Velayutham vs Suite by Inspector of Police Q Branch CID Tirunelveli

Janarthanam, J.—The Station House Officer, Palayamkottai registered a case in Crime No. 260/90 for the alleged offence u/s 5 of the

Explosives Substances Act, 1908 (Act No. VI of 1908 - for short ''the act'') as against one Velayutham S./o Perumal Nadar (accused 1) and one

K. Balan S/o Vovil Pillai Nadar (accused 2) of Palayamkottai. After complying with the formalities of investigation, a final report u/s 173(2) of the

Code of Criminal Procedure, 1973 (Act II of 1974 - for short ''the code'') has been laid before the Judicial Magistrate No. l, Tirunelveli, who in

turn, took it on his file as RC No. 1 of 1982.

Process appeared to have been issued to the accused and they entered appearance through a counsel of their choice and copies of records, it is

said, had been furnished to them. It is at this stage, accused 1 Velayutham knocked at the door of this Court, invoking its inherent jurisdiction u/s

482 of the Code impleading the State represented by the Inspector of Police, ''Q'' Branch C.I.D., Tirunelveli as Respondent, seeking a direction to

learned Magistrate to proceed with the case as against him and the other accused Balan as a Calendar Case and not as a Preliminary Register

Case.

On 9.3.1992, notice of motion returnable by two weeks had been ordered by this Court. Thereafter, the Respondent- State entered

appearance through learned government Advocate.

Both learned Counsel for the Petitioner as well as learned Government Advocate were heard.

The act is a small enactment hereby consisting of seven provisions. Though it is a special enactment, it is not prescribing any forum for the trial of

person accused of an offence under this Act. In such a situation, it goes without saying that the forum prescribed for the trial of offences against

other laws under the Code alone will be applicable. The first Schedule of the Code classifies the offences under two categories, namely, I -

Offences under the Indian Penal Code; and II -Offences against other laws. The first column of the table under Category I provided under the First

Schedule relating to offences under the Indian penal Code classifies the nature of the offence; the second column gives the description of the

offence, the third column specifies the punishment for such an offence; the fourth column specifies the punishment for such an offence; the fourth

column specifies whether such an offence is cognizable or non-cognizable; the fifth column specifies whether such an offence is bailable or non-

bailable and the last and the final column specifies the forum, namely, by what Court such offence is triable.

So far as the classification of the cases against other laws under Category II of the First Schedule is concerned, the table consists of four

columns. The first column prescribes the period of punishment; the second column specifies whether such an offence is cognizable or non-

cognizable while the third column prescribes whether the same is bailable or non-bailable and the last and the final column prescribes the forum by

which such an offence is triable.

In the instant case, what is concerned is the forum before which the persons accused of an offence under the Act are triable. If a cursory glance

is made of the tabular column provided under the classification of offences against other laws, it is rather crystal clear that the forum is determined

by the nature of punishment prescribed for the offence.

It is pertinent at this juncture to refer to Rules 82 and 84 of the Criminal practice, Rules 82 dealing with cases which can be adequately dealt

with by the Magistrate not to be committed to Court of Session prescribes.

Charges which are triable by a Magistrate of the First-class or a Court of Session should as a rule be laid before the First-class Magistrate and not

before a Magistrate of a Lower class who can only deal with the offence by way of committal to the Court of Session, if the First-class Magistrate

finds that owing to the existence of aggregating circumstances, he cannot pass any adequate sentence, he can commit the accused to the Court of

Session u/s 347 of the Code. Amended by P. Dis.366/77 (High Court Madras) for the words Second or Third Class Magistrate the words a

Magistrate of lower class shall be substituted High Court P. Dis. No. 360/67.

Similarly, Rule 84 dealing with cases triable by a court of Session or Magistrate of First-class states.

To prevent the time of courts of Session being taken up in trying cases which could be adequately disposed of by a Magistrate of the first-class, all

such charges should be laid before, or transferred to a Magistrate of the First-class.

The offence u/s 5 of the Act shall be punishable with imprisonment for a term which may extend to fourteen years, to which fine maybe added,

or with imprisonment for a term which may extend to five years to which fine may be added. Judging the punishment provided for in the section, in

the light of the classification of offences against other laws, it cannot be stated that the said offence is triable only by a Court of Session.

Only in cases of offences exclusively triable by a Court of Session, the case is liable to be committed to Court of Session u/s 209 of the Code

and not otherwise and only on such committal, the Court of Session can take cognizance of such offence committed. It is to be mentioned here that

only in cases exclusively triable by a Court of Session warranting a committal therefor, the case is taken on file before the committal Magistrate as

a Preliminary Register case and (sic) other cases are punishment, as had been provided for, as already referred to the offence u/s 5 of the Act, is

capable of being tried either by a First Class Magistrate or on committal by a Court of Session.

It is at this juncture, the guidelines provided in the Rules 82 and 84 of the Criminal Rules of Practice, as extracted earlier, will be of so much of

assistance in deciding the forum before which the offender-accused of such an offence is ordinarily triable. A cursory perusal of these rules provide

necessary clue that cases involving charges which are triable either by a Magistrate of the First-class or a Court of Sessions should as a rule be laid

before the First-class Magistrate and if the First Class Magistrate finds that owing to the existence of aggravating circumstances, he cannot pass

any adequate sentence, he can commit the accused to the Court of Session u/s 347 of the old code equivalent to S. 323 of the new code.

Section 323 of the Code deals with the procedure to be adopted when, after commencement of inquiry or trial, Magistrate finds case should

be committed. The said section 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 Sessions he shall commit it to that court under the provisions herein before contained and there

upon the provisions of Chapter XVIII shall apply to the case commitment so made.

In view of what has been stated above, it goes without saying that the Petitioner and the other accused against whom a final report u/s 173(2)

of the Code had been laid for an alleged offence u/s 5 of the Act have to initially face trial for such an offence in a Calendar Case and only if the

Magistrate, during the course of trial finds existence of aggravating circumstances warranting for a punishment of the nature, which he cannot inflict,

then he can commit the accused to Court of Session u/s 323 of the Code.

As such the taking of the case by the learned Magistrate on his file as a Preliminary Register case is not proper and he ought to have treated it

as a Calendar Case and proceeded to get along with the trial. Learned Magistrate is therefore directed to convert the Preliminary Register Case

No. I of 1992 into one of Calender Case on his file and get along with the trial. It is however open to him to commit the same to Court of Session,

in case, he finds existence of aggravating circumstances during the course of trial for such a course to be adopted.

The petition is ordered accordingly.