EMPEROR Vs. GIRISH CHANDRA KUNDU

JUDGEMENT

(1.) Girish Chandra Kundu, "Sudhir Chandra Kundu and Pramatha Nath Kundu have been committed to this Court for trial upon charges under Section 103, Presidency Towns Insolvency Act. A doubt as to the legality of the commitment having arisen in my mind, I have given the learned Counsel for the Crown and the prisoners an opportunity of arguing the point. Though nothing has been urged on behalf of the prisoners, it is desirable that I should state my reasons for the order which I propose to make.

(2.) Before a recent amendment, the procedure prescribed by Section 104, Insolvency Act, was that the Insolvency Court should cause notice to be served upon the insolvent, and if it framed a charge against him, it should follow the procedure for the trial of warrant cases by Magistrates prescribed by Chap. 21, Criminal P.C. The Chapter of the Code relating to trials before High Courts and Courts of Sessions was not applicable to such trials. In the year 1928, Section 104 was altered and it was provided that where the insolvency Court is satisfied that there is ground for inquiring into any offence referred to in Section 103 and appearing to have been committed by the insolvent, the Court may record a finding to that effect and make a complaint of the offence in writing to a Presidency Magistrate and such Magistrate shall deal with such complaint in the manner laid down by the Criminal Procedure Code, 1898. That new section may at first sight appear to empower the Magistrate to commit the person charged with an offence under Sec. 103 of the Act to this Court for trial, but, as I shall show, that is not a correct view of its effect. The objects of the amendment would appear to be, firstly, to avoid the necessity of trials upon charges under Section 103 being held by the Judge by whom jurisdiction under the Presidency Towns Insolvency Act is exercised and, secondly, in order to bring the procedure into conformity with that prescribed by Section 476, Criminal P.C.

(3.) Section 103 provides that, on conviction, the insolvent may be punished with imprisonment for a term which may ex tend to two years. There is no provision for the imposition of a fine in addition to imprisonment. A case under Section 103 is a warrant case, which is defined in Section 4(1)(w) of the Code as a case relating to an offence punishable with death, transportation or imprisonment for a term exceeding six months. Section 54, Criminal P.C., provides that if the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Ch. 21, the chapter prescribing the procedure in warrant oases, which he is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. There is no question as to the Magistrate's competency to try this case, nor can any question arise as to whether he can adequately punish the prisoners for the offences with which they are charged, for the reason that he may impose a sentence of imprisonment as long as any which this Court could impose. It was, therefore, the duty of the Magistrate under that section to frame a charge in writing against the accused and he had no power to commit them to this Court for trial.