Shyam Lal And Another v. State Opposite Party.

1. This is a revision petition by one Shyam Lal and another person Hafizullah who have been committed by the Magistrate first class Pulwama by order dated 21-12-65 to stand their trial under S. 302 R.P.C before the Sessions Judge Anantnag for having murdered one Vidh Lal. It is very well known that a commitment once made under S. 213 R.P.C by a competent Magistrate can be quashed only first by this court alone and that also only on a point of law. The argument of the learned counsel may be analyzed as under by giving a resume of the facts relevant to the present revision. The murder is alleged to have been committed on 15th May, 65 in village Khrew which is a territorial part of the Tehsil Pulwama. According to the learned counsel for the petitioners Khrew in pursuance of a notification No. 3 dated 27-5-59 was included within the local limits of Srinagar courts under Section 22 of the Civil Courts Act. This notification reads as under

“In exercise of the powers under Section 22 of the J & K Civil Courts Act, 1977, and in supersession of all the previous notifications on the subject the Hon'ble High Court has been pleased to refix the territorial jurisdiction of the judicial courts located at Kulgam Shopian and Pulwama as under:

MUNSIFF PULWAMA

2. The following will form the territorial jurisdiction of Munsiff Pulwama:

3. Tehsil of Pulwama excluding the following Halqas:

9. Khrew

......

JURISDICTION OF THE COURT AT SRINAGAR

3. Khrew

......

4. According to the learned counsel the jurisdiction of the Munsiff Magistrates in civil and criminal matters is co-extensive. The learned Magistrate who has committed the accused to the sessions court at Anantnag was appointed a Magistrate by means of Order SRO 199 dated 10-6-65 and he was to be a Magistrate for the same jurisdiction which he held as Munsiff Therefore, Khrew being a pari of the jurisdiction of the Srinagar Munsiff the Munsiff at Pulwama had no jurisdiction to carry on the commitment proceedings According to the learned counsel for the petitioners what happened in this case was that the case was first presented for commitment proceedings before the Munsiff Magistrate first class Pulwama. Evidence was recorded in this case of a number of witnesses, and on 10-12-65 an objection was taken to the jurisdiction of the Magistrate. It may be remarked here that on that date the prosecuting Inspector had closed the prosecution evidence so far as the committing court was concerned and had made a statement that the prosecution would produce the rest of the evidence before the court of Sessions. When this objection was taken by the Munsiff Magistrate at Pulwama, he submitted the record to the ADM Anantnag for transfer to a court of competent jurisdiction. The ADM Anantnag referred the case to the ADM Srinagar who, it is alleged, retransferred the case to the ADM Anantnag, who again ordered that the commitment proceedings be held by the Munsiff Magistrate at Pulwama. The order of the ADM Anantnag transferring the case to the ADM Srinagar and the order of the ADM Srinagar re-transferring the case to the ADM Anantnag are reported not to be traceable, although an opportunity was given to the learned counsel for the parties to give the particulars of the file so that the same could be sent for. Anyhow, for the disposal of this revision petition, those orders are not very necessary and therefore the absence of such record need not detain us.

5. It is now admitted even by the learned Advocate General that Khrew may be taken to be a part of the Munsiff Magistrate's jurisdiction at Srinagar and not a part of the Munsiff Magistrate's jurisdiction at Pulwama. The learned Ad. General contends that the commitment proceedings and the order of commitment cannot still be quashed Before I examine the legal aspect of the case. I have to point out one very important fact. The learned Ad General referred me to SRO 217 which is ‘In exercise of the powers conferred by Section 7 of the Cr PC samwat 1989 and in supersession of all previous orders, notifications and rules on the subject, the Government hereby direct that with effect from the 1st day of August 1964 the territories of the State shall be divided in the following sessions divisions:

6. Anantnag sessions division comprised of the revenue district of Anantnag.

7. It is not denied that both Pulwama and Khrew are a part of the revenue district of Anantnag. The commitment has been made to a proper court of sessions. But the trouble is about the committing court, i.e, the Munsiff Magistrate Pulwama. As I said the position is somewhat anomalous that so far as the Munsiff Magistrates are concerned, offences committed at Khrew are to be inquired into and tried by Magistrates at Srinagar, where there is a different Sessions division with a presiding Sessions Judge. But if a commitment has to be made about any offence that has taken place in Khrew the sessions court is at Anantnag which means that although the Sessions Judge at Anantnag is the competent court to hear all appeals and sessions cases that may arise of offences committed in Khrew, the Magistrates competent to hear cases and make commitment proceedings are not within his Jurisdiction. This anomaly has to be set right. The attention of the Government as well as of the High Court has to be drawn to this fact and necessary amendment in the various Government orders and notifications for re-distribution of jurisdiction has to be ordered. The matter may be brought to the notice of both the Government as well as the Hon'ble C.J, for proper consideration and necessary rectification.

8. Now as I said earlier, the admitted facts in this case are that the commitment has been made by the Munsiff Magistrate at Pulwama Admittedly he had no territorial jurisdiction to undertake the commitment proceedings. The question then is whether a commitment order made by him is valid and maintainable or should be quashed as argued by the learned counsel for the petitioners Mr. Raul's argument is that every offence shall be inquired into or tried by a court within the local limits of whose jurisdiction it was committed Secondly under Section 532 of the Cr PC which reads as under:

“If any magistrate or other authority purporting to exercise powers duly conferred, which were not so conferred, commits an accused person for trial before a court of session or High Court, the court to which the commitment is made may after perusal of the proceedings, accept the commitment if it considers that the accused has not been injured thereby, unless during the Inquiry and before the order of commitment, objection was made on behalf either of the accused or of the prosecution to the jurisdiction of such magistrate or other authority.

(2) If such court considers that the accused was Injured, or if such objection was so made, it shall quash the commitment and direct a fresh inquiry by a competent Magistrate.”

9. An inquiry by an authority who thinks he was duly conferred with powers which were not actually conferred may be upheld by the Sessions court or the High Court to which the commitment is made if it thinks that the accused has not been injured thereby. But according to Mr. Kaul if during the inquiry and before the order of commitment an objection is made to the jurisdiction of the Magistrate, the proceedings become Invalid and void in law, and such commitment has to be quashed on the other hand the learned Advocate General has laid stress on the word ‘ordinarily’ in Section 177 and has further contended that under the provisions of Sections 531 and 543 of the Cr PC read together, if the commitment proceedings were taken in a court without jurisdiction and the commitment had been made to a competent court of sessions having Jurisdiction, the commitment proceedings cannot be set aside unless the accused has been Injured thereby. No injury is alleged to have been caused to the accused-petitioners by this order of commitment. Mr. Kaul, however, states that the injury is not at all necessary, because under Section 532(2) if an objection was taken to the jurisdiction of the Magistrate, it shall be sufficient to quash the commitment and a fresh inquiry by a competent Magistrate has to be ordered. Both sides have cited a number of authorities. The authorities cited by Mr. Kaul are as follows:

AIR 1946 Cal 459, AIR 1959 Mys 193; AIR 1956 Mys 46; AIR 1959 All 67; AIR 1965 Ker 295

10. On the other hand the learned Ad. General has cited the following authorities:

(1894) ILR 17 Mad 402; (1895) ILR 17 All 36 (FB); (1884) ILR 8 Bom 312; (1903) ILR 26 Mad 640; AIR 1931 Rang 164 : AIR 1936 Pat 410; AIR 1947 Cal 290; AIR 1919 Cal 336; AIR 1940 Cal 583; AIR 1939 Cal 159.

11. AIR 1946 Cal 459 (Supra) deals with the scope of Section 531 of the Cr PC and it says that this section does not entitle a magistrate having no territorial jurisdiction and having knowledge of this fact to proceed with the trial. This section does not confer any jurisdiction on the magistrate.

12. The Mysore authorities, AIR 1959 Mys 193 and AIR 1956 Mys 46, (Supra), AIR 1959 All 67 and AIR 1965 Kerala 295 (Supra) deal with Section 177 of the Cr PC. The cumulative ratio decidendi of these authorities is that Section 531 of the Cr PC is a curative provision and applies to a trial which has taken place in a wrong sessions division, district, sub-division etc. But when once the jurisdiction of a court is challenged at an initial stage and the court proceeds to hear the matter, notwithstanding the objection of the aggrieved party S. 531 will not cure such a defect. Further, it is for the prosecution to prove that the court taking cognizance had territorial jurisdiction. The emphasis is on the word ‘shall’ in S. 177.

13. This is the gist of the authorities produced by the learned counsel for the petitioners.

14. On the other hand in (1894) ILR 17 Mad 402 (Supra) the judgment is a brief one in this case a Division Bench of the Madras High Court has held that a magistrate who commits a case for trial to a sessions court does so in the exercise of powers duly conferred upon him, and the fact that he had no territorial jurisdiction over the place where the alleged offence was committed, and that an objection to the committal on this ground was taken before the commitment, is no ground for the court to which the commitment is made quashing it under Section 532 of the Cr PC.

15. In (1895) ILR 17 All 36 (Supra) a criminal appeal was presented to the Sessions Judge of the Bijnor division at Bijnor within the said sessions division but was heard by the Sessions Judge at Muradabad at which place he was empowered to exercise civil but not criminal jurisdiction it was held that the trial of the appeal at Muradabad was an irregularity, but no failure of justice having been shown to have been occasioned thereby, the Irregularity was covered by Section 531 of the Criminal P.C and did not render fee trial of the appeal a nullity.

16. In (1884) ILR 8 Bom 312 (Supra) It was decided that an order of a Magistrate committing a case to the court of sessions is an order of a criminal court within the meaning of Section 531 of the Cr PC.

17. In (1903) ILR 26 Mad 640 (Supra) it has been laid down that Section 531 applies to a case where a Magistrate who has authority to commit a case for trial does so but has no territorial jurisdiction in the place where the offence to be tried is alleged to have been committed.

18. AIR 1931 Rang 164 (Supra) holds that Section 135 applies where the trial of a criminal case has taken place in a wrong sessions division.

19. AIR 1936 Pat 410 (Supra) lays down the Section 177 of the Cr PC has to be read with Section 531. In this case it was held that where the trial took place in a wrong district, conviction could not be set aside unless the accused had been prejudiced by such trial. AIR 1947 Cal 290 lays down the same law.

20. In AIR 1919 Cal 336 where proceedings were held in a wrong district, the final order was not held to be vitiated.

21. To the same effect are the observations in AIR 1940 Cal 583.

22. In AIR 1939 Cal 159 (Supra) it has been held that Sections 177, 213 and 531 of the Cr PC should be read together and a Magistrate taking cognizance of an offence committed within the limits of his local jurisdiction and committing the accused to sessions, the fact that the locality where the offence was committed was subsequently transferred to another district did not render the commitment invalid. It was further held even if the Magistrate be held to have no territorial jurisdiction at the time of the commitment, such want of jurisdiction would not be a good ground for setting aside an order of commitment under S. 531.

23. Now let us take the three Sections, Ss. 177, 531 and 532 of the Cr PC together. Section 177 enjoins that an inquiry or trial shall ordinarily be held by a court within the local limits of whose jurisdiction it was committed. The word used in this section is ‘ordinarily’ which shows that subject to the other sections of the Code, the inquiry or trial into a matter may be held by a court which may not necessarily have local jurisdiction to hear the same. The legislature, conscious of such possible irregularities, enacted the two sections, Ss. 531 and 532 Under Section 531 no finding, sentence or order of any criminal court need be set aside merely on the ground that the proceedings took place in a wrong sessions division, district, sub-division or other local area. But if it appears to a court that such error has resulted in failure of justice the proceedings before the inferior court may be quashed Section 532 deals specifically with commitments irregularly made Under this section if any magistrate commits an accused person for trial before a court of sessions or the High Court, the court to which the commitment is made may after perusal of the proceedings, accept the proceedings, if it considers that the accused has not been injured thereby. If, however, during the inquiry and before the order of commitment objection was made on behalf of either party to the jurisdiction of the magistrate, such order of commitment may not be upheld. Sub-s. (2) of this section further lays down that if the court considers that the accused was injured or if such objection was made, it shall quash the commitment and direct a fresh inquiry by a competent magistrate. This is the plain language of this section. This section in my opinion, consists of two parts. First, where the proceedings have been allowed to be taken, they cannot be set aside except when the court of sessions or the High Court holds that the accused has been injured thereby. The other class of cases is that if the inquiry is held in a wrong committing court and an objection is taken to the jurisdiction of such magistrate, during inquiry and before the order of commitment, it has to be set aside. This plain reading of the section in my opinion does not warrant the sweeping interpretation as put in (1894) ILR 17 Mad 402 (Supra) and other similar authorities. The interpretation given by such authorities is not strictly covered by the words of this section. But we have nonetheless to interpret the section in a rational manner. It is no doubt true that an accused can question the jurisdiction of the magistrate. If he does so during the inquiry and before the order of commitment the proceedings have to be quashed. It would therefore mean that the inquiry must not be practically over so far as the committing court is concerned and the order of commitment must not be made by the time the objection is taken. For this interpretation I am supported by the language of the section because the words are “before the inquiry is made and before the order of commitment.” If it were the intention of the legislature to invalidate all proceedings in a committing court before the order of commitment were written, then the necessity of the words “before the Inquiry is made” would be superfluous. In that case the plain language of the section should have been if an objection is taken .. .. .. .. before the commitment is made’ The use of the word ‘and’ in between the inquiry and the order of commitment means that the inquiry may not have been substantially complete when the objection is taken and the order of commitment has yet to be written. If the inquiry is substantially complete but the order of commitment is not drawn up. I think the objection raised by a party before the revisional court will not ordinarily prevail.

24. In this case as already remarked, the objection to the jurisdiction of the Magistrate was first taken on 10-12-65 when the witnesses which were intended to be produced by the prosecution in the committing court had already been examined. It was stated on behalf of the prosecution on that day that they did not intend to produce any further evidence before the committing court, i.e, the magistrate first class Pulwama, but would produce them in the sessions court. Therefore practically the inquiry had completed and it was only the order of commitment which remained to be written. The objection, therefore, to the jurisdiction of the magistrate was taken at a late stage when he had finished recording the evidence and had to draw a final order. The only thing that remained for the magistrate was to consider whether there was a case for commitment or not. No defence was produced or intended to be produced before the magistrate. Therefore, in my opinion, even though objection has been taken to the jurisdiction of the magistrate, but it has been taken at too late a stage which would not give any benefit to the accused petitioners. Therefore I do not think there is any reason to interfere with the order of commitment.

25. If we read Section 532 of the Code rather carefully it is upto the court (whether it is the court of sessions or the High Court) to which the commitment has been made to accept the commitment or order a retrial, or a fresh inquiry by a magistrate of competent jurisdiction. I do not know whether the attention of the learned Sessions Judge has been drawn to this aspect, but I presume from what has been argued before me that the learned Sessions Judge at Anantnag has not thought it a case where he should refuse to accept the commitment and direct a fresh inquiry. If he has not done so, much less should I do so, because the discretion was his which has been exercised by him. Therefore according to my view the petitioners have approached wrong quarters for getting the commitment set aside. Mr. Kaul has further drawn my attention to the fact that it would be in the interest of justice if the sessions trial were held by the Sessions Judge at Srinagar and not the Sessions Judge at Anantnag. The prosecution has cited 21 witnesses in this case. Out of the PWs two belong to Deeri and Mitragram, the remaining non-official witnesses 12 in number belong to Khrew Khrew is definitely nearer Srinagar than Anantnag. It was on this ground that in 1959 Khrew and adjacent villages were included in the local limits of the Munsiff at Srinagar rather than the Munsiff Pulwama. Even Deeri and Mitragram are nearer Srinagar than Anantnag. This would lead to the conclusion that the trial of this case in Srinagar would be more conducive to the convenience of the PWs than its trial at Anantnag. The accused are to the judicial lock-up. It makes no difference to them. In the interest of justice I think this case should be heard by the Sessions Judge at Srinagar. Therefore under clause 18 of the Letters Patent I direct that this sessions case be tried by the Sessions Judge, Srinagar.

HJ/RSK/D.V.C

26. Order accordingly.