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Vinod Kumar vs State Of U.P. on 13 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 30.10.2019

Delivered on 13.12.2019

Court No. – 34

1. Case :- CRIMINAL REVISION No. – 690 of 1998

Revisionist :- Vinod Kumar

Opposite Party :- State of U.P.

Counsel for Revisionist :- Suneel Rai

Counsel for Opposite Party :- Govt. Advocate

And

2. Case :- CRIMINAL REVISION No. – 263 of 1998

Revisionist :- Kamla And Others

Opposite Party :- State of U.P.

Counsel for Revisionist :- Suneel Rai

Counsel for Opposite Party :- A.G.A.

Hon’ble Sudhir Agarwal,J.

1. Heard Sri A.K.Mishra, Advocate, holding brief of Sri Suneel Rai, learned counsel for Revisionist and learned A.G.A. for State of U.P. in both the revisions.

2. Both the criminal revisions under Section 401 read with Section 397 of Code of Criminal Procedure, 1973 (hereinafter referred to as “SectionCr.P.C.”) have been filed, aggrieved by judgment and order dated 28.1.1998 passed by Sri Vinod Kumar Bishnoi, XIth Additional Sessions Judge, Ghaziabad in Criminal Appeal No.49 of 1996 confirming sentence and order of conviction dated 02.7.1996 passed by VIIIth Additional Chief Judicial Magistrate, Ghaziabad in Criminal Trial No.381 of 1995 (SectionState vs. Vinod Kumar and others) under Sections 326, Section498A, SectionIPC and 3/4 SectionDowry Prohibition Act, convicting and sentencing Revisionists in both the revisions under Section 498-A IPC imposing fine of Rs.2,000/- each, 2 years’ rigorous imprisonment; under Section 326 IPC, 7 years’ rigorous imprisonment and fine of Rs.2,000/- each and under Section 4 Dowry Prohibition Act to undergo 2 years’ rigorous imprisonment and fine of Rs.10,000/-.

3. It is contended that punishment of seven years’ rigorous imprisonment has been imposed by VIIIth Additional Chief Judicial Magistate, Ghaziabad who had no such power, inasmuch as, under Section 29 Cr.P.C., 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 and a sentence up to 7 years can be passed only by Court of Chief Judicial Magistrate and not Additional Chief Judicial Magistrate.

4. I find no force in the submission. Additional Chief Judicial Magistrate cannot be equated with Judicial Magistrates. Court of Judicial Magistrate is created with reference to Section 11 Cr.P.C. which reads as under :

“Courts of Judicial Magistrates.-(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:

Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.

(2) The Presiding Officers of such Courts shall be appointed by the High Court.

(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.”

5. Chief Judicial Magistrate and Additional Chief Judicial Magistrates are governed by Section 12 Cr.P.C. and it reads as under :

“Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc. -(1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the first class to the Chief Judicial Magistrate.

(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial Magistrate under this Code or under any other law for the time being in force as the High Court may direct.

(3)(a) The High Court may designate any Judicial Magistrate of the first class in any sub-division as the Sub-Divisional Judicial Magistrate and relieve him of the responsibilities specified in this section as occasion requires.

(b) Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial Magistrate shall also have and exercise, such powers of supervision and control over the work of the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub-division as the High Court may, by general or special order, specify in this behalf.

(Emphasis added)

6. Power, which can be exercised by Additional Chief Judicial Magistrate, is to be conferred by this Court. There is also an amendment in Section 12 in State of U.P. and sub-section (4) has been inserted vide SectionU.P. Act No.1 of 1984 w.e.f. 1.5.1984 and it reads as under :

“Where the Office of the Chief Judicial Magistrate is vacant or he is incapacitated by illness, absence or otherwise for the performance of his duties, the senior-most among the Additional Chief Judicial Magistrate and other judicial Magistrates present at the place, and in their absence the District Magistrate and in his absence the senior-most Executive Magistrate shall dispose of the urgent work of the Chief Judicial Magistrate,”

7. On an inquiry made by this Court with regard to notification issued in respect of powers conferred upon Additional Chief Judicial Magistrate, Registrar General has informed that notification was issued by this Court on 08.01.1992 under Section 12(2) Cr.P.C., which was published in U.P. Gazette dated 11.12.1993 and it reads as under :

“In exercise of the powers vested under Sectionsection 12(2) of the Code of Criminal Procedure, 1973 (Act no. 2 of 1974), the High Court is pleased to confer all the powers of a Chief Judicial Magistrate on all the Additional Chief Judicial Magistrates in the State (except under Sectionsections 14 and Section15 Cr.P.C.) to try cases under the said Code or under any other law for the time being in force. (Emphasis added)

8. Therefore, all powers of Chief Judicial Magistrate have been conferred by this court on Additional Chief Judicial Magistrates in the entire State of U.P. (except Sections 14 and Section15) to try cases under SectionCr.P.C. or any other law.

9. Section 14 Cr.P.C. talks of local jurisdiction of Judicial Magistrate and Section 15 talks of subordination of Judicial Magistrates, therefore, the said provisions have nothing to do with power to be exercised by Additional Chief Judicial Magistrates. This power is to be exercised having been conferred by this Court under Section 12(2) Cr.P.C.

10. Since entire power of Chief Judicial Magistrate has been conferred upon Additional Chief Judicial Magistrates, as notice above, VIIIth Additional Chief Judicial Magistrate was well within its power to impose punishment upto 7 years.

11. No other point has been argued.

12. Both the revisions have no merits. Dismissed.

13. Interim order, if any, stands vacated.

14. Certify this judgment to the lower Court immediately.

Order Date :- 13.12.2019

KA

 

 

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