The State of Uttar Pradesh Vs. Khushi
Ram  INSC 63 (1 April 1960)
IMAM, SYED JAFFER
CITATION: 1960 AIR 905 1960 SCR (3) 427
Criminal Trial--Magistrate empowered to
impose sentence Pro- vided--Commitment under impression of not being so
empowered-- Trial by Court of Session on such commitment--Validity--Prevention
of Food Adulteration Act, 1954 (37 of 1954), ss. 7, 16 and 21.--Code of
Criminal Procedure, 1898 (V of 1898), ss. 32, 207 and 347.
The respondent was prosecuted for offences
under s. 7 of the Prevention of Food Adulteration Act, 1954. The Magistrate
found the offences proved and he further found that the respondent had 428
committed the offence for the third time for which he was liable to be awarded
a sentence of imprisonment for not less than two years and to a fine of not
less than Rs. 3,000.
Section 21 of the Act specifically empowered
the Magistrate to impose this sentence, but as he was under the impression that
s. 32 of the Code of Criminal Procedure limited his power to impose sentences
he committed the respondent to stand his trial before the Court of Session. The
Court of Session found the respondent guilty and convicted him. On appeal the
High Court held that the Magistrate had no power to commit and that the
Sessions judge had no Jurisdiction to try the case, set aside the conviction
and sentence and remanded the case for retrial to the Magistrate Held., that
the commitment was not illegal and that the Sessions judge had jurisdiction to
try the case. Section 21 of the Act was not a disabling provision and it did
not make commitment by a Magistrate competent to award the full sentence
prescribed by the Act, a nullity; it did not take away the power of the
Magistrate to commit. The Magistrate had both the power and the territorial
jurisdiction to commit, and the commitment was good.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 160 of 1959.
Appeal by special leave from the judgment and
order dated October 30, 1958, of the Allahabad High Court (Lucknow Bench) at
Lucknow in Criminal Appeal No. 105 of 1957, arising out of the judgment and
order dated February 12, 1957, of the Second Temporary Civil and Sessions Judge
at Barabanki in Criminal Sessions Trial No. 102 of 1956.
G. C. Mathur and C. P. Lal, for the
The respondent did not appear.
1960. April 1. The Judgment of the Court was
delivered by SARKAR, J.--The respondent was prosecuted before the Judicial
Magistrate, Barabanki, for offences under cls. (i) and (iii) of s. 7 of the Prevention
of Food Adulteration Act, 1954, for selling adulterated milk and for selling
milk without a licence. The learned Magistrate found that the offences had been
proved and further that, the respondent had committed the offences for the
third time. Under cl. (a) (iii) of sub-sec. (i) of s. 16 of the Act, in the
absence of special and adequate reasons to the contrary, for a third offence
the imprisonment to be awarded cannot be for less than two years and the fine
to be imposed not less than three thousand rupees. Section 32 of 429 Criminal
Procedure Code however provides that a Magistrate of the first class shall not
have power to impose a sentence of fine exceeding rupees two thousand. Under
the impression that his power as a Magistrate of the first class to impose sentence
was limited by s.32 of the Code the learned Judicial Magistrate committed the
respondent to stand his trial before the Court of Session, presumably acting
under s. 347 of the Code of Criminal Procedure.
The respondent was thereupon tried by a
learned Sessions Judge of Barabanki who found him guilty of the offences with
which he had been charged. The learned Sessions Judge however came to the
conclusion that the offences had been committed by the respondent for the
second time and not the third. He observed that the learned Judicial Magistrate
was competent to award the minimum punishment prescribed by the Act for a
second offence and should not have committed the case to the Court of Session
at all. He however convicted the respondent and awarded the minimum sentence
prescribed by the Act for a second offence, namely, rigorous imprisonment for
one year and a fine of rupees two thousand and, in default, rigorous
imprisonment for a further period of six months for each of the offences and
directed the sen- tences of imprisonment to run concurrently.
The respondent then appealed to the High
Court at Allahabad.
Mulla, J., who heard the appeal pointed out
that the learned Judicial Magistrate had overlooked the "Provisions of s.
21 of the Act which provides that notwithstanding anything contained in s. 32
of the Code it shall be lawful for a Magistrate of the first class to pass any
sentence authorised by the Act in excess of his powers under s. 32 of the Code.
The learned Judge observed that the learned Magistrate was therefore quite
competent to award all punishments that the law required and had no reason to
commit the respondent to a Court of Session. He took the view that a Court of
Session could try only those cases which were legally and properly committed to
it by a Magistrate and that s. 21 of the Act was not only an enabling provision
but also a disabling one. He held that s. 21 of the Act prevented a commitment
to 55 430 the Court of Session by a Magistrate of the first class. He observed,
" Where a special Act has made a special provision for punishment to be
awarded by a Magistrate irrespective of the limitations placed upon his powers
under the Criminal Procedure Code, it amounts to an abrogation of the general
law and the provisions of s. 347 of the Criminal Procedure Code cannot be
applied to such a case." In this view of the matter he held that the
learned Judicial Magistrate had no power to commit the respondent to the Court
of Session for trial and the learned Sessions Judge had no jurisdiction to try
the case. He thereupon set aside the order of conviction and the sentence
passed against the respondent and remanded the case to the District Magistrate
of Barabanki to be transferred by him to the Court of a competent Magistrate
for trial and disposal. The State has appealed to this Court against the
judgment of Mulla, J.
We are unable to agree with the view of
Mulla, J., that the learned Sessions Judge had no jurisdiction to try the case.
We do not think that s. 21 of the Act is a
disabling provision. All that it does is to authorise a Magistrate of the first
class to award a sentence beyond the limits prescribed for him under s. 32 of
the Code. It does not affect the provisions of ss. 207 and 347 of the Code, nor
has it anything to do with the jurisdiction of a Court of Session. The section
does not make commitment by a Magistrate competent to award the full sentence
Prescribed by the Act, a nullity; nor does the section interfere with the
jurisdiction of a Court of Session to deal with a matter committed to it in
spite of its provisions.
The jurisdiction of a Court of Session
depends upon the Code. It has jurisdiction to try any case which is committed
to it. The case against the respondent had been committed to a Court of Session
by a Magistrate having power to commit. Further, the Magistrate did not lack
territorial jurisdiction to commit. It may be that the Magistrate was competent
to try the case and award all punishments prescribed by law. It is also true
that the Magistrate was not compelled to commit the case to a Court of Session.
We are unable to subscribe to the view that a commitment in 431 such
circumstances is itself void. Neither do we understand Mulla, J., to take the
view that apart from s. 21 of the Act, the commitment was void because the
learned Magistrate could himself have awarded the maximum sentence provided.
We have said that s. 21 does not take away
the power of the Magistrate if he has such power, to commit, nor affect the
jurisdiction of a Court of Session to try a case committed to it by a
Magistrate empowered to do so. Therefore it seems to us that the learned
Sessions Judge had full jurisdiction to try the case against the respondent.
In the result we allow the appeal and set
aside the order of the High Court. The case will now go back to the High Court
to be heard on merits.