NARENDRA AMRATLAL DALAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In peculiar circumstances this petition has come to be filed. In fact at the bar a grievance was made as regards practice in vogue in some Courts of sending a criminal case from the Metropolitan Magistrates Court to the Sessions Court and from the Sessions Court to the Chief Metropolitan Magistrates Court and from there again to the Metropolitan Magistrates Court. This exactly seems to have happened in the present case with the result that as stated by the learned Advocate for the petitioner at the bar the petitioner had to execute fresh bail and surety bond four times.

(2.) The following facts will be quite eloquent on this grievance and they now call for true and correct interpretation of the relevant provisions bearing upon the powers of the Magistrate and the Chief Metropolitan Magistrate (which interpretation would cover Judicial Magistrate and Chief Judicial Magistrate also) as regards sending of cases from one Court to another on the ground that the sentence which could be imposed by the Magistrate would not be adequate.

(3.) The petitioner was a cashier and he was charge-sheeted before the Metropolitan Magistrate Second Court Ahmedabad with two separate offences viz. criminal breach of trust punishable under sec 408 and falsi- fication of accounts punishable under sec. 477A of the Indian Penal Code. Those two cases were numbered separately as Criminal Cases Nos. 1894 and 1896 of 1976. The amount involved as per the prosecution allegation in both the cases was about Rs. 6 lacs. The learned Metropolitan Magistrate being of the opinion that he cannot pass adequate sentence in the case co- mmitted the case to the Court of Sessions for the City of Ahmedabad This was done in spite of the fact that the maximum sentence for the aforesaid two offences was imprisonment for seven years and in spite of the provisions of sec. 29 of the Code of Criminal Procedure 1973 (new Code) which conferred power on the Chief Metropolitan Magistrate to impose the sentence of seven years Therefore at least this case could have been sent to the Chief Metropolitan Magistrate under the provisions of sec. 325 of the new Code. Instead the learned Metropolitan Magistrate straightway committed the case to the Court of Sessions. Even the Sessions Court could not have imposed a sentence of more than seven years for these two offences. Before this order of commitment was passed both the above cases were amalgamated into one case and then that case was committed to the Court of Sessions. It was numbered as Sessions Case No. 7 of 1977 in the Sessions Court. When that case came up for hearing after framing charge before the Sessions Court the learned Sessions Judge having found that both the offences were punishable with the maximum sentence of seven years acted under sec. 228(1)(a) of the new Code. He framed a charge as contemplated by that section for offences punishable under sec. 408 and sec. 477A of the Indian Penal Code and sent the case for trial to the Chief Metropolitan Magistrate. Speaking with respect the Chief Metropolitan Magistrate rather adopted an unusual course purporting to exercise powers as regards distribution of business conferred upon him under sec. 19 of the new Code. By his Office Order No. A(VI) 11/77 he transferred the case to the Court of the Metropolitan Magistrate Second Court. The result was that the petitioner found himself in the same Court again which had sent him to the Sessions Court. This is really unhappy and it has impelled this Court to construe the relevant provisions so as to see that in future an accused person is not unduly tossed from one Court to another by exercise of powers conferred upon the Court with regard to sending of the case to another Magistrate or the Sessions Court on the ground that the accused cannot be adequately punished by the concerned Magistrate.