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In this case, summons have been issued Under Sections 147/323/325/307 I.P.C, Offence Under Section 307 I.P.C. is exclusively triable by the Ld. Sessions Court. Hence, the accused persons are committed to the Court of Sessions, Midnapore Under Section 209 Cr. P. C, for facing trial.

3. The grounds taken in the revisional application are (1) that R. K. Ghosh having taken cognizance of the alleged offences on 23-9-74, the transfer of the case to his own file by B. K. Mitra was illegal and it vitiates the entire proceeding following the illegal order of transfer ; (2) that there has been non-compliance of the provisions of Section 208 of Criminal Procedure Code ; (3) that the committal Court is not to approach the case in a mechanical manner and the learned Magistrate erred in law in not recording a finding that from materials on record it appeared to him that the offences complained of are exclusively triable by the Court of Session and absence of such finding vitiates the order of commitment. In course of hearing of this Rule, Mr. N. C. Banerjee appearing on behalf of the petitioners has added another ground (4) to the effect that there has been non-compliance with the provisions of the proviso to Section 202(2) of the Code of Criminal Procedure (1974).

7. Mr. Banerjee has contended that the learned Magistrate did not apply his mind at all before the order of commitment and as such the order should be set aside.

Section 209 Cr. P. C. lays down 3 '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 the case to the Court of Session :

8. The instant case is not on Police report but it rests on a complaint. The offence Under Section 307 I.P.C. is triable exclusively by the Court of Session. The Magistrate after performing certain preliminary functions like granting copies, preparing the records, notifying the Public prosecutor etc., is to formally commit the case to the Court of Session which could not take cognizance of the offence.The contention raised by Mr. Banerjee raises the question what will be the true construction of the words "it appears to the Magistrate" in Section 209. If the contention of Mr. Banerjee is to be accepted, then these words give jurisdiction to decide whether or not there should be commitment. The normal connotation of the word "appears" is "seems" or to be in one's opinion. So it is the mere opinion of the Magistrate that must prevail. The words "it appears to the Magistrate" do not connote satisfaction of the learned Magistrate to enable the superior court to judge whether there was sufficient ground for satisfaction. Preliminary inquiry by a Magistrate in cases exclusively triable by Court of Session has been dispensed with as such an inquiry served no useful purpose and involved a great deal of infructuous work causing delay in the trial of sessions cases. There was no scope for any inquiry after the processes were issued in the instant case. The learned Magistrate after performing some preliminary duties referred to earlier is to formally commit the case. The words "it appears to the Magistrate" are obviously put in for the purpose of making the Magistrate the sole authority on the question and do not introduce any new aspect. It depends upon the opinion of the Magistrate not upon the fact of sufficiency or insufficiency of materials. That this is so will be evident from the fact that (apart from an order of commitment in compliance with the mandatory (provisions) of Section 209 Cr.P.C.), the Magistrate merely on report of a police may commit an accused to court of session on perusal of the same without any inquiry, if it appears to him that the offence in respect of which charge sheet has been submitted is triable only by the Court of Session. As regards private complaints in cases triable exclusively by a court of session, the inquiry into the complaint by the Magistrate Under Section 202 will serve the purpose of a preliminary scrutiny. Under Section 202(2) Cr.P.C. a Magistrate who takes cognizance of an offence triable exclusively by the Court of Session on complaint must himself make an inquiry into the complaint, and call upon the complainant to produce all his witnesses and examine them on oath. In such cases it is not within the competence of the Magistrate to direct investigation by some Police Officer or other person. It is true that a Magistrate after complying with the relevant provisions of the proviso to Section 202(2) may not be inclined to issue process at all. If complying with the provisions of Section 202(2) proviso, the Magistrate is satisfied that processes in respect of offences triable exclusively by the Court of Session should be issued and the accused appears as in the present case, he has nothing else to do except formally committing the accused to Court of Session. That apart the order dated 22-11-74 itself suggests that the Magistrate was of opinion that it was triable by the Court of Session.

16. The expression "it appears to the Magistrate that offence complained of is triable exclusively by the Court of Session" appears twice, once after the proviso to Sub-clause (2) of Section 202 and again in the first paragraph of Section 209, According to Section 202 once it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he has to call upon the complainant to produce all his witnesses and examine them on oath. Section 209 provides that when 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 commit the case to the Court of Session. A question which arises in this context is whether the expression "and it appears to the Magistrate that the offence is triable exclusively by the Court of Session" confers any discretion upon the Magistrate or he has to commit the accused to Session without any further consideration. If he is not endowed with any power of discretion Under Section 209 then it would mean that once Under Section 202 it appears to him that the offence complained of is triable exclusively by the Court of Session the next steps of examining the witnesses and calling upon the accused to appear and committing the case to the session become automatic processes. If that is so and no discretion altogether is meant to be conferred upon the Magistrate the expression in Section 209 "and it appears to the Magistrate that the offence is exclusively triable by the Court of Session" will have no meaning (so far as the cases not instituted upon police report are concerned) except to read it as reproduction of the language used in Section 202 by way of description of the nature of the case before the Magistrate. In other words, It would mean that when the accused is brought to the Magistrate and the case is of the particular description as mentioned earlier in Section 202 there will be automatic commitment to the Court of Session. The phrase "appears to the Magistrate" by itself, it may be argued, must involve some consideration. In that view even after the Magistrate decides at the initial stage to call upon the complainant to produce his witnesses he would once again be invested with the discretion for a second time before he commits. The second view seems to be in accord with the intention of the legislature which is to be gathered from what it has chosen to indicate either in express words or by reasonable and necessary implication. We may refer in passing to the notes on clauses of Section 209 but it should be noted that the statement of object and reason as such are to be excluded from consideration in construing an Act as unlike preamble and headings they form no part of the Act itself (see Central Bank v. The Workmen, ). But the same can of course be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsors of the bill to introduce the same. (State of West Bengal v. Subodh Gopal, Ranganathan v. Govt. of Madras, ; Commr. of Income Tax v. S. S. Devi, ). Clause 214 (Section 209).