LAWS(APH)-1987-3-35

YELUGULA SIVA PRASAD Vs. STATE OF ANDHRA PRADESH

Decided On March 06, 1987
YELUGULA SIVA PRASAD Appellant
V/S
STATE OF ANDHRA PRADESH Respondents

JUDGEMENT

(1.) A charge-sheet has been filed against A-1 and A-2 for the offences under S. 498-A and S. 306 I.P.C. read with S. 34 IPC. The Addl. Judicial 1st Class Magistrate, Vizianagaram, having found that it is a case exclusively triable by a Court of Session, committed the case in PRC No. 24/85 by means of an order dated 20-12-1985. The Principal Sessions Judge, Vizianagaram, registered the case as Sessions Case No. 51 of 1985 and made over the same for disposal to the Asstt. Sessions Judge, Vizianagaram. The Asstt. Sessions Judge, Vizianagaram, in his order dated 11-3-1986 found that no case has been made out against the accused under S. 306 IPC and only a case under S. 498-A IPC has been made out. Accordingly he sent the case for re-trial by the Chief Judicial Magistrate, Vizianagaram, by invoking the powers under S. 228(1)(a) Cr.P.C. It is against that order, the present revision petition has been filed.

(2.) It is contended by Sri M. S. K. Sastry, that under S. 12 Cr.P.C. in every District (not being a Metropolitan area), the High Court shall appoint a Judicial Magistrate of the First Class to be the Chief Judicial Magistrate, but in this case the Addl. Dist. Judge is designated as the Chief Judicial Magistrate and he is holding a higher position than that of the Asstt. Sessions Judge, and, therefore, the order that has been passed by the learned Asstt. Sessions Judge is not correct.

(3.) It is true that only Magistrates of First Class were considered to be the persons that can try the cases and that those persons can be designated as Chief Judicial Magistrates. In this State, the Addl. Dist. Judges have been designated as the Chief Judicial Magistrate. No doubt he is holding a superior post. But while considering the position with regard to the Sessions Division the Chief Judicial Magistrate is holding the rank lower than the Asstt. Sessions Judge. The Asstt. Sessions Judge is having powers to dispose of the cases that where entrusted to him by the Principal Sessions Judge. While he is exercising the powers as Assistant Sessions Judge, definitely he is competent to exercise his discretion under S. 228 Cr.P.C. and then if he was of the opinion that the case is not exclusively tribal by the Court of Session, he can frame a charge against the accused and transfer the same to the Chief Judicial Magistrate for trying the same. The Code has not given any choice either to the Sessions Judge or the Asstt. Sessions Judge in the event of their arriving at the conclusion that there is no case triable by the Court of session they can remit the case to any of the First Class Magistrates within the District. What has been contemplated under S. 228 Cr.P.C. is only a Chief Judicial Magistrate. Simply because the Chief Judicial Magistrate is holding the higher position than that of the Assistant Sessions Judge in a different capacity, we cannot say that he is not competent to try the cases. No doubt an anomalous situation has arisen in this case. It cannot be said that the Asstt. Sessions Judge in the event of his arriving at an onion that there is no case exclusively triable by the Court of Session, he has to remit the case to the Magistrate of first class only. What has been contemplated is the only First Class Magistrates to be conferred with the powers as Chief Judicial Magistrates. In this State the Additional District Judges have been conferred with the powers of the Chief Judicial Magistrate. I feel that the impugned order does not suffer from any illegality or irregularity as pointed out by the learned counsel.