In Re: Gopal Naidu and Others

Rajamannar, J.—Accused 1, 3 and 4 who are the petitioners were convicted by the Second Class Magistrate of Sankari under Rule 81(4)

of the Defence of India Rules read with Rule 221 of the Defence of India Rules for attempting to transport rice bran and fried Bengal gram outside

the district without a permit. Accused No. 1 was sentenced to undergo rigorous imprisonment for two months and accused 3 and 4 to pay a fine of

Rs. 200 each, in default to suffer rigorous imprisonment for six weeks. The first accused is the owner of the lorry in which the commodities were

attempted to be transported. Accused 3 is the driver of the lorry and accused 4 is the cleaner and brother of accused 1. On appeal, the Sub-

Divisional Magistrate, Namakkal, confirmed the conviction and sentence of the lower Court.

There is nothing that can be said in favour of the petitioners on the merits. But the learned advocate for them raised a point as to the jurisdiction

of the Second Class Magistrate to try the case. The decision turns oh the Defence of India Act, read with the rules thereunder. Section 2, Sub-

section (3) of the Act says:

(3) The rules made under Sub-section (1) may further

(i) provide for the arrest and trial of persons contravening any of the rules ;

(ii) provide that any contravention of, or any attempt to contravene, and any abetment of, or attempt to abet, the contravention of any of the

provisions of the rules, or any order issued under any such provision, shall be punishable with imprisonment for a term which may extend to seven

years or with fine or with both.

Section 14 says:

Save as otherwise expressly provided by or under this Act, the ordinary Criminal and Civil Courts shall continue to exercise jurisdiction.

Sub-rule (3) of Rule 230 of the Rules framed under the Act says:

Notwithstanding anything contained in Schedule II to the Code of Criminal Procedure, 1898, (...) and a contravention of any order made under

Rule 56(a) [or under Sub-rule (2) of Rule 81] shall be triable by a Court of Session, a Presidency Magistrate or a Magistrate of First Class or

Second Class.

Under Rule 221 any person who attempts to contravene or abets, or attempts to abet, or does .any act preparatory to, a contravention of, any of

the provisions of these rules or any order made thereunder shall be deemed to have contravened that provision or as the case may be, that order.

In the present case the material order was made under Rule 81(2) of the Rules. The attempt to contravene this order would amount to a

contravention of the order itself under Rule 221 of the Defence of India Rules. The offence of contravention of the order is triable by a Second

Glass Magistrate also under Sub-rule (3) of Rule 230.

The contention raised on behalf of the petitioners is that Section 2, Sub-section (3) of the Act mentions only the arrest and trial of persons

contravening any of the rules. It does not indicate that the rules may provide for the trial of persons attempting to contravene any of the rules. But in

my opinion the combined result of Rules 81(2) and 121 which are the relevant rules for the purpose of this case is to make a person charged with

the offence of attempting to contravene any of the orders made under Rule 81(2), a person contravening the rules. There is, therefore, no scope for

invoking the general jurisdiction under Code of Criminal Procedure in this case. I overrule the objections taken on behalf of the petitioners that the

Magistrate had no jurisdiction to try this case.

The petitioner''s advocate submitted that the sentence so far as the first accused is concerned may be reduced to the period of imprisonment

already undergone by him. The exact period so undergone, is not known but it seems that it is less than a week. The attempt was certainly serious

having regard to the object of the order in question. The first accused taking advantage of the fact that he owned a lorry attempted to use it to

transport prohibited commodities outside the district. There is no reason to deal with such an offence leniently. It cannot be said that the sentence

imposed, namely, two months'' rigorous imprisonment is severe. The Criminal Revision Petition is therefore dismissed.