UTTAMBHAI RANCHHODDAS GANDHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) * * * *

(2.) The first question that arises is whether sec. 323 of the New Code has been correctly interpreted by the learned Sessions Judge. I quote sec. 323 below on one side of the paper and by its side in juxta-position place sec. 347 of the Criminal Procedure Code. 1898. ... ... ... ... See. 323 of New Code See. 347 of the Old Code If in any inquiry into an offence or a trial (1) If ill any inquiry before a Magistrate before a Magistrate it appears to him or in any trial before a Magistrate beat any stage of the proceedings before fore signing judgment it appears to him signing judgment that the case is one at any stage of the proceedings that the which ought to be tried by the Court of case is one which ought to be tried Session he shall commit it to that court by the Court of Sessions or High Court under the provisions hereinabove con-and If he is empowered to commit for tained: trial he shall commit the accused under the provisions hereinabove contained. (2) If such Magistrate is not empowered to commit for trial he shall proceed under sec. 346.

(3.) Even a casual glance at the two provisions quoted- above would show that the concerned Legislature had the same situation before its mind when the respective provisions had come to be enacted Sec. 347 of the Criminal Procedure Code of 1898 was the subject-matter of various judicial decisions and those authorities show that the power under sec. 347 could be invoked by the Magistrate in a variety of circumstances like the incompetence of his possibility of his being not able to pass the adequate sentence and the like. One illustration would suffice. An offence under sec. 409 of the Penal Code is punishable with imprisonment for life or with imprison- ment of either description for 10 years. Under the old Criminal Procedure Code the said offence under sec. 409 of the Penal Code can never be committed to the Court of sessions. This means that though an offence under sec. 409 of the Penal Code is punishable with imprisonment for life or with imprisonment for 10 years the maximum punishment provided by the Legislature would be a matter of only idle formality because according to the learned Sessions Judge this case can never be committed to the Court of Sessions and would be triable at the most by the Chief Judicial Magistrate who can impose sentence only upto one for seven years. It call not he so from the very nature of the things. If in a given case the Magistrate thinks that looking to the enormity of the allegations the offence under sec. 409 of the Penal Code should be visited with a punishment for a life term or for 10 years would he be helpless ? The Legislature could not have contemplated this sort of situation. Therefore only the sec. 323 and 323 alone would step into this situation and enable the Magistrate to commit the case to the Court of Sessions. So the learned Sessions Judge obviously was not right when he confined sec 323 to the cases exclusively triable by a Court of Sessions and not others.