STATE UNION OF INDIA Vs. RAM SARAN

JUDGEMENT

(1.) Questioning conviction made by the Assistant Commandant of Central Reserve Police Force (in short the 'CRPF') made under S. 10(m) of the Central Reserve Police Force Act, 1949 (in short the 'Act') and consequential sentences imposed, the respondent filed an appeal before the Sessions Judge, Solan and Sirmaur. The Sessions Judge held that the Assistant Commandant had no jurisdiction to record conviction and impose sentence. The said judgment was questioned before the High Court of Himachal Pradesh by a revision-petition filed by the Union of India. The revision was also dismissed. Both the Sessions Judge and the High Court held that the Assistant Commandant, IIIrd Battalion, ITBP, Nahan could not have exercised powers of Judicial Magistrate Ist Class and, therefore, the trial and conviction of the accused-respondent were illegal. The High Court held that combined reading of Ss. 11, 12 and 13 of the Code of Criminal Procedure, 1973 (in short the 'Code') clearly rule out the appointment of any person exercising powers of Judicial Magistrate, Ist Class in the absence of conferment of powers by the High Court. This, according to the Sessions Judge and the High Court stemmed from the fact that there was separation of judiciary from the Executive in 1973 and thereafter the powers of appointment and conferment for functioning as Judicial Magistrate either of First Class or Second Class could only be done by the High Court and the Central Government or the State Government had no power to invest any person with powers of Judicial Magistrate of any class. Reference was also made to S. 5 of the Code, and observed that the expression "in the absence of a specific provision to the contrary" used therein did not render S. 16(2) of the Act redundant.

(2.) At this juncture, it would be necessary to take note of the factual position.

(3.) The respondent while functioning as a Constable (Sweeper) in the IIIrd Battalion, ITBP, Nahan did not join duty after expiry of the leave granted to him. Though he was granted leave for the period from 9-4-1987 to 24-5-1987, he did not join after expiry of the period. There was no intimation to the competent authority or request for extension of leave. The respondent accepted that he had stayed beyond the period of leave, but indicated several reasons as to why the same was necessitated. Complaint was lodged by the concerned authorities and the Assistant Commandant exercising powers of Judicial Magistrate, Ist Class in terms of S. 10(m) of the Act, issued notice in terms of S. 251 of the Code and after trial found him guilty and sentenced him to undergo imprisonment for three months. The said order as noted above was questioned before the Sessions Judge by the respondent and in view of the relief granted to him by the Sessions Judge, the matter was carried in revision by the Union of India. But the same having been rejected, this appeal has been filed.