Patna High Court
Prem Sukh Lal And Ors. vs The State on 24 November, 1975
Equivalent citations: 1977CRILJ47
ORDER
S. Ali Ahmad. J.
1. On the basis of the police report, the Acting Chief Judicial Magistrate, Samastipur, took cognizance against the petitioners under Sections 147, 148, 149, 307, 224 and 332 of the Indian Penal Code. Before an order of commitment was made under Section 209 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code), the petitioners filed an application before the learned Magistrate wherein it was, inter alia, stated that the facts alleged against the petitioners did not constitute an offence under Section 307 of the Indian Penal Code and so far as the offences under Sections 147, 148, 149, 224, 225 and 332 are concerned, they were not exclusively triable by the court of Session. A prayer, therefore, was made that they may not be committed to the court of Session as the offence alleged against them was not exclusively triable by the Court of Session. The learned Magistrate was of the opinion that a re-consideration regarding the sections applicable to the case could not be made at the time of passing the orders under Section 209 of the Code. He was of the opinion that since cognizance had been taken under Section 307 of the Indian Penal Code also the petitioners had to be committed to the Court of Session. Petitioners challenge this order.
2. Learned Counsel for the petitioners in support of the application has submitted that Section 209 of the Code is in Chapter XVI of the Code which relates to commencement of proceedings before the Magistrate. He says that when a proceedings is initiated before the Magistrate, then under Section 209 of the Code he has to examine the allegations against the accused persons. If he is of the opinion that the offence alleged against the petitioners is one which is exclusively triable by the Court of Session, then he has to commit the accused to the court of session. This, according to the kerned counsel, is the limitation on the Magistrate to proceed with the trial. Learned Counsel for the opposite party, on the other hand, submits that the order of commitment under Section 209 of the Code is more or less an automatic order. The Magistrate cannot go beyond the order by which cognizance was taken under different sections. According to him, therefore, since cognizance was taken under Section 307 of the Indian Penal Code also, the offence became exclusively triable by the court of Session and, as such, the learned Magistrate was bound to commit the petitioners to the Court of Session.
3. I think, the argument advanced on behalf of the petitioners has to be accepted. Under Section 190 of the Code, cognizance is taken of an offence. The fact as to whether a particular section is mentioned while taking cognizance of the offence is immaterial. Applicability of the different sections of the Indian Penal Code always depends on the facts alleged against the accused persons. Therefore, the mere fact that while taking cognizance, Section 307 of the Indian Penal Code was also mentioned by the Acting Chief Judicial Magistrate, will not necessarily bring the case under Section 307 of the Indian Penal Code. The learned Magistrate while acting under Section 209 of the Code has to consider the allegations made against the petitioners and if on consideration of the materials, it appears to him that the offence is triable exclusively by the court of Session, then alone he can commit the accused to the court of Session, but in case if it appears to him that the offence alleged against the accused is not one which is exclusively triable by the court of Session, then in that case, he has to proceed with the trial of the case. I may, however, mention it here that the consideration by the Magistrate at this stage should be confined only to find out if prima facie, the offence alleged, is exclusively triable by the court of Session. It will be worthwhile to mention here that the policy of the legislature seems to be that the court of Session should not be burdened with the trial of offences which are not exclusively triable by it. Therefore, at two stages the matter has to be considered. The first consideration is by the Magistrate in a prima facie manner while acting under Section 209 of the Code and the second consideration is by the Sessions Court itself under Section 228 of the Code of 1973.
4. Chapter XVIII relates to trial before a court of Session. The trial begins when the accused is brought before the court in pursuance of a commitment order passed under Section 209 of the Code which is followed by opening of the case by the prosecutor. At that time, the prosecutor describes the charge against the accused and also states as to what evidence he proposes to adduce in support of the guilt of the accused. If upon consideration of the record of case and document submitted therewith and after hearing the arguments on behalf of both the parties, the judge considers that there is not sufficient ground for proceeding against the accused, then the accused has to be discharged., but in case the judge is of the opinion that the facts warrant a trial, then the judge before he frames the charge has to examine as to whether the allegations made against the petitioners and the evidence sought to be adduced by the prosecution make out an offence which is exclusively triable by the court of Session, In case, the Judge is satisfied that the allegations make out an offence, which is exclusively triable by the court of Session, then a charge had to be framed otherwise after framing charge against the accused persons the case has to be transferred by him for trial to the Chief Judicial Magistrate. This provision also supports the view that I have taken that care has to be exercised even at this stage by the Sessions Court itself that cases which are not exclusively triable by it should be transferred to the Chief Judicial Magistrate for trial. Considering the different provisions of the Code, I am of the view that the Magistrate while acting under Section 209 of the Code has to look into the allegations against the accused with a view to find out as to whether the offence is one which is prima facie exclusively triable by the court of Session. In case it appears to him that the offence is prima facie triable exclusively by the court of Session, then the case has to be committed to the court of Session.
5. In the result, the application is allowed and the impugned order is set aside. The learned Magistrate will examine the materials on the record and if on such examination he is satisfied that the offence is one which is prima facie exclusively triable by the court of Session then alone he shall commit the petitioners to the court of Session.