BASDEO Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by three men named Basdeo, Rupi and Sirya respectively, who have been charged, convicted and sentenced under Secs.147 and 323, coupled with Section 149, Indian Penal Code. At the outset of the appeal, a preliminary point has been taken on behalf of the appellants. It is this. The two charges upon which the appellants have been tried were under Secs.323 and 147, Penal Code, respectively. A reference to Schedule 2, Criminal P.C. shows that each of these offences is what is known as a "warrant" case and is triable by "any Magistrate." In the present case the proceedings in their earlier stages came before the Special Magistrate of the first class of Muttra and he, on 14 March 1944, committed the present appellants to stand their trial before the Sessions Court of Muttra. At that stage it is necessary to say that the charges against these appellants were the outcome of one of those unfortunate affairs which so frequently happen and which give rise to cross-charges by and against two opposing parties of villagers, the substantial question being in each case as to which of them was the aggressor. This case was one of this kind; and, in addition to the charges against these appellants, the appellants themselves had made cross-charges against the complainants, which cross-charges under Section 304, Indian Penal Code, had already been sent to the Sessions Court for trial. The learned Magistrate accordingly, for reasons which must be obvious enough, in his committing order said that, as there was a cross-case of the same date relating to the same dispute, he also committed the appellants to stand their trial in the same Sessions Court. Apart from any technicalities under the Criminal Procedure Code, that sounds reasonable enough.

(2.) What, however is said is that, inasmuch as the charges framed by the learned Magistrate against the appellants in this case were within the competence of the committing Magistrate himself, and the committing Magistrate expressed no opinion that the appellants could not be adequately punished by him, the committal to the Court of Session was bad in law under Section 254, Criminal P.C. That section provides that, after the hearing by the Magistrate of the evidence, he is to frame a charge in writing against the accused and to proceed to try them in all eases in which he is himself competent to try them and is of the opinion that an adequate punishment can be inflicted by him. That is a mandatory provision and amounts really to the direction of the Criminal Procedure Code that, unless the Magistrate holds the view that his powers of punishment are insufficient, he is bound to try those eases which are within his own jurisdiction, instead of sending them to the Sessions Court to be tried. In the present case the charges framed by the learned Magistrate were within his own competence to deal with, and his own powers of punishment were, so far as imprisonment was concerned, sufficient to cover the maximum sentences allowed by the relevant sections of the Indian Penal Code. Moreover, in his committing order, the learned Magistrate did not purport to give as his reason for sending the matter to the Sessions Court any doubt as to his own power to inflict an adequate sentence. In all these circumstances it is contended on behalf of the appellants that their trial in the Sessions Court has been bad in law and that, apart from the merits of the case, they are entitled to have it set aside and, presumably, either to be acquitted or to have a retrial. Numerous authorities bearing on this matter have been referred to. In our own Court in Emperor V/s. Dharam Singh ( 06) 3 A. L. J. 14 the late Sir George Knox in circumstances very similar to the present circumstances quashed a commitment to a Court of Session upon the ground that the committing Magistrate might himself have tried the case. To the same effect were the cases in 456, Emperor v. Bindeshri Goshain ( 19) 6 A.I.R. 1919 All. 366 and Emperor V/s. Ram Jatan ( 24) 11 A.I.R. 1924 All. 185. All these cases, however, are cases in which committal orders were quashed at the point of commitment and before they had proceeded to trial in the Sessions Court. Had this case involved the same question as in those referred to above, no question would have arisen. But, in my view, the question here is quite a different one. In this case, the trial has been held by the Sessions Judge. Even assuming that the trial was one which should properly, according to Section 254, Criminal P.C., have taken place before the learned Magistrate, there still arises, in my view, the question whether this is not a matter which is covered by Section 537 of the same Code. That section provides that: Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chap. 27 or on appeal or revision on account- (a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code...unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice.

(3.) The material question here, to my mind, is whether what has happened, even assuming it to have been wrong, is not merely an error or irregularity of proceeding, which has in fact occasioned no failure of justice within the meaning of Sec. 537, Criminal P.C. Against this it is said that the effect of the irregularity on the part of the committing Magistrate was that there came into the Sessions Court for trial something which that Court, had no power to try, and accordingly, for the purpose of Section 537 of the Code, the Sessions Court cannot be described as a Court "of competent jurisdiction." This argument rests on Section 193 (1), Criminal P.C. That section says: (1) Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction, unless the accused has been committed to it by a Magistrate duly empowered in that behalf....