the State of Uttar Pradesh v. Khushi Ram

Judgment

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 160 of 1959. Appeal by special leave from the judgment and order dated October 30, 1958, of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Appeal No. 105of1957, arising out of the judgment and order dated February 12, 1957, of the Second Temporary Civil and Sessions Judge at Barabanki in Criminal Sessions Trial No. 102 of 1956. G. 0. Mathur and 0. P. Lal, for the appellant. The respondent did not appear. 1960. April 1. The Judgment of the Court was delivered by SARKAR, J.-The respondent was prosecuted before the Judicial Magistrate, Barabanki, for offences under els. (i) and (iii) of s. 7 of the Prevention of Food Adulteration Act, 1954, for selling adulterated milk and for selling milk without a licence. The learned Magistrate found that the offences had been proved and further that, the respondent had committed the offences for the third time. Under cl. (a) (iii) of subsec. (i) of s.

16 of the Act, in the absence of special and adequate reasons to the contrary, for a third offence the imprisonment to be awarded cannot be for less than two years and the fine to be imposed not less than three thoueand rupees. Section 32 of the 429. Criminal Procedure Code however provides that a Magistrate of the first class shall not have power to impose ~ sentence of fine exceeding rupees two thou- .sand. Under the impression that bis power as a Magistrate of the first class to impose sentence was limited by s. 32 of the Code the learned Judicial Magistrate committed the respondent to stand his trial before the Court of Session, presumably acting under s. 34 7 of the Code of Criminal Procedure. The respondent was thereupon tried by a learned Sessions Judge of Barabanki who found him guilty of the offences with which he had been charged.

The learned Sessions Judge however came to the conclusion that the offences had been commit~ed by the respondent for the second time and not the third. He observed that the learned Judicial Magistrate was competent to award the minimum punishment prescribed by the Act for a second offence and should not have committed the case to the Court of Session at all. He however convicted the respondent and awarded the minimum sentence prescribed by the Act for a second offence, namely, rigorous imprisonment for one year and a fine of rupees two thousand and, in default, rigorous imprisonment for a further period of six months for each of the offences and directed the sentences of imprisonment to run concurrently. The respondent then ap_pealed to the High Court at Allahabad. Mulla, J., who heard the appeal pointed out that the learned Judicial Magistrate had overlooked the provisions ofs. 21 of the Act which provides that notwithstanding anything contained in s.

32 of the Code it shall be lawful for a Magistrate of the first class to pass any . sentence authorised by the Act in excess of his powers under s. 32 of the Code. The learned Judge observed that the learned Magistrate ·was therefore quite competent to award all punishments that the law required and had no reason to commit the respondent to a Court of Session. 'He took the view·that a Court of Session could try only those cases which were legally and properly committed to it by a, MB.gistra,te a,nd tha,t s. 21 of the Act was not only an enabling provision but also a disabling one., He held that s. 21 of the Act prevented a commitment to State of Uttar Pradesh Khushi Ram Sarkar]. r960 State of Uttar Pradesh I< hushi Ra1n ·Sarkar]. [1960) the Court of Session by a Magistrate of the first class.

He observed, "Where a special Act has made a special provision for punishment to be awarded by a Magistrate irrespective of the limitations placed upon .hi5! powers under the Criminal Procedure Code, it amounts to an abrogation of the general law and the provisions of s. 347 of the Criminal Procedure Code cannot be applied to such a case." In this view of the matter he held that the learned Judicial Magistrate had no power to commit the respondent to the Court of Session for trial and the learned Sessions Judge had no jurisdiction to try t!he case. He thereupon set aside the order of conviction and the sentence passed against the respondent and remanded the case to the District Magistrate of Barabanki to be transferred by him to the Court of a competent Magistrate for trial and disposal. The State has appealed to this Court against the judgment of Mulla, J. We are unable to agree with the view of Mulla, J., that the learned Sessions Judge had-no jurisdiction to try the case.

We do not think that s. 21 of the Act ·is a disabling provision. All that it does is to authorise a Magistrate of the first clas~ to award a sentence beyond the limits prescribed for him under s. 32 of the Code. It does not affect the provisions of ss. 207 and 347 of the Code, nor has it anything to do with the jurisdiction of a Court of Session. The section does not make commitment by a Magistrate competent to award the full sentence prescribed by the Act, a nullity; nor does the section interfere with the jurisdiction of a Court of Session to deal with a matter committed to it in spite of its provisions. The jurisdiction of a Court of Session depends upon the Code. It has jurisdiction to try .any case which is committed to it. The case against the respondent had been committed to a Court of Session by a Magi-· strate having power to cominit. Further, the Magi- 3trate did not laC<k territorial jurisdiction to commit.

It may be that the Magistrate was competent to try the case and award all punishments prescribed by law. It is also true that the Magistrate was not compelled to commit the case to a Court of Session. We are unable to subscribe to the view that a commitment in such circumstances is itself void. Neither do we understand Mulla, J., to take the view that apart from s. 2 L of the Act, the commitment was void because the learned Magistrate could himself have awarded the maximum sentence provided. We have said that s. 21 does not take away the power of the Magistrate if he has such power, to commit, nor affect the jurisdiction of a Court of Session to try a case committed to it by a Magistrate empowered to do so. Therefore it seems to us that the learned Sessions Judge had full jurisdiction to try the case against the respondent. In the result we allow the appeal and set aside the order of the High Court. The case will now go back to the High Court to be heard on merits. Appeal allowed.

N AND LAL MISRA K. L. MISRA (K. SuBBA RAo and J.C. SHAH, JJ.) Maintenance-Provisions of s. 488 of the Code of Criminal Procedure-Mandatory-Preliminary enquiry not contemplated- Proceedings under Chapter XXXV I, Code of Criminal Procedure-of civil nature-Question of paternity to be decided by the Magistrate. The appellant who was a minor filed an application by his mother as his guardian' under s. 488 of the Code of Criminal· Procedure in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, for maintenance alleging that he was his putative father. The Magistrate summarily dismissed the appellant's application without issuing notice to the respondent as required by s. 488, Criminal Procedure Code.

The Court of Session in revision against the Magistrate's order came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent and submitted the record to the High Court recommen<ling that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the application in accordance with law. The High Court rejected the Sessions Court's reference and refused to certify that the case was a fit one for appeal to the Supreme Court. On appeal by special leave : Held, that the appellant was not given full opportunity to 1ist~ljlish his case in the manner prescribed by law. State· of Uttar Pradesh J{hushi Ram Sarkar]. April I.