GIRISH CHANDRA Vs. EMPEROR

JUDGEMENT

(1.) On 19 September 1928, Lort Williams, J., exercising the jurisdiction of the High Court under the Presidency Towns Insolvency Act (3 of 1909 as amended by Act 9 of 1926) and being of opinion that there were grounds for thinking that certain insolvents had committed offences under Section 103 of the said Act, made a complaint under Section 104, thereof to the Chief Presidency Magistrate of Calcutta. The Magistrate issued process on the accused and from the earliest stage of the proceedings determined to conduct them under Chap. 18, Criminal P.C., being of opinion that the case was one which ought to be tried at the High Court Sessions. On 17 December 1928, be formally committed the three accused Girish Chandra Kundu, Sudhir Chandra Kundu and Pramatha Nath Kundu accordingly. On 8 March 1929 the case came before Buckland, J. in the ordinary original criminal jurisdiction of the Court. The learned Judge took the view that as on conviction for an offence under Section 103 of the Act of 1909, the maximum punishment to which the accused is liable to imprisonment for a term which may extend to two years and as there is no provision for imposition of a fine in addition to imprisonment, it was not possible to say of the offence charged that it could not be adequately punished by the Magistrate who has power to impose two years imprisonment. In this view, being of opinion that the commitment was illegal, Buckland, J., directed that the commitment be quashed and that the record, with a copy of his judgment, be returned to the Chief Presidency Magistrate in order that be might deal with the complaint according to law. The accused persons had an opportunity before Buckland, J., of being heard upon the question whether the commitment should be quashed, but nothing was urged upon this point on their behalf. When the matter went back to the Magistrate, they filed a petition contending that the order of Buckland, J. read as a whole amounted to a discharge of the petitioners. The Magistrate thereupon has acted under Section 432, Criminal P.C., with a view to obtaining a decision upon certain question of law which he has indicated.

(2.) Section 432 provides that a Presidency Magistrate may, if he thinks fit, refer for the opinion of the High Court any question of law which arises in the hearing of any case pending before him : and Section 433 provides that when a question has been so referred the High Court shall pass such order thereon as it thinks fit and shall cause a copy of such order to be sent to the Magistrate by whom the reference was made, who shall dispose of the case conformably to the said order. It will be observed that while the power of the Magistrate is to refer any question of law, the power of the High Court is to pass such order thereon as it thinks fit. In the present case the Magistrate has formally stated seven questions: (i) What is the correct interpretation of Section 215, Criminal P.C. ? (ii) Does it give power to the Judge presiding at the Sessions to quash a commitment made to him by a competent Magistrate ? (iii) Does it refer to a power of the High Court in its revisional jurisdiction ?. (iv) Does it, refer to both of these powers ? (v) If it gives the power referred to in (ii), what is the effect when the Judge so presiding quashes a commitment ? Has it, as suggested by the accused in their petition, the effect of a discharge, so that the Committing Magistrate has no further jurisdiction in the matter, in the absence of a fresh complaint ; or can, the Magistrate proceed with the case as it stood prior to his passing the order of commitment. (vi) Subsidiary to the question raised in (v) is the question whether the Judge presiding at the Sessions has power to direct what shall be the effect of his order quashing the commitment. (vii) The learned Judge in the present case has quashed the commitment on a point of law, viz., that the charge in the case under Section 103, Presidency Towns Insolvency Act, is punishable with a maximum imprisonment of two years, that this being not more than the maximum punishment the Magistrate could award, his order of commitment was illegal.... Is the Magistrate bound by that order, so that in due course when the matter comes on again, he must not commit the case, though with all respect, he differs from the view of the law thereby expressed, and is of opinion that he has power to commit the case ?

(3.) Upon the reference coming before a Division Bench, the learned Judges have intimated their opinion and have referred two questions to this Full Bench for determination. Their opinion in substance is that Buckland, J., had no power to quash the commitment ; that the ground upon which he decided to quash it was erroneous and that if he acted under Section 215, Criminal P.C., the accused should stand discharged. The two questions which they have referred to us are as follows: (1) Has a Judge presiding over the Sessions of the High Court power under Section 215, Criminal P.C., to quash a commitment made to him by a competent Magistrate ? (2) Where in a case triable by a Magistrate and not exclusively triable by a Court of Sessions, the Magistrate commits to the Court of Session, being of opinion that it should be tried by that Court, without saying that he could not award adequate punishment or the case is such where maximum punishment is within the competency of the Magistrate, is the commitment without jurisdiction ?