State Vs. Dhuleswar Das

State vs Dhuleswar Das

Disposition Reference accepted Court Orissa Decided Jul 29, 1965

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Citation: sooperkanoon.com/526584
Court: Orissa High Court
Judge: R.K. Das, J.
Decided On: Jul 29, 1965
Case Number: Criminal Ref. No. 12 of 1965
Subject: Criminal
Disposition: Reference accepted

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Criminal
Outcome / disposition: Reference accepted
Acts & sections: Code of Criminal Procedure (CrPC) , 1898 - Sections 207; Indian Penal Code (IPC) - Sections 406, 409 and 420

Parties & Advocates

Appellant / Petitioner

State

Advocate N. Kr. Das, Standing Counsel

Respondent

Dhuleswar Das

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1898 - Sections 207; Indian Penal Code (IPC) - Sections 406, 409 and 420
Cases Referred: Emperor v. Karam Singh
Reported In: AIR1966Ori104; 1966CriLJ570

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the learned sessions judge, mayurbhanj has now recommended to this court for setting aside the order of commitment as in his opinion no adequate reasons have been..........he submitted two charge-sheets against the accused dhuleswar, one in respect of the sum of rs. 142 received by the accused from bhutal majhi and the other in respect of the sum of rs. 8 received from haria majhi, the former charge being under section 409, and the latter under sections 406/420 i. p. c. after the charge-sheet was submitted the learned magistrate instead of trying the case, chose to make an enquiry under chapter xviii of the cr. p. c. and after the enquiry was completed he committed the accused to the court of sessions. the learned sessions judge, mayurbhanj has now recommended to this court for setting aside the order of commitment as in his opinion no adequate reasons have been given by the learned magistrate for committing the accused to the court of sessions instead of he himself trying the offender.3. section 207 in chapter xviii, cr. p. c, deals with the procedure in inquiries preparatory to commitment, in cases triable by the court of sessions or high court and it provides that in every enquiry before a magistrate where the case is triable exclusively by a court of sessions or high court or in the opinion of the magistrate ought to be tried by such court, the magistrate shall, (a) in any proceeding instituted on a police report follow the procedure specified in section 207-a and (b) in any other proceeding of this chapter. it has to be seen whether the magistrate was justified in committing the accused to the court of sessions judge. no doubt, offences under sections 409 and 420 i. p. c. are triable both by the court of sessions as well as by the magistrate and not exclusively by the sessions judge, but in such cases, if a magistrate wants to commit the accused for trial before the court of sessions, he should follow the procedure laid down under section 207, cr. p. c. and give adequate reasons for such commitment.4. in the present case the amounts involved are rs. 142 and rs. 8 and the magistrate had the concurrent jurisdiction to try.....

Full Judgment

ORDER

R.K. Das, J.

1. This is a reference made by the Sessions Judge, Mayurbhanj, recommending to quash the order of commitment dated, 24-11-1964 passed by Shri R.K. Misra, a Magistrate, 1st Class Baripada in a trial for offences under Sections 409 and 420, I. P. C.

2. One Dhuleswar Das was working as a peon of the Block Development Officer, Kuliana. He was deputed to village Kothabila to serve demand notice on some of the parties. He accordingly went to that village and realised a sum of Rs. 142 from one Bhutal Majhi and another sum of Rs. 8 from Hadia Majhi, but did not grant them any receipt, nor did he deposit the amount in the Block Office. The matter came to the notice of the B. D. O. who on 28-4-1964 submitted a report to the Officer-in-charge, Kuliana Police Station. The Officer-in-charge treated the report as F.I.R. and registered a case. After investigation he submitted two charge-sheets against the accused Dhuleswar, one in respect of the sum of Rs. 142 received by the accused from Bhutal Majhi and the other in respect of the sum of Rs. 8 received from Haria Majhi, the former charge being under Section 409, and the latter under Sections 406/420 I. P. C. After the charge-sheet was submitted the learned Magistrate instead of trying the case, chose to make an enquiry under chapter XVIII of the Cr. P. C. and after the enquiry was completed he committed the accused to the Court of Sessions. The learned Sessions Judge, Mayurbhanj has now recommended to this Court for setting aside the order of commitment as in his opinion no adequate reasons have been given by the learned Magistrate for committing the accused to the Court of Sessions instead of he himself trying the offender.

3. Section 207 in Chapter XVIII, Cr. P. C, deals with the procedure in inquiries preparatory to commitment, in cases triable by the Court of Sessions or High Court and it provides that in every enquiry before a Magistrate where the case is triable exclusively by a Court of Sessions or High Court or in the opinion of the Magistrate ought to be tried by such court, the Magistrate shall, (a) in any proceeding instituted on a police report follow the procedure specified in Section 207-A and (b) in any other proceeding of this Chapter. It has to be seen whether the Magistrate was justified in committing the accused to the Court of Sessions Judge. No doubt, offences under Sections 409 and 420 I. P. C. are triable both by the Court of Sessions as well as by the Magistrate and not exclusively by the Sessions Judge, but in such cases, if a Magistrate wants to commit the accused for trial before the Court of Sessions, he should follow the procedure laid down under Section 207, Cr. P. C. and give adequate reasons for such commitment.

4. In the present case the amounts involved are Rs. 142 and Rs. 8 and the Magistrate had the concurrent jurisdiction to try the case. While committing the accused to the Court of Sessions, he has given absolutely no reason as to why he considered it necessary to commit the? case to the Court of Sessions while he himself was competent to try the case. It is settled by the authorities that in such cases while exercising jurisdiction under Section 207, the Magistrate must record the reasons for committing a person for an offence which is not exclusively triable by the Court of Sessions.

5. In a Full Bench decision of the Allahabad High Court reported in 50 Cr LJ 59 : (AIR 1949 All 1) Rex v. Matoley, it was held that a Magistrate, otherwise competent, may commit any person for trial to the Court of Sessions or the High Court for any offence, but he must give adequate reasons for committing a person for an offence which is not exclusively triable by the Court of Sessions or the High Court.

6. The Punjab High Court in a case reported in 31 Cr LJ 178 : (AIR 1930 Lah 312) Emperor v. Karam Singh, held that in committing cases not exclusively triable by the Court of Sessions, Magistrates should exercise a proper discretion and give adequate reasons for making commitment to the Court of Sessions. The reasons should be such as to show whether the commitment is made in the sound exercise of the discretionary power vested in the Magistrate by law, and if he does not give adequate reasons, the commitment may be quashed.

7. In a case of the Andhra Pradesh High Court reported in AIR 1956 Andhra, 17 In Re, Ummadi Pulla Reddi, their Lordships took the: view that in committing a case which the Magistrate is competent to try and in which he can commit the accused to the Court of Sessions.

8. In the present case, as already stated, the Magistrate has not assigned any reason as to why he considered it necessary to commit the accused to the Court of Sessions. In absence of any such reasons, the order of the Magistrate is liable to be quashed. Accordingly the reference is accepted and the order of the Magistrate, dated 24th November 1964 is quashed and the Magistrate will now proceed with the trial of both the cases in accordance with law.

Same Parties State vs Dhuleswar Das Same Subject Criminal Same Judge R.K. Das, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1898 - Sections 207; Indi...

Criminal concurrent jurisdiction In accordance with law Police Station In respect of Police report Received by high court