MOTILAL AGARWALLA Vs. NISAMONI MOHANTY

JUDGEMENT

(1.) THIS application in revision raises an interesting question regarding the correct interpretation of Sub -Section (2) of Section 346 of the Criminal Procedure Code.

(2.) ON 24.5.1971, the petitioner filed a complaint petition against the opposite parties and one Sudhakar Misra alleging that they had committed offences under Sections 346, 427, 147 and 504 of the Indian Penal Code. The Sub -divisional Magistrate directed an inquiry under Section 302, Criminal Procedure Code by a Magistrate, who after such inquiry submitted a report that a prima facie case under Section 352, I.P.C. had been made out against the three accused persons. On a perusal of the report the S.D.M. took cognisance under Section 352, I.P.C. and transferred the case for disposal to Shri S.C. Satpathy. Magistrate, 3rd Class for trial according to law. After examining two witnesses for the prosecution, the Magistrate Shri Satpathy thought that an offence under Section 427, I.P.C. had been made out against the accused persons and that he being a Magistrate of the third class was not competent to try it. He, therefore, submitted the file to the Sub -divisional Magistrate under Section 346(1), Criminal Procedure Code After receipt of the records, the S.D.M. after perusing the evidence which Sri Satpathy had already recorded, differed from the latter's conclusion that an offence under Section 427, I.P.C. had been made out against the accused persons and thought that the offence which appeared to have been made out was only under Section 352, I.P.C. He, therefore, transferred the case for trial to Sri H. Mohapatra, another Magistrate of the 3rd class for disposal according to law. It is against this order that the complainant has filed this revision application.

(3.) ON the interpretation of Sub -Section (2) of Section 346, Criminal Procedure Code, there appears to be a divergence of views between the Bombay High Court on one side and of the Madras and Kerala High Courts on the other. The earliest decision placed before me is a Full Bench decision of the Madras High Court in Polur Reddi v. Munusami Reddi, AIR 1930 Madras 765 : (31 Cri LJ 1010). The short facts of that case are these : A complaint was made against 8 persons on a charge of dacoity and came before the Second Class Sub -Magistrate. He thought that there was no basis for that charge. But as out of the eight persons accused before him, one was alleged to have been armed with stick and a deadly weapon, he thought that the charge was one under Section 148, I.P.C. and sent the case under Section 346(1), Criminal Procedure Code to the Joint First Class Magistrate for disposal. The latter after going through the case differed from the view taken by the Second Class Sub -Magistrate and thought that the evidence disclosed that the accused might be guilty of some lesser offence. He referred the case back under Section 346(2), Criminal Procedure Code to the Magistrate. It is against this order that a revision application was filed in High Court which came up in the first instance for disposal before Jackson, J. who referred it to a Full Bench. The point that was argued in support of the revision application was that a superior Magistrate cannot simply return a case to the subordinate Magistrate from wham it comes but must refer it to some other Magistrate or dispose it of himself. This contention was not accepted by the Full Bench who held that in fact, the terms of Sub -Section (2) of Section 346 are sufficiently wide to embrace a reference back of the case to the Magistrate who originally submitted it.