A.K. Joshi vs The State of Andhra Pradesh

Gangadhara Rao, J.—This petition is filed by the accused to quash the order of the 4th Metropolitan Magistrate, Hyderabad in PRC. 17/77 (C. C. No. 519/76).

The Inspector of Police, Crime Branch, C.I.D. Hyderabad, filed a charge-sheet against the accused alleging that the accused being a clerk in the Bank of India Branch at Hyderabad, had forged the signature of one S.S. Zafar, holder of Accounts Nos. 2122 and 4060 and opened two false accounts Nos. 3037 and 3951 in the name of one Sallahuddin Zafar at State Bank of Hyderabad, Sultan Bazar and Union Bank of India posing himself to be S.S. Zafar and cheated the Bank of India to the tune of Rs. 11,837.84 p., and thereby committed an offence under Sections 419, 420 and 467 of the I, P. C. The case was taken on file by the 4th Metropolitan Magistrate, Hyderabad as C. C. No. 519/76. On behalf of the prosecution P. W. 1 was examined and P. W. 2 was cross-examined in part. During the trial it came to light that the accused was involved in two calendar cases, C. C. Nos. 518 and 519 of 1976, for offences of forgery, cheating and theft by a servant. In the circumstances of the case, the Magistrate opined that this case should be tried by the Court of Session and therefore he converted the C. C. into a Cr.P.C. and committed the case to the Court of Metropolitan Sessions Judge u/s 323, Cr.P.C. Questioning that order, the accused has filed this petition.

It is submitted on behalf of the petitioner that no reasons are given by the learned Magistrate to commit the accused to the Court of Session and the circumstances of the case do not also warrant such committal.

Section 323, CR.P.C. provides that if, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case i3 one which ought to be tried by the Court of Session, he shall commit it to that Court. u/s 323, Cr.P.C. what is necessary is that it should appear to the Magistrate at any stage of the proceedings that the case is one which ought to be tried by the Court of Session. It is not necessary that the offence should be exclusively triable by the Court of Session. The Section does not say that reasons should be given by the Magistrate.

The learned Counsel for the petitioner relied upon the decision in Marakula Agamma and Others Vs. The State of Andhra Pradesh, In that case, it was observed by Punnayya, J. that the inability to award adequate punishment does not constitute a valid ground for committing the accused to the Court of Session by a Magistrate u/s 323, Cr.P.C. since Section 325 gives the power to the Magistrate in such a case to submit, without convicting the accused, the case to the Chief Judicial Magistrate who is competent to award a sentence of imprisonment up to seven years. The learned Judge further observed that even the ground that heavy amounts were involved in the case and hence the case ought to be disposed of by Sessions Court is not a proper ground for committing the case u/s 323 to the Court of Session.

The learned Counsel for the petitioner also relied upon the decision of the Karnataka High Court in Shivarajveerappa Purad and Another Vs. State of Karnataka and Another, . The learned Judge held that Section 323, Cr, P. C, had no application to the facts of that case. They observed that if the Magistrate feels that the ac- cused in a case tried by him deserves more severe punishment than what he is empowered to give, he could take recourse to Section 325, Cr.P.C.

The learned Public Prosecutor relied upon the decision of Chennakesav Reddy, J. in V. Veena Raghavallo and Others Vs. State, The learned Judge observed that if the Magistrate is of the opinion that the case should be tried by a Court of Session, he can commit the case to the Court of Session. Section 323, Cr.P.C. requires merely the opinion of the Magistrate but not his satisfaction. The said opinion may be on the basis of the nature and gravity of the offence, the punishment to be met and such other matters of aggravation. In this connection, the learned Judge followed the decision of the Madras High Court in In Re: Sant Prakash Sahni,

In the matter of Chinnimarigadu ILR (1876) Mad 289, a Full Bench of the Madras High Court held that a Magistrate to whom a case was referred for enhancement of punishment u/s 46 of the Cr. P, C, may order committal of the case for trial by the Sessions Court. The Full Bench were of the opinion that it was quite competent for the Magistrate, to whom the case was referred, to say that, either from the gravity of the matter or for any other sufficient reason, the Sessions Court was the proper Tribunal for the disposal of the case, and to make an order in accordance with that opinion. Unfortunately, this decision was not brought to the notice of Punnayya, J. in Marakula Agamma and Others Vs. The State of Andhra Pradesh, (supra). I am of the opinion that each case must be decided on its own facts and no hard and fast rule can be laid down. Section 323 does not lay down any conditions, except that it must appear to the Magistrate that the case is one which ought to be tried by the Court of Session. Then, he can commit that case to Court of Session. In view of the Full Bench decision in the matter of Chinnimarigadu (supra), it is not necessary to refer to a Division Bench to decide the correctness of the decision of Punnayya, J. in Marakula Agamma v. State of A.P. (supra). Chennakesav Reddy, J., in V. Veena Raghavallo and Others Vs. State, followed the decision of Madras High Court In Re: Sant Prakash Sahni, which in its turn had followed the decision in the matter of Chinnimarigadu.

On the facts of this case, I am of the opinion that the learned Magistrate is justified in holding that it is case fit to be tried by the Court of Session and thereby committing it. Consequently, this petition is dismissed.