Delhi District Court
State ( Govt. Of Nct Of Delhi) vs (I).Sonu on 10 May, 2010
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
Criminal Revision No. 03/10
State ( Govt. of NCT of Delhi) ...PETITIONER
V e r s u s
(i).Sonu, S/0 Shankar
R/o H. No. D-52B,
Aman Vihar Kirari,
Delhi.
(ii).Kailash @ Mukesh
S/o Ram Khilari
R/o D-7/24, Sultan Puri,
Delhi. ...RESPONDENTS
Arguments heard: 13.4.10, 20.4.10 and 26.04.10
Judgment announced: 10.05.10
JUDGMENT
By the present order, I shall dispose of the revision filed by the State against the impugned order of Ld. Trial Court dated 18.1.2010. Vide the said order, Ld. Trial Court dismissed the application of prosecution U/S 323 read with Section 209 Cr.P.C.
2 Brief facts of the case are that on 13.03.08 at about 7.15 PM, respondents Sonu and Kailash in furtherance of their common intention committed theft of Rs. 50,000/- from the pocket of Kalu Ram when he (Kalu Ram) was travelling in a bus at New Rohtak Road, near Liberty Cinema. It is also the case of the prosecution that both the accused voluntarily put Kalu Ram in the fear of instant hurt, as they had shown a knife to him while they were carrying away the amount of Rs.50,000/-. It is further case of prosecution that a sum of Rs.2500/- was recovered at the instance of accused Sonu and a sum of Rs.3000/- was recovered from accused Kailash. The said amounts were retained by them knowingly or having reason to believe the same to be the stolen property.
3 Charge was framed against both the accused by Ld. Trial court in respect of the offence U/S 392 read with Section 34 IPC. Separate charges were also 2 framed by Ld. Trial Court against both the accused in respect of offence U/S 411 IPC. Both the accused pleaded not guilty to the said charges and claimed trial. 4 Prosecution examined five witnesses to prove its case. Thereafter, statements of accused were recorded on 20.11.09.
5 During the pendency of trial, Ld. Addl. P.P moved an application on 25.11.09 U/S 323 read with Section 209 Cr.P.C to commit the case to Sessions court, as the prosecution found that a prima facie case U/S 397 was committed by the accused as they used knife while committing robbery. As the offence U/S 397 was triable exclusively by Ld. Sessions Court, Ld. Addl. P.P. requested that case be committed to Sessions Court.
6 However, Ld. Trial Court dismissed the application of prosecution by holding that as per the prosecution case the accused showed the knife to the complainant after committing robbery i.e when they were leaving with stolen money. Ld. Trial court was of the opinion that knife was neither used by the accused at the time of committing robbery nor it was within the vision of complainant when accused took the looted money from him. Ld. Trial court was also of the opinion that the case of the accused was squarely covered U/S 392 IPC.
7 The grounds taken by the revisionist in revision are that the Ld. Trial Court failed to appreciate the law mentioned in Section 397 IPC as facts of the present case clearly fell in the four corners of Section 397 IPC; that Ld. Trial Court failed to appreciate the meaning of the word 'uses'; that Ld. Trial Court did not have the jurisdiction to take cognizance of the offence U/s 392 IPC, when the chargesheet was filed U/S 397 IPC; that Ld. Trial Court was under a duty to take the cognizance of the offence, which was triable by the Sessions court and was also duty bound to commit the case U/S 209 IPC; that the impugned order passed by Ld. Trial Court is arbitrary, contrary to the provisions of law and thus illegal; that Ld. Trial Court failed to appreciate the law laid down U/S 323 r/w section 209 IPC. 8 I have heard arguments from ld. Addl. PP for State and Ld. counsel for respondents. I have perused the appeal file as well as the trial court record. 9 Section 323 Cr.P.C is reproduced here for ready reference:-
"If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.3
10 In Thakur Ram V. State of Bihar, AIR 1966 SC 911, it was held that the power to commit "at any stage" is exercisable by virtue of the express provision of S.323 and a previous discharge from a case, triable by a Court of Session, would not render the power unexercisable thereafter. Even if an express order of discharge is made by a Magistrate in respect of an offence exclusively triable by a Court of Session, but a trial on the same facts for a minor offence is proceeded with, the Magistrate has undoubtedly power to order his commitment in respect of the very offence, regarding which he has passed an order of discharge provided, of course, the material before him justifies such a course. This power is to be exercised only before signing of the judgment.
In Dulap Singh v. State, AIR 1954 All 163 it was held that committal of a case can be done at any stage before the judgment.
11 Section 209 Cr.PC is also reproduced here for ready reference:-
When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
12 In Sanjay Gandhi V. U.O.I, AIR 1978 SC 514 it was held that under Section 209 the Magistrate is merely to ascertain whether the case, as disclosed, appears to him, to show an offence triable solely by the Court of session. It is not open to him to satisfy himself that a prima facie case has been made out on merits.
In State of Assam V. Hit Ram Deka, (1990)CrLJ 6 it was held that if an offence is triable exclusively by the Court of Session, the magistrate has no power to discharge the accused, but he shall have to commit the case in accordance with the provision of S.209. Once the accused is charge-sheeted to face trial for an offence exclusively triable by the Court of Session, the Magistrate shall have no other option but to commit the case to the Court of Sessions for trial. Even if it appears that distinct offences have been committed in the course of the same transaction, some triable by the Magistrate and some exclusively triable by the Court of Session, the case involving all the offences shall have to be committed to the Court of Session for trial.
13 A joint reading of Section 323 and 209 IPC makes it clear that once a chargesheet has been filed by the police in respect of an offence, which is triable 4 exclusively by Sessions Court, the Magistrate is duty bound to commit the case to Sessions Court and he cannot apply his mind to the merits of the case to find out whether a prima facie case, triable by the Sessions Court is made out or not.Once a Magistrate comes to the conclusion that accused has been chargesheeted for an offence, triable exclusively by Session court he has no option except tp commit the case to Sessions Court. It is only the Sessions Courts, who are empowered, to consider whether the material placed on record is sufficient to frame the charge or not.
14 In the present case, it is not disputed that police has filed the chargesheet against both the revisionists in respect of Section 392/397 & 411 read with Section 34 IPC. A perusal of the trial court shows that Ld. Trial Court vide its order dated 29.05.08 took the cognizance of ofences U/S 392 and 411 read with Section 34 IPC only. The court has observed "I have carefully gone through the challan. Same discloses an offence punishable U/s 392/411 read with Section 34 IPC . I take the cognizance of the offence. Copy of Charge sheet be supplied to the accused. To come up for scrutiny and charge on 11.6.08". I am of the considered view that order passed by Ld. Trial Court on 29.5.08 was totally without jurisdiction as Ld. Magistrate was not empowered to discharge the accused in respect of offence U/s 397 IPC by taking cognizance of the offence U/S 392 & 411 read with section 34 IPC only. It is worth noting that the said illegality committed by Ld. Trial Court on 29.5.08 came into the notice of Ld. A. P.P after recording of the statements of accused U/s 313 Cr.P.C. He(Ld. APP) moved the application on 25.11.09 U/s 323 read with Section 204 Cr.PC with a prayer to commit the case to Sessions court.
15 It is settled law that the power U/S 323 Cr.PC can be exercised by the Ld. M. M at any stage before signing the judgment and the application moved by the prosecution U/s 323 cannot be dismissed on the ground that it has been filed at a later stage. Ld. Magistrate was under an obligation to commit the case to Session Court as the charge sheet was submitted by the police in respect of offence under section 397 IPC also, which is triable, exclusively by the Sessions Court. 16 In view of above discussion, I am of the considered view that the order passed by Ld. CMM dated 18.1.10 is liable to be set aside. Accordingly, the order passed by Ld. Trial Court dated 18.1.10 is hereby set aside. Ld. Trial court is directed to commit the case to Ld. District Judge-1 & Sessions Judge. Respondents will appear before Ld. Trial Court on 18.5.10.
517 With these observations, the present petition filed by revisionist State is hereby allowed. Trial court record alongwith copy of this order be sent back. Revision file be consigned to Record Room.
Announced in the open court today
on 10.05.10 (Smt. Bimla Kumari)
Additional Sessions Judge(North)
Tis Hazari Courts, Delhi.