SHANTINATH BABURAO CHAUGULE Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution in which it has been prayed that section 395(2) of the Code of Criminal Procedure, 1973, be declared as unconstitutional, null and void, because the said provision is ultra vires of Articles 14 and 21 of the Constitution of India. The petitioner has been described as the Chief Judicial Magistrate of Aurangabad and as we have understood the arguments of the petitioner put forth through his Counsel Mr. S.B. Talekar, the aforesaid provision, namely, section 395 of Code of Criminal Procedure makes a hostile discrimination between the Judicial Magistrates on the one hand and the Metropolitan Magistrates on the other. It is the case of the petitioner that under section 395 (1) of the Code, every Magistrate or, for that matter, every Court which is subordinate to the High Court can make a reference if that Court is satisfied that any case pending before it involves a question as to the validity of any law of the land the determination of which is necessary for the disposal of the case and is of the opinion that such Act or such law has not been declared invalid by the High Court or the Supreme Court. Sub-section (1) of section 395, therefore, does not make any distinction between the Metropolitan Magistrate and the Judicial Magistrates.

(2.) However, the petitioner proceeds to mention that sub-section (2) of section 395 empowers only the Court of Session or a Metropolitan Magistrate, if it or he thinks fit in any case pending before it or him which does not involve the question as to the validity of any law as mentioned in sub-section (1) of section 395, to refer for the decision of other High Court any question of law arising in the hearing of any such case. Sub-section (2) of section 395 does not give power to a Judicial Magistrate or a Chief Judicial Magistrate, such as the petitioner. This, according to the petitioner is evaluative or Articles 14 and 21 of the Constitution.

(3.) Naturally the question arose as to what is the locus of the petitioner to approach this Court with the aforesaid prayers. The petitioner has in paragraph 2 of his petition explained what according to his understanding is the correct meaning of section 251 of the Code. Thereafter in paragraph 3 of petition the petitioner has stated that since there is no decision on the point covering this aspect of the matter, namely, the correct interpretation of section 251 of the Code, he was actuated by bona fide and honest intention in referring a matter to the Honble High Court. The petitioner further states that he had no intention either to lower down the prestige of any Court in estimation of the public or to interfere with the administration of justice by making a reference to the Honble High Court. The petitioner thereafter says that in the reference which was made by the petitioner to the Honble High Court, the competency of making a reference by a Chief Judicial Magistrate was questioned.