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Judgment
M. Karpagavinayagam, J.—The common question that arises in all these revisions is this :
Whether the Chief Judicial Magistrate has got the jurisdiction to try the Economic Offences triable by the First Class Magistrate, when once the
post of Chief Judicial Magistrate has been upgraded to the rank of District Judge?
Ponnuswamy, the petitioner herein, an accused in C. C. Nos. 235 to 244 of 1990 on the file of the I Additional Sessions Judge-cum-Chief
Judicial Magistrate, Combater, has approached this Court in these revisions challenging the orders passed by the trial Court dismissing the
applications filed by him requesting for transfer of the cases to some other Judicial Magistrate as the Chief Judicial Magistrate has been elevated as
District Judge, or else, he would lose his right to file an appeal before the District Court, in the event of conviction.
The short facts are:- In the year 1990, the complainant-Income Tax Officer, the respondent herein filed 10 complaints in C. C. Nos. 235 to 244
of 1990 before the trial Court for the offences under Sections 276C(ii) and 277(ii) of the Income Tax Act. During the pendency of the trial in these
cases before the Chief Judicial Magistrate, Combater, by virtue of G. O. Ms. No. 599 dated 21-4-1995, the Chief Judicial Magistrates in the
districts were upgraded as Chief Judicial Magistrate-cum-Additional District Judge, Grade-II. When this post was upgraded to the District Judge,
on the representation made by the counsel for the accused in these cases, the Principal District Judge and the Chief Judicial Magistrate have sent
several letters to the Registrar of this Court dated 29-2-1996,3-6-1996,27-11 -1996,28-2-1997 and 21-3-1997 requesting administrative
instructions from this Court as to whether the cases of the economic offences can be tried in this Court itself or can be transferred to any other
Court of First Class Magistrate at Combater, in view of the upgradation of the post of Chief Judicial Magistrate to the cadre of District Judge.
Since those instructions had not been received by the trial Court despite several reminders sent on various dates as stated above, the learned Chief
Judicial Magistrate at Combater wanted to dispose of the cases by continuing the trial. At this stage, the petitioner filed petitions for transfer of
these cases to some other Judicial Magistrate''s Court at Combater, mainly on the ground that if the Chief Judicial Magistrate-cum-Additional
District Judge continues to conduct trial and convicts the petitioner, the petitioner would lose his right to file an appeal before the District Judge and
as such, he has not file an appeal only before the High Court. These petitions were entertained. After hearing the counsel for the parties, the
learned Chief Judicial Magistrate-cum-Additional District Judge passed orders rejecting the prayer of the petitioner holding that the Chief Judicial
Magistrate has got the jurisdiction to continue the trial of the cases. These orders are put in issue in these revisions before this Court.
I have heard Mr. C. Chinnaswamy, the learned senior counsel appearing for the petitioner and Mr. T. Sivanandam, learned Senior Special
Public Prosecutor appearing for the respondent, and Mr. N. R. Elango, Amicus Curiae.
The main ground of attack on the impugned order is that once the post of Chief Judicial Magistrate has been upgraded to the rank of District
Judge, no appeal would lie against the order of the said Chief Judicial Magistrate-cum-Additional District Judge to the District Court and that
therefore, in order to avail the right of appeal before the District Court, the learned Chief Judicial Magistrate-cum-Additional District Judge ought
to have transferred to any other Judicial Magistrate, who is subordinate to him. This submission is resisted by the counsel for the respondent, in
justification of the impugned orders.
I have carefully scrutinised the impugned orders and given my anxious consideration to the submissions made on either side.
These economic offences under the special statutes like Income Tax Act as provided in Part II of the I Schedule of the Code of Criminal
Procedure, are classified in the category of punishments. The cognizable offences punishable with imprisonment provided for 3 years to upwards
but not more than 7 years are triable by the Court of Magistrate of First Class. If punishable for non-cognizable offence with imprisonment for less
than 3 years or with fine only, any Magistrate can try those cases.
u/s 26(b)(ii), Cr. P. C, these offences are triable by the Courts of First Class Magistrate. u/s 29(1), Cr. P. C, the Court of Chief Judicial
Magistrate .may pass any sentence authorised by law in the cases under the Income Tax Act except a sentence of death or of imprisonment for life
or of imprisonment for a term exceeding seven years. u/s 29(4), Cr. P. C, 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. Therefore, the Chief Judicial Magistrate shall have the powers of
the Court of a Magistrate of the first class.
u/s 29(2), Cr.P.C. the First Class Magistrate can pass sentence only upto three years, or of fine not exceeding five thousand rupees, or of both,
whereas u/s 29(1), Cr.P.C. the Chief Judicial Magistrate may pass any sentence except a sentence of death or of imprisonment for life or of
imprisonment for a term exceeding seven years.
Section 325, Cr.P.C. provides, whenever a First Class Magistrate is of opinion that the accused who is found guilty after trial, ought to receive
a punishment more severe than that which such Magistrate is empowered to inflict, he may forward the accused to the Chief Judicial Magistrate,
who in turn, shall pass judgment giving appropriate sentence.
In the light of the above provisions, there is no difficulty in coming to the conclusion that these cases could be tried both by the Judicial
Magistrate or by the Chief Judicial Magistrate, as they are empowered to do so, since they are vested with the same jurisdiction of trial of these
cases except in imposing the quantum of sentence.
But, the question now posed before this Court is, whether the Chief Judicial Magistrate after having got the upgradation to the cadre of District
Judge, would be competent to try the first class offence?
The difficulty expressed by the counsel for the accused is that the accused would lose his right of appeal against conviction in the District
Court.
On a careful scrutiny of the relevant provisions of the Code and on a proper consideration of the submissions made by the counsel for the
parties, I am of the considered view that the apprehension expressed by the counsel for the petitioner has no basis.
u/s 12, Cr. P. C, the High Court appoints one of the Judicial Magistrate of the first-class to be the Chief Judicial Magistrate. u/s 15, Cr. P. C,
every Chief Judicial Magistrate shall be subordinate to the Sessions Judge. u/s 17, Cr. P. C, one of the Metropolitan Magistrates is appointed as
the Chief Metropolitan Magistrate in metropolitan area by the High Court. u/s 19 of Cr. P. C, the Chief Metropolitan Magistrate shall be
subordinate to the Sessions Judge. Therefore, when the Chief Judicial Magistrate or Chief Metropolitan is exercising the powers for trying first-
class offences in the capacity of the First Class Magistrate under Sections 12 and 17 of Cr. P. C, the said powers are exercised by these Officers
as subordinate to the Sessions Judge as provided under Sections 15 and 19 of Cr.P.C. Hence, the upgradation of the post of Chief Judicial
Magistrate to the cadre of District Judge cannot be taken to mean that they lose the powers of the first-class offences inasmuch as they continue to
act as Chief Judicial Magistrates.
in these private complaint cases, cognizance could be taken only by the Court of the Magistrate, which includes the Chief Judicial Magistrate
u/s 190(1)(a). Cr.P.C. The concerned Court at Combater has been described under the nomenclature as the Chief Judicial Magistrate-cum-
Additional District Judge. In other words, the Chief Judicial Magistrate cum-Additional District Judge is acting in a dual capacity. When there is a
dual jurisdiction, the subordination shall be decided according to the nature of the case or proceedings in connection with which the offences are
alleged to have been committed.
Admittedly, the cases have been taken cognizance of only by the Chief Judicial Magistrate and trial also was conducted before him. As per
Section 193, Cr. P.C. unless it is expressly provided by this Code or by any other law for time being in force, no Court of Session can take
cognizance of any offence as a Court of original jurisdiction, unless the case has been committed to it by a Magistrate under this Code.
Thus, it is clear that Section 193 of Cr.P.C. would not apply to the instant cases, as these cases have been taken cognizance and arc being
tried by the Chief Judicial Magistrate only in the capacity of the Court of Chief Judicial Magistrate and not as a Court of Additional Sessions
Judge.
Therefore, so long as the order or judgment is passed in the capacity of Chief Judicial Magistrate, he acts as a subordinate to the Sessions
Judge as provided u/s 15, Cr.P.C. So, in the event of conviction in these cases, the petitioner would certainly have a right of appeal before the
Sessions Court.''
As a matter of fact, the reasonings given in the impugned orders are, in my view, unambiguous and perfectly justified, In this context, I cannot
but to refer about the sorry stale of affairs that these cases as wel1 as lot of other cases of this nature are pending for a long number of years
before the trial Court for want of administrative instructions from the Registrar of this Court.
It is brought to my notice that at least now, intimation has been sent by the Registrar through the letter on 11-1-1999 stating that the 1
Additional District Judge-cum-Chief Judicial Magistrate has to continue to try the cases of this nature in the capacity of Chief Judicial Magistrate
and that there is no need to transfer the cases of economic offences to any other I. Class Magistrate''s Court at Combater.
Before parting with this case, I shall mention, when the section itself is very clear with reference to the jurisdiction, the District Court or trial
Court ought not to have asked for instructions from this Court and waited for so long, with the result the trials of these cases in various Courts are
pending for long number of years without any progress. Therefore, the learned Chief Judicial Magistrate-cum-Additional District Judge is directed
to give top priority to these cases to continue to have trial and to dispose of the same as expeditiously as possible.
With these observations, these revisions are dismissed. Consequently, Crl. M. P. Nos. 70 to 79 of 1999 are also dismissed.