CRL.M.C./2497/2018 of MANOJ KUMAR BANSAL Vs STATE OF NCT OF DELHI

IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.M.C. 2497/2018 & CRL.M.A.8889/2018MANOJ KUMAR BANSALMANOJ KUMAR BANSAL

..... Petitioner

Through :Mr. Ravindra Narayan andMr. Raghav Narayan, Advs.Mr. Raghav Narayan, Advs.

versus

STATE OF NCT OF DELHI

..... Respondent

Through :Mr. Amit Chadha, APP for the Statewith SI Omveer Singh, PS NandNagri.with SI Omveer Singh, PS NandNagri.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAKO R R%14.01.2019

1.After pronouncing the judgment of conviction of the petitioner underSections 342/363 IPC, learned Metropolitan Magistrate forwarded the matterto learned ACMM, Shahdara, Delhi for passing appropriate order on thepoint of sentence vide order dated 05.05.2017 which reads thus:-

Present : Sh. Indresh Gupta Ld. APP for the State.

Complainant Sh. Sujata in person.Accused Manoj Kumar with Sh. V.P. Tiwari Ld.Counsel.

Record Perused.

Accusedisalreadyconvictedfortheoffencepunishable U/s 342/363 of IPC.Keeping in view theseriousness of the allegations, this Court is of opinion thatthe accused ought to receive the punishment more severethan this court has power to inflict.Accordingly, theAccused is hereby forwarded to the court of Sh. GaganDeep Singh, Ld. ACMM, SHD, Delhi for passing

appropriate order on the point of sentence.

The Ahlmad is directed to send the complete file in allrespects on or before NDOH i.e. on 06.05.2012 at 2:00P.M.”

2.The matter was taken up by learned CMM Shahdara, Delhi on 27[th]April, 2018 when petitioner contended that he would like to approach thelearned Sessions Judge for clarification in view of the provisions of Section325 Cr.P.C.

3.The petitioner approached the learned District & Sessions Judge. Itwas contended that the learned Metropolitan Magistrate was not required towrite the judgment in terms of sub Section (1) of Section 325. All that hewas required, was to record his opinion and not his judgment beforeforwarding the matter to learned CMM. The finding of guilt was then to berecorded by the learned Chief Metropolitan Magistrate once the matter hadbeen forwarded to him by the Metropolitan Magistrate. The judgement onconviction had to be recorded by the learned Chief Metropolitan Magistrateon the basis of evidence adduced before the learned MetropolitanMagistrate, that too after hearing the arguments afresh.

4.This contention did not find favour of the learned District & SessinsJudge. Vide order dated 12[th]March, 2018 the learned District & SessionsJudge has directed the learned CMM to pass order on quantum of sentence.5.That is how petitioner is before this court by way of present petitionunder section 482 Cr.P.C.

In Ved Prakash vs. The State, 1994 JCC 271, in the similar facts, aBench of coordinate jurisdiction held thus :-

“13.What, then, is the correct position? The perusal ofsection 325 would go to show that whenever Magistrate is

of opinion after hearing the evidence for the prosecution andthe accused, that the accused is guilty, he may send up therecords under two circumstances namely; (1) the punishmentto be inflicted must be different in kind from that which he isempowered to inflict, and (2) the punishment must be moreserver than that which he can inflict. Certainly, in no othercircumstances can be send up the record under sub-section(1) of section 325. After the submission of the record, thecase would be continuation of the original trial and theChief Metropolitan Magistrate would be under the sameobligation to hear arguments and to write judgment as inany ordinary case tried entirely by him. It is not sufficient forthe Chief Metropolitan Magistrate to accept the opinionrecorded by the Magistrate making the reference.He israther required to form his own independent judgment andwrite according to the provisions of section 354 of the Code.It is just possible, upon hearing of the evidence of theprosecution and the accused, that the Chief MetropolitanMagistrate may opine that the accused is not guilty in whichcase it would be open to him to acquit the accused.14.Under sub-section (1) of section 325 MetropolitanMagistrate is not required to write “judgment”. All that isrequired from him is to record his “opinion” and not hissatisfaction.The existence of finding of guilty on therecord would not militate against the powers of the ChiefMetropolitan Magistrate and such finding will not bebinding on him. If Magistrate projects his opinion in theform of judgment of conviction as was done in the presentcase, order so recorded would neither prohibit the ChiefMetropolitan Magistrate from dealing with the case undersub-section (3) of Section 325, nor constitute convictinpreventing any further trial.As pointed out in Emperor v.Narayan Dhaku Bhil, 1928 ILR Bombay 456, Pagla Kahar v.Emperor AIR 1946 Patna 412 and Rang Bahadur v. The KingAIR 1949)Patna 317, in effect such an order of convictionwll be mere surplus age, or just legal nullity.”

6.Accordingly, I am of the view that learned Chief MetropolitanMagistrate has not to hear only the arguments on quantum of sentence buthas to hear the matter fresh on the basis of evidence adduced before thelearned Metropolitan Magistrate and record his judgment by treating thejudgment of learned Metropolitan Magistrate merely an opinion andreference. Ordered accordingly.

7.Petition is disposed of in the above terms. Miscellaneous applicationsare disposed of as infructuous.

JANUARY 14, 2019mk

A.K. PATHAK, J.