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1978 DIGILAW 252 (PAT)

Anandi Prasad Gupta v. State Of Bihar

1978-12-19

SHAMSUL HASAN

body1978
Judgment S. Shamsul Hasan, J. 1. This application is directed against an order dated 22-4-1978 passed by the Sub-divisional Judicial Magistrate, Danapur, by which he has committed Complaint Case No.407-C of 1976 for trial by the Court of Session on the ground that the complaint case is a counter-case to the case already committed for trial to the Court of Session, and as such this case should also be committed to the Court of Session for trial. 2. The petitioners of this case stand charged under sections 379 and 323 of the Indian Penal Code. These charges were framed on 4-1-1977 by shri S. K. Katriar, Judicial Magistrate, Danapur, in a case instituted on the basis of complaint filed by opposite party no.2 on 10-8-1976. It has been stated that on 25-7-1976 while the complainant was going to get medicine for his ear-ache, he was suddenly surrounded by the petitioners, who were armed with lathi and dantas, and they assaulted him there and dragged him to their shop and assaulted him there also and snatched away Rs.25 and a watch. The complainant went to the police station to lodge a first information report along with his father, where he was taken into custody. This complaint was lodged from jail. 3. On 25.7.1975 itself at about 11.45 a. m. petitioner no.2 had lodged a first information report against the complainant and two others with Bihta Police station, alleging commission of offence under sections 307/324/341 and 379 of the indian Penal Code, and on the basis of that first information report, bihta P. S. Case no.16 (7) 76 was instituted against the complainant and others. It was alleged in that first information report that the informant (Petitioner no.2, Ram Chandra Prasad Gupta) at about 11a. m. on 25.7.1976 was sitting in his jewellery shop and while sitting there he learnt that his nephew Raj Kumar was being taken away from his Gaddi by opposite party no.2, Mithilesh Singh, and two others and was being assaulted. He proceeded to the place after closing his shop, where he saw his nephew being assaulted, and when he tried to rescue his nephew, he was also assaulted. Opposite party no.2 ordered to kill his nephew when the informant intervened. Co-accused Suresh singh attempted to assault the informant with bhala on his chest, but the same missed and it hit on his forehead. Opposite party no.2 ordered to kill his nephew when the informant intervened. Co-accused Suresh singh attempted to assault the informant with bhala on his chest, but the same missed and it hit on his forehead. The informant fell down as a result of his injuries and thereafter Akhilesh Singh assaulted him with Bakuli and the complainant-opposite party no.2 removed Rs.745/- and also the keys from the waist of the informant. Charge-sheet was submitted by the police in this case and after cognizance, ths case was committed for trial to the Court of Session. 4. On 17.10.1977, the complainant opposite party No.2 filed an application for committing the complaint case also to the Court of Session on the ground that this is a counter case to the case already committed to the Court of Session, leading to the passing of the impugned order. 5. The short point raised by the-learned counsel appearing for the petitioners is that in view of the provisions of section 209 of the Code of Criminal Procedure, 1973, only cases which are triable exclusively by the Court of Session can be committed, and if the Court proceeds to act under the provisions of section 323 of the new Code, then the power under this section will have to be exercised within the limitation put by section 209. It has been submitted by the learned counsel for the opposite party that the Magistrate was empowered to commit the complaint case to the Court of Session in view of section 323 of the new Code because that section states that such cases can be committed "which ought to be tried by the court of Session". Sec.323 of the new Code runs 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. " Sec.209 of the new Code reads as follows : "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 of 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. " 6. From a reading of the two sections together, it is clear that section 209 of the new Code clearly limits the power of the committing Court to the extent that only such cases which are triable exclusively by the Court of Session can be committed. Since in section 323 of the new Code, the words "under the provisions hereinbefore contained" have been mentioned, there is no doubt that the power under section 323 can only be exercised if it comes within the ambit of section 20) of the Code. The words "that the case is one which pught to be tried by the Court of Session" in section 323, in my view only supplement the words "triable exclusively by the Court of Session" in section 209 and that the words "ought to be tried by the Court of Session" only mean "triable exclusively by the Court of Session". The two phrases are not repugnant to one another and they really convey the same meaning. 7. Learned counsel for the opposite party submitted that under the old code, section 207 had also provided for commitment of cases triable exclusively by a Court of Session, and further provided that or in the opinion of the magistrate, "ought to be tried by such Court". In secion 347 of the old Code also, the words "ought to be tried by the Court of Session" have been stated. It has been submitted that in respect of these provisions, several Courts have held that cases could be committed on the ground of their being counter version of the same occurrence. In secion 347 of the old Code also, the words "ought to be tried by the Court of Session" have been stated. It has been submitted that in respect of these provisions, several Courts have held that cases could be committed on the ground of their being counter version of the same occurrence. In my view, there is no substance in this submission because the words "or, in the opinion of the Magistrate, ought to be tried by such Court" contained in section 207 of the old Code has been deleted from section 209 of the new Code, which has been restricted to cases" triable exclusively by the Court of session". Under the old code, there were several offences that could be tried by both the Courts, but now under the new Code, that has been done away with. Under the old code, it was open to the magistrate to try a case himeslf or commit it for trial to the Court of Session in respect of offences under such sections which could be tried by both Courts. There is no such provision now in the new Code, i may add that the stage for applying section 323 of the new Code is usually after the trial commences and when it appears that the case is one which is triable exclusively by the Court of Session. In this view of the matter, unless the magistrate found that the offence committed by the petitioners was one which was triable exclusively by the Court of Session, he could notcommit them for trial only on the ground that there was a counter case pending before the Court of session. A Bench of this Court in the case of Prayag Mahto and others V/s. The state of Bihar and another (Cr. Misc. No, 2796 of 1976) decided on 19th August, 1978, after an elaborate discussion has held that an accused cannot be tried on the ground of there being counter cases, if none of the offences is triable exclusively by the Court of Session. 8. In the result, the impugned order committing the petitioners for trial to the Court of Session passed on 22.4.1978 is quashed. The application is allowed. This petitioners will now be tried by the Magistrate in accordance with law. Application allowed.