minal 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 appellant
The respondent did not appear
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 section 7 of the  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 section 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 s32 of the Code the learned Judicial Magistrate committed the respondent to stand his trial before the Court of Session presumably acting under section 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 section 21 of the Act which provides that notwithstanding anything contained in section 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 section 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 section 21 of the Act was not only an enabling provision but also a disabling one
He held that section 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 section 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 section 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 section 32 of the Code
It does not affect the provisions of sections 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 section 21 of the Act the commitment was void because the learned Magistrate could himself have awarded the maximum sentence provided
We have said that section 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
Appeal allowed


Summary:
The respondents were the owners of an oil seed pressing factory situated within the limit of a municipality
They used to import mustard seeds from different areas and they also held a 1 1952 LAC103
219581 LLJ 63
3 AIR 1959 Bom
359 licence for selling Mustard seed
On a report of the Sanitary Inspector of the Municipality the Sub Divisional Officer issued a search warrant directing seizure of a large quantity of  rotten and decomposed mustard seed  from the possession of the respondents
The Chairman of the Municipality applied to the District Magistrate for action under section 431 and section 432 of the Bengal Municipal Act
The proceedings started on the petition of the Chairman of the Municipality had a chequered career
Ultimately the District Magistrate found that the mustard seed was unwholesome and unfit for human consumption on the date of seizure and directed in exercise of the powers under section 4312 of the Act that the same be made over to the Commissioners of the Municipality for disposal either as manure or as cattle feed
The High Court in revision set aside the order of the District Magistrate holding that section 431 of the Act under which the order was made did not apply to a case of seizure of unwholesome food under a warrant issued under section 430
On appeal by the Municipality by special leave Held that the powers under section 4312 of the Bengal Munici pal Act XV of 1932 were expressly directed to be exercised by the Magistrate in respect of articles seized under section 428 and there was nothing in section 4312 which might justify tile view that those powers could also be exercised in respect of articles seized under a warrant issued under section 430