Ved Prakash vs The State (Central Bureau Of ...
1994 Latest Caselaw 36 Del

JUDGMENT

Jaspal Singh, J.

(1) The dispute revolves around the interpretation of section 325 of the Code of Criminal Procedure. It arises in the following background.

(2) On March 28, 1987 the present petitioner was acquitted on a charge under section 477A of the Indian Penal Code but convicted under section 409 of the Code. However, by a separate order passed on the same day, the learned Metropolitan Magistrate submitted the proceedings, and forwarded the petitioner to the Chief Metropolitan Magistrate holding that he ought to receive a punishment more sever than that which he was empowered to inflict. Aggrieved by it, the petitioner preferred an appeal before the Court of Sessions. The appeal, however, was dismissed holding that as the Magistrate had acted under section 325(1) of the Code, the order of conviction was "simply an opinion" about the guilt of the accused and as such did not "amount to an order of conviction.". Hence this revision petition.

(3) With the background as front lined in the preceding paragraph, it is time now to first reproduce sections 248 and 325 of the Code and then to come into grip with the contentions raised. The provisions referred to above run as under:.ls1.lm2

"248.(1) If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal. (2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed inaccordance with the provision of section 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law. (3) Where, in any caser under this Chapter, a previous conviction is charged under the provisions of sub-section (7) of section 211 and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon:Provided that no such charge shall be read out by the Magistrate nor shall the accused be asked to plead thereto nor shall the previous conviction bereferred to by the prosecution or in any evidence adduced by it, unless and until the accused has been convicted under sub-section (2)."

"325.(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 the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law.

(4) It was contended by Mr.D.C.Mathur appearing for the petitioner that a reading of sections 248 and 325 of the Code would itself go to show that first there must necessarily be a judgment of conviction and that such a judgment must precede submission of the proceedings and the forwarding of the accused before the Chief Metropolitan Magistrate and that if that be so, the accused cannot be deprived of his right to prefer an appeal against such judgment of conviction.

(5) Even if, contended by Mr.Mathur, it be taken that a judgment of conviction was not a condition precedent to the submission of the proceedings and the forwarding of the accused under section 325, since, the Magistrate in the present case had actually passed a judgment of conviction under section 409 of the Penal Code, he could not be deprived of his right to prefer an appeal against it.

(6) In support of the first contention, Mr.Mathur took me through sub-section (2) of section 248 of the Code and submitted that as the words: "Where in any case the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of section 325 or section 360.... "would go to show that the judgment of conviction must precede the decision to proceed or not to proceed under section 325, therefore, the words: "Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty..."

as used in sub-section (1) of section 325 must also necessarily be taken to mean a judgment of conviction and that, consequently, the person so convicted could not be deprived of his right to prefer an appeal against such a judgment of conviction.

(7) To my mind, it would be too dangerous to interpret the provisions in question merely from the lexicographer's angle. It is the will and inbuilt policy of the Legislature which must prevail.The words: "finds the accused guilty" in section 248 and "is of opinion.... that the accused is guilty" in section 325(1) have to take their meaning from the context of the statute, as a whole. It is not permissible to construe them in isolation, for, exposition ex visceribus actus is the rule of construction. The approach must necessarily be to, in the words of Viscount Simon L.C. "bring about an effective result" (See Nokes v. Donester Amalgamated Collieries Ltd., 1940 Ac 1014) than to reduce the legislation to futility. The principle expressed in the maxim "ut res magis valea quam pereat" is to be the guiding star. (See Curtis v. Stevin (1889) 22 Q. B. [). 513. Craise' on statue Law p.90 and Maxwll on the lnterpretation of Statutes 12th Edn. pp.236-237).

(8) If decision to proceed under section 325(1) must be preceded by a judgment of conviction or, in other words, it a judgment of conviction is taken as a condition precedent to a decision to proceed under section 325(1) then one fails to understand as to why the Chief metropolitan Magistrate to whom the proceedings are submitted has been authorised to examine the parties and call and examine any witness who has already given evidence in the case or to call for and take any further evidence and why he has been enjoined to "pass such judgment, sentence or order in the case as bethinks fit, and as is according to law". Can the Chief Metropolitan Magistrate, in such a case, say that he has perused the judgment of the Metropolitan Magistrate and that on its perusal he is convinced that the Metropolitan Magistrate has come to the right conclusion and proceed to pass sentence upon the accused? Surely, the law prohibits him from saying so. The reason being that it would not be a judgment at all. What a judgment must contain is mentioned in section 354 of the Code of Criminal Procedure, It must contain the point or points for determination, the decision thereon .and the reasons for the decision. It must show that the Magistrate has intelligently applied his mind to the facts and evidence and a critical analysis of the evidence justifying the conclusion. Such being the requirements of a judgment, if the interpretation of Mr.Mathur is accepted we will have two independent judgments in the same proceedings one by the Magistrate who resorted to sub-section (1) of section 325 and the second by the Chief Metropolitan Magistrate under sub-section (3) of section 325. To my mind to attribute such an intention to the legislature would not be wise but otherwise and would relegate the intention of the Legislature to the hapless position "of an ineffectual angel beating its wings in a luminous void in vain.

(9) "LET us look at the matter from another angle. True, the word 'judgment' has not been defined in the Code but then we all know that the word means nothing else but either a judgment of acquittal or a judgment of conviction. If that be so, and if the interpretation put forth by Mr.Mathur is accepted, the same proceedings in a trial would necessarily see two judgments 'both of whom may be of conviction or one of conviction by the Magistrate and the second of acquittal by the Chief Metropolitan Magistrate. I do not think such an absurd situation could ever be intended by the Legislature.

(10) This is not the end of the matter Section 374 of the Code which deals with appeals from convictions would go to show that a judgment of conviction passed by a Metropolitan Magistrate can be altered only on an appeal. However, if the interpretation put by Mr.Mathur is accepted, a judgment of conviction passed by a Metropolitan Magistrate can be altered by a Chief Metropolitan Magistrate while acting under sub-section (3) of section 325 in a case where proceedings have been submitted to him under sub-section (1) of section 325. This position, if accepted, would be totally repugnant to the scheme of section 374 of the Code.

(11) That Mr.Mathur' s contention is untenable is borne out again from what has been said in sub-section (3) of section 325. It may be recalled that when the matter is placed before the Chief Metropolitan Magistrate, he is required under sub-section (3) of section 325 "to pass such judgment, sentence order" ..."in the case as he thinks fit, and as is according to law. The word "order", to my mind, is not without significance and shows that the Chief Metropolitan Magistrate, to whom the proceedings are submitted, would be quite competent to say that, either on account of the gravity of the matter or from any other sufficient reason, the Session Court is the proper tribunal for the disposal of the case. This being so, it clearly militates 'against the interpretation suggested so assiduously by Mr.Mathur.

(12) Ln Planters Nut & Chocolate Co. Ltd. vs. The King (1952) 1 Dlr 385, a case coming from Canada, the court posed a question and ventured to answer it too, in the following terms: " Would a house-holder when asked to bring home fruits or vegetables for the evening meal bring him salted peanuts, cashew-nuts or nuts of any sort? The answer is obviously 'No'. "Sorry, Mr.Mathur, my answer is also the same. What, then, is the correct position? The perusal of section 325 would go to show that whenever a Magistrate is of opinion after hearing the evidence for the prosecution and the accused, that the accused is guilty, he may send up the records under two circumstances namely; (1) the punishment to be inflicted must be different in kind from that which he is empowered to inflict, and (2) the punishment must be more severe than that which he can inflict. Certainly, in no other circumstance can he send up the records under Sub-section (1) of section 325. After the submission of the record, the case would be a continuation of the original trial and the Chief Metropolitan Magistrate would be under the same obligation to hear arguments and to write a judgment as in any ordinary case tried entirely by him. It is not sufficient for the Chief Metropolitan Magistrate to accept the opinion recorded by the Magistrate making the reference. He is rather required to form his own independent judgment and write it according to the provisions of section 354 of the Code. It is just possible, upon hearing of the evidence of the prosecution and the accused,thattheChief Metropolitan Magistrate may opine that the accused is not guilty in which case it would be open to him to acquit the accused.

(14) Lt was last contended that the learned Magistrate had acquitted the petitioner of one charge by the same order "and that this in itself was sufficient to show that it was a "judgment" within the meaning of section 354 of the Code. I must confess I am at a loss to understand how it helps the petitioner in building up his case. under sub-section (1)of section 325 the proceedings can be submitted by a Magistrate only with regard to that offence of which, in his opinion, the accused is guilty of. He cannot forward the case relating to an offence of which, in his opinion, the accused is not guilty and, obviously, with regard to that offence there has to be a judgment of acquittal.