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1976 DIGILAW 146 (PAT)

Siraj Mian v. Ganga Ram Mandal

1976-07-20

D.P.SINHA

body1976
Judgment 1. This is an application for quashing that part of the order dated 27.02.1973, passed by Shri A. P. Sinha Munsif-Magistrate, 1st class, Sahebganj, saying in effect that the procedure prescribed under Chapter XVIII of the Code of Criminal Procedure, 1898 (herein- after referred to as the Code) would be followed in the case proceeding against the petitioners on a complaint filed by Ganga Ram Mandal, the opposite party. 2. The allegations in the petition of complaint were substantially these: That on 16-9-1972, the petitioners armed with deadly weapons, looted paddy crop grown by the complainant over 4 bighas of his land and, similarly, they looted the paddy grown by the complainant over an area of 18 bighas on 2-10-1972. The complainant was examined on solemn affirmation in which he reiterated the said allegations and thereafter the Sub-divisional Magistrate took cognizance of an offence under Sec.379, Indian Penal Code, and transferred the case to the Court of the Munsif-Magistrate for disposal. Before the latter Magistrate, certain documents were filed and a prayer for cancellation of bail of the petitioners was also made. While the Magistrate refused to cancel the bail bonds of the petitioners, he proposed to follow the procedure as laid down under Chapter XVIII of the Code. 3. The grievance of the petitioners is that there was no ingredient of an offence under Sec.395 of the Indian Penal Code, for which the procedure under Chapter XVIII of the Code could be followed, and therefore, the Magistrate committed an error in exercise of his jurisdiction in ordering that the procedure prescribed under Chapter XVIII would be followed in this case. 4. By virtue of the proviso to Sec. 484 (2) (a) of the Code, every inquiry under Chapter XVIII which was pending at the commencement of the Criminal Procedure Code, 1973 (hereinafter referred to as the newCode), shall be dealt with and disposed of in accordance with the provisions of the new Code. In the circumstance, it appears that now the Magistrate will be required to deal with the matter under Sec.209 of the new Code. In the circumstance, it appears that now the Magistrate will be required to deal with the matter under Sec.209 of the new Code. It has been argued on behalf of the petitioners that the Magistrate has already made up his mind that the case was a fit one to be tried by the Court of Session, but he has not disclosed any ground, whatsoever, in the impugned order, for having come to that conclusion and that there is absolutely no material for the Magistrate to think that this case is exclusively triable by the Court of Session or that it ought to be tried by the said Court. 5. The contention, prima facie, appears to be well founded. There is no doubt that the Magistrate has jurisdiction to commit a case to the Court of Session even though he may himself be competent to try the case and adequately punish the offender. This is apparent from Sec.207 of the Code which is as follows:- "207. In every inquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall,- (a) in any proceeding instituted on a police report, follow the procedure specified in Sec.207 A; and (b) in any other proceeding, follow the procedure specified in the other provisions of the Chapter." The above view finds support from the words - or, in the opinion of the Magistrate, ought to be tried by such Court. Apart from the said expressed words of . . . . . . . . . the section, in this behalf, a reference may be made to the decision of a Full Bench of the Allahabad High Court in the case of Rex V/s. Matoley, (AIR 1949 All 1) = (50 Cri LJ 59) in which the same view was expressed after considering the provisions of Sec.207 itself and of certain other relevant sections of the Code. In that decision, however, it was made quite plain that, if the Magistrate is of opinion that a case, which is triable by himself ought to be tried by the Court of Session, he must record his reasons for holding that opinion. In that decision, however, it was made quite plain that, if the Magistrate is of opinion that a case, which is triable by himself ought to be tried by the Court of Session, he must record his reasons for holding that opinion. In this particular case, the Magistrate has not recorded any reason for holding the opinion that the case ought to be tried by the Court of Session. In such a case, the Magistrate has to exercise his discretion judicially and unless he records the reasons for forming the opinion, a superior Court to whom the aggrieved party may come up will not be in a position to know whether the Magistrate has exercised his discretion on judicial consideration or arbitrarily or capriciously. It has been pointed out that neither in the petition of complaint nor in the initial deposition of the complainant, any allegation has been made that the petitioners had used force against any person or had threatened any person with the use of force, in the commission of the theft. In fact, the learned Magistrate has himself said so in the impugned order while dealing with the question of cancellation of bail of the petitioners. 6 In the circumstances, this appears to be a fit case in which the order of the Magistrate which is not a speaking order, should be interfered with. Accordingly, the application is allowed and that part of the impugned order by which he proposed to follow the procedure prescribed under Chapter XVIII of the Code, for the purpose of committing the petitioners to the Court of Session, is hereby quashed. The Magistrate will now proceed according to the law in the light of the observations made above.