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1978 DIGILAW 202 (CAL)

State v. Beni Israil

1978-03-17

P.C.BOROOAH, S.C.MAJUMDAR

body1978
Judgment S.C. Mazumdar, J. This matter arises out of the reference made by Sri P.K. Acharyya, Sessions Judge, Birbhum. It. appears that a sessions case No. 154/1975 was allotted to the 2nd Addl. Sessions Judge of Birbhm u/s 504/307 I.P.C. On perusal of the case diary the Ld. Addl. Sessions Judge was satisfied that no attempt was made by the accused person with the intention of causing death and he held that the ingredients required for framing of a charge u/s. 307 I.P.C., was wanting in the case and there was prima facie evidence for framing charge u/s. 504, 506, 324 and 511 I.P.C. But the offences under those sections are not exclusively triable by the Court of Sessions. Accordingly the Ld. 2nd Addl. Sessions Judge by his order No. 10 dated 11.8.76 passed in the said sessions Case No. 154/1975, transferred the case to the Court of the Ld. Chief Judicial Magistrate, Birbhum for framing appropriate charge and for trial. The Ld. Chief Judicial Magistrate in his turn by the order dated 13.8.76 transferred the case to the file of the Sub-divisional Judicial Magistrate, Birbhum for trial. The Ld. S.D.J.M., Birbhum by the order dated 20.9.76, sent the records of the G.R. case to the Ld. Sessions Judge. Birbhum for withdrawing the case from his file as according to him u/s 228(1) of the Cr. P.C., the case is to be tried by the Chief Judicial Magistrate. The Sessions Judge, Birbhum has made a reference to this Court by his letter dated 26.10.76. He has expressed his opinion that the case should be tried by the Chief Judicial Magistrate himself. 2. We have considered the legal position and we hold that in this particular instance the sending back of the case to the C.J.M., by the Ld. Sessions Judge was illegal and without jurisdiction. 3. The referring back of a case to the Chief Judicial Magistrate by the Sessions Judge is a new and special provision of the New Code and unless the requisite formalities prescribed in S. 228 Cr. P.C. are complied with and the condition precedent to the exercise of the power under the section is fulfilled, the act of sending back as given in the section can hardly be permitted to be done. P.C. are complied with and the condition precedent to the exercise of the power under the section is fulfilled, the act of sending back as given in the section can hardly be permitted to be done. In the case of Nazir Ahmed v. King Emperor (63 Indian Appeals 372 : 40 CWN 1221) it is laid down that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. 4. Now let us see what S. 228 Cr. P.C. lays down :- "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 Sessions, 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-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." 5. From a perusal of the S. 228(1), Cr. P.C. it will be clear that the transfer to the Chief Judicial Magistrate can be made only after the framing of the charge by the Sessions Judge, because without the framing of the charge the thing does not crystallise. If after framing of the charge the Ld. Sessions Judge finds that the said charge is not triable exclusively by the Court of Sessions, only in that case, he can transfer the case for trial by the Chief Judicial Magistrate. Therefore, framing of the charge is a condition precedent to the transfer and without framing of charge the transfer is totally without jurisdiction and illegal. 6. Hence here the orders of the Ld. 2nd Addl. Sessions Judge, Birbhum dated 11.8.76 is without jurisdiction and must be struck down. 7. Therefore, framing of the charge is a condition precedent to the transfer and without framing of charge the transfer is totally without jurisdiction and illegal. 6. Hence here the orders of the Ld. 2nd Addl. Sessions Judge, Birbhum dated 11.8.76 is without jurisdiction and must be struck down. 7. In this connection it should, be noted that had the transfer been legally made after the framing of the charge, in that case the Ld. Chief Judicial Magistrate on transfer has to try the case himself, if in the said station there is no other Addl. Chief Judicial Magistrate. But he cannot delegate the trial to the S.D.J.M., because S. 228(1) does not authorise such a delegation to an officer below the rank of the C.J.M. 8. Under these circumstances, the reference is answered in the following way:- (1) The transfer by the Sessions Judge of a Sessions case can be made to the Chief Judicial Magistrate only after the framing of the charge, if the offence in the charge framed is not exclusively triable by the Court of Sessions. Transfer without framing of a charge is without jurisdiction. (2) After the transfer, the Chief Judicial Magistrate should try the case himself, as there is no legal authority for delegation to an officer below the rank of the Chief Judicial Magistrate. Order that the reference case be disposed of in the way specified above. P.C. Borooah, J : I agree. Reference answered as above.