Decided on July 30,1901



- (1.) Certain witnesses made statements in a preliminary enquiry into a murder case before a Magistrate and contradicted these statements at the trial before the Sessions Court of South Arcot. The Sessions Court then sanctioned their prosecution for offences punishable under Section 193, Indian Penal Code, in that they had made contradictory statements, both on oath, one or other of which must necessarily be false. They were accordingly convicted by the Deputy Magistrate of an offence punishable under that section for having given false evidence by making statements, one or other of which must have been false. The Deputy Magistrate took no evidence to show which of the two statements was false and recorded no finding on that point. The accused appealed to the Sessions Court of South Arcot, and their appeals were transferred to the Sessions Judge of Chingleput who on hearing the appeals, came to the conclusion that the statements made by the appellant at the preliminary enquiry were probably false, and as the case was one of murder, he held that the offence committed by the appellants was probably, one punishable under Section 194, Indian Penal Code, and was therefore triable exclusively by the Court of Session and not by a Magistrate of the first-class, He held that as the facts indicated an offence under Section 194, Indian Penal Code, the Magistrate had no jurisdiction to try the appellants for an offence punishable under Section 193, Indian Penal Code. He accordingly set aside the conviction under that section. In one case (Appeal No. 20) he did not direct any further proceedings, as he considered the imprisonment already undergone sufficient punishment. In the other case-(Appeal No. 21) he ordered the appellant to be committed for trial by the Sessions Court on a charge under Section 194, Indian Penal Code. On a perusal of the calendars, this Court called for the records with a view to revise the orders of the Sessions Judge, and in sending up the records the learned Sessions Judge has submitted a note, setting forth in much detail his view of the law and arguments in support thereof.
(2.) When he wrote this note we presume the learned Sessions Judge had received the judgment of this Court in King-Emperor V/s. Virasami Goundan Criminal Revision Case No. 78 of 1901 (unreported) in which, dealing with a precisely similar case from his Court a divisional bench of this Court held that the Sessions Judge had taken an incorrect view of the law. The accused was not charged with an offence punishable under Section 195, Indian Penal Code. The Deputy Magistrate tried him for an offence punishable under Section 193, Indian Penal Code, and he had jurisdiction over that offence. Under the rulings of this Court, it cannot be said that the Deputy Magistrate acted without jurisdiction, even though the offence actually amounted to one punishable under Section 195. We think that the learned Sessions Judge might well have accepted that decision. As, however, he still thinks that the decisions of this Court support his view it seems necessary to briefly reiterate the correct view of the law. The Sessions Judge relies on Section 530 (p) of the Criminal Procedure Code. It runs: "If any Magistrate not being empowered by law "in this behalf .... tries an offender his proceedings shall "be void." The meaning of this is that if a Magistrate tries an offender for an offence beyond his jurisdiction his proceedings shall be void. In the present case the Deputy Magistrate did not try accused for an offence beyond his jurisdiction. He tried him for an offence punishable under Section 193, Indian Penal Code, i.e., for an offence triable by a First class Magistrate and therefore within his jurisdiction. His proceedings therefore were not void and the Sessions Judge was wrong in treating them as void. Where the facts disclose an offence within the jurisdiction of the Magistrate it seems to us a complete fallacy to say he is not empowered by law to try the person charged for the offence which is within his jurisdiction, because the same facts disclose more serious offence which is beyond his jurisdiction. He is expressly so empowered. Whether in so doing he adopts a proper course is another question. No doubt it is improper on the part of a Magistrate to intentionally ignore circumstances of aggravation which show that an offence beyond his jurisdiction was in fact committed as well as an offence within his jurisdiction, as, for instance, if a Second class Magistrate should ignore the violence used in committing theft and should deal with the case himself as one of theft ( Section 379), instead of sending the accused before a First class Magistrate to be tried for robbery ( Section 392). Here the action of the Second-class Magistrate would be improper but his proceedings would not be void. If the improper action of the Second class Magistrate had led to a failure of justice us, for instance, by causing the punishment to be inadequate, it would be open to the proper authorities to apply a remedy by instituting a second prosecution on the same facts for the more aggravated offence (Section 403, Criminal Procedure Code). It would also, in our opinion, be open to the revising and appellate authorities to set aside the Magistrate's proceedings and order a fresh trial, if such a course was required in the interests of justice but not otherwise; and the reason for setting them aside would be, not that they were void ab initio, but because they were improper and the interests of justice required them to be set aside. The Sessions Judge has failed to appreciate the difference between proceedings which are without jurisdiction and therefore void, and proceedings which are improper and therefore liable to be set aside, though not void. It is this failure which we think, has led the Sessions Judge to misunderstand the various judgments of this Court to which he refer?. Whether the High Court as a Court of Revision or the Appellate Court ought to interfere in any particular case depends entirely on the facts of the case and whether such interference is called for in the interests of justice.
(3.) The view that we have stated is, we think, in accordance with that taken by the Bombay High Court in Queen-Empress V/s. Gundya I.L.R. 13 Bom. 502 as to the construction of Section 530 (p), Criminal Procedure Code, and with the whole tenor of the decisions of this Court both before and since that provision of the Code was enacted in 1882. For present purposes it is sufficient to refer to the cases quoted by the Sessions Judge from Weir's Law of Offences, 3rd edition, at pages 259, 701, 965, 967, and 1060. If the learned Sessions Judge-will re-read these cases and bear in mind the distinction which we have pointed out between proceedings which are without jurisdiction and therefore void, and proceedings which are improper and therefore liable to be set aside though not void, he will, we think find that they lend no countenance to his views as to the proper construction to be placed on Section 530 (p) but are in accordance with the law as stated by us. The language of these cases is so explicit that it is unnecessary to refer to them in detail. The learned Sessions Judge has, however, so completely misunderstood and (no doubt unintentionally) misquoted the case at page 258 that it is necessary to refer briefly to it. In that case a First-class Magistrate had tried and convicted two offenders for offences punishable under Section 392, Indian Penal Code.. The Sessions Judge referred the cases on the ground that the offences were punishable respectively under Secs.394 and 397, Indian Penal Code, and that the Magistrate therefore had no jurisdiction to try the offenders for an offence punishable under Section 392. The High Court pointed out that under the law then in force the Magistrate had no jurisdiction to try an offence under Section 394, and the High Court went on to observe that it was for the Magistrate, in his discretion, to decide whether be would dispose of the case himself (i.e., as one under Section 392) or commit the accused to the Court of Session (i.e., as one under Section 394). It further observed that as the case was of a trivial nature "the Magistrate exercised a sound discretion in disposing of it under Section 392." It would be difficult to imagine a decision more directly opposed to the present Sessions Judge's view. We observe, however, that he supposed that an offence under Section 394 was then, as it is now, triable either by the First-class Magistrate or by a Court of Sessions and this has no doubt, misled him. The Criminal Procedure Code of 1861 was then in force and under it an offence under Section 394, Indian Penal Code, was triable exclusively by a Court of Session, as indicated by the High Court in its judgment. It was not until the Criminal Procedure Code of 1872 was passed that an offence under Section 394 became triable by a First-class Magistrate or a Court of Session.;

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