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1963 DIGILAW 209 (CAL)

State v. S. Joseph

1963-09-20

R.N.DUTT

body1963
ORDER Mr. Bhose on behalf of the State submits that the charge under Ss. 302/109 of the Indian Penal Code against the accused persons is unsustainable and an entry should be made to that effect under S. 273 of the or Criminal Procedure. Perused the evidence on the oasis of which the commitment has been made. Perused the statements of the relevant witnesses recorded by the Police under S. 161 of the Code. I agree with Mr. Bhose that me charge under Ss. 302/109 of the Indian Penal Code against the accused persons is clearly unsustainable. Make an entry to that effect under S. 273 of the Code and the accused are discharged in respect of that charge. 2. Mr. Bhose further submits that the only other charge that remains for trial is a charge under Ss. 323/34 of the Indian Penal Code against the accused persons. He argues that since this by itself is not triable by the High Court Sessions, the commitment should be quashed and the Chief Presidency Magistrate should be directed to proceed with the trial of the accused persons under Ss. 323/34 or the Indian Penal Code. Mr. Jyotish Chandra Bose for accused Joseph submits that once a commitment is mace, this Court cannot quash the commitment. A commitment can be made to this Court only when there is an offence triable by this Court. The commitment in this case was made because of the alleged offence under Ss. 302/109 or the Indian Penal Code. We are all agreed that the charge in respect of this offence is unsustainable. Since the charge m respect of this offence goes, it must be said that the Magistrate had no jurisdiction to make the commitment for the offence under Ss. 323/34 of the Indian Penal Code. The commitment in respect of the offence under Ss. 323/34 of the Indian Penal Code must, therefore, be held to have been without jurisdiction and is thus liable to be quashed. But, has this Court the power to quash the commitment ? Section 215 of the Code gives, power to this Court to quash illegal commitments made under S. 213 or the Code. When the Code of Criminal procedure was amended and S. 207A was added, S. 215 was not amended to include commitments under S. 207A(10). But, has this Court the power to quash the commitment ? Section 215 of the Code gives, power to this Court to quash illegal commitments made under S. 213 or the Code. When the Code of Criminal procedure was amended and S. 207A was added, S. 215 was not amended to include commitments under S. 207A(10). This is rather unfortunate, but so long as S. 215 is not amended, it must be said that this Court cannot quash this commitment under that section as this is a commitment under S. 20/A(10) at the Code. But this Court has the inherent power under S. 561A of the Code to quash this commitment, Bijayesh Mukherji, J. has held in State v. Baleswar Mulla, 1962 (2) Cri LJ 656 (Cal) that this Court has the inherent power under S. 561A of the Code to quash illegal commitments not covered under S. 215. He has followed a Bombay and a Mysore decision. With respect, I agree with his views. An offence under Ss. 323/34 of the Indian Penal Code is triable of any Magistrate. It would look ridiculous and if would be an abuse of the Processes of the Court if such an offence is tried by this Court with nine special Jurors. It is, therefore, just and proper that the commitment in respect or the offence under Ss. 323/34 should be quashed. 3. A Full Bench of this Court has held in Emperor v. Girish Chandra, ILR 57 Cal 1042 : (AIR 1929 Cal 756) (FB) that this Court while quashing a commitment can direct the Magistrate to proceed with the trial of the offence in accordance with law, and the Magistrate shall proceed to try the offence in accordance with law. The commitment of the accused persons to this Court for trial of the alleged offence under Ss. 323/34 of the Indian Penal Code is, in the circumstances, quashed and the Chief Presidency Magistrate is directed to proceed with the trial of the accused persons under Ss. 323/34 of the Indian Penal Code in accordance with law. Let the accused persons be produced from Jail custody before the Chief Presidency Magistrate on September 21, 1963 for an order of their release on Dan to his satisfaction pending their trial there. Order accordingly.