By notification dated 30.03.1976 issued by the State Government in exercise of its power conferred by Sub-Section (1) of Section 21 of the Act, all the District Magistrates in the State are conferred with the powers of the Judicial Magistrate First Class for dealing with the offences under the Act. The question is, on and from the date of the notification issued by the Government published in the official Gazette, whether the Judicial Magistrate First Class ceases to have jurisdiction to take cognizance of the offences alleged under Act.
5. Reading of Section 21 indicates that, the power to take cognizance and try the offences under the Act is vested with the Judicial Magistrate First Class and on Executive Magistrate. Upon such conferment of powers, for the purpose of dealing with the offences under the Act, the Executive Magistrate would be deemed to be the Judicial Magistrate First Class.
6. Reading of section does not indicate that, moment powers of the Judicial Magistrate First Class is conferred on the Executive Magistrate, the Judicial Magistrate First Class loses its jurisdiction to take cognizance of the offences under the Act. This court in State of Karnataka Vs. Gangiah reported in [MANU/KA/0169/1978 : 1979 Cri. L.J. 1732] had an occasion to consider this very question. According to the facts of the said reported case, when a charge sheet was laid before the Judicial Magistrate First Class alleging offences under the Act, the Magistrate refused to take cognizance on the ground that he has no jurisdiction in view of the notification issued by the State Government in exercise of power conferred under Section 21 of the Act. That order was challenged before this Court by the State. This Court held that the Act does not lay-down anything regarding the powers of the Judicial Magistrate being conferred exclusively on the Executive Magistrate. Therefore, this court held that when a notification under Section 21 of the Act is issued by the State Government, it only means that the Executive Magistrate mentioned in the Notification will as well have the power to try the cases under the Act. It is further held that both the Executive Magistrate mentioned in the notification and the Judicial Magistrate mentioned under the Code of Criminal Procedure will have powers to try the cases, as such, the learned Magistrate was not right in holding that he has no jurisdiction to try the cases. It is contended by the learned counsel for the petitioner, as per Section 26(b) of Cr.P.C., offences under any other laws should be tried by the Court mentioned in such laws and if no such court is mentioned, it may be tried either by the High Court or any other Court, by which, such offence is shown in the First Schedule to be triable.1
Citation: 2013(4) AKR 647, 2014CriLJ80, ILR 2013 KARNATAKA 5089, 2013(4)KCCR2977
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Decided On: 25.07.2013
Appellants: Shashi Kumar
Vs.
Respondent: The State of Karnataka and The Tahsildar
Vs.
Respondent: The State of Karnataka and The Tahsildar
Hon'ble Judges/Coram:K.N. Keshavanarayana , J.
1. In this petition filed under Section 482 of Cr.P.C., the petitioner arraigned as accused in C.C. No. 335/2009 on the file of the Principal Civil Judge (Jr. Dn.) and JMFC, Anekal, has sought for quashing the prosecution launched against him in the said case for various offences purported to be under Bonded Labour System (Abolition) Act, 1976 (for short, 'the Act') inter alia on the grounds that, in view of the provisions of Section 21 of the said Act read with notification issued by the State Government dated 30.03.1976 published in the official Gazette, the Judicial Magistrate First Class ceased to have jurisdiction to take cognizance of any of the offences alleged under the Act and that assuming for the purpose of argument that the Judicial Magistrate had jurisdiction, the order impugned does not indicate the application of judicious mind to the materials on record and also does not specify as to the offences for which cognizance has been taken. I have heard the learned counsel for the petitioner as well as the learned Government pleader.
2. The argument regarding the jurisdiction of the Judicial Magistrate First Class to take cognizance of the offences under the Act, has no substance.
3. Section 21 of the Act reads thus:-
21. Offences to be tried by Executive Magistrates,- (1) The State Government may confer, on an Executive Magistrate, the powers of a Judicial Magistrate of the first class or of the second class for the trial of offences under this Act; and, on such conferment of powers, the Executive Magistrate, on whom the powers are so conferred, shall be deeded, for the purpose of the Code of Criminal Procedure, 1973(2 of 1974), to be a Judicial Magistrate of the first class, or of the second class, as the case may be.(2) An offence under this Act may be tried summarily by a Magistrate.
4. By notification dated 30.03.1976 issued by the State Government in exercise of its power conferred by Sub-Section (1) of Section 21 of the Act, all the District Magistrates in the State are conferred with the powers of the Judicial Magistrate First Class for dealing with the offences under the Act. The question is, on and from the date of the notification issued by the Government published in the official Gazette, whether the Judicial Magistrate First Class ceases to have jurisdiction to take cognizance of the offences alleged under Act.
5. Reading of Section 21 indicates that, the power to take cognizance and try the offences under the Act is vested with the Judicial Magistrate First Class and on Executive Magistrate. Upon such conferment of powers, for the purpose of dealing with the offences under the Act, the Executive Magistrate would be deemed to be the Judicial Magistrate First Class.
6. Reading of section does not indicate that, moment powers of the Judicial Magistrate First Class is conferred on the Executive Magistrate, the Judicial Magistrate First Class loses its jurisdiction to take cognizance of the offences under the Act. This court in State of Karnataka Vs. Gangiah reported in [MANU/KA/0169/1978: 1979 Cri. L.J. 1732] had an occasion to consider this very question. According to the facts of the said reported case, when a charge sheet was laid before the Judicial Magistrate First Class alleging offences under the Act, the Magistrate refused to take cognizance on the ground that he has no jurisdiction in view of the notification issued by the State Government in exercise of power conferred under Section 21 of the Act. That order was challenged before this Court by the State. This Court held that the Act does not lay-down anything regarding the powers of the Judicial Magistrate being conferred exclusively on the Executive Magistrate. Therefore, this court held that when a notification under Section 21 of the Act is issued by the State Government, it only means that the Executive Magistrate mentioned in the Notification will as well have the power to try the cases under the Act. It is further held that both the Executive Magistrate mentioned in the notification and the Judicial Magistrate mentioned under the Code of Criminal Procedure will have powers to try the cases, as such, the learned Magistrate was not right in holding that he has no jurisdiction to try the cases. It is contended by the learned counsel for the petitioner, as per Section 26(b) of Cr.P.C., offences under any other laws should be tried by the Court mentioned in such laws and if no such court is mentioned, it may be tried either by the High Court or any other Court, by which, such offence is shown in the First Schedule to be triable.
7. The said section has no application to the case on hand for the reason that Section 21 does not specify that the Executive Magistrate upon conferment of powers by means of a notification issued by the State government would have exclusive jurisdiction to deal with the offences under the Act. Therefore, I respectfully agree with the view expressed in Gangaiah's case cited supra. Therefore, I find no substance in the first contention urged by the learned counsel regarding jurisdiction of the court.
8. With regard to the second contention, I see force therein. The certified copy of the order sheet maintained by the learned Magistrate is produced. The preamble portion of the order sheet probably by the ministerial officials of the court though indicates certain sections, it does not specify the title or name of the Act. The judicial order passed by the Magistrate reads as under:-
Perused charge sheet, cognizance taken, S/s to accused by 18.05.2009
9. The order passed by the learned Magistrate as extracted above, as rightly contended by the learned counsel for the petitioner, does not indicate the application of judicious mind by the learned Magistrate. It is well settled law that the Magistrates while taking cognizance and ordering issue of summons to the accused even on a police report, is required to apply his judicious mind to the contents of the charge sheet and form an opinion whether, it prima facie makes-out a case for all or any of the offences alleged. Of course, at that stage, the learned Magistrate is not required to pass an elaborate order. However, the order though brief, should be capable of indicating the application of judicious mind to the materials placed before him. In the case on hand, the order does not pass the said test. The learned Magistrate even without finding-out as to under which Act the offences are alleged, has proceeded to take cognizance and has ordered issue of summons to the accused. Therefore, the order passed by the learned Magistrate taking cognizance and ordering issue of summons, is not in accordance with law, therefore, it is liable to be set aside. However, the Magistrate is required to be directed to apply his mind and pass appropriate orders thereon in accordance with law. In the result, the petition is allowed-in-part. It is held that the Judicial Magistrate First Class, Anekal, has jurisdiction to take cognizance of the offences alleged under Act. The order dated 07.03.2009 taking cognizance and ordering issue of summons to the accused, is hereby set aside. The learned Magistrate is directed to apply his mind and pass fresh orders in accordance with law, in the light of the observations made during the course of this order.
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