STATE OF KARNATAKA v. K. BHASKARA — 1979 DIGILAW 112 (KAR)

( 1 ) THE State has preferred this revision petition challenging the correctness of the order dated 27-11-1978 made by the J. M. F. C. , Narasimharajapura in C. C. No. 228/78 whereby he has impliedly discharged the accused of the offence under Sec. 436 I. P. C. and ordered to frame charge for the offence under Sec. 435 IPC. ( 2 ) THE contention of Mr. T. S. Mohammad Ali, the learned High Court government Pleader appearing for the State is that the learned Magistrate has exceeded the powers vested in him under S. 209 Cr. P. C. He argued, instead of committing the case to the Court of Sessions for enquiry and trial, the learned Magistrate has proceeded to make a full dress enquiry in trying to find out whether the offence alleged against the accused is one exclusively triable by the Court of Sessions. Such powers, he argued vested in the Sessions Judge as provided under Sec. 227 of the Code of criminal Procedure and the Magistrate, had no jurisdiction at all to do so, and the order of the Magistrate, therefore, deserved to be set aside. Mr. H. K. Ramachandra, the learned Advocate appearing for the accused, on the other hand, maintained that the Magistrate had powers to find if there was a prima facie case one exclusively triable by the sessions Judge and for that purpose it was competent for him to go through the statements of the witnesses and the other documents submitted with the charge sheet. In support of his contention he also sought to place reliance on the decision of this Court in State of Karnataka v. Sakthi velu, 1978 Cr. L. J. 1238. ( 3 ) BEFORE considering these contentioins on their merits, it is necessary here to state the allegations made against the accused in the charge sheet submitted by the Police. In sum and substance the allegations made against the accused are : that on 1-4-77 at about 8 A. M. at Muthinajsoppa colony in the limits of Narasimharajapura Police Station the accused set fire to the dwelling hut of the complainant with the intention of causing loss and destruction of the property and caused loss worth Rs. In sum and substance the allegations made against the accused are : that on 1-4-77 at about 8 A. M. at Muthinajsoppa colony in the limits of Narasimharajapura Police Station the accused set fire to the dwelling hut of the complainant with the intention of causing loss and destruction of the property and caused loss worth Rs. 300/- and thereby committed the offence under S. 436 I. P. C. Apparently, the charge submitted by the Police was for the offence under Sec. 436 I. P. C. , one exclusively triable by the Court of Sessions and the allegations made in the report against the accused also disclosed the commission of the offence punishable, under Sec. 436 IPC. ( 4 ) SECTION 209 of the Code of Criminal Procedure, 1973 provides that:"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 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'. ( 5 ) IT is thus clear from the provisions of the above section that where in a case instituted on a Police report, the accused is brought before the magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of Session, all that the Magistrate is required to do is to observe the formalities mentioned in the section and remand the accused, of course subject to provisions regarding bail, and commit the case to the court of Session. There is nothing in the section which authorises the Magistrate to consider the statements of witnesses or other documents relied upon by the prosecution in support of the charge of the offence levelled against the accused. Therefore, it appears Sri Mohd. There is nothing in the section which authorises the Magistrate to consider the statements of witnesses or other documents relied upon by the prosecution in support of the charge of the offence levelled against the accused. Therefore, it appears Sri Mohd. Ali is right in maintaining that the learned Magistrate had no jurisdiction to make such an order directing to frame charge of the offence under Sec. 435 I P. C. , impliedly discharging the accused of the offence under S. 436 I. P. C. , levelled against him after considering the statements of the witnessees. A committing Magistrate acting under the provisions of Sec. 209 Cr. P. C. has no powers to discharge the accused in such a case exclusively triable by the court of Session and the Magistrate here has undoubtedly exceeded his powers in doing so. It is no doubt, this Court in the case referred to above and brought to my notice, rendered by his lordship D. B. Lal, J. , which was also referred to and relied upon by the court below has observed:"in the proceedings under S. 209 the Magistrate is not to act in an automatic manner go as to commit every case to the court of Session. He has to see prima facie the evidence brought to his notice. Such evidence will obviously be the allegations made in the first information report, assertions made in the charge-sheet, and also the statements of the witnesses examined during investigation. " ( 6 ) IT is unnecessary now to go into the question whether the said decision lays down the correct law governing the committal proceedings, because in a very recent decision in Sanjay Gandhi v. Union of India, AIR. 1978 SC. 514. while considering the scopr of S. 209 Cr. P. C. , his Lordship V. R. Krishna Iyer, J. , has observed: "the Committing Magistrate has no power to discharge the accusef nor has he power to take oral evidence save where a specific provision like S. 306 enjoins. " proceeding further his Lordship has also observed:"it is not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. " proceeding further his Lordship has also observed:"it is not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in re-moulding S. 207-A (Old Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully, if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report. appears to the Magistrate to show an offence triable solely by the court of Session,. . . . . the Magistrate has simply to commit for trial before the Court of Session. . . . . . . . . . . . . " (Emphasis is mine ). ( 7 ) IN view of this law, as laid down by the Supreme Court, there is no doubt the Magistrate has exceeded his jurisdiction in impliedly dischargirg the accused of the offence under S. 436 I. P. C. and directing to frame charge for the offence under S. 435 IPC. The order, as made by the Magistrate is therefore liable to bp pet aside. The revision is therefore allowed. the order passed by the Magistrate under revision is set aside and the records are remitted back to the Court below with a direction to commit the case to the Court of Session for enquiry and trial. --- *** --- .