Motilal Agarwala vs Nisamoni Mohanty and Another

B.K. Patra, A.C.J.

This application in revision raises an interesting question regarding the correct interpretation of Sub-section (2) of Section 346 of the Code of Criminal Procedure.

On 2-1-5-1971, the Petitioner filed a complaint petition against the opposite parties and one Sudhakar Misra alleging that they had committed offences'' under sections 336, 427, 147 and 604 of the India Penal Code. The Sub-divisional Magistrate directed an inquiry u/s 202, Code of Criminal Procedure by a Magistrate, who after such inquiry submitted a report that a prima facie case u/s 352, Indian Penal Code had been made out against the three accused persons. On a perusal of the report, the S.D.M. took cognizance u/s 352, Indian Penal Code and transferred the case for disposal to Shri S.C.I. Satpathy, Magistrate, 3rd Class for trial according to law. After examining two witnesses for the prosecution, the Magistrate Sri Satpathy thought that an offence u/s 427 Indian Penal Code had been made out against the accused persons and that he being a Magistrate of the Third Class was not competent to try it. He therefore, submitted the file to the Sub-divisional Magistrate u/s 346(1), Code of Criminal Procedure. After receipt of the records, the S.D.M. after perusing the evidence which Sri Satpathy had already recorded, differed horn the latter''s conclusion that an offence u/s 427, Indian Penal Code had been made out against the accused persons and thought that the offence which appeared to have been made out was only u/s 352, Indian Penal Code. He, therefore, transferred the case for trial to Sri H. Mohapatra, another Magistrates of the 3rd Class for disposal according to law. It is against this order that the complainant has filed this revision application.

It is submitted on behalf of the Petitioner that the Magistrate trying the case having found that the offence that has been made out against the accused persons is one u/s 427, Indian Penal Code it was not open to the Sub-divisional Magistrate to whom the records had been submitted to review that order and come to the conclusion that the offence made out is not u/s 427 but u/s 352, Indian Penal Code, that Sub-section (2) of Section 316, Code of Criminal Procedure is a bar to such a course being adopted by him and all that he was required to do under that sub-section was to accept the report submitted by Sri Satpathy and either to try the case himself or to send it for trial to any Magistrate subordinate to him having jurisdiction to try the case. Section 346, Code of Criminal Procedure may be extracted.

Procedure of State Magistrate in cases which he cannot dispose of - (1) If, in the course of an enquiry or a trial before a Magistrate in any district outside the presidency towns, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district he shall stay proceedings and submit the case, with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs.

(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.

On the interpretation of Sub-section (2) of Section 346, Code of Criminal Procedure, there appears to be a divergence of views between the Bombay High Court on, one side and of the Madras and Kerala High Courts on the other. The earliest decision placed before me is a Full Bench decision of the Madras High Court in Polur Reddi Vs. Munusami Reddi and Others, . The short facts of that case are these: A complaint was made against 8 persons on a charge of dacoity and came before the Second Class Sub-Magistrate. He thought that there was no basis for that charge. But as out of the eight persons accused before him, one was alleged to have been armed with stick and a deadly weapon, he thought that the charge was one u/s 148, Indian Penal Code and sent the case u/s 316(1), Code of Criminal Procedure to the Joint First Class Magistrate for disposal. The latter after going through the case differed from the view taken by the Second Class Sub-Magistrate and thought that the evidence disclosed that the accused might be guilty of some lesser offence. He referred the case back u/s 346(2), Code of Criminal Procedure to the Magistrate. It is against this order that a revision application was filed in High Court which came up in the first instance for disposal before Jackson. J. who referred it to a Full Bench. The point that was argued in support of the revision application was that a superior Magistrate cannot simply return a case to the subordinate Magistrate from whom it comes but must refer it to some other Magistrate or dispose it of himself. This contention was pot accepted by the Full Bench who held that in fact, the terms of Sub-section (2) of Section 346 are sufficiently wide to embrace a reference back of the case to the Magistrate who originally submitted it.

This decision of the Madras High Court was considered by the Bombay High Court in Haidarsha Lalsha Pathan v. Dhondu Abaji Sandbhor and Ors. AIR 1942 Bom. 84. In that case a Second Class Magistrate submitted a case u/s 346(1), Code of Criminal Procedure to the District-Magistrate as the Magistrate was of the opinion that the evidence warranted a presumption that the case was such as should be committed for trial and the Magistrate himself had no power to do so. The District Magistrate disagreed with that view and passed orders returning the case to the Subordinate Magistrate for disposal. The correctness of this order was challenged in a revision petition filed before the Bombay High Court. A Bench of that Court expressed the view that under Sub-section (2) of Section 346, the superior Magistrate is empowered to do one of the three things, (1), he can try the case himself if the offence is (sic) by him: (2) refer it to a Magistrate subordinate to him having jurisdiction; and (3) commit the accused for trial. Instead of following any of these three courses indicated above, what the District Magistrate did was to revise the opinion of the subordinate Magistrate formed upon the record, and, re-appreciating the evidence in his own way, he came to the conclusion that it did not warrant the presumption drawn by the subordinate Magistrate and that the case could be disposed of on the charge as originally made which was (sic) by a Second Class Magistrate. The Court held that the District Magistrate had no such powers to revise the orders passed by the subordinate Magistrate u/s 346(2), Code of Criminal Procedure. Relying on two of the previous decisions of that Court, their Lordships held that a superior Magistrate must assume the case presented in the report as correct for the purpose of dealing with it under Sub-section (2) of Section 346. Doubtless the District Magistrate had powers of revision under Sections 435 and 436 Code of Criminal Procedure but those powers can be exercised for the limited purpose indicated in those sections and except for that special purpose he has no power to revise die opinion of the subordinate Magistrate in a case reported to him u/s 346. When the provisions of the Code confer special powers on the District Magistrate, those powers must be exercised only in the particular way indicated. The expression "to any Magistrate subordinate to him having jurisdiction" occurring in Sub-section (2) of Section 346 was interpreted to them as a subordinate Magistrate other than the Magistrate who made the reference or report. The Bench disagreed with the decision of the Madras High Court in Polur Reddi Vs. Munusami Reddi and Others, , as in their Lordships'' opinion it was likely to lead to an embarrassing situation if the subordinate Magistrate remains unconvinced.

The only other case cited before me is one of the Kerala High Court reported in P.S. Narayana Iyer Vs. Subramonia Iyer, . In that case after the examination of p.w. 1, the trial Magistrate submitted to the Judicial Magistrate with a report that as an offence u/s 506(2) was also disclosed the case should be transferred to the file of a Magistrate competent to try the case. The District Magistrate sent the case back to the trial Magistrate with a direction that he should proceed with the examination of the witnesses for the prosecution and that if he were of the opinion that a case (sic) only by a First Class Magistrate was made out, he should then submit the case to the District Magistrate u/s 346, Code of Criminal Procedure. After receipt of the records the trial Magistrate tried the case and found that the only offences disclosed were those under Sections 447 and 426 and that the accused were not guilty. He accordingly acquitted the accused. The complainant preferred a revision against that order and the only point urged in support of the revision was that the District Magistrate was not competent to send back the case to the same Magistrate and that he should have sent the case to some other Magistrate. Relying on the Full Bench decision of the Madras High Court in Polur Reddi Vs. Munusami Reddi and Others, and differing from the view expressed by the Bombay High Court in Haidarsha Lalsha Path an v. Dhondu Abaji Sandbhor and Ors. AIR 1942 Bom. 84, the learned Judge dismissed the revision petition.

Sub-section (2) of Section 346, Code of Criminal Procedure empowers the superior Magistrate to whom the records have been sent under Sub-section (1) to do only one of the three things mentioned therein, namely; (1) either try the case himself, or (2) refer it to any Magistrate subordinate to him having jurisdiction, or (3) to commit the accused for trial. This sub-section does not give the power to the superior Magistrate to sit in judgment over the opinion formed by the subordinate Magistrate and to form his own view as to which offence has been made out by the evidence. In the case before me, if Sri Satpathy had been a Magistrate of the Second Class and he thought that the evidence recorded by him disclosed an offence u/s 427, Indian Penal Code which was (sic) by a Magistrate of the Second Class, he would have had no difficulty in disposing of that case on the basis of that charge, notwithstanding the fact that the superior. Magistrate namely, the Sub-divisional Magistrate had taken cognizance of the case only u/s 352, Indian Penal Code. No exception could have been taken in such an event that although a superior Magistrate thought that the offence disclosed was only a minor one, namely, u/s 352, Indian Penal Code, a subordinate Magistrate to whom the case was sent for trial differed from the opinion of the superior Magistrate and tried and convicted the accused of a charge for a major offence, namely u/s 427, Indian Penal Code. The difficulty in this case arose because Sri Satpathy being a Magistrate of the third Class had no power to try an offence u/s 427, Indian Penal Code. That is the sole reason why he submitted the record to the Sub-divisional Magistrate for being either tried by himself or for being tried by any Magistrate subordinate to him having jurisdiction. What the S.D.M. did was virtually to revise the order passed by Sri Satpathya power which the Sub-divisional Magistrate does not passes. The contention that what the, superior Magistrate did virtually amounted to revising the order of the subordinate Magistrate was not advanced either in the Madras case or in the Kerala case cited above. The only point that was debated was whether it was open to the superior Magistrate to send back the case u/s 346(2) to the selfsame Magistrate who submitted the records u/s 346(1). The view expressed by the Bombay High Court, if I may say so with respect, appears to me to be the Correct view.

In my opinion, therefore, the learned Sub-divisional Magistrate has exercised a jurisdiction not vested in him by law in virtually revising the order passed by the Magistrate Sri Satpathy and coming to the conclusion that an offence u/s 427, Indian Penal Code has not been made out.

I would accordingly allow this application, set aside the order passed by the Sub-divisional Magistrate in so far as it relates to his finding that there is no warrant for taking cognizance of the offence u/s 427, Indian Penal Code. The case is now on the file of a Magistrate other than Sri Satpathy. That Magistrate should dispose of the case on the basis of the report submitted by Sri Satpathy. If after full trial of the case he comes to the conclusion that an offence u/s 427, Indian Penal Code has not been made out, it will be open to him to come to such conclusion regardless of the opinion expressed by his predecessor Sri Satpathy. The trial of the case, may now proceed keeping in view the observations made above.