P D SHAMDASANI Vs. SIR HPMODY

JUDGEMENT

(1.) This is an application in revision to interfere with the procedure of the Presidency Magistrate, 2nd Court, Bombay, who is trying an offence under Section 282 of the Indian Companies Act of 1913. That offence is punishable with imprisonment for three years and also with fine. The learned Magistrate is trying it in a summary manner and is not recording the evidence in full, and the prosecutor in the case contends that this procedure is illegal in view of Section 278 (2) of the Indian Companies Act of 1913. That sub-section provides that if any offence which by the Act is declared to be punishable by fine only is committed by any person, within the local limits of the High Court, it should be punishable upon summary conviction by any Presidency Magistrate. The argument is that this section limits the powers of a Magistrate as regards summary trial to offences which are punishable with fine only, in other words it restricts the powers of Presidency Magistrates and does not merely enable them to try certain classes of cases in a summary manner.

(2.) There is no other section of the Act dealing with this matter, and but for Section 278 of the Indian Companies Act an offence of this kind would be triable by a Presidency Magistrate according to the procedure laid down in Section 362 of the Criminal Procedure Code ; and the question before us really amounts to the question whether the powers given to Presidency Magistrates by the general Act (Criminal Procedure Code) can be deemed to have been abrogated by the wording of Section 278 of the special Act (Indian Companies Act of 1913). We have no doubt that the section must be regarded as an enabling rather than as a restrictive section ; this is made clear by the state of the law as it existed in 1913 when Section 278 was enacted. In 1913 Section 362 of the Criminal Procedure Code stood as it was before the amendment of 1923 ; and before the amendment the position was that a Presidency Magistrate had to take down in his own hand or cause to be taken down at his dictation the evidence in every case in which he intended to impose a fine exceeding Rs. 200 or imprisonment for a term exceeding six months. It would follow that in deciding a case involving a company matter he would be bound to record evidence unless he intended to fine the offender less than Rs. 200 or sentence him to imprisonment for less than six months. Then Section 278 of the Indian Companies Act was enacted, and this had the effect of allowing the Magistrate to try in a summary manner any offence punishable with fine only. The intention clearly was to extend the ordinary powers of a Presidency Magistrate under the Criminal Procedure Code beyond the limit of Rs. 200 provided by that Code but to restrict the extended power to offences punishable with fine only. That is the natural meaning to apply to Section 278. This interpretation of Sub-section (2) is strengthened by the wording of Sub-section (3), which provides that not-withstanding anything in the Criminal Procedure Code all offences under the Act are to be deemed to be non-cognizable. The words " Notwithstanding anything in the Criminal P. C." do not occur in Sub-section (2). We think therefore that in any case of an 6ffence under the Companies Act which is punishable with fine and imprisonment the Presidency Magistrate may try the case summarily unless he imposes an appealable sentence, the amendment of 1923 having provided for appealable sentences rather than sentences involving fine of Rs. 200 or imprisonment for less than six months.

(3.) It is next argued that even though a Presidency Magistrate has jurisdiction to try these cases in a summary manner without recording the evidence in full, it is nevertheless wrong that he should do so having regard to the volume of the evidence and length of time that would be taken to record it. This contention is largely based on In re Hanifabai (1930) 32 Bom. L.R.1499, where a division bench of this Court interfered in a case which had been summarily tried but had taken several hearings, and the Court thought that the Magistrate probably did not fully remember the evidence. There are however two cases to the contrary decided by division benches of this Court : see In re Chhagan Hargovarn (1931) 34 Bom. L.R. 276 and Emperor V/s. D Souza (1931) 34 Bom. L.R.286. The view taken in the last two cases was that the High Court could not interfere in a matter which was purely within the discretion of the Magistrate. We have no doubt that it would be wrong to interfere in this case, since the discretion of the Magistrate has been judicially exercised. His report shows that he has fully considered the matter, and he has given full reasons for trying it summarily.