Shyamlal and another vs State of M. P.

K.L. Shrivastava, J.

This revision petition by the victims of the crime is directed against the order dated 23-2-1987 passed by the Chief Judicial Magistrate, Mandsaur in Criminal Case No. 168 of 1987 whereby he has transferred the said case to the Judicial Magistrate First Class, Garoth for disposal according to law.

Circumstances giving rise to the petition are these. Challan u/s 307 of the Indian Penal Code was filed by the police against the non-applicants Nos. 2 to 7 in the Court of the Judicial Magistrate First Class, Garoth, who committed the case to the Court of Sessions for trial. The Additional Sessions Judge who dealt with the case, transferred it u/s 228(1) of the Code of Criminal Procedure, 1973 (for short ''the Code'') to the Court of the Chief Judicial Magistrate, Mandsaur.

The non-applicants 2 to 7, who are the accused persons, filed an application before the learned Chief Judicial Magistrate for transferring the case to the Court of the Judicial Magistrate First Class, Garoth. After hearing them and the A.P.P. the learned Chief Judicial Magistrate, by the impugned order, transferred the case to the Judicial Magistrate First Class, Garoth.

The contention of the petitioner''s learned counsel is that the order transferring the case to the J.M.F.C, is contrary to the mandatory provision of Section 228 (1)(a) of the Code and is liable to be set aside. Some support for submission was sought from the decision in Deep Chand Vs. The State of Rajasthan, .

The point for consideration is whether the revision petition deserves to be admitted.

It is worthwhile to reproduce the provision embodied in Section 228(1)(a) of the Code which has to be interpreted. It reads thus : -

228(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magsitrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report.

The mere use of the word ''shall'' does not invariably make the provision mandatory. The question, therefore, is whether the provision regarding trial by the CJ.M. is mandatory. In this connection the following observations made in the Presidential Election case (AIR 1974 SC 1682) and reproduced in Govindlal Chhaganlal Patel Vs. The Agricultural Produce Market Committee, Godhra and Others, are apposite :-

In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed. "The Key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.

The Full Bench decision in Food Inspector Nagar Palika Vs. Davilal, may also be usefully perused.

Tested in the light of the aforesaid observations, I find that the provision has to be interpreted as directory.

I am aware that in empowering the High Court or the Sessions Judge u/s 398 of the Code to order inquiry the Legislature has used a different phraseology and has provided that the direction may be that the C.J.M. by himself or by any of the Magistrates subordinate to him to make further inquiry but from this it does not follow that in enacting Section 228(1)(a) of the Code the Legislature intended to make trial by C.J.M. mandatory. The Sessions Judge may also have occasion to transfer the case u/s 408 of the Code from the Court of the C.J.M. to any other criminal Court.

The contention that there is some seriousness involved in the case which is committed to the Court of Sessions and, therefore, even when transferred back, it has to be mandatorily tried by the Chief Judicial Magistrate himself so that sufficiently severe punishment could, if necessary, be imposed, has no merit. Though as provided u/s 29 of the Code the C.J.M. can pass severe sentence even the Magistrate to whom the case is transferred by the C.J.M. is of opinion that he is not competent to inflict proper sentence, he can with recourse to Section 325 of the Code certainly submit the case back to Chief Judicial Magistrate.

The essence of the matter is that a case is tried in accordance with the Code by a competent Court. It appears that the mention of C J. M. in the provision in Section 228(1)(a) of the Code is merely because as provided u/s 15 of the Code every other Judicial Magistrate is statutorily subordinate to him and the C.J.M. has the power to transfer cases to the Magistrates subordinate to him. It may also be pointed out that as provided u/s 12(2) of the Code the powers of the Additional Chief Judicial Magistrate are "according to the direction of the High Court." The decision in Deepchand''s case (supra) is clearly distinguishable.

In this connection reference may also be made to the decision in State of M. P. vs. Navabingh (1982 M.P. W.N. 379). Therein it has been held that the order of the Sessions Judge whereby the case was transferred to the committing J. M. F. C directly and not to the C. J. M. as provided u/s 228(1)(a) of the Code merely suffers from a technical defect which does not go to the root of the matter. Similarly in the decision in State of M. P. vs. Mankhu Khan (1985 M. P. W. N. 45) it has been held that though the terms of Section 228(1)(a) of the Code envisage framing of charge by the Sessions Judge before transferring the case to the C J. M., in case no charge has been framed by him the C. J. M. can himself frame charge.

Before parting with the case it may be observed that it is desirable that as far as possible a case covered u/s 228(1)(a) of the Code and involving grave offences is not transferred and is tried by the C. J. M. himself so that any occasion for the case being submitted back to him with recourse to Section 325 ibid is obviated.

In the ultimate analysis for the aforesaid reasons, I find that the revision petition which has not a leg to stand upon, deserves to be dismissed and, is, consequently, dismissed summarily.