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PATNA HIGH COURT
Reuben, S.K.Das and Sinha JJ.
Budhan Choudhry
Versus
State Of Bihar
Criminal Appeal No. 410 of 1951 ;
Decided On : AUGUST 25, 1953
CRIMINAL PROCEDURE CODE - SECTION 30 - CONSTITUTIONALITY - ARTICLE 14 - EQUALITY BEFORE LAW - CLASSIFICATION OF AREAS FOR TRIAL OF OFFENCES - REASONABLENESS - JUDICIAL DISCRETION - DISCRIMINATION - SPEEDY TRIAL - BACKWARD AREAS - TRIBAL AREAS - SCHEDULED AREAS - FIFTH SCHEDULE TO THE CONSTITUTION OF INDIA.
Fact of the Case:
The appellants were convicted under Sections 366 and 143 of the Indian Penal Code and sentenced to rigorous imprisonment for five years under Sec.366. The main point of difference between the judges was one arising under the Constitution of India. The case relates to the district of Hazaribagh, to which district Sec.30 of the Criminal Procedure Code applies. The appellants contended that they had been subjected to unequal treatment inasmuch as they had been tried by the Magistrate empowered under Sec.30 instead of being tried in the ordinary way by the Court of Session.
Finding of the Court:
The court held that the provisions of Section 30 of the Criminal Procedure Code, which empowers the District Magistrate or other Chief Officer charged with the executive administration of the district in criminal matters to try as a Magistrate all offences not punishable with death, are not discriminatory and do not offend against Article 14 of the Constitution of India. The court further held that the classification of areas for the trial of offences based on the backwardness of the area is reasonable and that the judicial discretion vested in the Magistrates to decide whether a case should be tried by the Magistrate or the Court of Session is not unconstitutional.
Issues: 1. Whether the provisions of Section 30 of the Criminal Procedure Code are discriminatory and offend against Article 14 of the Constitution of India? 2. Whether the classification of areas for the trial of offences based on the backwardness of the area is reasonable? 3. Whether the judicial discretion vested in the Magistrates to decide whether a case should be tried by the Magistrate or the Court of Session is unconstitutional?
Ratio Decidendi: 1. The court held that the provisions of Section 30 of the Criminal Procedure Code are not discriminatory and do not offend against Article 14 of the Constitution of India. The court reasoned that the classification of areas for the trial of offences based on the backwardness of the area is reasonable and that the judicial discretion vested in the Magistrates to decide whether a case should be tried by the Magistrate or the Court of Session is not unconstitutional. 2. The court observed that the legislature has considered it necessary that it should be possible in these backward areas to empower Magistrate of experience to try all cases of offences not punishable with death. In doing this the legislature was acting well within its powers of prescribing for the particular area under consideration the different courts to exercise jurisdiction therein and of determining the extent of, their jurisdiction and powers. 3. The court further observed that the judicial discretion vested in the Magistrates to decide whether a case should be tried by the Magistrate or the Court of Session is not unconstitutional. The court reasoned that it is not possible for the legislature to anticipate and to legislate for all contingencies that may arise and in the ultimate analysis the decision as to the proper course to be taken in the particular circumstances of the case must be left to the decision of the officer or judge dealing with the case.
Final Decision: The court upheld the conviction of the appellants but reduced the sentence imposed on them to a term of imprisonment of two years in the case of each appellant.
1. This appeal comes to me on a difference between my learned brothers Das J. and Sinha J.
2. The appellants have been convicted under Sections 366 and 143 of the Indian Penal Code and have been sentenced each to rigorous imprisonment for five years under Sec.366. No separate sentence has been imposed under Sec.143. The main point of difference is one arising under the Constitution of India. The case relates to the district of Hazaribagh, to which district Sec.30 of the Criminal Procedure Code applies. There is at this time an Assistant Sessions Judge exercising powers in the district of Hazaribagh. When the chargesheet was received in the present case the Sub-divisional Magistrate submitted the record to the Deputy Commissioner of Hazaribagh with the following order:
"Let the record be sent to the Deputy Commissioner of Hazaribagh for transferring it to the file of the Special Magistrate for trial."
It may be noted that the term "Special Magistrate", although there is no legal provision for it, is by practice used to denote the Magistrate exercising powers under Sec.30 of the Code. On receiving the record the Deputy Commissioner passed the order of transfer an the following terms :
Perused S. D. Os ordersheet. Withdrawn and transferred to the file of Mr. S. F. Azam, Magistrate with powers under Sec.30, Criminal Procedure Code, for favour of disposal."
In the course of the argument before me it has been urged that the Deputy Commissioner as such has no powers under the Criminal Procedure Code. Admittedly the Deputy Commissioner is also the District Magistrate and the use of the wrong terminology in the Sub-divisional Magistrates order will not affect the validity of the order of withdrawal and transfer. The case was thereafter tried by Mr. Azam and ended in the conviction and sentence mentioned above. It was contended before their Lordships in appeal that the appellants had been subjected to unequal treatment inasmuch as they had been tried by the Magistrate empowered under Sec.30 instead of being tried in the ordinary way by the Court of Session. This contention has been accepted by Sinha J. but not by Das J.
3. There is another point of difference which makes it necessary for me to examine the facts of the case. The main judgment in the case was delivered by Sinha J. who dealt with the case on the merits. He held that the appellants had been rightly convicted and expressed the opinion that, if he had not found the trial to be hit by Article 14 of the Constitution of India, he would have upheld the conviction of the appellants but reduced the sentence of imprisonment to two years in the case of each of the appellants. Das J. accepted entirely the conclusions of Sinha J. on the facts of the case. In expressing his opinion after repelling the contention about discrimination he stated that he would dismiss the appeal. It is not clear from his judgment whether at the time of expressing this view he had in mind Sinha J.s proposal that the sentences should be reduced.
4. The facts as found are that there are two brothers, Sukar Mahto and Barhan Mahto. The younger brother, Barhan, had a daughter named Bhatni, aged about 10 years. By due negotiations between the parties it had been arranged that Bhatni should marry appellant Ganpat Choudhry, brother of the appellant Budhan Choudhry, and Rs. 600.00 was paid to Barhan for getting his consent. Before the marriage took place, however, Bhatni died. This was in the month of Aghan. Thereupon Budhan demanded repayment of the money. There was a panchaiti, and the panches decided that only Rs. 315/- should be repaid. Barhan left home in order to make arrangement for the money. Apparently the appellants were not satisfied with the decision of, the panches and during Barhans absence and when Sukar had gone out of the house lor some purpose the appellants came to the house and carried away Bilua, Sukars daughter aged about 4 or 5 years. Sukar came back on hearing the alarm raised by his w
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