Prayag Mahto v. State of Bihar — 1978 DIGILAW 183 (PAT)

JUDGMENT Shambhu Prasad Singh, J. This application under Section 482 of the Code of Criminal Procedure has been made by the accused persons for setting aside an order committing a criminal case to the court of session mainly on the ground that its counter-case had already been committed to the court of session. The counter-case was a case instituted on a first information report for offences under Sections 147, 148, 302, 307 and 324 of the Indian Penal Code. The offences under Sections 302 and 307 of the Indian Penal Code being exclusively triable by the court of session, after receipt of the charge-sheet, the Magistrate had no option but to commit the case to the court of session under Section 209 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). The first information report was lodged on 26th of August, 1973. One of the accused in that case Dhrub Narain Rai filed a petition of complaint on 27th of August, 1973, making allegations against the petitioners for offences under Sections 147, 148, 323 and 379 of the Indian Penal Code. None of these offences is an offence triable by a court of session under the first schedule to the Code rather they are triable by Courts of Magistrates. This criminal miscellaneous in the first instance came up for hearing before a learned single Judge of this Court, who by his order dated 31 st of March, 1978, referred it to a Division Bench for hearing. 2. Under the Code a case is to be committed to the court of session under Section 209 thereof which runs as follows :- "209. 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; (b) subject to the provisions or this Code relating to bail, remand the accused to custody during and until the conclusion of the trial; (c) send to that Court the record of the case, and the documents and articles. if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session." Under the Code, no evidence is to be taken in a commitment proceeding. if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session." Under the Code, no evidence is to be taken in a commitment proceeding. In a case instituted on a police report, the commitment is to be made on the basis of the charge-sheet and In a case instituted otherwise, the commitment is to be made on the basis of the order taking cognizance after evidence is recorded of the prosecution witnesses without any cross examination on behalf of the accused in an inquiry under Section 202 of the Code Section 207 A of the Code of Criminal Procedure, 1898 (herein after referred to as the old Code) provided for procedure to be adopted in commitment proceedings, instituted on police report. Section 208 to 213 of the old Code provided for procedure to be followed in a commitment inquiry in cases instituted otherwise than on a police report and in committing the accused to the court of session, Section 207 of the old Code read 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 Section 207 A; and, (b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter." The Code does not re-enact any provision similar to Section 207 of the old Code Section 207 of the Code provides for supply to the accused of copy of police report and other documents. There is no provision at all in the new Code for commitment to the court of session similar to that part of Section 207 of the old Code, which stated "or in the opinion of the Magistrate ought to be tried by such court", except in section 323 with which I shall deal with hereafter. These words are not there in Section 209 of the Code. It has been contended by Mrs. Renuka Sharma, learned Counsel appearing for the petitioners, that in the circumstances, the Code does not contemplate commitment of such cases to the court of session which are not exclusively triable by a court of session. 3. These words are not there in Section 209 of the Code. It has been contended by Mrs. Renuka Sharma, learned Counsel appearing for the petitioners, that in the circumstances, the Code does not contemplate commitment of such cases to the court of session which are not exclusively triable by a court of session. 3. Section 347 of the old Code provided- “(1) If, in any inquiry before a Magistrate or in any trial before a Magistrate before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the court of session, or High Court and if he is empowered to commit for trial, he shall commit the accused under the provisions herein before contained; (2) If such Magistrate is not empowered to commit for trial, he shall proceed under Section 346." Section 323 of the new Cede re-enacts Section 347 (1) of the old Code and reads as follows :- “If, in any Inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained:" It was submitted by Mr. Balbhadra Prasad Singh, learned Counsel appearing for the complainant opposite party No, 2 as well as learned Counsel appearing for the State of Bihar, opposite party No. 1, that the commitment in the case before us was one under Section 323 of the Code and was not illegal. 4. The difficulty arises because Section 323 of the Code or Section 347 (1) of the old Code does not or did not stop after the words "shall commit it to that court". Both the sections contained the expression, "under the provisions hereinbefore contained." The provisions for commitment as contained in the old Code before Section 347 of that Code were in Section 207 which also provided for commitment to the court of session or High Court in such cases which were not exclusively triable by those courts but in the opinion of the Magistrate ought to be tried by such courts. The provisions for commitment as contained in the Code before Section 323 are in Section 209 thereof which, as already stated earlier, do not contain provisions similar to section 207 of the old Code. Thus, the question arises, whether a Magistrate can commit to the court of session a case in which none of the offences is exclusively triable by the court of session. It may be necessary to refer to some other provisions of the Code, which further complicate the matter. Section 266 of the Code provides that subject to other provisions of the Code, any offence under the Indian Penal Code may be tried by the court of session. Thus, this Section makes it clear that the court of session has got jurisdiction to try any offence under the Indian Penal Code, but Section 226 which is the second Section of Chapter XVIII of the Code with the heading: "Trial before a Court of Session", lays down that when the accused appears or is brought before the court in pursuance of a commitment of the case under Section 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. There is no other Chapter dealing with the procedure to be followed In a trial before the court of session and prima facie section 226 contemplates that an accused can be tried before a court of session only if he is brought before that court only in pursuance of a commitment of the case under Section 209 of the Code. 5. Section 228, which is also In Chapter XVIII of the Code, reads as follows:- "228. (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, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub section (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." On the basis of the language of sub-section (1) (a) of this Section it may be contended that if on consideration of the record of the case the Presiding Judge of the Court of Session is of opinion that there is ground presuming that the accused has committed an offence which Is not exclusively triable by the court of session be may frame a charge against the accused and by order transfer the case for trial to the Chief Judicial Magistrate or try himself for, the word used is "may" and not "shall". But such a contention becomes untenable in view of the language of sub-section (2) according to which only where the Judge frames any charge under clause (b) of sub-section (1). i. e. for an offence which is exclusively triable by the Court, 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. In other words, according to sub section (2) of Section 228, if the charge is not framed under clause (b) of sub-section then it is not to be read and explained to the accused and the accused is not to be asked whether he pleads guilty of the offence charged or claims to be tried. This shows that the expression "May" in the subsection (1) (a) of Section 228 of the Code really means "shall" and where the presiding Judge of the Sessions Court is of the opinion that there, ground for presuming that the accused has not committed an offence which is exclusively triable by the court of session, he must transfer the case for trial to the Chief Judicial Magistrate. 6. 6. Ordinarily on an examination of the aforesaid sections I would have no difficulty in accepting the contention of learned Counsel for the petitioners that as none of the offence alleged in the petition of complaint was exclusively triable by the court of session, the order of the Magistrate committing the case to the court of session was illegal but a deeper probe into the matter has presented another difficulty which has to be considered and answered before accepting the contention of learned Counsel for the petitioners or the opposite party. Under the Code a Magistrate namely, the Chief Judicial Magistrate bas been empowered to pass sentence up to seven years. Now, there are many offences in the Indian Penal Code which under the First Schedule to the Code have been shown as triable by a court of Magistrate though those offences provided for even sentences of imprisonment for more than seven years. They are offences under Sections 326, 327, 363A, 377, 382, 336, 388, 389, 392, 394, 409, 454, 445, 457, 458, 467, 474, 475, 477, 493 and 495 of the Indian Penal Code. (I am not sure whether the list is exhaustive). If the contention of learned Counsel for the petitioner is accepted, then the result will be that for the aforesaid offences ordinarily in no case a sentence for more than seven years can be passed. In other words, the procedural law contained under the Code will have the effect of over riding the substantive law under the Indian Penal Code. Learned counsel appearing for the parties could not suggest to us any easy solution of this problem. Even section 325 of the Code, which deals with the procedure when a Magistrate finds that he cannot pass sentence sufficiently severe provides for sending the case to the Chief Judicial Magistrate, only. There is no provision in the' Code for sending such cases to the court of session or High Court for passing of adequate sentence. Even section 325 of the Code, which deals with the procedure when a Magistrate finds that he cannot pass sentence sufficiently severe provides for sending the case to the Chief Judicial Magistrate, only. There is no provision in the' Code for sending such cases to the court of session or High Court for passing of adequate sentence. The only solution of the problem which could occur to me is to be found in section 407 and 408 of the Code for, Section 407 provides that whenever it is made to appear to the High Court that an order under that section is expedient for the ends of justice, the High Court may order that any particular case be transferred from a criminal court subordinate to its authority to any other such criminal court of equal or superior jurisdiction. Section 408 (1) of the Code lays down that whenever it is m1de to appear to the sessions Judge that an order under this sub section is expedient for the ends of justice he may order that any particular case be transferred from one criminal court to another criminal court in his session division. Therefore, in cases where it appears that sentence for more than seven year may have to be passed for offences under any of the sections of the Indian Penal Code referred to earlier which under the First Schedule to the Code the triable by a court of Magistrate the cases may be transferred to court of session by the High Court or the Sessions Judge and thus there may not be a failure of justice on that ground. 7. A number of decisions were cited before us including those which have been referred to in the impugned order in support of the contention that even cases where offences are not exclusively triable by the court of session may be committed to the court of session. All these cases, except one were cases under the old Code. The case of this Court in Gouri Shankar Prasad Singh and others Vrs. The State of Bihar and others is also a case under the old Code. All these cases, except one were cases under the old Code. The case of this Court in Gouri Shankar Prasad Singh and others Vrs. The State of Bihar and others is also a case under the old Code. The complaint in the present case was also filed before the Code (i. e., the Code of Criminal Procedure, 1973,) came into force, but in view of the provisions of Section 484 so far commitment proceedings that is enquiries under Chapter XVIII of the old Code are concerned, if they were pending on l.4.1974, when the Code came into force, they are to be dealt with and disposed of in accordance with the provisions of the Code. Those cases, therefore, are not of arty assistance, in deciding the matter in controversy. 8. The only case which was brought to our notice relevant to the question under controversy and decided under the new Code is that of V. Veera Raghavaloo and others Vrs. The State2 a decision of a learned Single Judge of the Andhra Pradesh High Court. In that case commitment to the court of session of' a case in which the accused were charged only with offences triable by a Magistrate was upheld by the High Court view of the provisions of Section 323 of the Code. In support of his view the learned Single Judge relied on some earlier decisions of that Court construing the provisions of Section 347 of the Code. With in due respects to the learned Judge, I find that he failed to notice that the words "or in the opinion of the Magistrate ought to be tried by such court", which were in Section 207 of the old Code are no longer there in section 209 of the Code. The lawyers of either party failed to bring this to his notice. That decision of the learned Single Judge of Andhra Pradesh High Court cannot be treated as an authoritative decision on the matter in controversy for it does not appear to have considered all the aspects of the matter. 9. After having given my most anxious consideration to the matter in controversy which is not free from difficulty am of the opinion that where none of the offences is exclusively triable by the court of session the case cannot be committed to the court of session by a Magistrate under Section 323 of the Code. 10. 9. After having given my most anxious consideration to the matter in controversy which is not free from difficulty am of the opinion that where none of the offences is exclusively triable by the court of session the case cannot be committed to the court of session by a Magistrate under Section 323 of the Code. 10. Apart from the question of law discussed in the preceding paragraphs. personally speak1ing, I have not been able to appreciate the principle on the basis of which cases have been committed to the court of session on the ground that their counter case had already been committed to the court of session except that if the two cases are tried by the same Judge, there remains no chance of conflicting judgments in the case and the counter case, otherwise, if a simple case, like the present one triable by a Magistrate is committed to the court of session on the ground that its counter case has already been committed to the court of session, that causes harassment to the accused as he has to incur more expenses in facing trial before the court of session. It also results in wastage of public time and money for, a case which could have been disposed of by a Magistrate in less time and with less expenses both in the shape of payment as salary to the Magistrate trying the case and fee to the prosecuting lawyer has to be tried by a court of session resulting in taking of more time and incurring of more expenditure. Technically speaking, the evidence of one case cannot be used in the other one even if they are counter cases, but, if the same Judge tries both the cases sub-consciously he is prejudiced in coming to the conclusion in one case by the evidence in the other case pending before him. To avoid conflict of judgments in counter cases what is needed is amendment of law in the Evidence Act, making the judgment in one counter case relevant in the other, so that the findings recorded in one may be taken into consideration at the trial or appellate stage of the other case, as the case may be. 11. To avoid conflict of judgments in counter cases what is needed is amendment of law in the Evidence Act, making the judgment in one counter case relevant in the other, so that the findings recorded in one may be taken into consideration at the trial or appellate stage of the other case, as the case may be. 11. In the result, I would allow the application, set aside the order of the court below committing the case to the court of session and remand the case to the Magistrate for its disposal in accordance with the procedure laid down for such cases under the Code. B. S. Sinha, J. I agree. Application allowed.