The State vs Purusottam Behera

R.N. Misra, J.—This is a reference made u/s 395(2) of the Code of Criminal Procedure by the learned Sessions Judge of Cuttack recommending the setting aside of the order of commitment and calling upon the Magistrate to dispose of the case in accordance with law.

The brief facts occasioning the reference are these: On the information given by the Tahsildar of Jajpur that his Nazir (opposite party) had misappropriated Government money to the tune of Rs. 36,592.41 in course of employment, Jajpur P.S. Case No. 160 of 1976 was registered on 12-9-1976. After investigation, charge-sheet was submitted against the opposite party alleging commission of an offence punishable u/s 409 of the Penal Code. The charge-sheet was received by the Sub-Divisional Judicial Magistrate on 13-2-1978. Several adjournments were given on the ground that copies of police papers had not been supplied to the accused Ultimately without framing charge, the learned Magistrate passed the following order on 11-2-1980:

The accused Purusottam Behera is present. The case diary is seen. The accused is charge-sheeted u/s 409, Indian Penal Code. The amount of misappropriation is Rs. 36,592.41 paise. The offence was of the year 1976 whereas the charge-sheet was submitted in the year 1978. On perusal of case diary it is found out that there was allegation that the accused committed criminal breach of trust being a public servant. The amount of misappropriation amounts to Rs. 36.592.41 which is a vast amount and taken from Government cash. It is alleged that accused took these while be was Nazir in the office of Tahsildar, Jajpur.

The amount of misappropriation is vast and calls for heavy punishment if the accused is ultimately found guilty. There are many paper transactions and many documents to be produced in this case. This case requires speedy disposal. As this Court is extremely engaged in urgent unescapable criminal matters and when the nature and gravity of the offence in this case calls for elaborate attention. I feel that this case ought to be tried by the Court of Session....

The case is formally committed to the Court of Session u/s 323, Code of Criminal Procedure and u/s 209, Code of Criminal Procedure for trial of the accused u/s 409, Indian Penal Code in the Court of session.

The learned Sessions Judge in support of the reference has stated:

...As per the provisions of the First Schedule to the Code of Criminal Procedure, an offence u/s 409, Indian Penal Code is to be tried by a Magistrate, of the first class. Further, if an offence is u/s 409, the trial can proceed only after complying with the provisions of the Proviso to Sub-section (2) of Section 212 of the Code of Criminal Procedure. It has been mandatorily provided therein that the time included between the first and last of such dates shall not exceed one year. In this case, it has been alleged that the misappropriation runs in the course of two continuous periods, one from 20-11-1969 to 28-6-1972 and the other from 17-7-1972 till the end of 31-10-1972. In view of this, the learned Magistrate was obliged to split up the case keeping in view the proviso to Sub-section (2) of Section 212 of the Code of Criminal Procedure. He having not done so, has passed the order for commitment of the case to the Court of Session. Hence the order of commitment appears to be not in accordance with law.

Further more, the Magistrate has assigned two reasons for the commitment of the case to the Court of Session: (1) The amount involved is heavy and (2) the accused cannot be adequately punished. I may say that even accepting the apprehension of the Magistrate on the above two grounds as correct, he was required under the law to follow the procedure indicated u/s 322 of the Code of Criminal Procedure. The relevant provisions of the said section are as follows:

....

In view of the aforesaid provision, the learned Magistrate should have reported the matter to the Chief Judicial Magistrate and should not have committed the case to the Court of Session.

Under the Code of 1898, an offence u/s 409, Indian Penal Code, was triable both by the Court of Session as also a Magistrate of the First Class. The second Schedule of the old Code corresponds to the first Schedule of the new Code. The offence u/s 409, Indian Penal Code has been shown in Col. 6 of the Schedule as triable by a Magistrate of the First Class. It is thus clear that the offence of criminal breach of trust by a public servant punishable u/s 409 of the Indian Penal Code is not exclusively triable by the Court of Session and, therefore, Section 209 of the Code does not apply and there is no obligation cast on the Magistrate to commit the accused to stand his trial in the Court of Session in respect of an offence u/s 409 of the Code.

In the instant case, the learned Magistrate has passed the order of commitment by resorting to Section 323 of the Code which provides:

If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.

This provision corresponds to Section 347 of the Code of 1898. Dealing with the provision, Bhagwati. J, as the learned Judge then was, in the case of Kamalashanker Bhuleshanker Dave Vs. State of Gujarat, , indicated:

...I am of the opinion, that the grounds on which a case can be said to be one which ought to be tried by the Court of Session or High Court within the meaning of Section 347 of the Code of Criminal Procedure are not limited to a case which the Magistrate is not competent to try or which, in the opinion of the Magistrate, cannot be adequately punished by him. Other considerations can be taken into account for the purpose of determining whether the case is one which ought to De tried by the Court of Session or High Court Whether the considerations in any particular case are valid considerations or not for the purpose of exercise of the legal discretion vested in the Magistrate to make an order of committal must depend upon the facts of each case and no hard and fast rule can be laid down to guide the discretion of the Magistrate....

A Full Bench of the Allahabad High Court in the case of Rex v. Matoley and Ors. AIR 1949 All. 1, also considered this question and took the view that even if the case was not exclusively triable by the Court of Session, the Magistrate had jurisdiction to commit a case to the Sessions Court for adequate reasons and had spoken in the same strain as Bhagwati. J. in the later Gujarat case, The observations of the Supreme Court in the case of Chhadami Lal Jain and Others Vs. The State of Uttar Pradesh and Another, , on principle support the view indicated in these cases. A learned Single Judge of the Madras High Court in the case of In Re: Sant Prakash Sahni, took the view that where fraud was in respect of a heavy sum of money, commitment of the accused for trial of such offence to the Court of Session could not be considered to be inappropriate. In this view of the matter, I am inclined to take the view that the order of commitment cannot be said to be contrary to law. The learned Magistrate should have couched the order of commitment in an appropriate way giving cogent reasons. The manner in which he has expressed himself gives an impression as if he wanted to shirk work. This should not have been done. This Court has on the administrative side issued instructions that complicated cases u/s 409, Indian Penal Code, should be committed to the Court of Session for trial. This instruction obviously had been issued at a time when the old Code was in force, permitting the offence u/s 409, Indian Penal Code, to be tried either by the Court of Session or by the Court of the Magistrate First Class. It may not be inappropriate to indicate here the Note appearing in the Fast Schedule of the new Code where it has been stated:

Since u/s 26, a Court of Session can try any offence it has been considered unnecessary to mention ''Court of session'' also in Col. 6 when the offence can be tried by the Magistrate. ''Court of Session'' has been mentioned only when the offence is exclusively triable by a Court of Session.

This would mean that there is really no change in Col. 6 of the Schedule under the two Codes and the instruction issued on the administrative side seems to have been followed by the learned Magistrate. I am therefore, not inclined to accept the reference and quash the order of commitment.

There is force in the view of the learned Sessions Judge that the amounts have to be split up and while framing charge, the provision of Section 212(2) of the Code should be borne in mind. Now that the case would be tried in the Court of session, appropriate care may be taken if necessary, by requiring the prosecution to furnish the amount to comply with the requirements of law.

The reference is discharged. The records be sent back quickly.