RAM CHANDRA MAITY Vs. SUDHIR CHANDRA MONDAL
LAWS(CAL)-1976-11-25
HIGH COURT OF CALCUTTA
Decided on November 11,1976

RAM CHANDRA MAITY Appellant
VERSUS
SUDHIR CHANDRA MONDAL Respondents


Referred Judgements :-

STATE V. ABDUL RASHID [REFERRED TO]
STATE OF MADHYA PRADESH VS. HAJI HASAN DADA [REFERRED TO]
ADYA PRASAD VS. RAJINDRA MAHTO [REFERRED TO]


JUDGEMENT

- (1.)THIS rule is directed against an order dated 19th of february, 1975 passed by the Sessions Judge, Midnapore in Criminal Motion No. 4 of 1975 rejecting the same. The said motion was filed by the complainant against an order dated 23rd of November, 1974 passed earlier by the Judicial Magistrate, 1st Class, Contai, in case No. 305c of 1972 rejecting a prayer to commit the case to the Court of Sessions.
(2.)IT appears that the petitioner, Ram Chandra Maity filed a complaint against the respondents whereupon the s. D. J. M. , Contai, took cognizance and directed issue of warrant of arrest against them under S. 467 I. P. C. An enquiry under Chapter XVIII of the old Code of Criminal Procedure was pending before the learned Magistrate as an offence under S. 467 I. P. C. was tribal exclusively by the court of sessions under the old Code. After the new Criminal Procedure Code came into force on the 1st of April, 1974 the petitioner prayed for committal of this case to a court of sessions. On 23. 11. 1974 the learned Magistrate rejected the prayer and fixed a date namely, 25th of January, 1975 for examination of P. W. S as under the new code the offence under S. 467 I. P. C. has been made tribal by a Magistrate 1st Class. Against that order the petitioner went up in revision to the learned Sessions Judge who also rejected the motion on contest. It is the said order which is challenged before us.
(3.)MR. Sengupta, learned advocate, appearing in support of the motion submitted that the Indian Penal Code provides for life imprisonment or a sentence up to 10 years of imprisonment for offence under S. 467 but in terms of the schedule to the new Code of Criminal Procedure the offence is no longer tribal by a court of sessions. In terms of the schedule the offence under S. 467 I. P. C. is now tribal by a Magistrate having 1st class powers. According to Mr. Sengupta, this introduces an anomaly. The punishment contemplated by the Penal Code, according to him, cannot be enforced by the mechanism provided in the Criminal Procedure Code. A Magistrate having 1st class powers can sentence a person only up to three years and even if the Magistrate makes over the case to a Chief Judi cal Magistrate even the latter cannot punish a person with imprisonment for more than seven years. In this situation Mr. Sengupta submitted that the Court might construe the sections in such a way as to make effective both provisions.
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