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1977 DIGILAW 117 (KER)

STATE OF KERALA v. VIJAYAN

1977-06-03

P.JANAKI AMMA

body1977
Judgment :- 1. As per the order in P.E. 4 of 1975, the Judicial Magistrate of the Second Class, Haripad, committed the five accused persons in this case for trial of offences punishable under S.143. 147, 148, 149, 324 and 307 of the Indian Penal Code. The Additional Sessions Judge, Mavelikara before whom the case came up for trial perused the records in the case, heard the State and the accused and held as per the order dated 23rd June, 1975 that only offences punishable under S.143,147,148,149 and 324 IPC. appeared to have been committed by the accused. Accordingly charges under the above sections were framed against the accused. Since the offences disclosed were not exclusively triable by the Court of Session, the case was transferred to the Chief Judicial Magistrate, Alleppey, under S.228 of the Code of Criminal Procedure for trial and disposal according to law. The Chief Judicial Magistrate registered the case as C.C. 222 of 1975. After the accused appeared, pw.1 was examined. Basing on his evidence and Ext. P1, the first information statement, the Chief Judicial Magistrate came to the conclusion that an offence under S.307 IPC was also disclosed. The court, therefore, again committed the accused for trial to the Additional Sessions Judge, Mavelikara, for offences including one under S.307 IPC. While it was pending trial, the High Court ordered the transfer of the case to the Sessions Judge, Alleppey. The learned Sessions Judge after recording evidence held that there was already a discharge of the accused of the offence under S.307 IPC. by the Additional Sessions Judge, Mavelikara on 23-6-1975 and also that the accused were not guilty of the remaining offences charged against them. An order of acquittal was, therefore, passed in favour of the accused. When the copy of the judgment was received in this court for the purpose of calendar review, the learned judge who bad occasion to peruse it observed that the position of law discussed by the trial court deserved to be examined. Notice was, therefore, issued to show cause why the order of acquittal on all the charges including the one under S.307 IPC. should not be set aside and the case dealt with in accordance with law. The accused who appeared through counsel maintained that there are no reasons for setting aside the order of acquittal. 2. Notice was, therefore, issued to show cause why the order of acquittal on all the charges including the one under S.307 IPC. should not be set aside and the case dealt with in accordance with law. The accused who appeared through counsel maintained that there are no reasons for setting aside the order of acquittal. 2. The concerned provisions of law have to be examined to decide the regularity and correctness of the order of acquittal. S.193 of the code of Criminal Procedure deals with cognizance of offences by Courts of Sessions. It reads: "Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." S. 209 deals with commitment of cases to the Court of Session and Chapter XVIII deals with trial before a Court of Session. Under S.226, when the accused appears or is brought before the Court in pursuance of a commitment of the case under S.209, the Prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. S.227 states that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge me accused and record his reasons for so doing. S.228 reads as follows. "228. Framing of charge (1) If, after such consideration and hearing as aforesaid, the judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the Court, be shall frame in writing a charge against the accused. (2) Where the judge frames any charge under clause (b) of sub-s. (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." 3. Evidently, the learned Additional Sessions Judge followed the procedure prescribed in S.228, when that Court framed a charge excluding S.307 IPC. The exclusion of S.307 IPC. from the charge implied that the court was not satisfied, prima facie, that an offence punishable thereunder had been committed by the accused. The omission to mention S.307 IPC. in the charge, in other words, amounted to an order of discharge of the accused in respect of the said offence. The learned Chief Judicial Magistrate committed a mistake in holding that the accused should be tried for an offence under S.307 IPC. as well. 4. S.228(1) (a) enjoins that when a Sessions Judge transfers a case to the Chief Judicial Magistrate for trial, the latter should try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report The Chief Judicial Magistrate had no authority or jurisdiction to sit in judgment on the correctness of the procedure followed by the Sessions Judge and pass a fresh order of commitment. The commitment of the case by the Chief Judicial Magistrate was, therefore, illegal and had only to be ignored as a nullity. 5. This raises the question whether the Sessions Judge was competent to try a case which the Additional Sessions Judge transferred under S.228(1)(a) for trial to the Chief Judicial Magistrate. It is true that under S.193, the Sessions Judge is to take cognizance of an offence only on commitment by a Magistrate. But in this case no question of taking cognizance arises for consideration in view of the order of commitment already made by the Judicial Magistrate, Second Class, Haripad. The language of S.228(1)(a) makes it clear that it is only an enabling provision and does not take away the power of the Sessions Court to try the case. In other words, there was no lack of jurisdiction on the part of the Sessions Judge to try the case himself. The language of S.228(1)(a) makes it clear that it is only an enabling provision and does not take away the power of the Sessions Court to try the case. In other words, there was no lack of jurisdiction on the part of the Sessions Judge to try the case himself. The trial by the Sessions Judge was following an order of this Court transferring the case from the Chief Judicial Magistrate to the Sessions Judge, Alleppey under S.407(c)(ii) of the Code of Criminal Procedure. Reference may be made here to the decision of the Supreme Court in P. C. Gulati v. Lajya Ramkapur (AIR 1966 SC 595), where a case pending before a Sub Divisional Magistrate was transferred by the Punjab High Court to the Additional Sessions Judge, New Delhi. The questions that were considered were whether the Additional Sessions Judge had jurisdiction to try the case without an order of commitment by a competent Magistrate under S.193(1) of the Criminal Procedure Code and whether the High Court could transfer a case pending in a Court of a Magistrate to the Court of the Additional Sessions Judge. The Supreme Court by a majority held that in the case before it, there was no occasion for the Court of Session to take cognizance of the offence in the sense that it had to consider whether proceedings should be initiated in connection with the offence, as proceedings had already been initiated and had been simply transferred to it. It was also held that the High Court was competent under S.526(1)(ii) of the Code of Criminal Procedure, 1898 to transfer a case from the Court of a Magistrate to the Court of the Sessions Judge. The trial of the offences by the Court of Session on the case being transferred to it by the High Court is, therefore, not open to challenge. 6. There is no case that the evidence adduced in the case is sufficient for a conviction of the accused or that the order of acquittal is unsustainable on the evidence adduced. In fact the State has not preferred an appeal challenging the order of acquittal. 6. There is no case that the evidence adduced in the case is sufficient for a conviction of the accused or that the order of acquittal is unsustainable on the evidence adduced. In fact the State has not preferred an appeal challenging the order of acquittal. Thus on an examination of the records,1 concur, with the view expressed by the Sessions Judge, Alleppey that there was a discharge of the accused by the Additional Sessions Judge, Mavelikara, as per the order dated 23rd June, 1975 and that the Chief Judicial Magistrate's order committing the accused for trial of the said offence is unsustainable. I also hold that the order of acquittal passed by the Sessions Judge, Alleppey, does not require interference. The Criminal revision case is disposed of as above. Allowed.