State of H.P. vs Kartar Singh and Others

T.R. Handa, J.—This appeal at the instance of the State is against an order of acquittal and arises in the following circumstances. A charge sheet u/s 324, read with Section 34 of the Indian Penal Code was filed against the present Respondents, three in number, by the police in the Court of Judicial Magistrate II Class, Dharamsala. The allegations against the Respondents were that on 4-5-1974 at village Sawala all of them in furtherance of their common intention voluntarily caused a simple injury to one Niru by a Drat. The learned Magistrate on a consideration of the police report was of the view that a case u/s 324/34 I.P.C. was prima facie made out against all the Respondents and hence he charged them accordingly.

The Respondents had all pleaded not guilty to the charge. After four of the prosecution witnesses had been examined, it was brought to the notice of the Magistrate that one of the Respondents, namely, Kartar Singh was below 16 years of age and in view of the provisions of Section 27 of the Code of Criminal Procedure, the Magistrate had no jurisdiction to try this Respondent. The Magistrate accordingly forwarded the case to the Chief Judicial Magistrate, Dharamsala.

The Chief Judicial Magistrate proceeded with the trial from that stage onwards. After the trial was over, an argument was advanced before the learned Chief Judicial Magistrate that the trial was vitiated inasmuch as a part of the same had been conducted by the Judicial Magistrate II Class who had no jurisdiction to do so in view of the provisions of Section 27 of the Code. This argument prevailed with the learned Chief Judicial Magistrate who for this short reason acquitted the Respondents holding that the trial was vitiated being against the provisions of Section 27 of the Code.

The order of the learned Chief Judicial Magistrate is patently erroneous and cannot be sustained in law. In the first place there appears to be no warrant for the view taken by the Chief Judicial Magistrate that by virtue of the provisions of Section 27 of the Code, the Judicial Magistrate II Class had no jurisdiction to try the Respondents for the offence u/s 324 I.P.C. because one of them was at the time of his appearance before the Magistrate under 16 years of age. If this view is accepted, it would mean that the jurisdiction specifically conferred upon the Magistrate by Section 26 was taken away by the immediately succeeding Section 27. It is a well established rule of interpretation of statutes that ouster of jurisdiction lawfully vested in a Court is not to be readily inferred. Whenever such a jurisdiction is attempted to be ousted, there must be an unambiguous provision pointing to a clear intendment on the part of the Legislature to that effect. In case there is a scope to entertain a reasonable doubt about the ousting of the jurisdiction of an existing Court, the Courts must always favour an interpretation which would maintain the existing jurisdiction rather than ousting it.

Now Section 26 of the Code is a general provision which prescribes the criminal Courts by which offences under the Indian Penal Code or other laws are triable. As per Clause (a) of this section, the High Court and the Court of Sessions have concurrent jurisdiction to try any offence under the Penal Code. Judicial Magistrates of the 1st Class and Judicial Magistrates of the II Class have been conferred jurisdiction to try such of the offences only as are shown triable by them in the 1st Schedule. A reference to the First Schedule would show that there are certain offences under the Penal Code which are triable exclusively by a Court of Sessions even though some of them are not punishable with death or imprisonment for life. No Magistrate has been vested with the jurisdiction to try any of these offences. The next Section 27 deals with jurisdiction in the case of juveniles. This section simply provides that an offence which is not punishable with death or imprisonment for life committed by a juvenile offender may be tried by the Court of a Chief Judicial Magistrate or by any Court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders. This section obviously does not take away the jurisdiction conferred on different criminal Courts by the earlier provision found in Section 26. It only operates to confer concurrent jurisdiction on other Courts along with the Courts which have been conferred such jurisdiction u/s 26. As already observed, there are certain offences which though not punishable with death or imprisonment for life are in terms of Section 26, read with the First Schedule triable exclusively by a Court of Sessions. Section 27 only confers concurrent jurisdiction on a Court of the Chief Judicial Magistrate or other Courts mentioned therein to try such offences when committed by a juvenile. This provision in no manner takes away the jurisdiction of the Court of Sessions to try such an offence even in the case of a juvenile offender. Similarly, Section 27 is not intended to take away the jurisdiction vested in the Magistrates u/s 26 of the Code. All that Section 27 enjoins is that the offences of the type mentioned therein when committed by a juvenile offender may be tried also by the Court of a Chief Judicial or other Courts mentioned therein. To put in other words there is no conflict between Section 26 and Section 27 of the Code and all the Courts whether they derive their jurisdiction u/s 26 or Section 27 of the Code shall have concurrent jurisdiction to try the offences which are not punishable with death or imprisonment for life and which are committed by juvenile offenders. The Judicial Magistrate II Class was thus fully competent to try all the Respondents for the offence charged against them and the contrary view taken by the Chief Judicial Magistrate cannot be supported.

Secondly, even if the Magistrate was of the view that the trial was vitiated inasmuch as four of the prosecution witnesses had been examined by a Magistrate who had no jurisdiction to conduct the trial, the Chief Judicial Magistrate was not justified in acquitting the Respondents on the plea that the trial was vitiated on that account. In that case the only course open to the Chief Judicial Magistrate was to recall the four P.Ws. already examined by the Judicial Magistrate and to reexamine them himself. This course would have cured the irregularity or illegality in case there was any as apprehended by the Chief Judicial Magistrate. In any case there was no justification for the Chief Judicial Magistrate to acquit all the Respondents simply because the trial against one of them was vitiated on account of his being a juvenile offender. In such an eventuality the course open for the learned Chief Judicial Magistrate was to order separate trial in the case of the juvenile offender and to pass appropriate order of acquittal or conviction as was warranted in the light of the evidence on the record.

Thus from whatever angle we look at this case, we find that the order of acquittal recorded by the Chief Judicial Magistrate cannot be supported and deserves to be quashed and we do quash the same. Ordinarily we would have remanded a case of the instant kind for a fresh trial but keeping in view the fact that the offence alleged to have been committed by the Respondents pertains to the year, 1974, as also the nature of the offence, we feel that such a course is not likely to serve any useful purpose. Moreover, such a course would be against public interest which requires that a criminal trial should be conducted as expeditiously as possible since inordinate delay in such matters is likely to defeat justice.

In our view the only proper order that is called for in the circumstances of the present case is to direct that the case against all the Respondents be now filed and we order accordingly.