Chattisgarh High Court
Vijay Verma @ Pappu vs State Of Chhattisgarh on 12 August, 2024
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2024:CGHC:30492
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 1281 of 2018
1. Vijay Verma @ Pappu S/o Dashrath Lal Verma Aged About 39 Years
R/o Titurdih, Gandhi Chowk, Durg, Police Station Mohan Nagar, Tahsil
And District Durg, Chhattisgarh
2. Sanjay Singh @ Bihari S/o Veer Bahadur Singh Aged About 38 Years
R/o Village Selud, At Present Address Deepak Nagar, Hotel King Fort,
Station Road, Durg, Police Station Mohan Nagar, Tahsil And District
Durg, Chhattisgarh
... Petitioners
versus
1. State Of Chhattisgarh Through The District Magistrate, Durg (Police
Station Utai) District Durg, Chhattisgarh
... Respondents
For Petitioners : Shri Avinash Chand Sahu, Advocate For Respondent : Shri Ajit Singh, GA ( Hon'ble Shri Justice Arvind Kumar Verma) Order on Board 12/08/2024 Being aggrieved by the impugned order dated 12.06.2018 passed by the learned Fourth Additional Sessions Judge, Durg in Criminal 2/6 Revision No. 19/2018 arising out of the order dated 22.12.2017 passed in Criminal Case No. 200/2017 by the learned Judicial Magistrate First Class, Patan, District Durg whereby the revisional court has dismissed the petition without appreciating the power of the JMFC.
2. Brief facts of the case is that 1537 bulk liters of foreign liquor was seized from the possession of the petitioner. On the basis of the above registration of case, SHO investigated the matter and submitted the charge sheet and as per the charge sheet, the alleged liquor was seized from the mines owned by petitioner No.2 and therefore he has also been impleaded in the alleged crime. Thereafter the charge sheet has been filed before the JMFC Patan, District Durg and the prosecution has examined the witnesses. Statements of the petitioners were also recorded under Section 313 Cr.P.c. The matter was fixed for final argument and on 22.12.2017, the learned JMFC, Patan by invoking the powers under Section 325 Cr.P.C. has recorded that it cannot pass the sufficient sentence and therefore transferred the matter to the Chief Judicial Magistrate Durg.
3. Being aggrieved by the said order, the petitioners preferred the revision before the Court of Sessions, who further transferred the case to the learned fourth Additional Sessions Judge, Durg and vide order impugned dated 12.06.2018, the revisional court has dismissed the revision petition without appreciating the power of JMFC as well as the sentence prescribed under Section 34(2) of the CG Excise Act.
4. Learned counsel for the appellant submits that while passing the impugned order learned revisional court has failed to appreciate the provisions of Section 325 Cr.P.C.
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Section 325 Cr.P.C. reads as under:
"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 section 106, he may record the opinion and submit his proceeding, forward the accused, to the Chief Judicial Magistrate to whom he is subordinate.
(2) When more accused than one are being tried together, and the Magistrate considers it necessary to proceed under sub-section (I) in regard to any of such accused, he shall forward all the accused, who are in his opinion guilty, to the Chief Judicial Magistrate.
(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 may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law."
5. On the other hand, learned counsel for the State has supported the impugned orders passed by the concerned Courts and has prayed for dismissal of the petition.
6. I have heard learned counsel for the parties and perused the record with utmost circumspection.
7. Section 34 (2) of the CG Excise Act provides that Notwithstanding anything contained in sub-section (1), if a person is convicted for an offence covered by clause
(a) or clause (b) of sub-section (1) and the quantity of the intoxicant being liquor found at the time or in the course of detection of the offence exceeds he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three 4/6 years and with fine which shall not be less than twenty five thousand rupees but may extend to one lac rupees.
8. Section 29 of the Code deals with sentences which the Magistrate may pass. Section 29 reads as under:
29. Sentences which Magistrate may pass.-(1) The Court of a Chief Judicial Magistrate may pass any sentence authorized 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 for a term not exceeding three years, or of fine not exceeding 10 [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 Under Section 29(2) of the Code, 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 10,000/- rupees, or of both.
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 original jurisdiction is competent to inflict. He cannot exceed the limit prescribed by the Section and pass a sentence which he is not authorized to pass.
9. It is crystal clear from the provisions of Section 29 that the Chief Judicial Magistrate, as far as the fine sentence is concerned, he has ample power to grant fine sentence and there is no limitation provided in the Cr.P.C. for fine sentence but the Judicial Magistrate First Class has awarded only upto Rs. 10,000/- fine sentence. The sentence includes not only imprisonment but also includes fine sentence. Though in the 5/6 instant case, the Judicial Magistrate First Class has passed order under Section 325 Cr.P.C. and referred the case to the Chief Judicial Magistrate for higher punishment. As per Section 29 of the Cr.P.C. 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 ten thousand rupees, or both. The inference has been drawn that he is not having the power and therefore the matter has been forwarded/submitted to the Chief Judicial Magistrate. If the Magistrate, after closure of the evidence of both the parties, finds the accused guilty and thinks that the accused ought to receive a punishment different in kind or severe than that which he is empowered to inflict, he is empowered to submit the case to the Chief Judicial Magistrate, under Section 325 of the Code.
10. The Court of Magistrate of the First Class is empowered under Section 29 of the Code to pass a sentence of imprisonment for a term not exceeding three years or fine not exceeding ten thousand rupees, or of both. Under this Section itself, the Chief Judicial Magistrate is empowered to pass any sentence authorized by the law except the sentence of death or of imprisonment for life or of imprisonment for a term exceeding 7 years.
11. The mandate of Section 325 of the Code is clear and specific. It is only when a Magistrate is of the 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 the Magistrate is empowered to inflict. However, 6/6 Section 34(2) of the CG Excise Act provides the maximum punishment of 3 years and fine not exceeding Rs. 1,00,000/- therefore the Judicial Magistrate First Class has not committed any illegality.
12. As a fall out and consequence of the aforesaid discussion, the petition is held to be devoid of merit and is, therefore, dismissed. Accordingly, no order as to costs.
Sd/-
(Arvind Kumar Verma) Judge Digitally signed by SUGUNA SUGUNA DUBEY DUBEY Date:
2024.09.09 01:58:37 -0400