SCR.A/122820/2007 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1228 of 2007 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN AND HONOURABLE MR. JUSTICE MOHIT S. SHAH ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= SHAILESH VISHWANATH RAVAL - Applicant(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ================================================= Appearance : THROUGH JAIL for Applicant(s) : 1, MR BHUSHAN B OZA for Applicant(s) : 1, MR KT DAVE, APP for Respondent(s) : 1-4, ================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR. JUSTICE MOHIT S. SHAH Date : 08/10/2008 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) This petition under Article 226 of the Constitution is filed by an under-trial prisoner lodged in Sabarmati Central Jail, Ahmedabad. The petitioner has prayed for suitable directions to all the lower Courts to implement the directions issued by the Hon'ble Supreme Court in RD Upadhyay vs State of Andhra Pradesh, (1996) 3 SCC 422 and in Rama Murthy vs. State of Karnataka, AIR 1997 SC 1739. SCR.A/122820/2007 2 JUDGMENT 2. The petitioner was arrested and lodged in judicial custody since 16.1.2004 in connection with two criminal cases registered as FIR No. I- 662/03 with Amraiwadi Police Station and FIR No. 689/04 registered with Ellisbridge Police Station for the offences punishable under Sections 406, 409, 420, 467, 468, 471 and 120B of the Indian Penal Code. The maximum sentence which can by awarded for the above offences is as under :- IPC Sections Maximum punishment provided under law 406 Maximum 3 years & fine 409 Life, 10 years & fine 420 7 years & fine 467 Life, 10 years & fine 468 7 years & fine 471 2 years & fine 3. The petitioner's contention is that since the cases for the offences punishable under the above Sections are triable by any Judicial Magistrate, First Class or any Metropolitan Magistrate and since the powers of such Magistrates to award punishment is maximum sentence upto 3 years as provided in Section 29 of Cr.PC, an accused charged with the above offences cannot be kept in judicial custody for more than 3 years without trial or even when the trial is in progress. 4. When the petition reached before a learned Single of this Court, by order dated 28.6.2007, it was directed that the matter be treated as public interest litigation. When the matter reached hearing before this Court on 7.8.2008, the Gujarat State Legal Services Authority was required to submit Action Taken Report to see that the District/Taluka Legal Services Committees in the State make applications before the SCR.A/122820/2007 3 JUDGMENT concerned Courts for releasing the accused on bail who satisfy the conditions prescribed by Section 436A of the Cr.PC. The jail authorities in the State were required to render full cooperation and information. Mr Bhushan B Oza was appointed as amicus curiae for the petitioner. 5. In compliance with the above direction, the Gujarat State Legal Services Authority submitted the report dated 11.9.2008, inter alia, stating as under :- “Upon going through the above stated Action Taken Reports received from District Legal Services Authorities of Bhavnagar, Jamnagar, Kachchh and Mehsana, it appears that one Under Trial Prisoner each from Bhavnagar, Jamnagar, Kachchh and two Under Trial Prisoners from Mehsana have satisfied the provisions of Section 436A of the Criminal Procedure Code. It is reported by the concerned District Legal Services Authorities that application to release the accused under provisions of Section 436A of the Cr.PC is made to the concerned Court by the Taluka Legal Services Committee. The remaining District Legal Services Authorities working in the State and, Ahmedabad City Civil Court Legal Services Committee and Ahmedabad Metropolitan Magistrates Court Legal Services Committee, have forwarded NIL reports stating that there is no Under Trial Prisoner who satisfy the provisions of Section 436A of Cr.PC.” In view of the above report, it is clear that the accused satisfying the conditions stipulated in Section 436A of the Cr.PC have been given the necessary assistance to obtain bail under the said provisions. 6. Now coming back to the contention raised in the petition, we have heard learned amicus curiae Mr Bhushan Oza and Mr KT Dave, learned APP. 7. It is true that the offences punishable under Sections 407, 408, 409, 420, 467 and 468 are triable by a Judicial Magistrate, First Class or a Metropolitan Magistrate as indicated in the First Schedule to the Cr.PC and it is also true that the powers of the Magistrate of the First Class are SCR.A/122820/2007 4 JUDGMENT to pass orders for maximum sentence of 3 years and to impose fine upto Rs.5,000/-. However, that by itself does not mean that the maximum sentence to be awarded on the accused who are found to be guilty of having committed such offences would be only 3 years. This is so because Section 325 specifically lays down the procedure when Magistrate cannot pass sentence sufficiently severe. Section 325 of Cr.PC reads as under :- “325. Procedure when Magistrate can not pass sentence sufficiently severe. - (1) Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate. (2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (1), in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate. (3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and recall and examine any witness who has already given evidence in that case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case he thinks fit, and as is according to law.” 8. The aforesaid provisions came for interpretation before a learned Single Judge of this Court (Coram : Mr Justice DP Desai) in Narendra Amratlal vs. State, 19 GLR 165. After considering the provisions of Sections 323and 325, this Court held as under :- 6. The first question which arises for consideration is, is it open to a Judicial Magistrate or a Metropolitan Magistrate, in a case where he feels that the accused ought to receive a punishment different in kind from, or more severe than, that which he is SCR.A/122820/2007 5 JUDGMENT empowered to inflict, to commit the case straightway to the Court of Sessions under sec. 323 instead of exercising his powers in that connection under sec. 325 ? A bare reading of the two sections will show that sec. 323 is general in nature, whereas sec. 325 provides for specific category of cases. In case of a Magistrate, therefore, where he feels that the accused ought to receive a punishment different in kind or more severe than that which he can impose, his only course is to resort to sec. 325. That being a specific provision must govern the case. This is a well-known rule of interpretation. But then, it may well be said, though it has not been argued before this Court, that the Magistrate may fee that the given case before him deserves punishment exceeding seven years, which the Chief Judicial Magistrate or, for the matter of that, the Chief Metropolitan Magistrate, cannot award. Therefore, in such a case, it may be said that the Magistrate or the Metropolitan Magistrate can exercise his powers to commit the case to the Court of Sessions under sec. 323 of the Code. The approach that the Magistrate or Metropolitan Magistrate should adopt in such cases is, whether the accused before him ought to receive punishment of more than three years, or a fine of more than rupees five thousand. He is not required to consider whether the punishment called for in the case before him is seven years or more than seven years and, on that consideration, to send the case to the Chief Judicial Magistrate or Chief Metropolitan in one case and to the Sessions Court in other. There is no indication of legislative intent giving such free play in the exercise of power to a Magistrate or Metropolitan Magistrate in a case which deserves sentence higher than the one he could inflict. In fact, sub-section (1) of Sec.325 itself gives an indication that the relevant factor for consideration is, whether the punishment which ought to be received by the accused in the case before him should be more severe than the punishment which he is competent to inflict ? Therefore, this is the only criterion which he has to follow, without worrying himself on the question whether the punishment larger than that within the competence of the Chief Judicial Magistrate or Chief Metropolitan Magistrate is required to be inflicted. If this is the correct criterion which the Magistrate or Metropolitan Magistrate should consider in such a situation, it is obvious that he cannot commit the case to the Court of Sessions directly. He must hear the evidence for the prosecution and the accused, form an opinion that the accused is guilty, and then, also form an opinion that the accused should receive a punishment, different in kind, or more severe than that which he is competent to inflict. Having formed and recorded these two opinions, he has to submit the proceedings to the Chief Judicial Magistrate or to the Chief Judicial Magistrate, as the case may be, to whom he is subordinate. Therefore, on a correct interpretation of the relevant provisions, no SCR.A/122820/2007 6 JUDGMENT Magistrate can straightway commit a case to the Court of Sessions, under sec.323, on the ground that the punishment that the accused should receive ought to be different in kind and more severe than that which he is competent to inflict. He has got to follow the procedure under sec.325, of the Code and there is no other alternative left for him in such a case. 7. Now, suppose, before a Chief Judicial Magistrate, or a Chief Metropolitan Magistrate, the case involves an offence of a gross nature and the sentence which he ought to award must exceed seven years, what is the Chief Judicial Magistrate or the Chief Metropolitan Magistrate to do? Sub-sec. (3) of Sec. 325 in such a case enables the Chief Judicial Magistrate to pass such order in the case as he thinks fit and is according to law. He can, therefore, commit the case submitted to him under sec. 325 (1) to the Court of Sessions under sec. 323 of the new Code. The word “Magistrate”, occurring in sec. 323 in this connection should be held to include a “Chief Judicial Magistrate”, or a “Chief Metropolitan Magistrate” as well. It must be made clear, however, that this interpretation does not affect the power of a Magistrate or a Metropolitan Magistrate to commit under sec. 323 of the new Code a case to the Court of Sessions wherein a question other than the quantum of punishment, which ought to be received by the accused, is involved. It is cases other than the punishment which ought to be received by the accused as contemplated by sec. 325(1) in which a Magistrate or a Metropolitan Magistrate can have resort to sec. 323 of the new Code.” 9. Thus, the provisions of Section 325 are a complete answer to the petitioner's contention that the accused charged with the offences punishable under Sections 407, 408, 409, 420, 467 and 468 of the Cr.PC cannot be kept in custody for more than three years. 10. In RD Upadhyay vs State of Andhra Pradesh, (1996) 3 SCC 422, the Apex Court gave directions for expeditious trial where undertrial prisoners were languishing in Central Jail, Tihar, Delhi for long periods. 11. As regards the decision of the Apex Court in Shaheen Welfare Association vs. Union of India, (1996) 2 SCC 616, in the said case, the Apex Court was concerned with cases under Terrorist and Disruptive Activities (Prevention) Act, 1987 [for short “TADA”]. In the facts of the SCR.A/122820/2007 7 JUDGMENT present case, where the accused is charged with offences punishable under the relevant provisions of the Indian Penal Code regarding bank loan cases, the directions contained in Shaheen Welfare Association case (supra) have no relevance whatsoever. 12. As regards the decision in Rama Murthy vs. State of Karnataka, AIR 1997 SC 1739, the Apex Court gave appropriate directions for jail reforms. There is no specific allegation in the petition about violation of any particular direction given by the Apex Court in the case of Rama Murthy. 13. We, therefore, do not find any substance in the petition and the petition is accordingly dismissed. [K.S. RADHAKRISHNAN, CJ.] [M.S. SHAH, J.] sundar/-