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PETITIONER: THE STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: KHUSHI RAM

DATE OF JUDGMENT: 01/04/1960

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. IMAM, SYED JAFFER

CITATION:  1960 AIR  905            1960 SCR  (3) 427

ACT: Criminal Trial--Magistrate empowered to impose sentence Pro- vided--Commitment   under   impression  of  not   being   so empowered--   Trial   by   Court   of   Session   on    such commitment--Validity--Prevention  of Food Adulteration  Act, 1954  (37  of  1954), ss. 7, 16 and  21.--Code  of  Criminal Procedure, 1898 (V of 1898), ss. 32, 207 and 347.

HEADNOTE: The respondent was prosecuted for offences under s. 7 of the Prevention  of Food Adulteration Act, 1954.  The  Magistrate found  the  offences proved and he further  found  that  the respondent had 428 committed  the offence for the third time for which  he  was liable to be awarded a sentence of imprisonment for not less than  two  years and to a fine of not less than  Rs.  3,000. Section 21 of the Act specifically empowered the  Magistrate to impose this sentence, but as he was under the  impression that  s.  32 of the Code of Criminal Procedure  limited  his power  to  impose sentences he committed the  respondent  to stand  his trial before the Court of Session.  The Court  of Session  found the respondent guilty and convicted him.   On appeal the High Court held that the Magistrate had no  power to commit and that the Sessions judge had no Jurisdiction to try  the  case, set aside the conviction  and  sentence  and remanded the case for retrial to the Magistrate Held.,  that  the commitment was not illegal  and  that  the Sessions judge had jurisdiction to try the case.  Section 21 of the Act was not a disabling provision and it did not make commitment  by  a  Magistrate competent to  award  the  full sentence  prescribed by the Act, a nullity; it did not  take away the power of the Magistrate to commit.  The  Magistrate had  both  the  power and the  territorial  jurisdiction  to commit, and the commitment was good.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 160  of 1959. Appeal  by special leave from the judgment and  order  dated

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October  30,  1958,  of the Allahabad  High  Court  (Lucknow Bench)  at  Lucknow  in Criminal Appeal  No.  105  of  1957, arising  out  of the judgment and order dated  February  12, 1957,  of the Second Temporary Civil and Sessions  Judge  at Barabanki in Criminal Sessions Trial No. 102 of 1956. G. C. Mathur and C. P. Lal, for the appellant. The respondent did not appear. 1960.  April 1. The Judgment of the Court was delivered by SARKAR,   J.--The  respondent  was  prosecuted  before   the Judicial Magistrate, Barabanki, for offences under cls.  (i) and  (iii)  of s. 7 of the Prevention of  Food  Adulteration Act, 1954, for selling adulterated milk and for selling milk without  a licence.  The learned Magistrate found  that  the offences  had been proved and further that,  the  respondent had  committed the offences for the third time.   Under  cl. (a)  (iii)  of  sub-sec. (i) of s. 16 of  the  Act,  in  the absence of special and adequate reasons to the contrary, for a third offence the imprisonment to be awarded cannot be for less than two years and the fine to be imposed not less than three thousand rupees.  Section 32 of 429 Criminal  Procedure Code however provides that a  Magistrate of the first class shall not have power to impose a sentence of fine exceeding rupees two thousand.  Under the impression that his power as a Magistrate of the first class to  impose sentence  was  limited  by  s.32 of  the  Code  the  learned Judicial  Magistrate committed the respondent to  stand  his trial before the Court of Session, presumably acting under s.   347 of the Code of Criminal Procedure. The  respondent  was thereupon tried by a  learned  Sessions Judge of Barabanki who found him guilty of the offences with which  he  had  been charged.  The  learned  Sessions  Judge however  came to the conclusion that the offences  had  been committed by the respondent for the second time and not  the third.  He observed that the learned Judicial Magistrate was competent to award the minimum punishment prescribed by  the Act  for a second offence and should not have committed  the case  to the Court of Session at all.  He however  convicted the  respondent and awarded the minimum sentence  prescribed by   the  Act  for  a  second  offence,   namely,   rigorous imprisonment for one year and a fine of rupees two  thousand and, in default, rigorous imprisonment for a further  period of six months for each of the offences and directed the sen- tences of imprisonment to run concurrently. The respondent then appealed to the High Court at Allahabad. Mulla, J., who heard the appeal pointed out that the learned Judicial Magistrate had overlooked the "Provisions of s.  21 of  the  Act which provides  that  notwithstanding  anything contained  in  s. 32 of the Code it shall be  lawful  for  a Magistrate   of  the  first  class  to  pass  any   sentence authorised by the Act in excess of his powers under s. 32 of the  Code.   The  learned Judge observed  that  the  learned Magistrate  was  therefore  quite  competent  to  award  all punishments  that  the  law required and had  no  reason  to commit  the respondent to a Court of Session.  He  took  the view  that  a Court of Session could try  only  those  cases which  were  legally  and  properly committed  to  it  by  a Magistrate  and  that  s.  21 of the Act  was  not  only  an enabling  provision but also a disabling one.  He held  that s. 21 of the Act prevented a commitment to 55 430 the Court of Session by a Magistrate of the first class.  He observed, " Where a special Act has made a special provision for punishment to be awarded by a Magistrate irrespective of

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the  limitations placed upon his powers under  the  Criminal Procedure  Code, it amounts to an abrogation of the  general law  and the provisions of s. 347 of the Criminal  Procedure Code cannot be applied to such a case." In this view of  the matter  he held that the learned Judicial Magistrate had  no power  to commit the respondent to the Court of Session  for trial and the learned Sessions Judge had no jurisdiction  to try  the  case.   He  thereupon  set  aside  the  order   of conviction  and the sentence passed against  the  respondent and  remanded  the  case  to  the  District  Magistrate   of Barabanki  to  be  transferred  by him to  the  Court  of  a competent Magistrate for trial and disposal.  The State  has appealed to this Court against the judgment of Mulla, J. We are unable to agree with the view of Mulla, J., that  the learned Sessions Judge had no jurisdiction to try the  case. We  do  not  think  that s. 21 of the  Act  is  a  disabling provision.  All that it does is to authorise a Magistrate of the  first  class  to award a  sentence  beyond  the  limits prescribed  for  him under s. 32 of the Code.  It  does  not affect  the provisions of ss. 207 and 347 of the  Code,  nor has  it anything to do with the jurisdiction of a  Court  of Session.   The  section  does  not  make  commitment  by   a Magistrate  competent to award the full sentence  Prescribed by  the Act, a nullity; nor does the section interfere  with the jurisdiction of a Court of Session to deal with a matter committed to it in spite of its provisions. The  jurisdiction  of a Court of Session  depends  upon  the Code.   It  has  jurisdiction  to  try  any  case  which  is committed  to it.  The case against the respondent had  been committed to a Court of Session by a Magistrate having power to commit.  Further, the Magistrate did not lack territorial jurisdiction  to commit.  It may be that the Magistrate  was competent  to  try  the  case  and  award  all   punishments prescribed by law.  It is also true that the Magistrate  was not compelled to commit the case to a Court of Session.   We are unable to subscribe to the view that a commitment in 431 such circumstances is itself void.  Neither do we understand Mulla,  J.,  to take the view that apart from s. 21  of  the Act, the commitment was void because the learned  Magistrate could  himself have awarded the maximum  sentence  provided. We have said that s. 21 does not take away the power of  the Magistrate  if he has such power, to commit, nor affect  the jurisdiction  of a Court of Session to try a case  committed to  it  by a Magistrate empowered to do  so.   Therefore  it seems  to  us  that  the learned  Sessions  Judge  had  full jurisdiction to try the case against the respondent. In the result we allow the appeal and set aside the order of the High Court.  The case will now go back to the High Court to be heard on merits. Appeal allowed.