THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
Crl.O.P.No.17791 of 2007
M.P.No.1 of 2007
Papannan .. Petitioner
State: Rep. by
Forest Range Officer
(in Crime No.60/96) .. Respondents
PRAYER: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to call for the records of the case in C.C.No.6 of 2000 on the file of the Special Judicial Magistrate No.IV, Tirupattur and set aside the order of the Chief Judicial Magistrate, Vellore dated 31.01.2007 referring the case back to Special Judicial Magistrate, Tiruppur. For Petitioners : Mr.P.G.Perumal Pandian
For Respondent : Mr. I.Paul Nobel Deva Kumar
Government Advocate (Crl.side)
This Criminal Original Petition, challenging the legality of the order of the learned Chief Judicial Magistrate, Vellore dated 31.01.2007 in C.C.No.6 of 2000 on the file of Special Judicial Magistrate No.IV, Tirupattur, transferring the said case again to the very same magistrate after the case had been referred to the Chief Judicial Magistrate under Section 325 Cr.P.C., has been filed invoking the inherent powers of the High Court under Section 482 Cr.P.C
2. This Court heard the submissions made by Mr.P.G.Perumal Pandian, learned counsel for the petitioner and Mr. I Paul Nobel Devakumar, learned Government Advocate (Crl.side) representing the respondent. The materials placed on both sides were also perused.
3. The short question that arises for consideration in this petition is:- "whether the Chief Judicial Magistrate, to whom a case has been referred under Section 325 Cr.P.C, can retransfer the same to the very same Judicial Magistrate or assign it to any other Judicial Magistrate?"
4. Before dealing with the above said abstract question, this Court deems it fit to recite the brief facts leading to the filing of this petition:-
The petitioner is the accused in C.C.No.6 of 2000 on the file of the Special Judicial Magistrate, Tirupattur. The same came to be instituted based on the final report filed in Crime No.60 of 1996 on the file of the Forest Range Officer, Tirupattur, Vellore District. The offences alleged are punishable under Sections 21 (d) (e) (f), 36-A and 36-E of the Tamil Nadu Forest Act among other provisions of related Acts. The same was taken on file as C.C.No.6 of 2000 for offences under Section 21 (d) (e) (f), 36-A and 36-E of the Tamil Nadu Forest Act r/w. 3(1) and 7 S.W.P. Rules. The petitioner pleaded not guilty and the case was tried. At the conclusion of trial, the learned Special Judicial Magistrate, Tirupattur recorded an opinion on 24.11.2004 holding the petitioner guilty of the offence under Section 36-E of the Tamil Nadu Forest Act. However, stating that the Special Judicial Magistrate, at that point of time, was not empowered to impose even the minimum sentence prescribed for the said offence, the learned Special Judicial Magistrate submitted the proceedings and forwarded the petitioner/accused to the Chief Judicial Magistrate, Vellore under Section 325 (1) of Cr.P.C. Accordingly, the Chief Judicial Magistrate, Vellore took it on file as C.C.No.189 of 20004. While the case was thus pending for consideration of the Chief Judicial Magistrate, Vellore, Section 29(2) of Cr.P.C came to be amended by enhancing the fining power of the Judicial Magistrates from Rs.5000/- to Rs.10,000/-.
5. As per the amended Section 36-E of Tamil Nadu Forest Act, an offence of contravention of Section 36-E of the Act is made punishable with imprisonment, which may extend to five years and with fine, which may extend to Rs.20,000/-. However, a proviso has also been appended prescribing minimum sentence of imprisonment and minimum fine to be imposed in such cases. As per proviso (a), minimum sentence of imprisonment is two years and the minimum fine is Rs.7,500/- for the first offence. As per Clause (b), for a second or subsequent offence, minimum imprisonment is for three years and the minimum fine that has to be imposed is Rs.15,000/-. Therefore, the amendment brought to Section 29(2) has empowered the Sepcial Judicial Magistrate, Tirupattur to impose the minimum sentence of imprisonment and fine referred to in Clause A of the proviso to Section 36-E of the Tamil Nadu Forest Act. Taking note of the said supervening event, the learned Chief Judicial Magistrate, by the impugned order dated 24.11.2004, has retransmitted the case again to the Special Judicial Magistrate, Tirupattur for disposal according to law. The said order is impugned in the present petition seeking intervention of this Court by invoking its inherent power under Section 482 Cr.P.C.
6. The specific contention of the learned counsel for the petitioner is that, when a Judicial Magistrate refers a case under Section 325(1) to the Chief Judicial Magistrate on the ground that he is not empowered to inflict a punishment which the accused deserves to be inflicted, then the Chief Judicial Magistrate himself has to deal with the case and such cases cannot be again reassigned to the very same Magistrate or to any other Magistrate, whatsoever be the reason. In support of his contention, the learned counsel for the petitioner very much relies on the language of sub-clause (3) of Section 325, which gives power to the Chief Judicial Magistrate to examine the parties, to recall and examine any witness who has already given evidence and to call for and take any further evidence. The learned counsel also points out the fact that the Chief Judicial Magistrate is mandated to pass judgment, sentence or order in the case in accordance with law.
7. It is the further contention of the learned counsel for the petitioner that in the present case, the petitioner has also filed a petition before the Chief Judicial Magistrate for recalling the witnesses and that the retransfer of the case to the Special Judicial Magistrate shall have the effect of taking away the right of the petitioner to have the witnesses recalled and additional witnesses examined, of course, if it is deemed fit by the Chief Judicial Magistrate.
8. The learned Government Advocate (Crl.side) has fairly conceded that the Chief Judicial Magistrate to whom a case is transmitted by a Judicial Magistrate under Section 325(1) is duty bound to hear the matter in accordance with law and pass necessary judgment, sentence or order and in such cases, the Chief Judicial Magistrate does not have the power of assigning the case either to the very same Magistrate by way of re-transfer or to any other Magistrate. In fact Sub Section (3) of Section 325 contemplates a discretion, of course a judicial discretion, on the Chief Judicial Magistrate to examine the parties, to recall and examine any witness who has already given evidence in the case and to call for and take any further evidence before pronouncing judgment, sentence or order in the case.
9. In this regard, the attention of this Court is drawn to an order of a learned Single Judge of Patna High Court in Ram Nath Singh V. State of Bihar reported in 1974 CRI.L.J 1376. In the said case, the scope of the corresponding provision viz., Section 349 of the old Criminal Procedure Code had been taken up for consideration. In the said case, the accused was tried for an offence under Section 379 I.P.C. After recording conviction, accepting the prayer of the Assistant District Public Prosecutor, the second class Magistrate who tried the case transferred the case to the Court of Sessions Judge for getting the accused sentenced to adequate term of imprisonment, as the second class Magistrate was of the view that the accused deserved harsher punishment than what he could impose. What the Sessions Judge in that case did was, to transfer the case to the Munsif/Magistrate of First Class, Patna, who in turn, of course after affording opportunities to the prosecution and the defence to adduce evidence, pronounced a judgment finding the accused guilty and sentencing him to undergo two years rigorous imprisonment for the offence under Section 379 IPC. The conviction came to be confirmed on appeal by the appellate forum. However, the sentence of imprisonment was reduced to one year. The same was challenged before the High Court and the High Court held that the order assigning the case to the Munsif/Magistrate (First class) was without jurisdiction and hence, the judgment emanating from the trial that followed and the resultant conviction and sentence were nullities. While discussing the scope of Section 349 of the old Criminal Procedure Code, which corresponds to Section 325 of the present code, the learned Judge held that only the District Magistrate or the Sub-Division Magistrate to whom the proceedings were submitted could exercise the powers conferred under subsection (2) of Section 349 of old code (which corresponds to subsection (3) of Section 325 of the Criminal Procedure Code, 1973) and the District Magistrate or the Sub-Divisional Magistrate could not have legally transferred the case to any other Magistrate. The Court held that the exercise pursuant to the transfer of the case to the Munsif/Magistrate of First Class by the Sessions Judge was an exercise in waste and the entire proceedings had to be scrapped. However, taking note of the passage of time also, the Court felt it unnecessary to order retrial and let off the accused.
10. The ratio that is found in the said decision is that in the State of Bihar, on the relevant date, the Sessions Judge-cum-Additional District Magistrate was conferred with the powers of the District Magistrate; that the Section empowered the Magistrates to transmit the cases for harsher punishments only to the District Magistrate or to the Sub-Divisional Magistrate and that either the District Magistrate or the Sub-Divisional Magistrate himself, on such cases being transferred under Sub-section (1) of Section 349 of the old code, had to deal with the case and pass orders.
11. A Division Bench of Patna High Court in Subhojit Datta V. State of Bihar reported in 2008 Crl. L.J 872 also incidentally dealt with the scope of Section 325(3) Cr.P.C. The Division Bench has observed that the power given to the Chief Judicial Magistrate under Section 325(3) is not confined to pronouncing a judgment of acquittal or conviction and passing of sentence, but also includes the powers of the Magistrate occurring in Section 323 . The Division Bench has also held in clear terms that the power under Section 325(3) Cr.P.C of the Chief Judicial Magistrate, in respect of a proceeding submitted to him by a Magistrate under Section 325(1) Cr.P.C, will also obviously include the power to commit the case to Court of Session when it appears to the Chief Judicial Magistrate before signing the judgment that the case is one which ought to be tried by the Court of Session.
12. A careful reading of the section 325 will make it clear that the Chief Judicial Magistrate to whom a case is referred by a Magistrate under Section 325(1) of Cr.P.C, cannot transfer or assign the case to any other Magistrate and it is incumbent upon him to decide the matter. It is also made clear that any opinion recorded by the Magistrate while referring the matter to the Chief Judicial Magistrate under Section 325(1) of Cr.P.C. cannot be the basis on which the Chief Judicial Magistrate can proceed with the case and in such cases, the Chief Judicial Magistrate has to keep in mind that this Court is the original Court of trial and that it is incumbent upon the Chief Judicial Magistrate in such cases to pronounce a judgment or order, as the case may be, in accordance with law. By way of clarification it is also added that the power conferred on the Chief Judicial Magistrate in such cases also include the power to commit the case for the trial of a Sessions Judge, if he is of the opinion that it involves an offence, which is triable exclusively by a Session Judge. Then it goes without saying that either the Judicial Magistrate under Section 325(1) or the Chief Judicial Magistrate under Section 325(3) can not pronounce a judgment in respect of a case involving an offence triable exclusively by a Court of Session or record an opinion that the accused is guilty and then commit the case to the Court of Session for trial. Such a course is not permissible in law. When the Judicial Magistrate or the Chief Judicial Magistrate is of the view that one of the offences is triable exclusively by a Court of Session, then such a Magistrate or the Chief Judicial Magistrate has to pass an order committing the case for trial to the Sessions Court. Once a judgment is pronounced, there is no power to commit the case to the Sessions Court either for trial or for imposition of punishment. In view of the clear interpretation given to the above said provisions in the orders cited above, this Court is of the considered view that the impugned order of the Chief Judicial Magistrate, Vellore dated 24.11.2004 does not stand the scrutiny of this Court.
13. One more additional ground which is in favour of the petitioner in this case should also be mentioned here. When the Magistrate records an opinion of conviction and transmits the case to the Chief Judicial Magistrate under Section 325(1), one cannot expect an unbiased approach by the very same Magistrate or the Courts of the same cadre to approach the problem without being influenced by the opinion recorded and that is the reason why in the above said decisions, it has been held that the Chief Judicial Magistrate to whom the case is transferred under Sub-class (I) of Section 325 Cr.P.C is not competent to transfer the case either to the very same Magistrate or to any other Magistrate. This Court is in complete agreement with the dictum made therein.
14. For all the reasons stated above, the present criminal original petition is allowed and the impugned order passed by the Chief Judicial Magistrate, Vellore dated 31.01.2007 is set aside. The Special Judicial Magistrate, Tirupattur is directed to submit the papers again to the Chief Judicial Magistrate, who shall dispose of the case within a period of three months from the date of receipt of the records. Consequently, the connected miscellaneous petition is closed. gpa
1. The Special Judicial Magistrate No.IV,
2.Chief Judicial Magistrate,
3.The Public Prosecutor
Madras High Court