Andhra HC (Pre-Telangana)
Pukkalla Laxmana Rao And Ors. vs The State Of A.P. Rep. By Public ... on 26 December, 2000
ORDER T. Ch. Suryarao, J.
1. The petitioners assail the order dated 23.11.2000 passed by the learned Judicial Magistrate of First Class, Kotabommali in Criminal M.P.No. 2175 of 2000 in P.R.C.No. 15/99.
2.Petitioners herein are the accused in P.R.C No. 15/99. The learned Magistrate has taken cognizance of the offences punishable under Sections 147,148,307,326 and 324 of I.P.C and issued process for the appearance of the accused. Pursuant to the summons issued, the petitioners appeared before the learned Magistrate and then filed an application in Crl.M.P.No.2175 of 2000 requesting the Court to convert the preliminary registered case into a calendar case on the premise that on perusing the averments made in the charge sheet, no case triable exclusively by a Court of Sessions was made out. That application having been dismissed under the impugned order as aforesaid, the petitioners are assailing the same before this Court in this Criminal Revision Case.
3. A short but important question of law, which might crop up for consideration very often before the Courts below, is involved in this revision case. Having taken cognizance of the case and issued the process to the accused for their appearance, is it open to a Magistrate in a case, which is exclusively triable by a Court of Session, to have a fresh look at the averments made in the charge sheet or the material annexed there with so as to see whether the accused before it can be committed to Court of Session for taking the trial or it is a case where the offence can be tried by himself. In other words, whether such sort of enquiry can be made by the committal Magistrate under Section 209 of the Criminal Procedure Code ( For short ' the Code ').
4.The question of law involved in this case is no more res integra, in view of the change in the statute and in view of the recent pronouncement of the Apex Court. The situation appearing in this case was considered to be an enquiry as defined under Section 2(g) of the Code. Under the new Code, the enquiry as envisaged under Section 2(g) at the time of committing the case to a Court of Session has been dispensed with. Earlier, the Courts had been of the view that it was not a case of just sending the record of the case to the Court of Session and it was open to the Magistrate to look at the file to see whether the case is exclusively triable by a Court of Session or not and to that limited extent, although the enquiry as envisaged under Section 2(g) was dispensed with, the Magistrate can proceed and it is not a case of mere post office business. That view in vogue, for quite a long time, has been changed later. The Apex Court in SANJAY GANDHI VS. UNION OF INDIA1 has categorically held as under:
"Under the new Code in cases where offence is triable exclusively by the Court of Session, the Committing Magistrate has no power to discharge the accused. Not has he power to take oral evidence save where a specific provision like S. 306 enjoins.
It is also no open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. The narrow inspection hole through which the Committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the magistrate to show an offence triable solely by the Court of Session. If it is so, the Magistrate has simply to commit for trial before the Court of Session. If by error, wrong section of the Penal Code is quoted, he may look into that aspect, if made up facts unsupported by any material are reported by the police and a Sessions offence is made out to appear, it is perfectly open to the Sessions Court under Section 227 Cr.P.C to discharge the accused."
5. However, in STATE OF U.P. VS. LAKSHMI BRAHMAN2, the Apex Court has taken the view that after the accused puts his appearance before the Court pursuant to the summons or has been produced before it either way, the committing Magistrate proceeds to enquire whether the provisions of the Section 207 of the Code have been complied with and then proceed to commit the accused to the Court of Session. He may even adjourn the case when the situation warrants before the committal, obviously under Section 309 of the Code. Therefore, the proceedings before the Magistrate, so as to see the compliance of Section 207 of the Code and for that purpose to adjourn the case from time to time under Section 309 of the Code, would be an enquiry as contemplated under Section 2(g) of the Code. The earlier Judgment of the Apex Court in SANJAY GANDHI VS. UNION OF INDIA (Supra-1) has not been referred to in the later judgment. Recently, in RAJ KISHORE PRASAD VS. STATE OF BIHAR3, the Apex Court held at paragraph 11 as under :
"The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "Committal proceedings" have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the Public Prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightway with the trial and that nothing is lacking in content, as per requirement of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of "inquiry" as defined in Section 2(g) of the Code of Criminal Procedure, which defines that "inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a Court", because of the prelude of its being "subject to the context otherwise requiring". As said before, the context requires the proceedings before a Magistrate to be formal barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209, Cr.P.C is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session."
6. Considering the objects and reasons in enacting Section 209 of the Code, the intention of the Parliament was to dispense with the enquiry before the committal magistrate before committing the case to the Court of Session. The Apex Court in RAJKISHORE VS. STATE OF BIHAR (supra 3) has clearly held that its earlier Judgment in STATE OF UP VS. LAKSHMIBRAHMAN (supra 2) is per incurium. It may be reiterated here that in the later judgment, the Apex Court has taken the view that the proceedings before the Magistrate before committal would amount to enquiry as envisaged under Section 2(g) of the Court.
7.In view of the authoritative pronouncement of the Apex Court, the position seems to be obvious that the committing Magistrate cannot do any thing in the matter except to see the whole package produced or placed before him by the investigating agency is in order before committing the case to the Court of Session. No enquiry as envisaged under Section 2(g) can be conducted by him except committing the case to a Court of Session.
8.Turning back to the case of SANJAY GANDHI VS. UNION OF INDIA (supra 1) case, it is no doubt true, it is open to the Magistrate to inspect the case record placed before him, merely to ascertain that the case as disclosed by the police report, show an offence triable solely by the Court of Session. Taking a holistic view of the entire judgment, in my considered view, it is open to the Magistrate to look at the record at pre-cognizance stage. Once cognizance has been taken and process has been issued to the accused after the appearance of the accused before him, the Magistrate has to satisfy himself to see whether the material placed before him by the investigating agency is in order or not and once that requirement is satisfied after complying with Section 207 of the Code, in other words supplying the documents to the accused, he has no other go except to commit the case to the Court of Session.
9. It is the contention of Sri A. Ramnarayana, the learned counsel appearing for the petitioners, laying emphasis on an isolated excerpt from SANJAY GANDHI VS. UNION OF INDIA (supra 1) case, it is open to the Magistrate to see whether the case is exclusively triable by a Court of Session or triable by a Magistrate. I am afraid, I cannot accede the said contention of the learned counsel. The excerpt upon which much emphasis has been laid by the learned counsel may be extracted hereunder thus:
"the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session."
10. This excerpt as aforesaid cannot be read in isolation. It has been clearly held by the Apex Court that under the new Code, in a case where the offence is triable exclusively by the Court of Session, the Committing Magistrate has no power to discharge the accused nor has he power to take oral evidence, nor it is open to him to launch a process of satisfying himself that a prima facie case has been made out on the merits. If the excerpt extracted supra is read along with the other dictum, the position would be much more clear and hence the contention of the learned counsel merits no consideration.
11.Section 228 of the Code, which is relevant in this context, may be extracted hereunder:
"228 Framing of Charge: (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
12. Once the case is committed to a Court of Session and the Court of Session has not discharged the accused upon consideration of the record, the documents submitted therewith and after hearing on either side, it is open to the Sessions Court to frame the charge. If, after such consideration under Section 227 of the Code, the Sessions Court is of the opinion that the case against the accused is not exclusively triable by the Court of Session, it may frame a charge against the accused and then transfer the case for trial to the Chief Judicial Magistrate. Therefore, care has been taken by the Parliament, by incorporating Section 228 of the Criminal Procedure Code to see even after the committal of the case by the Magistrate, on perusal of the record placed before it, if the Court is satisfied that it is an exclusively triable by a Court of Session, it proceeds to frame a charge and if for any reason the Court is not satisfied, it may frame a charge for the proper offence and send back the case to the Chief Judicial Magistrate for trial on that charge. This is an indicia that such an enquiry is not permissible to be conducted by the Magistrate at the time of committal taking shelter under the provisions of Section 2(g), on the premise that the Magistrate has to satisfy himself that the provisions of Section 207 have been complied with and has to adjourn the case under Section 309 from time to time if need be, which tantamount to an enquiry as envisaged under Section 2(g) of the Code. Perhaps, the Magistrate might be adjourning the case so as to see that there has been every compliance of Section 207. It does not open to him to clutch at the jurisdiction which has not been vested in him and which has been expressly taken away from him by the Parliament by dispensing with the committal procedure. Even otherwise, such type of enquiry to see whether prima facie case exclusively triable by a Court of Session is made out or not is not envisaged under the Code at two different stages; one at the stage of committal and the other at the stage of hearing of the case by the Court of Session under Section 228 of the Code. By incorporating Section 228 in the statute which is a new provision the intention of the Parliament is made explicit, that such type of enquiry is not open to be made by a Magistrate before committing the Court of Session. This view of mine is in accordance with the law laid down by the Apex Court particularly in the two judgments referred to supra.
13.For the above reasons, I am of the considered view that it is not open to the Magistrate to convert a P.R.C into a Calendar Case.
14.The Criminal Revision Case, therefore, fails and it is accordingly dismissed at the stage of admission itself.