1989 Supreme(Kar) 274

Karnataka High Court
Nagesh - Appellant
Versus
State of Karnataka - Respondent
Decided On : 08-18-89
CRI.PETN. : 164 of 1988

Headnote:(i) Criminal Procedure Code, 1973 Sections 2 (n), 29, 177 & 325 - Jurisdiction of Criminal Courts in inquiries and trials Karnataka Forest Act, 1963 - Sections 87 and 50 (k) - Indian Penal Code, 1860 - Section 411- Prosecution for having committed an offence punishable under - Whether the Judicial Magistrate First class could try the offences alleged against the petitioner? - (Yes, the Act also does not provide for com ferment of any special jurisdictional power - In the event of his opinion that the petitioner is guilty of the offence u/s. 87 (1) of the Act, he can have recourse to the provisions contained in Sec. 325 of the Code)

       Held: The contravention of Section 50 (k) and the offence under Section 87 (1) of the Act are triable by a Magistrate of the First Class under the First Schedule to the Code. The offence punishable under Section 411 of the Indian Penal Code is also triable by the Magistrate of the First Class under the First Schedule.

       (Para 17)

       Held: Having regard to the definition of the "offence" there can be no, manner of doubt that the provisions, contained in Chapter XIII relating to the jurisdiction of the Criminal Courts in inquiries and trials and in Chapter XIV relating to conditions requisite for initiation of proceedings, determine the place of inquiry or trial in respect of offences under any special or local law except to the extent that they are excluded under Section 4

       (2) by reason of any special forum of procedure prescribed or any special jurisdictional power conferred by any other law. There appears to be no provision in the Act prescribing special forum of procedure for trial of the forest offences under the Act. The act also does not provide for conferment of any special jurisdictional power. Hence I hold that the provisions contained in Chapter XIII and XIV of the Code determine the place of trial of the offences under the Act.

       (Para 20)

       Held: The punishment provided for the offence punishable under Section 411 of the Indian Penal Code is imprisonment of either description for a term which may extend to three years, or fine or both. Having regard to the penalty prescribed for the offence punishable under Section 411 of the Indian Penal Code and the provisions contained in Section 29 (2) of the Code, there can be no doubt that if the learned Magistrate were to come to the conclusion that the offence punishable under Section 411 of the Indian Penal Code alleged against the petitioner has been established, he would be in a position to award adequate punishment to the petitioner in accordance with law.

       (Para 27)

       Held: In view of the facts of the case and the contentions of the prosecution, if the learned Magistrate is to hold the petitioner guilty of contravention of Section 50 (k) of the Act, he may punish the petitioner with sentence of imprisonment for a term which may extend to five years and with sentence of fine which may extend to five thousand rupees.

       (Para 31)

       Held: Section 29 of the Code lays down the extent of the sentences which a Chief Judicial Magistrate, a Magistrate of the First Class, and a Magistrate of the Second Class, by his ordinary jurisdiction is competent to inflict. He cannot exceed the limit prescribed by the Section and pass a sentence which he is not authorised to pass.

       (Para 35)

       Held: The learned Magistrate has jurisdiction (territorial) to try the offences alleged against the petitioner. The offences are triable by the Magistrate First Class under the First Schedule to the Code. Conditions necessary to initiate the proceedings against the petitioner were there and the learned Magistrate initiated the proceedings against the petitioner after taking cognizance of the offences alleged against the petitioner. The learned Magistrate has heard the evidence adduced for the prosecution and has examined the petitioner with reference to the incriminating evidence led by the prosecution against him (the petitioner). The petitioner has not adduced any evidence in support of his defence.

       If the learned Magistrate is to reach the conclusion that the petitioner is guilty of the offence under Section 87(1) of the Act punishable under Section 87(2) and of the contravention under Section 50(k) of the Act punishable under Section 104, it would be obvious that the petitioner has to receive the sentence for the offence under Section 87(1) of the Act which the learned Magistrate is not empowered to inflict. The same situation arises if the learned Magistrate is to come to the conclusion that the petitioner should receive the maximum punishment under the proviso to Section 104 of the Act. All that the learned Magistrate has to do in such an event would be to record his opinion and submit the proceedings and forward the petitioner to the Chief Judicial Magistrate to whom he is subordinate.

       (Paras 49 & 50)

       Result: Petition dismissed.