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1973 DIGILAW 276 (ALL)

Sia Ram v. State of U. P.

1973-07-11

H.N.SETH

body1973
JUDGMENT H.N. Seth, J. - Civil and Sessions Judge, Badaun has made this reference recommending that the order dated 19.8.1971 passed by the Additional Munsif Magistrate Badaun, committing Sia Ram and others to the court of Sessions be set aside and the case be sent back to the court concerned for further enquiry and compliance with the provisions of sub-section (4) of Section 207-A Criminal Procedure Code. 2. The applicants Sia Ram and three others were being prosecuted for offences under Sections 323, 324, 325 and 326 Indian Penal Code all read with section 34 Indian Penal Code. After taking cognizance of the case the learned Magistrate proceeded to try it as a warrant case. After close of prosecution evidence on 10.5.1971, the accused were examined under Section 342 Criminal Procedure Code and 12.6.1971 was fixed for producing defence evidence and for arguments. On that very date Sri Krishan Murari Lal, the injured moved an application praying that the case be committed to the court of Sessions but the trial Magistrate rejected that application. Ultimately, defence evidence was recorded on 24.7.1971 and 18.8.1971 was fixed for arguments in the case. On that date, arguments were heard and the case was directed to be listed for further orders on 19.8.1971. In his order dated 19.8.1971, the learned Magistrate observed that after going through the evidence on record, injury reports and the statements of the prosecution witnesses he was of the opinion that a prima facie case under sections 307, 325, 324 and 323, all read with section 34 Indian Penal Code was made out against the accused persons and that in the circumstances of the case, he would not be able to punish them adequately. Accordingly, he made the order committing all the applicants to the court of Sessions for being tried for offences under those sections. 3. Learned Sessions Judge observed that in the original commitment order, at two places, the learned Magistrate scored out section 326 and instead wrote section 307 Indian Penal Code indicating that the applicants were being committed to the court of Sessions in order to stand their trial for offence under Section 307 Indian Penal Code. The offence under section 307 Indian Penal Code is exclusively triable by court of sessions. Accordingly, there was absolutely no occasion for the Magistrate to consider whether he would be able to punish the accused person adequately. The offence under section 307 Indian Penal Code is exclusively triable by court of sessions. Accordingly, there was absolutely no occasion for the Magistrate to consider whether he would be able to punish the accused person adequately. The commitment order therefore appears to be incoherent. He then pointed out that even though the trial of the case had commenced, under section 347 Criminal Procedure Code it was open to the Magistrate to commit the accused to the court of sessions in case if he felt that the case is one which ought to be tried by the court of Sessions, but that power could be exercised only after following the provisions of Chapter XVIII of the Code which relate to inquiry into the case triable by court of sessions. If an order committing an accused is made without following the procedure laid down in section 207-A Criminal procedure Code the accused will be prejudiced and there would be failure of justice. In his opinion the Magistrate was bound to record briefly the reasons for committing the accused to the court of sessions as required by sub section (10) of section 207-A Criminal Procedure Code which he has not done. The reason, that the Magistrate considered that he would not be able to adequately punish the accused, was in his opinion, in the circumstances of the case, incoherent. He also pointed out that there was nothing on the record to indicate that before committing the applicants the Magistrate gave any intimation or information to the accused persons about his intention to commit the case to the court of sessions or that he followed the procedure under Chapter XVIII Criminal Procedure Code. It was also not clear from the record as to how the case was covered by section 307 Indian penal Code which is exclusively triable by the court of Sessions. The order of commitment, made in this case, was accordingly illegal and deserved to be set aside. 4. I have considered the recommendation made by the lerrned Civil and Sessions Judge. The order of commitment, made in this case, was accordingly illegal and deserved to be set aside. 4. I have considered the recommendation made by the lerrned Civil and Sessions Judge. As soon as the learned Magistrate formed the opinion that a prima facie case under section 307 Indian Penal Code which is exclusively triable by court of session is made out against the applicants, he was bound to commit them in accordance with law, and the question whether he could adequately punish the accused for that offence or not was at all relevant. But in a case where an accused person is charged with an offence some of which are exclusively triable by a court of Sessions and others which can be tried by the Magistrate himself, Magistrate's observation that he cannot adequately punish the accused obviously means that he considers that he cannot properly bring the accused to book and pass a proper sentence upon him. In the circumstances, I do not think that as observed by the Sessions Judge, the order passed by the Magistrate can be said to be incoherent on that account. If a Magistrate comes to the conclusion that either because the accused cannot be tried by him in respect of some of the charges levelled against him or that he considers that in the circumstances he would not be able to pass an appropriate sentence in case on the charges, triable by him are established, he can convict the accused. 5. However, I agree with the learned Sessions Judge that according to section 343 of the Criminal Procedure Code although, the Magistrate has proceeded with the trial he still can commit the accused for trial, but he can do so only after the provisions contained in Chapter XVIII of the Code, which includes section 207-A Criminal Procedure Code are fully complied with. 6. It appears that in this case before making the commitment order, the Magistrate has not fully complied with the provisions of section 207-A Criminal procedure Code. 6. It appears that in this case before making the commitment order, the Magistrate has not fully complied with the provisions of section 207-A Criminal procedure Code. According to sub-section (6) of section 207-A Criminal Procedure Code after prosecution has adduced evidence and the Magistrate has considered all the documents referred to in section 173 of the Criminal Procedure Code and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and giving the prosecution and the accused an opportunity of being heard, the Magistrate should commit the accused to stand his trial before the Sessions Judge unless he either discharges him or comes to the conclusion that he should be tried by himself. This shows that before an accused can be committed he is to be given an opportunity to be heard and to urge that the case is not fit to be committed to court of Sessions. He may substantiate his submission by showing that there is no evidence in support of the charges that are exclusively triable by court of sessions and that he deserves to be discharged or that the case is one in which the Magistrate should not commit him but should himself proceed with the trial. This necessarily implies that before an order committing the accused is made he must have notice of the fact that the Magistrate intends to commit him. In this case, as pointed out by the learned Sessions Judge, the accused never had any notice that the Magistrate intended to commit him to the court of Sessions. 7. Learned counsel appearing for the State urged that in this case the trial of the applicants proceeded right upto the stage of argument and the defence had been given full opportunity to adduce all the evidence and place its full case before the court and to show that he did not commit any offence. In the circumstances full opportunity of being heard as contemplated by section 207-A (6) Criminal Procedure Code had been given to the applicants. I am unable to accept this submission. Arguments on merits of the case cannot take the place of an opportunity to show that in the circumstances of this case the accused should be tried by the Magistrate himself and that he should not be committed to court of Sessions. I am unable to accept this submission. Arguments on merits of the case cannot take the place of an opportunity to show that in the circumstances of this case the accused should be tried by the Magistrate himself and that he should not be committed to court of Sessions. In this case, the applicants could have done so by showing to the Magistrate that there was absolutely no material on the record to make out a case for an offence under section 307 Indian Penal Code and for the remaining offence if made out, he would, in the circumstances of the case, be able to adequately punish the applicants. Thus the procedure prescribed in section 207-A (6) has not been followed in this case. 8. Section 207-A(10) requires that before committing the accused the Magistrate committing the accused the Magistrate has to ask him to give orally or in writing, a list of the persons, if any, whom he wishes to be summoned and to give evidence in the case. It is evident from the record that in this case before making the commitment the Magistrate did not ask the accused to give a list of witnesses whom he would like to be witnesses whom he would like to be summoned for giving evidence at the trial. Learned counsel for the State urged that since in this case the accused produced all his defence evidence during the trial before the Magistrate, it means that he produced all the evidence that he wanted to produce and the list of witnesses was already there. I am unable to accept this submission. In my opinion the fact that during the trial before the Magistrate the applicants examined some witnesses in their defence, cannot be equated with their giving a list of witnesses whom they would like to examine at the trial before the Sessions Judge. I could not discover any provision according to which without obtaining a list os witnesses from the applicants, the defence witnesses already examined before committing the applicants, have to be summoned for giving evidence during the trial before the Court of Sessions. I could not discover any provision according to which without obtaining a list os witnesses from the applicants, the defence witnesses already examined before committing the applicants, have to be summoned for giving evidence during the trial before the Court of Sessions. It is also possible that if the applicants had been asked to give a list of witnesses as required by section 207-A (10) they might have given a list in which names of some of the witnesses who had been examined before the Magistrate might have been dropped and that of some other added. Learned counsel for the State urged that in any case it is always open to the applicant to produce additional witnesses in the Court of Sessions. Accordingly non compliance with the provisions of section 207-A(10) if any, has not prejudiced them. I am unable to accept this submission. The accused cannot get such witnesses whose names are not intentioned in the list given by them under Section 207-A(10) as of right. It may be that during the trial he may be able to produce such witnesses with the permission of the Sessions Judge or the Magistrate but the fact remains that he losses the right to get them summoned. 9. Again, section 207-A(10) required that before committing the accused, the Magistrate must briefly record the reasons for such commitment. In this case, it appears that after rejecting the earlier application to commit the accused, the Magistrate made the impugned order as he was of opinion that an offence under section 307 Indian Penal Code was made out and if such an offence was not actually made out he might not have made it. Observation of the Magistrate that he would not be in a position to punish the accused adequately, was perhaps made in the sense that he was not in a position to punish the accused for an offence under section 307 Indian Penal Code. If this be so, the learned Magistrate should have briefly indicated as to why he considered that prima facie an offence under section 307 Indian Penal Code instead of that under section 326 Indian Penal Code has been made out against the applicants, specially when on an earlier occasion he had rejected an application to commit the applicants. If this be so, the learned Magistrate should have briefly indicated as to why he considered that prima facie an offence under section 307 Indian Penal Code instead of that under section 326 Indian Penal Code has been made out against the applicants, specially when on an earlier occasion he had rejected an application to commit the applicants. At this stage I would like to clarify that while holding that the provisions of section 207-A Criminal Procedure Code have not been complied with in respect of the matters mentioned above, I have not gone into the question whether there is some other non compliance of that provision or that of any other provision contained in Chapter XVIII of the Criminal Procedure Code as well. Suffice it to say that commitment made without following the provisions of section 207-A Criminal Procedure Code cannot be sustained. 10. I accordingly accept this reference and set aside the order dated August 19,1971. The case will go back to the learned Magistrate concerned who will proceed further with the matter in accordance with law and if necessary pass a fresh commitment order after following the procedure prescribed under the law.