STATE OF GUJARAT Vs. AMRUTLAL PRABHUDAS

JUDGEMENT

(1.) This is a reference by the learned Sessions Judge of Ahmedabad (Rural). The Judicial Magistrate First Class Dhandhuka felt at a very late state of a trial that he had no territorial jurisdiction to try a complaint which was under sections 175 and 204 Indian Penal Code. He therefore ordered that the complaint should be returned to the complainant. The learned Sessions Judge seems to have thought that to such a case sec. 201 Cr. P. C would not apply and that the proper section to be applied is section 346 Cr. P. C. under which the Magistrate has to send a complaint to another Magistrate. On the point whether section 346 Cri. Pro. Code would apply to a case where a Magistrate feels that he has no territorial jurisdiction the Calcutta High Court has taken one view and the Madras and Kerala High Courts have taken another view (Vide Amrendra Nath v. Raghu Nath Nandan A. I. R. 1952 Calcutta 849 D. M. of Guddapal v. Abdul Karim A. I. R. 1943 Madras526 and State v. Pokker d; others A. I. R. 1959 Kerala 53 In these cases the question whether section 201 Cri. Pro. Code applies or not has not been considered. But in my opinion sec. 201 Cri. Pro. Code applies at any stage of the proceedings. If at a late stage of the proceedings the Magistrate feels that he has no territorial jurisdiction he can act under section 201 Cr. P. C. It is true that section 201 is in Chapter XVI of the Cri. Pro. Code. Ordinarily the absence of territorial jurisdiction is discovered at the beginning of the proceedings and therefore section 201 finds place in Chapter XVI of the Cri. Pro. Code. But there is nothing in that Chapter to restrict the application of section 201at any stage of the trial. If at any stage of the proceedings the Magistrate feels that he has no territorial jurisdiction he can act under section 201 Cri. Pro. Code.

(2.) With great respect I find it difficult to agree with the view taken by the Calcutta High Court and agree with the view taken by the Madras and Kerala High Courts on the point whether section 346 Cr. P. C. applies to a case where the Magistrate feels that he has no territorial jurisdiction. Section 346 Cr. P. C. reads as follows:-- (1) If in the course of an inquiry or a trail before a Magistrate in any district Outside Greater Bombay the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district he shall stay proceedings and submit the case with a brief report explaining its nature to any Magistrate to whom he is subordinate or to such other Magistrate having jurisdiction as the District Magistrate or Sessions Judge as the case may be directs. (2) The Magistrate to whom the case is submitted may if so empowered either try the case himself or refer it to any Magistrate subordinate to him having jurisdiction or commit the accused for trial. The expression some other Magistrate in such district has been used because it is quite possible that a third class Magistrate may not have jurisdiction to try a first class case and therefore the case will have to go to the first class Magistrate in the same district. The very fact that the Magistrate acts under section 346 Cr. P. C. would mean that he has taken a cognizance. It is possible that a Magistrate may feel that he is not competent to impose an adequate sentence. In such a case also he can act under section 346 Cr. P. C. Section 346. Cr. P. C. applies to cases where a Magistrate feels after regularly holding a trial in part that the case is one which should be tried or committed for trial by some other Magistrate. It does not apply to cases where the Magistrate cannot from the beginning try the case but applies to cases where the Magistrate feels that the case should be fully tried by some other Magistrate although he himself has properly commenced the trial. Section 346 Cr. P. C. does not apply to cases where the Magistrate is not competent to take cognizance which expression is used in sec. 201Cri. Pro. Code but applies to cases where although the Magistrate is competent to take cognizance he feels that the case should be tried or committed for trial by some other Magistrate of his own district. Section 346 Cr. P C. uses the words such district. In other words it does not apply to cases as between one district and another while section 201Cr. P. C. would apply even to such cases. The words used in sec. 201Cr. P. C. area Magistrate who is not competent to take cognizance of the case. The words not competent are not used in sec. 346. If after taking some evidence the Magistrate finds that the offence appears to have been committed in another district he must act under sec. 201Cr. P. C. and not under sec. 346 of the said Code Therefore with great respect I find it difficult to agree with the view taken by the Calcutta High Court.

(3.) In the instant case the learned Magistrate is right in following the provisions of section 201 Cr. P. C. The learned Sessions Judge is not right in the view he has taken that sec. 201 Cr. P. C. cannot apply after the Magistrate has taken evidence.