SUKHDEO TIWARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is directed against the order dated 8th of April, 1974, whereby the Sub-divisional Magistrate, Giridih, accepted the charge-sheet submitted by the police against the petitioners and sent the case to the District and Sessions Judge for necessary orders. By the same order he also directed the petitioners to appear before the District and Sessions Judge on 29th of April, 1974.

(2.) The order is obviously illegal and without jurisdiction. Facts necessary for the disposal of this application are that on 4th of March, 1973, one Manik Mahto gave his Fard Bayan before the Sub-Inspector of Police, Birni Police Station, wherein he said that a dacoity was committed in his house. It was also said in the Fard Bayan that the informant could not identify any of the dacoits. On the basis of the Fard Bayan a formal first information report was drawn up and a case under Section 395 of the Indian Penal Code was registered. The Police thereafter started investigation and on its completion submitted charge-sheet on 5th of November, 1973. wherein these petitioners were shown as accused persons. No orders were passed by the Sub-divisional Magistrate till 5th of April, 1974. On 5th of April, 1974, the Sub-divisional Magistrate heard arguments on behalf of the oetitioners also and adjourned the case for orders on 8th of April, 1974. On 8th of April, 1974, he passed the impugned order whereby he found a prima facie case against the petitioners and directed that records of the case be sent to the District and Sessions Judge. The petitioners attacked the order dated 8th of April, 1974, on the ground that after the enforcement of the CODE OF CRIMINAL PROCEDURE, 1973 (Act II of 1974), the Sub-divisional Magistrate had no jurisdiction to take cognizance and direct the petitioners to appear before the District and Sessions Judge. Another ground taken is that the Sub-divisional Magistrate had no jurisdiction to send the case to the District and Sessions Judge.

(3.) No one has appeared in support of this application. I have looked into the application filed in this Court and the impugned order. I also had the advantage of assistance by learned Standing Counsel No. 1. The Code of Criminal Procedure, 1973 came into force on 1st of April, 1974. Section 190 of the new Code prescribes that cognizance of offences can be taken by any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), upon a police report of such facts. Sub-section (3) of Section 3 of the Code makes it clear that whenever the expression "a Magistrate of the first class" is used, it shall be construed as a reference to a Judicial Magistrate of the first class. Likewise whenever the expression "a Magistrate of the second class or of the third class" is used, it shall be construed as a reference to a Judicial Magistrate of the second class. It is. therefore, manifest that the expression "any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2)" used in Section 190 of the Code means a Judicial Magistrate of the first class and any Judicial Magistrate of the second class specially empowered in this behalf under Sub-section (2). It cannot be disputed that the Sub-diviaional Magistrate who took cognizance of the offence on 8th of April, 1974 was not a Judicial Magistrate. He, therefore, had no jurisdiction to take cognizance of the offence on 8th of April, 1974. Again, the order directing the case to be sent to the District end Sessions Judge was also illegal and without jurisdiction. I fail to understand as to which provision of law, either in the new Code or in the old Code, empowered the Sub-divisional Magistrate to send the matter to the District and Sessions Judge. Presumably he thought that he was exercising his powers under Section 209 of the new Code which provides for commitment of cases to the Court of Session when offence is triable exclusively by it. But in this section also the power to commit has been vested in Judicial Magistrates and not in Executive Magistrate. Probably the learned Sub-divisional Magistrate was misled by the expression 'Magistrate' occurring in this section, but he overlooked Sub-section (3) of Section 3 of the Code wherein it has been explained that whenever the expression 'Magistrate' has been used, it means a Judicial Magistrate. For all these reasons, it is not possible to uphold the order dated 8th of April, 1974 which is fit to be quashed.