Balbir Singh vs The State

A.N. Bhandari, C.J.—This petition raises the question whether the Criminal Procedure Code Amendment Act, 1955-abrogates the powers conferred on Magistrates of the First and Second Class to try certain offences according to the entries in the Second Schedule of the Code of Criminal Procedure.

A Magistrate of the First Class, exercising enhanced powers u/s 30 of the Code of Criminal Procedure, convicted the two petitioners in this case u/s 326 of the Penal Code and sentenced them to rigorous imprisonment for a period of two years each, and the sentence of the trial Court was upheld by the learned Sessions Judge in appeal.

When the case came up for consideration before a learned Single Judge of this Court a question arose whether it is within the competence of a Magistrate of the First Class, exercising enhanced powers u/s 30 of the Code of Criminal Procedure, to try an offence punishable with imprison merit for a period exceeding seven years. As the question involved is of some importance, the learned Single Judge has expressed the view that it should be placed before a larger Bench.

Chapter III of the Code of Criminal Procedure which relates to powers of courts contains the number of sections which ate relevant to the (Incision of the case. Section 28 is in the following terms:

"28. Subject to the other provisions of this Code any offence under the Indian Penal Code may be tried

(a) by the High Court, or

(b) by the Court of Sessions, or

(c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable."

Section 29 runs as follows :

"29(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.

(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."

(29-B) * * * * * * * * * (30) In Assam, Madhya Pradesh, Punjab, Oudh Madhya Bharat, Hyderabad, Mysore, Patiala and East Punjab States Union and Rajasthan, in all Part C States and in those parts of the other States in which there are Deputy Commissioners or Assistant Commissioners the State Government may, notwithstanding anything contained in Section 28 or Section 29 invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death."

4) The entry against Section 326 is the Second Schedule to the Code of Criminal Procedure is as follows:

1 2 3 4 5 6 7 8

Section

Offence

Whether the police may arrest with-out warrant or not.

Whether a shall ordinarily issue In the first

Whether ballable or not

Whether compoundable or not

Punishment under the Code.

By whatCourt triable.

326

Voluntarily causing hurt by dangerous weapons or means

May arrest with warrant

Summons

Not ballable

Not compound able

Imprisonment for life or Imprisonment of either des-cription for 10 years and fine

Court of Sessions,Presidency Magistrate or Magistrate of the first class.

The Code of Criminal Procedure (Amendment) Act, 1955 has replaced Section 30 by a new section winch is in the following terms:

"30. Notwithstanding anything contained in Section 28 or Section 29, the State Government may, in consultation with the High Court, invest any District Magistrate, Presidency Magistrate or Magistrate of the first class with power to try as a Magistrate all offences not punishable with death or with imprisonment for life or with imprisonment for a term exceeding seven years;

Provided that no District Magistrate, Presidency Magistrate or Magistrate of the first class shall be invested with such powers unless he has, for not less than ten years, exercised as a Magistrate powers not inferior to those of a Magistrate of the first class."

The learned Counsel for the petitioners contends that although a Magistrate of the first class exercising enhanced powers under Section30 of the Code of Criminal Procedure is at liberty to try all offences not punishable with death or with imprisonment for life or with imprisonment for a term exceeding seven years, he is unable to try an offence u/s 326 of the Penal Code which is punishable with imprisonment for life or imprisonment of either description for ten years and fine.

If the legislature deliberately deprives a Magistrate of the power of trying an offence u/s 30, it is argued, it could never have intended that a Magistrate of the first class, who is inferior in status to a Section 30 Magistrate, should be qualified to try this offence. It is accordingly contended that the amendment of Section 30 has this effect of abrogating certain entries in the Second Schedule.

This contention does undoubtedly have the support of two unreported decisions of this Court viz. Cri Revn. : No. 226 of 1957, D/-11-10-1957 and Cri Misc. No. 356 of 1957, D/-5-11-1957. In the earlier case the counsel for the parties agreed that an offence u/s 326 of the Penal Code is not triable by a Magistrate of the First Class.

In the later case they agreed that an offence u/s 409 is not triable by him. These decisions were based on the agreement of parties and not on the construction of the relevant provisions of the statute and furnish no guide for the decision of the controversy which has arisen in the present case.

Before the Code of Criminal Procedure was amended in the year 1955 a case u/s 326 of the Penal Code could be sent to a First Class Magistrate if the sentence was likely to be less than two years, to a Section 30 Magistrate if the sentence was likely to exceed two years, and to Sessions Court if the sentence was likely to exceed seven years.

The only effect of the amendment is that although it is still open to a Magistrate of the First Class and to a Court of Session to continue to try offences u/s 326 of the Penal Code as in the past, it is not within the competence of a Section 30 Magistrate to deal with a case u/s 325 I. P. C. for Section 30 as amended specifically declares that a Magistrate who is invested with enhanced powers under the provisos of this section can try only offences not punishable with death or with imprisonment for life or for a term exceeding seven years. Hari Singh v. The State, 1938-60 PLR 202 : (AIR 1938 P&H 214).

If a provision of law authorises a Magistrate of the First Class to exercise a particular power and if that provision of law remains unaltered, unamended and unmodified, it is difficult to hold that that power has been taken away by virtue merely of the fact that the Legislature in its wisdom has thought fit to modify another provision of law. Nothing contained in Section 30 can be said to limit or abridge the powers of a Magistrate of the First Class as conferred by Section 28 and the appropriate entry in the eighth column of the Second Schedule.

Section 28 embodies a general provision in regard to powers of courts while Section 30 contains a special provision in regard to powers of Section 30 Magistrates. These two sections are not repugnant to each other. They deal with separate matters and can stand together. Section 30 does not abrogate or override the provisions of Section 28 and the Second Schedule and does not declare that a Section 30 Magistrate alone is capable of dealing with all offences not punishable with imprisonment of less than seven years. It merely creates an additional Court which'' is capable of dealing with all offences which are not punishable with death, imprisonment for life or with imprisonment for a term not exceeding seven years: Budhan Choudhry and Others Vs. The State of Bihar,

For these reasons I entertain no doubt in my mind that the amendment of Section 30 does not in any way take away the powers which vest in a Magistrate of the First Class u/s 28 of the Code of Criminal Procedure to deal with cases under Sections 326 and 409 and other sections of the Penal Code. The only change that has been brought about by the amendment of Section 30 of the Code of Criminal Procedure is that if the Magistrate considers that a severer punishment than two years is to be awarded in any of these cases he should commit the case to the Court of Sessions and should not deal with the case himself.

Let an appropriate answer be returned to the learned Single Judge.

G.L. Chopra, J.

I agree.