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2007 Supreme(Pat) 918
PATNA HIGH COURT
Chandramauli Kumar Prasad and V.N.Sinha JJ.
Subhojit Datta
Versus
State Of Bihar
Criminal Revision No. 695 of 2006 ;
Decided On : MAY 09, 2007
Headnote:Code of Criminal Procedure, 1973-Sections 29, 323 and 325 r/w Indian Penal Code, 1860-Section 409-Adequacy of sentence-Case of misappropriation of huge amount of public money-Case tried by C.J.M. and sentence of 7 yrs. R.I. with fine of Rs. 5000/- passed-The learned Single Judge finding the sentence inadequte referring the matter to D.B.-A case in which the Magistrate is of the opinion that the punishment provided under the law can neither be inflicted by him or by the C.J.M. but the allegations justify higher punishment he is obliged to commit the case to the court of Sessions-Such power can be exercised at any stage before signing judgment- The present case involves an offence of a gross nature and the sentence with the accused must receive beyond what the Judicial Magistrate of the first class or the C.J.M. may inflict and the case is fit to be tried by a court of Session-However, in the facts and circumstances of the case, case not committed to the Court of Session. (Para 17)
Code of Criminal Procedure, 1973-Sections 397, 401, 421 & 431-Levy of fine in revision-The High Court while exercising power of revision either at the in stance of the party or suo motu can levy fine, grant compensation and it may not be necessary to provide for imprisonment in default of fine-However, as the petitioner is in custody for about 7 yrs., the case is not fit for imposing fine or granting compensation. (Para 29)
Code of Criminal Procedure, 1973-Sections 397 & 401-Revision-Both the Court below finding the prosecution proving its case beyond all reasonable doubts-Findings being on appraisal of evidence and based on evidence and record cannot be said to be perverse-No interference needed. (Para 32)
AIR 1928 Patna 551, 1978 Cr.LJ 1193, AIR 1960 SC 41, AIR 1966 SC 945, AIR 1977 SC 1177-Referred to.
Chandramauli Kr.Prasad, J.
1. Petitioner being aggrieved by the judgment dated 26th of June, 2006, passed by the Ist Additional Sessions Judge, Munger in Criminal Appeal No. 73 of 2005, affirming the judgment dated 8th of June, 2005 passed by the Chief Judicial Magistrate, Munger in G.R. No. 49 of 2000 (G.R.P. Jamalpur case No. 15 of 2000) holding him guilty of offence under Sec. 409 of the Indian Penal Code and inflicting the sentence of rigorous imprisonment for seven years and fine of Rs. 5,000/-, in default to suffer rigorous imprisonment for six months, has preferred this revision application.
2. The revision application was posted for consideration before a learned single Judge of this Court on 8.12.2006. Being prima facie satisfied that the petitioner though found guilty of misappropriation of huge amount of public money, let off with inadequate sentence issued notice to show cause as to why the sentence be not appropriately enhanced. This is how this case has been listed before us.
3. Mr. Jaiswal, appearing on behalf of the State submits that sentence inflicted on the petitioner is inadequate to the gravity of the allegation and this Court in exercise of its suo moto power can enhance the sentence.
4. Mr. Sanjeev Ranjan, appearing on behalf of the petitioner however contends that although the case was tried by the Judicial Magistrate, Ist Class but later on transferred to the Chief Judicial Magistrate, the later having inflicted maximum sentence which he was entitled in law to pass, this Court lacks jurisdiction to enhance the same in exercise of its suo-moto power.
5. The rival submission necessitates examination of the scheme of the Code of Criminal Procedure.
6. It is relevant here to state that Sec. 409 of the Indian Penal Code provides for punishment with imprisonment for life, or with imprisonment for either discretion for a term which may extend to ten years and also fine. First Schedule of the Code of Criminal Procedure, which classifies the offences and provides as to the Court by which offences are triable, make Sec. 409 of the Indian Penal Code to be triable by the Court of a Magistrate of the First Class. Chapter III of the Code of Criminal Procedure, hereinafter referred to as Code, deals with the power of the Courts to inflict punishment and Sec.29 thereof limits the power of the Chief Judicial Magistrate, Magistrate of the Ist Class and the Magistrate of the Second Class in this regard. Sec.29 of the Code which is relevant for the purpose reads as follows:
29. Sentences which Magistrates may pass.- (1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
(2) The Court of a Magistrates of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees, or of both.
(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees, or of both.
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.
7. From a plain reading of the aforesaid provision it is evident, that the Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years. The power of the Court of a Magistrate of the First Class has been limited to the extent of passing sentence of imprisonment for a term not exceeding three years and similarly the Magistrate of the second class power has been limited to sentence of imprisonment not exceeding one year. Here in the present case the Chief Judicial Magistrate had passed the maximum sentence which he is authorised
