Kedar Nath Sahay vs Emperor

Agarwala, J.—The petitioner was at one time a Tahsildar entrusted with the collection of subscriptions for a charitable orphanage at Monghyr. In December 1931 or January 1932, the secretary of the institution, being dissatisfied with his work dismissed him from the post of Tahsildar. The secretary''s action was confirmed by the committee of the institution in February 1932. The petitioner was also a member of the committee until the election held on 17th March 1932, when he failed to secure reelection. The committee elected on that date took, office as from 24th April 1932. In the meanwhile, on 19th April 1932, the accused had presented himself to the Inspector of Police at Kasba in the District of Purnea and represented himself to be a collector of subscriptions on behalf of the orphanage and persuaded the Inspector of Police to introduce him to persons likely to subscribe.

Accordingly the Inspector introduced him to Anadinath Mukherji who subscribed Rs. 5 to the orphanage, Babu Mohan Lal Sahu, a pleader, who contributed Rs. 2 and Babu Badrilal Sahu who subscribed Rs. 5. The first two subscriptions were realized on 19th April and the third on 9th May. On 11th May the petitioner was arrested at Katihar in connexion with another matter.

On the above facts the petitioner was charged with cheating AnadiNath Mukherji, Mohan Lal Sahu and Badri Lal. He was tried by a First Class Magistrate of Purnea who convicted him u/s 420, I.P.C., and sentenced him to one year''s rigorous imprisonment on each of the three counts, the sentences to run consecutively.

The petitioner appealed to the Sessions Judge of Purnea: but, as the Sessions Judge himself had at one time been connected with the orphanage, the appeal was at his request transferred by this Court to the Sessions Judge of Bhagalpur. That learned Judge remitted the case to the trial Court for further evidence to be recorded with respect to certain matters. When this evidence had been recorded and the record returned to the Sessions Court, the appeal was made over by the Sessions Judge to the Additional Sessions Judge of Bhagalpur for hearing. The Additional Sessions Judge dismissed the appeal and confirmed the sentences.

The first point argued by the learned advocate for the petitioner is that the Additional Sessions Judge had no jurisdiction to hear the appeal.

It is contended that as by the order of this Court the case was transferred from the file of the Sessions Judge of Purnea to the file of the Sessions Judge of Bhagalpur, it was the Sessions Judge of Bhagalpur alone who was competent to hear the appeal. In Queen-Empress v. Mata Prasad (1897) 19 All 219 it was held that where the High Court transferred a case from the Court of one District Magistrate to the Court of another District Magistrate it would be understood that, unless the contrary is directly expressed, the Magistrate of the Court to which the transfer was made had power and jurisdiction to apply Section 192, Criminal P. C, and to transfer the case to the Court of another Magistrate subordinate to him who might be competent to try it.

The order of this Court transferring the present case to the Sessions Judge of Bhagalpur contained no express direction that the Sessions Judge was to hear the appeal himself, and therefore on the analogy of the case cited, there appears to be no reason why the Sessions Judge should not have empowered the Additional Sessions Judge to hear the appeal. It is contended that the Allahabad case referred to above differs from this case in that Section 192, Criminal P. C, expressly empowers the District Magistrate to transfer any case of which he has taken cognizance to another Magistrate subordinate to him for enquiry or trial, and that, as the order of the High Court did not restrict the discretion of the District Magistrate, the latter in transferring a case to a Subordinate Magistrate was merely exercising the discretion which the statute confers upon him.

It is argued that there is no power conferred upon the Sessions Judge to transfer to an Additional Sessions Judge oases which had been transferred to him by the High Court, the contention being that the proviso to Section 409, which empowers the Sessions Judge to make over appeals to an Additional Sessions Judge, applies only to appeals arising within the jurisdiction of the Court of Session. No authority has been cited in support of this contention and I can see no reason why the power conferred on the Sessions Judge by the proviso to Section 409, Criminal P.C., should be limited in this manner (His Lordship then considered the case on merits and dismissed the application.) Finally the learned advocate addressed to us a plea for reduction of sentences, contending that a year''s rigorous imprisonment in respect of each of the sums collected is excessive.

I do not consider that a person, who extracts subscriptions from the charitably-minded public for a charitable institution and pockets the proceeds himself, is deserving of any consideration. I would accordingly dismiss the application and confirm the conviction and sentences imposed on the petitioner.

Macpherson, J.

I agree.