STATE OF BIHAR Vs. GITA NAND JHA

JUDGEMENT

(1.) THE question for determination in this case is as to the scope and extent of power of the Chief Judicial Magistrate in a case referred to him under section 325 of the Code of Criminal Procedure (hereinafter referred to as the Code). In other words, the question to be determined is as to whether after reference by a trying Magistrate under section 325 of the Code the Chief Judicial Magistrate has to form his own opinion regarding the evidence on record and decide the matter independently or he has to dispose of the matter in terms of the finding of the guilt arrived at by the referring Magistrate at the time of the reference.

(2.) THE facts necessary to appreciate the points are as follows; (1) Respondent Gita Nand Jha at the relevant time the Secretary of Dharhan Multipurpose Cooperative Society. He is alleged to have misappropriated Rs. 20934/ -. One Chandeshwar Pd. Sharma, the Cooperative Extension Supervisor, filed a written report alleging misappropriation of money against Gita Nand Jha and on the basis of which a F.I.R. under section 409 and 467 I.P.C. was drawn up. Thereafter, the police after investigation submitted chargesheet under the aforesaid sections. (2) On 16.4.80 the Chief Judicial Magistrate took cognizance under the aforesaid sections and the case was transferred to the Sub -divisional Judicial Magistrate, Katihar for trial, before whom the prosecution examined three witnesses and produced the documents and the subdivisional Judicial Magistrate after considering the evidence on the record came to the conclusion that respondent Gita Nand Jha (hereinafter referred to as the respondent) misappropriated Rs. 15713.18/ - while working as a Secretary of the said society and thus found him guilty of the offence under section 409 I.P.C. He acquitted him of the charge under section 467 I.P.C. While deciding the question of sentence he opined that as criminal breach of trust was committed with regard to Rs. 15713.18/ - he deserves severe sentence which is beyond his competence and accordingly he sent those records to the Chief Judicial Magistrate for passing an adequate sentence against the respondent by judgment and order dated 21.11.84. (3) The Chief Judicial Magistrate after receipt of the records, examined the accused under section 313 Cr.P C. ', heard the parties and perused the records and thereafter by judgment and order dated 14th May, 85 acquitted the respondent as according to him the prosecution has not been able to prove offence under section 409 I.P.C. against him. (4) The State has preferred the present appeal against the acquittal. The learned single judge while hearing the appeal has referred this matter to the Division Bench as according to his lordship the Chief Judicial Magistrate not being an appellate Court was not justified in acquitting the accused when the referring Court has found him guilty for the offence under section 409 I.P.C.

(3.) ANSWER to the question rererred to the Division Bench depends upon the interpretation of the provision of section 325 of the Code as such it is apt to quote the aforesaid provision which runs as follows; ''325. (1) Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate. (2) When more accused than one are being tried together and the Magistrate considers it necessary to proceed under sub -section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate. (3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in the case may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law. ''