OM PARKASH Vs. THE STATE

JUDGEMENT

(1.) THE police sent up Om Parkash to stand his trial under section 467 and 474 of the Indian Penal Code in the Court of Sh. A.C. Sharma, Magistrate First Class, Amritsar. Both these offences were non -cognizable, and the learned Magistrate, however, took cognizance of them and committed the accused to stand his trial under section 474 of the Indian Penal Code only in the court of Session. The charge against him was that he on 28th June, 1960, at Amritsar, kept in his possession railway ticket No. 099704 Exhibit P. 1 and other railway tickets Exhibits P. 2/1 -3, P. 3, P. 4/1 -4 and Exhibits P. 5 to P. 79 from Amritsar to Delhi knowing the same to be forged ones and intending that the same shall be fraudulently and dishonestly used as genuine. The learned Sessions Judge convicted him under section 474 of the Indian Penal Code and sentenced him to one year's rigorous imprisonment. The convict appeals.

(2.) THE learned counsel for the accused -appellant argued that the offences punishable under section 467 and 474 of the Indian Penal Code both were not cognizable and that the Magistrate could not have taken cognizance of these offences on police report as provided in section 190 read with section 155 of the Code of Criminal Procedure. He further maintained that the Court of Sessions also under Section 193 of the Code of Criminal Procedure except as otherwise expressly provided by the Code or any other law for the time being in force was precluded from taking cognizance of any offence as a Court of original jurisdiction unless the accused had been committed to it by a Magistrate duly empowered in that behalf. It is also not disputed that the investigating officer investigated the case against the accused without the sanction or order of the Magistrate as required by sub -section (2) of section 155 of the Code of Criminal Procedure. In the view of the learned counsel the trial of the accused by the learned Additional Sessions Judge was bad in law because the committing Magistrate could not have taken cognizance of the two offences on a police report and when he was not competent to do so he was not legally entitled to commit him for trial to the Court of Sessions. The learned counsel for the State conceded that the committing Magistrate could not have taken cognizance of the offences punishable under sections 467 and 474 of the Indian Penal Code on police report and further that the learned Additional Sessions Judge also could not have taken cognizance of any offence as a Court of original jurisdiction unless the accused had been committed to him by a duly empowered Magistrate. He, however, added that the irregularity committed by the committing court was of the procedural nature and so should not be deemed enough to vitiate the entire trial. I am not in agreement with him. In my opinion, the entire trial is vitiated as without jurisdiction. In this connection reference may be made to the case, Labhshankar Keshavji and another v. State, A.I.R. 1955 Sau. 42, which lays down :