ORDER
1. In this petition under S. 482 of the Code of Criminal Procedure (the Code for short), the Order dated 6-1-1988 made by the II Additional J.M.F.C., Sirsi, in C.C. No. 3336/86 on his file, dismissing the application filed by the petitioner on 30-9-1987 challenging the jurisdiction of the learned Magistrate to try the offences under Chap. X of the Karnataka Forest Act, 1963 (the Act for short), is challenged.
2. The record and proceedings in C.C. No. 3336/86 and the record of this petition are perused and examined.
3. Sri Sashikumar for Sri T. S. Ramchandra, the learned counsel for the petitioner, and the learned representative of the respondent (State) are heard.
4. The facts, out of which the present petition arises, briefly stated, are these :-
The petitioner is accused before the learned Magistrate. He is prosecuted for having committed an offence punishable under S. 87 and S. 50(k) of the Act read with S. 411 of the Penal Code on the allegations that he on 26-6-1985 at about 8 a.m. at Shet Fine Arts Industries housed, in a house bearing No. CNS. 129, situated on Yellapur Road in Sirsi Town, was found in possession of 15 sandal-wood round dressed billets weighing 26 Kgs., kept in an old gunny bag. The further allegations made against the petitioner are that this quantity of round dressed billets found in his possession as in excess of the stock maintained in the Stock Register and that the petitioner was in possession of the said quantity of sandal-wood without a valid pass or permit. According to the prosecution, the petitioner had retained the sand-wood knowing or having reason to believe the same to be stolen property.
5. On the charge framed against the petitioner in respect of the offences alleged to have been committed by him, being read-over and explained to him, the petitioner pleaded not guilty to the offences charged and claimed trial.
6. The prosecution to substantiate its allegations against the petitioner and to establish its case, examined 7 witnesses and produced 6 documents and 17 material objects admitted in evidence for it and marked as Exs. P-1 to P-6 and M.Os. 1 to 17 respectively.
7. After the prosecution set at rest, the petitioner was examined under S. 313 of the Code. He denied the incriminating evidence adduced against him. He adduced no defence evidence.
8. Then the case of the petitioner was posted to hear arguments. The learned Magistrate heard the arguments in part. It was at this stage of the case, the petitioner filed an application (on 30-9-1987) challenging the jurisdiction of the learned Magistrate to try the offences alleged against him.
9. The petitioner contended that having regard to the punishment provided for the offence specified in S. 87 of the Act in S. 87(2) of the provisions contained in S. 29(2) of the Code limiting the powers of punishment of a Judicial Magistrate First Class, the learned Magistrate could not try the offences alleged against him (the petitioner).
10. The prosecution contested the challenge.
11. The learned Magistrate, on consideration of the rival contentions and the law bearing on the contentions, concluded that he had jurisdiction to try the offences alleged against the petitioner and that if he were to come to the conclusion that the petitioner was guilty of the offences alleged against him, in view of the limitations imposed on his power in the matter of punishment under S. 29(2) of the Code and in view of the punishment prescribed under S. 87(2) of the Act with a minimum punishment for the first offence and for the second and subsequent offence, he could invoke the provisions contained in S. 325 of the Code and submit the proceedings to the Court of the Chief Judicial Magistrate.
12. In this view of the matter, he dismissed the application filed by the petitioner. It is the correctness and validity of this order made by the learned Magistrate that is assailed in this petition.
13. The question for consideration is : Whether the view taken by the learned Magistrate is correct, legal and proper ?
14. The answer has to be in the affirmative.
15. The petitioner is facing trial on the allegations of having committed contravention of S. 50(k) of the Act punishable under S. 104, the offence under S. 87 of the Act punishable under S. 87(2), and the offence punishable under S. 411 of the Penal Code.
16. Section 2(9) of the Act defines the expression “Magistrate” as Magistrate of the first or second class.
17. The contravention of S. 59(k) and the offence under S. 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 S. 411 of the Indian Penal Code is also triable by the Magistrate of the First Class under the First Schedule.
18. The definition of the “offence” is given in S. 2(n) of the Code as under :
“(n) “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under S. 20 of the Cattle-trespass Act, 1871.”
19. The definition consists of two parts. The first part is an intentional definition while the second part is an extensional one. The first part corresponds with the definition in S. 3(38) of the General Clauses Act, 1897, and the second part in S. 4(1)(o) of the Code of Criminal Procedure, 1898. The definition of “offence” given in S. 2(n) of the Code is wider than the definition of the said expression given in S. 40 of the Penal Code. There is also enlargement of the definition in S. 39(2) of the Code.
20. Having regard to the definition of the “offence”, there can be no manner of doubt that the provisions, contained in Chap. XIII relating to the jurisdiction of the Criminal Courts in inquires 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 S. 4(2) by reason of any special forum of procedure prescribed or by 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 Chapters XIII and XIV of the Code determine the place of trial of the offences under the Act.
21. In the case on hand, the prosecution contends that all the offences alleged to have been committed by the petitioner were committed on 26-6-1985 in Sirsi Town, i.e., within the territorial jurisdiction of the learned Magistrate.
22. Chapter XIII of the Code deals with jurisdiction of the Criminal Courts in inquiries and trials. Chapter XIV deals with conditions requisite for initiation of proceedings.
23. We shall read S. 177 of the Code now. It reads :
“177. Ordinary place of inquiry and trial. – Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.”
24. This section reiterates the well established common law rule that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occurred and are alleged to constitute the crime. The rule is, however, subject to several well recognized exceptions. Some of these exceptions are dealt with the subsequent sections of the Code. The common rule embodied in S. 177 determines the venue of an offence commenced and completed within the territorial jurisdiction of one and the same Court.
25. It cannot be disputed and indeed it was not disputed that the offences alleged to have been committed by the petitioner were committed within the territorial jurisdiction of the learned Magistrate. Therefore, it can not be gainsaid that the learned Magistrate has jurisdiction to try the offences alleged against the petitioner which are triable by the Magistrate, First Class, under the First Schedule to the Code.
26. It was not the case of the petitioner before the learned Magistrate, as is clear from the record of the learned Magistrate, and it is not urged before this Court in these proceedings, that the conditions requisite for initiation of proceedings against the petitioner were wanting or that they had not been fulfilled or satisfied.
27. The punishment provided for the offence punishable under S. 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 S. 411 of the Penal Code and the provisions contained in S. 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 S. 411 of the 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.
28. Section 104 of the Act provides for penalties for contravention of any provision of the Act or any rule made under the Act for which no special penalty is provided. This section reads :
“104. Penalties for contravention of Act or rules. – Any person contravening any provision of this Act or any rule made under this Act, for the contravention of which no special penalty is provided, shall, on conviction, be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both :
Provided that any person contravening any such provision relating to sandal-wood, shall, on conviction, be punishable with imprisonment for a term which extend to five years and with fine which may extend to five thousand rupees.”
29. According to the prosecution, as submitted by the learned representative of the respondent (State), the petitioner by committing contravention of S. 50(k) of the Act has rendered himself liable for punishment as provided in S. 104 of the Act.
30. The facts of the case show that the prosecution intends to contend that the petitioner contravened S. 50(k) of the Act and that this contravention relates to the Sandal-wood.
31. 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 S. 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.
32. Section 29(2) of the Code may not operate as a bar for the learned Magistrate in the matter of awarding punishment to the petitioner if he were to reach the conclusion that the prosecution has established the commission of the contravention of S. 50(k) of the Act by the petitioner. In the exercise of his discretion, he may award such punishment to the petitioner for contravention of S. 50(k) of the Act which would be within the limitations imposed on the power of punishment of the Magistrate of First Class under S. 29(2) of the Code. If the learned Magistrate were to hold that the petitioner deserves the maximum punishment for contravention of S. 50(k) of the Act, as provided in the proviso to S. 104 of the Act, the limitations imposed on his power of punishment under S. 29(2) of the Act would come into play and he would not be in a position to award the maximum punishment.
32A. Section 29 of the Code deals with sentences which Magistrates may pass. Under S. 29(1) of the Code, 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.
33. Section 29(2) of the Code, the material provision for the present purpose, reads as under :
“29(1) ……….
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.”
34. Under S. 29(2), the Court of a Magistrate of the First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.
35. 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.
36. S. 87(2) of the Act, as substituted by S. 21 of Act No. 1 of 1981 which came into effect from 23-2-1981, which is attracted to the case on hand, reads as under :
“87(1) …………
(2) Whoever contravenes the provisions of sub-section (1) shall, on conviction, be punishable with imprisonment for a term which may extend to seven years and with fine which may extend to twenty five thousand rupees :
Provided that, –
(i) in the case of first offence, the term of imprisonment shall not be less than three years and the amount of fine shall not be less than ten thousand rupees :
(ii) in the case of a second or subsequent offence, the term of imprisonment shall not be less than five years and the amount of fine shall not be less than twenty thousand rupees.”
37. If the learned Magistrate were to reach the conclusion that the offence alleged against the petitioner under S. 87(1) of the Act is established, then he has to award the punishment to the petitioner prescribed in S. 87(2) of the Act. Under S. 87 (2) of the Act, the person contravening the provisions of sub-section (1) of S. 87, on conviction, has to be punished with imprisonment for a term which may extend to seven years and with fine which may extend to twenty five thousand rupees. In the case of first offence, the minimum punishment provided under Proviso (i) to S. 87(2) of the Act is term of imprisonment not less than three years and the amount of fine not less than ten thousand rupees. In the case of a second or subsequent offence, the minimum punishment provided by Proviso (ii) to S. 87(2) of the Act is term of imprisonment not less than five years and the amount of fine not less than twenty thousand rupees.
38. It would, therefore, be clear that in the event of conviction of the petitioner for contravention of S. 87(1) of the Act, the learned Magistrate cannot award punishment to the petitioner in accordance with law, If he were to punish the petitioner in accordance with the law, he would be committing transgression of the mandate of law embodied in S. 29(2) of the Code. It would be a punishment imposed or inflicted by the learned Magistrate which he is not authorised to pass.
39. It appears, in view of the amendment effected to S. 87(2) of the Act enhancing the punishment and providing a minimum punishment in the case of first offence, and in the case of a second or subsequent offence, for contravention of S. 87(1) of the Act, the Legislature thought of inserting S. 104-E, by the same Act, namely, Act no. 1 of 1981 enhancing the jurisdiction of the Judicial Magistrate First Class.
40. Section 104-E, as inserted by Act No. 1 of 1981, which came into force with effect from 23-2-1981, reads thus :
“104E. Enhanced jurisdiction of Judicial Magistrate First Class etc. – Notwithstanding anything contained in S. 29 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), it shall be lawful for the Judicial Magistrate First Class or the Metropolitan Magistrate to exercise the power of imposing imprisonment for a term not exceeding seven years and fine not exceeding twenty five thousand rupees in respect of offences punishable under this Act.”
41. By virtue of the provisions contained in S. 104-E of the Act, the Judicial Magistrate First Class or the Metropolitan Magistrate was given enhanced power in the matter of punishment. Under the said section, notwithstanding the provisions contained in S. 29 of the Code, it was lawful for the Judicial Magistrate First Class or the Metropolitan Magistrate to exercise the power of imposing imprisonment for a term not exceeding seven years and fine not exceeding twenty five thousand rupees in respect of the offences including the offence under S. 87(1) punishable under the Act. If S. 104-E were to remain on the statute book and if the petitioner were to be convicted for the offence under S. 87(1) of the Act, the learned Magistrate would have been in a position to award punishment in accordance with law without offending the provisions contained in S. 29(2) of the Code and without disobedience of the mandate of law contained therein. But S. 104-E introduced by Act No. 1 of 1981 was deleted from the Act by S. 4 of Act No. 11 of 1984 with effect from 13-1-1984.
42. In the instant case, the date of the commission of the offences alleged against the petitioner is 26-6-1985.
43. It would therefore, be clear that if the Magistrate were to come to the conclusion that the petitioner was guilty of the offence punishable under S. 87(1) of the Act, in view of the provisions contained in S. 29(2) of the code, he would not be in a position to award punishment to the petitioner including the minimum prescribed in the case of first offence and in the case of second or subsequent offence in accordance with law.
44. The learned counsel for the petitioner strenuously submitted that though the learned Magistrate has the territorial jurisdiction to try the offences alleged against the petitioner and was competent to initiate proceedings in view of the omission of S. 104-E from the Act and the limitations imposed on his power of punishment under S. 29(2) of the Code, he has no jurisdiction to try the offence under S. 87(1) of the Act.
45. Having carefully examined the contention, I do not find myself persuaded to subscribe to the contention. S. 104-E of the Act was an enabling provision. All that it did was to authorise a Judicial Magistrate First Class or Metropolitan Magistrate to award a sentence beyond the limits prescribed for him under S. 29(2) of the Code. It did not affect the provisions of S. 177 of the Code and the provisions contained in Chapter XIV of the Code. It had nothing to do with the jurisdiction of the learned Magistrate.
46. The only question that survives for consideration is : Whether in a contemplated situation, namely, if the learned Magistrate were to hold the petitioner guilty of the offence under S. 87(1) of the Act, can he have recourse to the provisions contained in S. 325 of the Code ? If the answer is to be found in the affirmative, it is needless to say that he has to submit the entire proceedings of the case and forward the petitioner to the Chief Judicial Magistrate to whom he is subordinate. He cannot split up the proceedings and submit the proceedings to the Chief Judicial Magistrate in so far as it relates to the offence under S. 87(1) of the Act and deal with the proceedings in respect of the contravention of S. 50(k) of the Act and the offence under S. 411 of the Penal Code by himself. According to the prosecution, all the three offences were found having been committed by the petitioner on 26-6-1985.
47. Section 325(1) of the Code, the material provision, reads thus :
“325. Procedure when Magistrate cannot 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 S. 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate.”
48. In my considered opinion, the view taken by the learned Magistrate that in the event of his opinion that the petitioner is guilty of the Offence under S. 87(1) of the Act punishable under S. 87(2) and of the contravention of S. 50(k) of the Act punishable under S. 104 and in the event of his holding that the petitioner would deserve the maximum punishment for contravention of S. 50(k) of the Act under the Proviso to S. 104 and in view of the fact that he could not sentence the petitioner in accordance with law for the offence under S. 87(1) of the Act in view of the limitations imposed on his power of sentencing under S. 29(2) of the Code, he can have recourse to the provisions contained in S. 325 of the Code appears to be correct and proper.
49. 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 in support of his defence.
50. If the learned Magistrate is to reach the conclusion that the petitioner is guilty of the Offence under S. 87(1) of the Act punishable under S. 87(2) and of the contravention under S. 50(k) of the Act punishable under S. 104, it would be obvious that the petitioner has to receive the sentence for the offence under S. 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 S. 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.
51. That the view taken by the learned Magistrate that he can have recourse to the provisions contained in S. 325(1) of the Code is correct, legal and proper is supported by the authority of this Court in Shivarajveerappa Purad v. State of Karnataka (1977) 1 Kant LJ 66 : (1977 Cri LJ 1113). In that case, the accused had been charge-sheeted under Ss. 477-A and 420 read with S. 34 of the Indian Penal Code. The learned Magistrate before whom the charge-sheet had been filed and committed the accused to the Court of Session to take their trial in view of the gravity of the offences and the maximum punishment provided for the offences. A Division Bench of this Court, examining the validity of the committal order made by the learned Magistrate under S. 323 of the Code, held that S. 323 of the Code which provides for the committal of the case which ought to be tried by the Court of Sessions, had no application to the facts of the case.
52. Noticing that the offences alleged against the accused were not exclusively triable by the Court of Sessions and quoting the provisions contained in S. 29(1) of the Code, this Court held that the Chief Judicial Magistrate was competent to try the case. This Court observed that the Magistrate of the First Class was competent to try the case though he could not pass a sentence of imprisonment for more than three years or of fine not exceeding five thousand rupees in view of the limitation imposed under S. 29(2) of the Code.
53. The observations made by this Court are these :
“But, if the Magistrate feels that the accused in a case tried by him deserves more severe punishment than what he is empowered to give, he could take recourse to S. 325 of the Cr.P.C. It provides that if the Magistrate is of opinion that the accused ought to receive a punishment different in kind from, or more severe than that which he is empowered to inflict, at that stage he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate. Under S. 325(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 shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law.”
54. The pronouncement made by this Court, extracted above, is applicable to the facts of the case of the petitioner.
55. These are the reasons to answer the question raised for consideration in the affirmative.
56. The order of the learned Magistrate is correct, legal and proper, warranting no interference in the exercise of the inherent jurisdiction of this Court. The petitioner has failed to show that his case calls for interference. The petition is devoid of merit. It deserves to be dismissed and, therefore, it is dismissed.
57. The learned Magistrate shall proceed with the case of the petitioner in accordance with law and in the light of the observations made in this order.
58. Send back the record and proceedings in C.C. No. 3336/86, called for reference and perusal in this petition, forthwith with a copy of this order.
59. Petition dismissed.