DEBNU Vs. STATE
LAWS(HPH)-1954-7-4
HIGH COURT OF HIMACHAL PRADESH
Decided on July 15,1954

DEBNU Appellant
VERSUS
STATE Respondents

JUDGEMENT

Ramabhadran, J. - (1.) This is a petition under Section 526 (1) (e). Criminal P. C., wherein I am requested to direct that a case against the petitioner and seven others under Section 201, read with Sections 194, 149 and 34, I. P. C., pending in the Court of Mr. Chandel, Magistrate first class, exercising Section 30 powers, at Nahan) be committed to the Court of Sessions. The petition, as originally filed, was on behalf of Debnu alone. Subsequently, learned counsel for the petitioner filed his power for the remaining accused persons.
(2.) The petition arises under the following cir-cumstances: Debnu, petitioner, is being prosecuted in another case under Section 302, I. P. C. That case has been committed to the Sessions on the 26th-of the last month, vide a certified copy of the commitment order on the record. The prosecution case was that one Ajba murdered Lachmi Singh, and Mt. Kukmi and Debnu, in his turn, murdered Ajba. Debnu and the remaining accused persons removed the bodies of Lachmi Singh and Rukmi-and hid them in the jungle.
(3.) Learned counsel for the petitioner argued his case from two points of view, (a) Firstly, that the Magistrate had no jurisdiction to try the case under Sections 194 and 201, read with Sections 149 and 34, I. P. C. His contention is that although Mr. Chandel, Magistrate first class, Nahan, is invested with powers under Section 30, Criminal P. C., nevertheless, he does not become a Court of Sessions. He pointed out that under Schedule II to the Criminal Procedure Code, an offence under the first part of Section 194, I. P. C., is punishable with transportation for life, or rigorous imprisonment for ten years and is triable by a Court of Sessions. It is, therefore, urged that Mr. Chandel has no jurisdiction to try the case. The learned Government Advocate, in reply, has rightly pointed out that under Section 28, Criminal P. C., offences enumerated in Schedule II are triable by the Courts specified in column 8 of that Schedule, 'subject to other provisions of the Code'. In other words, Section 28 has to be read along with Section 30 which says that the Provincial Government may invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate, all offences not punishable with death. An offence under the first part of Section 194, I. P. C., is not punishable with death and, therefore, a Magistrate empowered under Section 30, Criminal P. C., like Mr. Chandel, is certainly competent to try the case. If any authority is needed to support this view, please see-- 'Emperor v. Prithinath', AIR 1938. Nag 56 (A), wherein Gruer, J., pointed out: "The next contention is that Section 30 does not overrule the Schedule to the Criminal Procedure Code, according to which certain offences are triable exclusively by the Court of Session. Stress is laid on the words in Section 30 "notwithstanding anything contained in Section 29" and it is argued that as Section 28 has not been mentioned it is only Section 29 (which refers exclusively to offences under any other law, not under the Penal Code) which is affected by Section 30. The answer to this is that the Schedule to the Code and Section 28 must obviously be read together, and Section 28 is subject to the other provisions of this Code, that is, it is subject to Section 30. The reference to Section 29 which occurs in Section 30 is explainable historically. Section 29, previous to the Act of 1923, used to read "subject to provisions of Section 447, etc."; now it reads "subject to the other provisions of this Code." Thus a reference to Section 29 was previously necessary in Section 30, and this reference seems to have been retained, although as a matter of fact owing to the above amendment, it would appear now to be 'otiose'. Section 30 speaks of "all offences not punishable with death" and must include those that would normally go to the Sessions Court." Thus, this contention fails. (3A) (b) In the second place, it is argued that it would be just and convenient that the two cases should be heard and disposed of simultaneously by the same Court. Learned counsel pointed out that the evidence in both cases would, more or less, be the same and the witnesses would also be common. It is urged that un'less this course is adopted, there is a risk of conflict of decisions. Learned counsel for the petitioner cited, 'inter alia', (1)--'Krishnaji Prabhakar v. Emperor', AIR 1929' Bom 313 (B). There, a Magistrate declined to commit a case under Section 124-A, I. P. C., to the High Court Sessions on the ground that there was congestion of work in the latter Court. It was held by the Bombay High Court that, having regard to the seriousness of the offence, the case was of public importance and the accused was entitled to be tried before the High Court Sessions. The facts of that case are different from those of the present case. This ruling, in my opinion, therefore, does not help the petitioner.;


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