Delhi District Court
Laxmi Narayan vs Central Bureau Of Investigation on 30 November, 2011
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401R0533732011
CR No: 100/2011
LAXMI NARAYAN
vs
CBI
U/s 420/467/468/471/477 IPC
IN THE MATTER OF
Laxmi Narayan
S/o Sh.Bajran Lal
R/o Village Sardar Sahar
District Churu, Rajasthan ......Revisionist / Accused
vs.
Central Bureau of Investigation
Anti Corruption Branch
Delhi. ......Respondent
DATE OF INSTITUTION : 17.11.2011
DATE OF FINAL HEARING : 30.11.2011
DATE OF FINAL ORDER : 30.11.2011
REVISION PETITION UNDER SECTION 397
Cr.P.C. AGAINST THE ORDER Dt. 20.10.2011
Page 1/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11 2 ORDER ON REVISION
1. This revision petition is filed against order of Ld. CMM dated 20.10.2011 whereby the Trial Court file sent to him by Ld.ACMM for trial was remitted back to the Court of LD.ACMM (West) .
2. I have heard arguments of Ld. Counsel for revisionist / accused Sh.
Gurdayal Singh advocate . None has appeared on behalf of CBI to argue the matter despite service. I have also carefully perused revision file as well as Trial Court Record.
3. This criminal trial is more than two decade old and it started in 1989 whereas charge sheet under offences 420/467/468/471/477A r/w 120 B IPC was filed against nine accused persons. Even though more than two decades have passed, the trial is still at the stage of charge. In this matter one Sanjeev Kumar Mundra who was placed in column No.2 had turned an approver and was granted pardon by the then Ld.MM Sh. A.K.Garg . The matter was made over to Ld. CMM's Court U/s 306 in the year 1992. It was tried by the Court of Ld. CMM uptill 22.1.2009 when an order of transfer of this case was passed to the Court of Ld.ACMM (West). Trial before Ld. ACMM (West) continued up to 14.10.2011 when vide an order, Ld. ACMM opined that Page 2/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11 3 under Sub Section 5 of 306 Cr.P.C. it is the Court of Ld. CMM alone who has to "himself " try this case. As such she transferred the matter to the Court of Ld.CMM.
4. Upon this after hearing both the sides, Ld. CMM passed the impugned order dated 20.10.2011 whereby he opined that every ACMM exercises all the powers of CMM and that Section 306 (5) Cr.P.C. is no exception to it. Ld. CMM sent the trial file back to Ld. ACMM. Aggrieved by this order of Ld. CMM, the revision in hand has been filed by the accussed.
5. While opening submissions, it is argued by Ld. counsel for revisionist / accused that order of Ld. CMM dated 14.10.2011 is incorrect and is a result of his failure to appreciate facts as well as law. It is argued that it was passed mechanically without application of mind since as per law in so far as word "himself" appearing in Section 306 (5) Cr.P.C. leaves no option for the court of Ld. CMM but to try this case himself.
6. Having considered the plea of Ld. Counsel for accused minutely, I am of the considered view that order of Ld. CMM is absolutely correct and does not suffer from any legal or factual infirmity as claimed by the revisionist. For ready reference relevant legal provision is being reproduced hereunder: Page 3/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11 4
7. Section 306 (5) Cr.P.C.
runs as under, Section 306 Cr.P.C. Tender of pardon to accomplice:
Sub Section (5) Where a person has accepted a tender of pardon made under subsection (1) and has been examined under subsection (4), the Magistrate taking cognizance of the offence shall , without making any further inquiry in the case
(a) commit it for trial
(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court;
(b) in any other case , make over the case to the Chief Judicial Magistrate who shall try the case himself.
8. As per Criminal Procedure Code , District Courts have only three tiers i.e. Magisterial Courts, Court of CMM and Sessions Court. Even Section 28 & 29 Cr.P.C. provide that other than Magisterial Courts and Sessions Courts, the only Court which can be said to be functional in metropolitan cities at District Level is that of Court of Chief Metropolitan Magistrate. By virtue of Section 19 of Cr.P.C. Court of CMM and ACMM are legally on the same pedestrial and both exercise identical powers except as provided U/s 19 (3) Cr.P.C. which pertains to allocation of work, administratively.
9. Section 28 & 29 Cr.P.C.
runs as under:
Page 4/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11 5 Section 28 - Sentences which High Courts and Sessinos Judges may pass: (1) A High Court may pass any sentence authorised by law.
(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law ; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.
(3) Any Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.
Section 29 Cr.P.C. 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 Magistrate of the first class may pass a sentence of imprisonment fore 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.
Page 5/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11 6
10.In this regard Section 17 of Cr.P.C. is also very important which provides that every Addl. CMM shall have all the powers of CMM under this Code.
11.Section 17 of Cr.P.C . runs as under:
Section 17 Cr.P.C. Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate (1) The High Court shall, relation to every metropolitan area within its local jurisdiction, appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan area.
(2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief Metropolitan Magistrate , and such Magistrate shall have all or any of the powers of a Chief Metropolitan Magistrate under this Code or under any other law for the time being in force, as the High Court may direct. (emphasis supplied by me)
12.All this goes on to show that Courts of ACMM and CMM exercise identical power on the judicial side and can impart identical sentences. There is practically no difference either in the working or the powers as far judicial work is concerned.
13.In this backdrop plea of Ld. Defence Counsel that U/s 306 (5) Cr.P.C. it is the CMM alone who can try a case , does not stand at all . In my considered view usage of word "himself" therein shall not be narrowly construed so as to exclude equivalent Courts of ACMM. Here the significance of words "himself"
Page 6/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11 7 is only a pointer and indicative of the fact that the trial should not be transferred to the court of any other Magistrate equivalent to the court which granted pardon. But, as mentioned supra, Courts of CMM and ACMM are senior and on a higher pedestal as compared to a MM. The plain idea and essence of Section 306 Cr.P.C. is that whenever a pardon is granted by a Magistrate Court, the trial shall be conducted by the Court, judicially higher to it, i.e. CMM and equivalent ( read ACMM). And when a pardon is granted by court of CMM and equivalent, then even if it is a magisterial trial offence , the case has to be necessarily committed & tried by a Session's Court.
14.Coming to the facts of this case, pardon was granted in the year 1992, by the Court of Ld. MM . As such the Court senior to it i.e. CMM or equivalent (read ACMM) can legality this case. In this back drop the endeavour on the part of Ld. ACMM (West) to consider itself on a pedestal equivalent to MM and different from the Court of Ld. CMM is erroneous. I am in full agreement with the view expressed by LD. CMM in impugned order. I find no legal infirmity therein . This revision is wholly devoid of merits. Same is accordingly dismissed.
15.TCR be sent back with direction to Ld.CMM to expedite the trial of this case.
Page 7/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11 8 TCR reveals that owing to delaying tactics adopted by vested interests , trial has not been allowed to proceed during the last more than two decades and it reflects poorly on the pace of judicial functioning. Moreso, when Hon'ble High Court was constrained to issue show cause notice in Crl. MC.1401/2010 vide order dated 15.9.2011 qua non framing of charges for the last around 22 yrs. File be consigned to RR. TCR be sent back with copy of this order.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 30.11.2011 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 8/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11 9 Page 9/8 of Order on Revision Laxmi Narain Vs. CBI dt.30.11.11