STATE OF MYSORE Vs. DATTATRAYA NAGAPPA

JUDGEMENT

(1.) The respondent who was the accused in C. C. No. 30 of 1956 on the file of the Judicial Magistrate First Class, Sisri, had been charged for offences under Sections 409 and 477 of the Indian Penal Code. The learned Magistrate acquitted the accused. The State has preferred an appeal against this acquittal; that is in Criminal Appeal No. 255 of 1957. The learned Sessions Judge, in the course of his inspection, of the Court of the said Magistrate, found that there was a serious irregularity in the above said criminal case, in view of the fact that the offence under Section 477 of the I.P.C. was tribal only by the Curt of Session and that the Magistrate was not competent to try the same. The learned Sessions Judge is of the opinion that in view of Section 530(p) of the Cr. P.C., the entire proceedings before the learned Magistrate are void; he has, therefore, made a reference requesting that a fresh trial be ordered. This reference is the subject-matter of Criminal Revision Case No. 40 of 1957. Sri Shankara Chetty the learned Additional Assistant Advocate General has appeared for the State; Sri Gopala Krishna Shetty has appeared for the respondent.

(2.) Under Schedule II of the Code of Criminal Procedure, an offence punishable under Section 477 of the Indian Penal Code is triable only by the Court of Session. Sri Gopalakrishna Shetty also does not dispute the fact that the judicial Magistrate, First Class was not competent to try an offence under Section 477 of the I.P.C. When that is so, there cannot be any doubt that the provisions of Section 530(p) are attracted. But, the question is as to whether the entire proceedings before the learned Magistrate are void; Sri Shankara Chetty who supports the reference, contends that the entire proceedings before the Magistrate are void. Sri Gopalakrishnan Shetty has argued that the acquittal should not at all be disturbed; he has pointed out in particular, that the offence under Section 489 of the I.P.C. was one which the Magistrate was competent to try and that the acquittal in so far as it relates to the said offence should not be interfered with, whatever view we may take in regard to the offence under Section 477 of the I.P.C.

(3.) We are unable to accept the view that the entire proceedings before the Magistrate have been void, merely because the Magistrate had not been empowered or competent to try one of the two offences for which the accused had been charged. It appears to us that it is only so much of the proceedings as are vitiated by reason of the Magistrate not being empowered by law, that are rendered void. Referring to the expression "his proceedings" occurring in Section 530 of the Cr. P. C. the High Court, of Patna, in a case reported in Awadh Singh v. Emperor, AIR 1947 Par 23 observes as follows: