KABIR AND ORS. Vs. STATE

JUDGEMENT

(1.) This order shall govern Criminal Revisions Nos. 778 to 780 of 1963. They were heard together and are being decided by one order as a common question of law is involved. Muzaffar Ali, Ahmad Husain and Masoom Ali lodged three reports under Sec. 323, I.P.C. at police station Adampur of district Varanasi. These reports were against Kabir and three others of Criminal Revision No. 778 of 1963, Nasir and two others of Criminal Revision No. 779 of 1963 and Luqman Ali and another of Criminal Revision No. 780 of 1963. The offence alleged to have been committed by the applicants was non cognisable and consequently the police moved the City Magistrate of Varanasi for permission under Sec. 155(2), Cr. P.C. to investigate the offence. The City Magistrate granted the permission and after investigation the police submitted charge-sheets against the applicants which we, taken cognizance of by Sri A.D. Pandey, Magistrate. In all the three cases the accused-applicants raised a preliminary objection that the permission granted by the City Magistrate was invalid on the ground that he had no territorial jurisdiction, as he was not empowered to try the cases under the Indian Penal Code. The suggestion thus made was that the City Magistrate was not one of the Magistrates who could grant the permission under Sec. 155(2), Crimial P.C. and consequently the police could not investigate the three offences nor could it submit the charge sheets. The objection was repelled by the Magistrate and the Sessions Judge of Varanasi took the same view and dismissed the three criminal revisions made by the applicants to challenge the above order of the Magistrate. The applicants there-after moved this Court to have the criminal proceedings quashed. The Magistrate observed that the permission for investigation of non cognisable offence, under Sec. 155(2), Cr. P. C. could be given both by the Judicial Officer and the City Magistrate as both exercised territorial jurisdiction over police station Adampur to which the present cases related. The Sessions Judge also observed that police station Adampur was in the city sub-division and as such the City Magistrate had territorial jurisdiction in respect of those cases. There is nothing on record which may show that police station Adampur or the place where the present occurrences took place did not lie within the city sub-division of Varanasi. We can, therefore, proceed with the assumption that the City Magistrate of Varanasi exercised territorial jurisdiction and the only point for consideration is whether the City Magistrate was competent to try the non-cognisable offences under Sec. 323, I.P.C.

(2.) A scheme purporting to amount to separation of executive from judiciary is in force in the district of Varanasi also and thereunder, all the I.P.C. cases are tried by Judicial Magistrates while preventive cases under the Code of Criminal procedure by City Magistrates or Sub-Divisional Magistrates. It is by virtue of the scheme that I.P.C. cases are tried by the Judicial Magistrates of Varanasi, and not by the City Magistrate and sub-Divisional Magistrates. The scheme was not framed under any provision of the code of Criminal Procedure, nor under any other enactment, and in the eye of law shall amount to an administrative order which shall not debar a Magistrate from trying any case after taking cognizance of in accordance with the law or after the case is transferred to him for trial. Sec. 190(1), Crimial P.C. lays down as to who can take cognizance of an offence. The cognizance of an offence can be taken by District Magistrate or Sub-Divisional Magistrate or my other Magistrate specially empowered in this behalf. The City Magistrate is for the city sub-division a sub-Divisional Magistrate and he can by virtue of this provision take cognizance of any offence pertaining to the city sub-division. The City Magistrate could thus take cognizance of the present offences under Sec. 323, I.P.C. and try the cases himself and in such a case he could accord permission to the police under Sec, 155(2), Cr. P. C. to investigate the non-cognisable offences under Sec. 323, I.P.C.

(3.) Sec. 12, Crimial P.C. empowers the State Government to define local areas within which Magistrates appointed by it may exercise all or any of the powers with which they may respectively be invested under this Code. Though the State Government has the power to define local limits of the exercise of jurisdiction it cannot under this provision restrict the other powers invested on a Magistrate. I, therefore, agree with the lower courts that the City Magistrate of Varanasi was in the eye of law, Magistrate empowered to try all the criminal cases of police station Adampur and he could grant the permission for the investigation of an non-cognisable offence as contemplated by Sec. 155 (2), Crimial P.C. Even if it be assumed for the sake of agreement that the City Magistrate was not a Magistrate contemplated by Sec. 155(2), Cr, P. C. the irregularity would be curable under Sec. 529(b), Crimial P.C. This Sec. clearly lays down that:-