HIGH COURT OF RAJASTHAN
Click here to view full judgement.
Chhangani, J. -
(1.)THE applicant Shyam Singh, resident of Mandsaur was serving lately in H. C. No. 2545 'c' Company, 3rd Battalion, Central Reserve, Police. He without sufficient cause over-stayed the leave granted to him and made himself liable for an offence under sec. 10m of the Central Reserve Police Act, 1949. On these allegations, he was tried by the Assistant Commandant and Magistrate Second Class, 3rd Battalion, Ajmer and was sentenced to three month's rigorous imprisonment. He filed an appeal in the Court of the Sessions Judge, Ajmer.
(2.)PRELIMINARY objections were raised before the Sessions Judge that no appeal Jay against the order of the Assistant Commandant to any Court of Session. It was urged alternatively that the Court of Session at Ajmer had no jurisdiction in the matter. These objections prevailed with the Sessions Judge with the result that the appeal has been dismissed as incompetent, The accused does not accept the conclusions of the Sessions Judge and has approached this Court in revision.
After considering the provisions and scheme of the Central Reserve Police Act, 1949 I have no hesitation in observing that the view taken by the Sessions Judge is not correct. A reference to sec. 9 and sec. 10 of the Act shows that the Act creates certain offences and divides them into two categories - (i) more heinous offences and (ii) less heinous offences. The punishment for more heinous offences extends upto fourteen years. Obviously, these offences are triable exclusively by the Court of Session. The Central Reserve Police Act prescribes no special procedure for inquiry into and trial of these offences. It also does not provide for the conferring of the powers of Court of Session on Commandant or Assistant Commandants. Sec. 16 only provides for investing Commandants and Assistant Commandants with the, magisterial powers for inquiring into or trying offences committed by the members of the Force. It will be therefore, hardly proper to consider the Act as providing a special procedure for offences created by the Act. All that the Act does is that certain officers can be invested with magisterial powers. It follows that with the investing of those powers they become Magistrates under the Criminal Procedure Code. The inquiries and trials, however, cannot be held by them in accordance with the provisions of the Criminal Procedure Code. The view of the Session Judge that the Act of the Central Government investing the Commandant or Assistant Commandant with the powers of Magistrate of any class results in the creation of special tribunal similar to the courts martial, cannot be accepted as correct. It is true that after the Central Government confers magisterial powers on the Commandant or the Assistant Commandant the other ordinary Magistrates do not exercise jurisdiction unless permitted by the prescribed authority. From this, however, it will not be proper to jump to the conclusion that a special category of Courts is created. In my opinion, the proper conclusion to be drawn from the above is that special Magistrates are created and the powers of the ordinary Magistrates are circumscribed to some extent. The reference by the Sessions Judge to the provisions of the Constitution is quite inappropriate and not relevant. The absence of provisions of appeal against convictions and sentences by the Commandants and the Assistant Commandants exercising magisterial powers is of no consequence. The Act does not lay down any procedure for the trial of the offences. We cannot but look to the Criminal Procedure Code for guidance in all matters of procedure including the question of right and forum of appeal. Sec. 28 of the Act relating to appeals obviously deals with orders passed in an administrative capacity and not as a Magistrate and cannot be taken as a guidance in determining the right of appeal against convictions and sentences recorded by the officers in the capacity of Magistrates. The Criminal Procedure Code clearly provides for an appeal against convictions and sentences by Second Class Magistrates and further states that it lies to a Court of Session. The Assistant Commandant and Magistrate second class, 3rd Battalion, Ajmer who tried the petitioner having his headquarters at Ajmer within the jurisdiction of the Court of Sessions Judge, Ajmer the appeal lay to the Court of Session at Ajmer, on the well settled principle that jurisdiction to entertain appeals and revisions by Sessions Judge is determined by reference to the situation of the Court by which the order appealed against or sought to be revised is passed and not the place of offence (vide Shori Lal vs. The State (1) and Rahim Poonaji vs. Abdul Rahim (2 ). In my opinion, the appeal of the appellant in the Court of Session, Ajmer was quite competent and the learned Sessions Judge was not" justified in returning it to be presented to the proper Court.
The order of the Sessions Judge is, therefore, set aside and he is directed to entertain the appeal and dispose it of on merits in accordance with law. .
Copyright © Regent Computronics Pvt.Ltd.