NURMAHOMED KADARBHAI Vs. EMPEROR

JUDGEMENT

(1.) These are applications in revision from the decision of the Sessions Judge, Surat, upholding the conviction of the accused before the Special Magistrate.

(2.) Now, the accused--I am only referring to the accused, who have appealed to this Court-- were charged originally under Secs.147, 148, 149, 426, 451 and 395 of the Indian Penal Code and they were convicted under Secs.147, 440, and 380, Indian Penal Code, i.e., they were not convicted under Section 395, which deals with dacoity.

(3.) The first point taken on behalf of the accused, by Mr. Velinker, is that the facts brought the case within Section 395 and showed that the offence of dacoity had been committed, and that under the Schedule to the Criminal P. C., a case of dacoity was not within the jurisdiction of the Magistrate. The Magistrate seems to have had some doubt whether the facts justified a charge of dacoity or not, and he was invited by the defence to deal with the case himself. Accepting that invitation, he framed a charge under Secs.147, 440 and 380, and framed no charge under Section 395, and, as I have already said, he convicted the accused under the former three sections. The accused now say that the Magistrate had no jurisdiction to try the case, but the accused having invited the Magistrate to deal with the case and he having accepted that invitation, in my opinion, there is nothing in the point at all. The learned Magistrate did not, by the consent of the parties, assume jurisdiction to try a case which was outside his jurisdiction. That point would have arisen if he had framed a charge for dacoity and convicted the accused on that charge, but he did not do that. He framed a charge under the other sections--the sections under which he was, invited to frame a charge by the defence, and it is not now open to the defence to object on the ground that he had no jurisdiction.