Magistrate 1st class Ramban. All these cases have arisen under the Motor Vehicles Act, 1939 within the territorial jurisdiction of the said Judicial Magistrate.

2. The only point canvassed before us in support of the transfer was that the Judicial Magistrate Ramban has no jurisdiction to try these cases. The objection is founded on the plea that by Notification SRO No. 274 dated 3.7.1971 and SRO No. 467 dated 4th October, 1971 issued under Section 14(1) of the Code of Criminal Procedure two special Judicial Magistrates by nam e with concurrent powers have been appointed for the Sessions Division of Jammu Kathua Doda and Udhampore for the trial of offences under the Motor Vehicles Act, 1939 till further orders who alone it is asserted, are competent to try such cases arising from these Sessions Divisions which include the Ramban area as well.

3. Section 29 of the State Code of Criminal Procedure as amended by the J. and K. Separation of Executive and Judicial Functions Act, 1966 reads as follows:

Offences under other laws: (1) Subject to the other provisions of this Code any offence under any other law shall, when any court is mentioned in this behalf in such law be tried by such Court:

Provided that if the court so mentioned is a Court specified in Col. (1) of the Table below, such offence shall be tried by the Court of the Judicial Magistrate specified against it in Col. (2) thereof.

TABLE

Name of Court Court by which Specified in the Law Triable(1) (2)1. Chief Presidency Magistrate2. Presidency Magistrate Chief Judicial Magistrate.3. District Magistrate4. Magistrate of the first class Judicial Magistrate 5. Sub-Divisional Magistrate of the first class6. Magistrate of the second class Judicial Magistrate7. Magistrate of the third class of the second class.8. Magistrate (except where it occursin any expression mentioned above) Judicial Magistrate.(2) When. no court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown to be triable in the 6th column of the Second Schedule under the heading offences against other laws.

4. The corresponding Section 29 in the Central Code of Criminal Procedure is to the following effect:

Subject to the other Divisions of this Code, any offence under any other law shall, when any court is mentioned in. this behalf in such law be tried by such Court.

(2) When no court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the second schedule to be triable.

5. Interpreting this section the Supreme Court in State of U.P. v. Sabir Ali : 1964CriLJ606 observed:

But Section 29 says that offences under any other law shall be tried by that court which that law mentions and. it is only when no court is mentioned that 8th column of second schedule is applicable.... The words of Sub-section (1) of Section 29 are peremptory. There is no escape from them.

6. These observations apply with equal force to Section 29 of the State Code of Criminal Procedure.

7. Now Section 132 of the Motor Vehicles Act 1939 provides as follows:

No court inferior to that of a Presidency Magistrate or a Magistrate of the second class shall try an offence punishable under this Act or any rule made thereunder.

8. Read with Section 29(1) of the State Code it is clear that the offences under the Motor Vehicles Act are triable by a Chief Judicial Magistrate. Judicial Magistrate of the First Class or a Judicial Magistrate of the Second Class. To hold that such offences are triable by a Special Judicial Magistrate only would render the Divisions of Section 132 of the Motor Vehicles Act and Section 29(1) of the Code of Criminal Procedure redundant and useless. The inevitable conclusion is that the jurisdiction of such Special Judicial Magistrate to try offences under the Motor Vehicles, Act is concurrent with the ordinary Judicial Magistrates competent to try these offences.

9. There is one more ground on which this conclusion may be supported. The ordinary Judicial Magistrates are appointed under Section 12(2 & 3) of the State Code of Criminal Procedure. Section 14 provides for the appointment of Special Judicial Magistrate in respect of particular cases or particular class or classes of cases or in regard to cases generally in any local area. Section 15 provides for the constitution of a Bench which may be invested with powers of a Judicial Magistrate of first or second class to be exercised by it in such eases or classes of cases and within such local limits as may be directed. Then comes Section 17 which says:

Subordination of Assistant Sessions Judges. Judicial Magistrates and Benches to Sessions Judge and Chief Judicial Magistrate. (1) All Judicial Magistrates appointed under Sub-sections (2) and (3) of Section 12 and Sub-section (1) of Section 14 and all Benches constituted under Section 15, shall, subject to the control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate and he may from time to time, make rules or give special orders consistent with this Code as to the distribution of business among such Magistrates and Benches.

10. Here the Judicial Magistrate appointed under Sub-sections (2) and (3) of Section 12 and Sub-section (1) of Section 14 and benches constituted under Section 15 are grouped together and placed under the Chief Judicial Magistrate for allocation of business. If it were that the courts of Special Judicial Magistrate appointed under Section 14 or those of Benches constituted under Section 15 formed a class by themselves distinct from the courts of ordinary magistrates, then there could be no point in grouping them with the ordinary magistrates appointed under Section 12 and putting them under the control of the Chief Judicial Magistrate for allocation of work. This also shows that, the Jurisdiction of such Special Judicial Magistrates or the Benches in respect of the cases they are authorised to deal with is concurrent with that of the ordinary magistrates appointed under Section 12.

11. There is still another ground to fortify the conclusion. The provisions of Section 14(1) or those of Section 15 are supplemental to and not in derogation of the provisions of Section 12(2 & 3). The, appointment, of a Special Judicial Magistrate under Section 14 cannot therefore be treated as derogatory to the appointment of Judicial Magistrate under Section 12(2 & 3) nor also can the jurisdiction conferred on such Special Judicial Magistrates or the Bench be construed as ousting the jurisdiction of ordinary Magistrates appointed under Section 12(2 & 3) to deal with such cases.

12. In : AIR1967MP94 , relied upon by the learned Counsel for the applicant, it was held in similar circumstances as in the present case that the Special Magistrates appointed under Section 14 and not the ordinary courts have jurisdiction to try the offences arising under the Motor Vehicles Act. The decision proceeded on the basis that no particular court was mentioned in Section 132 of the Motor Vehicles Act and that therefore Section 29(2) of the Code of Criminal Procedure applied and as such the cases arising under the Motor Vehicles Act were either triable by the High Court; or by a special Magistrate appointed under Section 14(1) as the court duly constituted under Section 29(2). With respect, I may say that the reasoning is not correct, Section 132. Motor Vehicles Act mentions the courts who may try the cases under the said Act and therefore Section 29(1) and not Section 29(2) was applicable. Assuming however that Section 29(2) was applicable then these cases would be triable by the High Court or by any court constituted under the Code by which such offence is shown in the eighth column of the second schedule to be triable. The last entry in the second schedule provides for the trial of offences under any other law which are punishable with imprisonment for less than one year or with fine only and they are triable by 'any magistrate' under the Central Code. The offences under the Motor Vehicles Act belong to this category and could therefore be triable by 'any magistrate' and not only by a Special Magistrate appointed under Section 14(1) as held by the learned Single Judge of the Madhya Pradesh High Court.

13. Reliance has been placed on the judgment of the Madhya Pradesh High Court and so also before us on a decision of the Lahore High Court in case Samaila v. Emperor AIR 1917 Lah 138. In that case a notification was issued under the Defence of India Act by which it was provided that:

All persons Who are accused of the offence of dacoity...committed at or near basti Naurang...on or about the 27th of February 1915...shall be tried by three Commissioners appointed under the provisions of the said Act.

and it was held that the notification ousted the jurisdiction of ordinary courts in respect of offences and persons mentioned in the notification. This notification was obviously issued under a law other than the Code of Criminal Procedure. It was therefore rightly held that the jurisdiction of the ordinary courts was ousted under Section 29 of the Code of Criminal Procedure. This is not the case here nor was it so in the case before the Madhya Pradesh High Court. The notification relied upon in the present case as also in the case decided by the Madhya Pradesh High Court was one issued under Section 14(1) of the Code of Criminal Procedure. As such the decision in this case could not be called in aid to support the conclusion that the issue of the notification ousted the jurisdiction of the ordinary courts.

14. In these circumstances I am of the opinion that the jurisdiction of the Judicial Magistrate First Class Ramban to try cases arising under the Motor Vehicles Act within his territorial jurisdiction is not ousted by the appointment of a special Magistrate under Section 14 for the trial of such cases in respect of the area including the Ramban area. The contention to the contrary raised by the learned Counsel for the applicant must therefore fail.

15. In the result I find no force in this application which is hereby dismissed.

Jaswant Singh, J.

16. I agree


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