BUDHAN CHOUDHRY Vs. STATE

JUDGEMENT

(1.) This appeal comes to me on a difference between my learned brothers Das J. and Sinha J.

(2.) The appellants have been convicted under Sections 366 and 143 of the Indian Penal Code and have been sentenced each to rigorous imprisonment for five years under Section 366, No separate sentence has been imposed under Section 143. The main point of difference is one arising under the Constitution of India. The case relates to the district of Hazaribagh, to which district Section 30 of the Criminal Procedure Code applies. There is at this time an Assistant Sessions Judge exercising powers in the district of Hazaribagh. When the chargesheet was received in the present case the Sub-divisional Magistrate submitted the record to the Deputy Commissioner of Hazaribagh with the following order: Let the record be sent to the Deputy Commissioner of Hazaribagh for transferring it to the file of the Special Magistrate for trial. It may be noted that the term "Special Magistrate", although there is no legal provision for it, is by practice used to denote the Magistrate exercising powers under Section 30 of the Code. On receiving the record the Deputy Commissioner passed the order of transfer in the following terms: Perused S. D. O's ordersheet. Withdrawn and transferred to the file of Mr. S. F. Azam, Magistrate with powers under Section 30, Criminal Procedure Code, for favour of disposal. In the course of the argument before me it has been urged that the Deputy Commissioner as such has no powers under the Criminal Procedure Code. Admittedly the Deputy Commissioner is also the District Magistrate and the use of the wrong terminology in the Sub-divisional Magistrate's order will not affect the validity of the order of withdrawal and transfer. The case was thereafter tried by Mr. Azam and ended in the conviction and sentence mentioned above. It was contended before their Lordships in appeal that the appellants had been subjected to unequal treatment inasmuch as they had been tried by the Magistrate empowered under Section 30 instead of being tried in the ordinary way by the Court of Session. This contention has been accepted by Sinha J. but not by Das J.

(3.) There is another point of difference which makes it necessary for me to examine the facts of the case. The main judgment in the case was delivered by Sinha J. who dealt with the case on the merits. He held that the appellants had been rightly convicted and expressed the opinion that, if he had not found the trial to be hit by Article 14 of the Constitution of India, he would have upheld the conviction of the. appellants but reduced the sentence of imprisonment to two years in the case of each of the appellants. Das J. accepted entirely the conclusions of Sinha J. on the facts of the case. In expressing his opinion after repelling the contention about discrimination he stated that he would dismiss the appeal. It is not clear from his judgment whether at the time of expressing this view he had in mind Sinha J.'s proposal that the sentences should be reduced.