SHEO NATH Vs. STATE

JUDGEMENT

(1.) THIS revision raises an interesting question of law.

(2.) THE opposite party Krishna Kumari had grown Berra crap on a certain plot of hers which was cut and carried away b the petitioners on March 29. 1970, She made a F. I. R. , on the same date and followed it up by the institution of complaint in Court on May 1 1970. The trial was held by Sri D. B. Mathur, Judicial Magistrate. First Class, in the summary manner under Chapter XXII. of the Code of Criminal Procedure,, and the petitioners were convicted under Section 379. of the Indian Penal Code, and sentenced to pay a fine of Rs. 30/- each. They went up in revision to the Court of Session, and there raised a plea that the offence was not triable summarily inasmuch as the value of the stolen crop exceeded the sum of Rs. 200/- and. therefore, the Magistrate had no jurisdiction to try the case summarily and the trial was void under Clause (q) of Section 520. of the Code. The learned. Sessions Judge. however, repelled this contention and dismissed the revision, which has occasioned the institution of the present revision in this Court.

(3.) SECTION 530 (q) says that if any Magistrate, not being empowered by law in this behalf tries an offender summarily. his proceedings shall be void. The learned counsel argued that 'the words "not being empowered by law in this behalf, may mean two things, that is to say. (1) either not empowered to try cases in a summary manner, or (2) empowered to try summarily, but trying a case which is not triable in a summary manner. Section 316, of the Code, refers to ordinary powers, while Section 37 refers to additional powers of Magistrates Under Section 36, all District Magistrates. Sub-Divisional Magistrates, and Magistrates of the first, second and third classes, have the powers respectively conferred upon them and specified in the third schedule. Such powers are called their "ordinary powers". Under Section 37. In addition to his ordinary powers, any Sub-divisional Magistrate or any Magistrate of the first, second or third class may be invested by the State Government or the District Magistrate, as the case may be. with any powers specified in the fourth schedule a 9 powers with which he may toe invested by the State Government or the District Magistrate. The powers with which a Magistrate of the First Class may be invested by the State Government are specified in schedule IV, Part I. sub. Part (la ). Item No. 11 relates to power to try summarily under Section 260. It will thus appear that it is not Magistrates of the First Class who can try a case summarily but it is only such a Magistrate who has been empowered in this behalf by the State Government under item No. 11 of the said schedule. It is not disputed that Sri D. B. Mathur was empowered by the State Government to try cases summarily under Chapter XXII of the Code. The next Question is whether the instant case was triable in a summary manner. This brings me to Section 260 (1) (d) of the Code, which provides that notwithstanding anything contained in the Code, any Magistrate of the First Class specially empowered in this behalf by the State Government may if he thinks fit, try in a summary way an offence of that under Section 379. Where the value of the property stolen does not exceed two hundred rupees. That being so. Sri D. B. Mathur was competent to try An offence under Section 1979 provided that the value of the property stolen namely of the Berra crop, did not exceed that amount. The amount of the stolen crop that was given in the F. I. R. and which was repeated in the complaint was Rs. 200/ -. Krishna Kumari stated under Section 200. of the Code, also that the amount was only that much. Her two witnesses, in their statements under Section 202. of the Code, also made a similar statement. It is on the basis of the value given in the F, I. R. the complaint. and the statements aforementioned, that the Magiststrate decided to 1iold a summary trial. In evidence at the trial, however, Krishna Kumari assessed the value of the stolen crop a' Rs. 225 and it is on the basis of that casual statement made by her that that argument was raised before the learner" Sessions Judge, as also in this Court, that the jurisdiction of the learned Magistrate hold the trial in a summary manner came to an end and it was his imperative duty to have stayed his hands and to have held a. regular trial.