Vivekananda Parui v. Prabhas Chandra Parui — 1979 DIGILAW 121 (CAL)

Judgment : Mukherji, J. :- This Rule arises on an application under Section 482 of the Code of Criminal Procedure, 1973 and is directed against the order dated 27.7.78 passed by Sri N.K. Sen, Sessions Judge, 24-Parganas, in Sessions Case No 34 of June, 1978. 2. The facts out of which the present application arises may, briefly, be stated as follows : 3. On 18.5.77 at 5.55 hours the petitioner lodged an information with the police against the accused opposite parties alleging that on that day at about 1 P.M. the informant and his brother Amat, nephew Sanjit and brother-in-law Ashim were engaged in the act of cultivation on their land when the accused persons variously armed attacked them and assaulted them, as a result of which, they sustained severe bleeding injuries on various parts of their bodies. On receipt of the said information the police drew up a formal E.I.R. and started investigation. This was registered as Bishnupur P.S. Case No. 18 dated 18.5.77. On 16.7.77 in course of the investigation, the investigating officer made a prayer before the learned Magistrate for adding Section 337 of the Indian Penal Code and that prayer was allowed by the learned Magistrate. On 29.7.77 the police on completion of the investigation, submitted a chargesheet against the accused persons under Sections 323/324/325 of the Indian Penal Code. In 1mbmitting the chargesheet the officer-in-charge omitted to mention Section 307 of the Indian Penal Code in the chargesheet. Over the selfsame incident, another case, being Bishnupur P.S. Case No. 17 dated 18.5.77 was started at the instance of the accused opposite parties against the petitioner and others alleging commission of offences under Section 147/148/307/149 of the Indian Penal Code and the police after investigation submitted a chargesheet against the petitioner and others in connection with the said case. The learned Magistrate committed the petitioner and others to the court of Sessions. When the present case, being Bishnupur P.S. Case No. 18 came up for hearing before the learned Judicial Magistrate, Alipore, a prayer was made on behalf of the learned Assistant Public Prosecutor that the present case should also be committed to the court of Sessions, because the allegations clearly make out an offence under Sec. 307 of the Indian Penal Code although the police omitted to include the said Section in the chargesheet. The learned Magistrate, on consideration of the materials collected by the police in course of investigation, came to the finding that from the evidence of the witnesses examined by the police it would appear that the accused persons while committing the offence used deadly weapons, such as, hasua, iron rod, lathis fixed with metallic fittings and that as some of the injuries sustained were on head also, it should be held that the accused intended to cause such injuries as would cause death. The learned Magistrate thereafter by an order dated 15.6.78 committed the case arising out of Bishnupur P.S. Case No. 18 dated 18.5.77. to the Court of Sessions. The aforesaid order of commitment was challenged by the accused-opposite parties in Criminal Revision Case No. 164 of 1978 before the learned Sessions Judge. The learned Session Judge, by his order dated 27.7.78 held that there is no dispute over the proposition that when there are two cases arising out of the same incident it is not desirable that they should be tried by different courts simultaneously and that what is desirable is that both the cases should be tried by the same Court. The learned Judge, however, felt difficulty in the present case as the present case was not triable exclusively by the Court of Sessions. The learned Judge refused to take cognizance and remitted the cases back before the learned Magistrate for trial. Being aggrieved by the aforesaid order, the petitioner has came up to this Court. 4. Mr. Dilip Kr. Dutta, learned Advocate appearing on behalf of the petitioner, contends that the order of the learned Sessions Judge remanding the case to the learned Magistrate is illegal when the Judge himself found that when there are two cases arising out of the same incident, it is not desirable that they should be tried by different courts and that what is desirable is that both the eases should be tried by the same Court. The learned Judge felt defficulty in the present case as the present case was not triable exclusively by the Court of Sessions. It is submitted by Mr. Dutta that the materials on record clearly establish that a prima facie case under Section 307 of the Indian Penal Code was made out against the opposite parties, although in the chargesheet the said Section 307 of the Indian Penal Code was not mentioned. It is submitted by Mr. Dutta that the materials on record clearly establish that a prima facie case under Section 307 of the Indian Penal Code was made out against the opposite parties, although in the chargesheet the said Section 307 of the Indian Penal Code was not mentioned. The learned Judge ought to have noted that the learned Magistrate on perusal of the chargesheet and other papers submitted along with the police report found that there were allegations against the accused which make out a case under See. 307 of the Indian Penal Code which is exclusively triable by the Court of Sessions. Mr. Dutta, in this connection, contends that it can never be said that the Magistrate at the time of committing the case to the Court of Sessions is only required to look to the chargesheet and nothing else. According to Mr. Dutta the learned Magistrate is quite competent to look into other papers which are submitted by the police along with the chargesheet. Mr. Dutta contends that the words "and it appears to the Magistrate" occuring in Section 209 of the Code of Criminal Procedure should not be interpreted in a narrow sense that the Magistrate for the purpose of commitment will not look into any paper besides the chargesheet. According to Mr. Dutta, the words referred to above mean that on considerations of all the papers which are before the learned Magistrate, if the learned Magistrate is satisfied that it is a case exclusively triable by the Court of Sessions, then the Magistrate is bound to commit the case to the Court of Sessions. Mr. Dutta also submits that even assuming that the present case is not exclusively triable by the court of Sessions, when the counter case has already been committed to the Court of Sessions, it is only desirable that both the cases should be tried by the Court of Sessions. Mr. Dutta in support of his contention seeks reliance from the decision in (1) Girijananda Bhattacharyya and another, Petitioners v. The State of Assam and others, 1978 Cr. L.J. 259. In this case, it was held "where one case was committed to the Court of Sessions, it was expedient for the ends of justice to transfer the other case arising out of the same incident to the Court of Sessions, although it was not exclusively triable by that Court.". L.J. 259. In this case, it was held "where one case was committed to the Court of Sessions, it was expedient for the ends of justice to transfer the other case arising out of the same incident to the Court of Sessions, although it was not exclusively triable by that Court.". In coming to such conclusion, His Lordship relied on two earlier Division Bench judgments of the same Court. 5. Mr. Jyotish Chandra Bose, learned Advocate appearing on behalf of the opposite parties, contends that the powers of the Magistrate in the matter of commitment to the Court of Sessions have been limited to a great extent under the provisions of the new Code. Under the new Code, the learned Magistrate has no option to exercise his discretion. The Magistrate is to be guided only by the chargesheet, submitted by the police. If there is no mention of an offence in the chargesheet, the Magistrate cannot look into other papers besides the chargesheet and from an opinion that a prima facie case has been made out in respect of other offences which are exclusively triable by the Court of Sessions and then to commit the case to the Court of Sessions. Mr. Bose refers to various Sections of the Code of Criminal Procedure, 1973. He first refers to Section 173. Sec. 173 Sub-Clause (2) which provides that after completion of investigation the officer-in-charge of the police station shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have been committed and, if so, by whom: whether the accused has been arrested; whether he has been released on his bond and, if so, whether with or without sureties, whether he has been forwarded in custody under Section 170. So, according to Mr. Bose, this is the report which the officer-in-charge of a police station shall forward to the Magistrate as soon as the investigation is. completed and upon this report, the learned Magistrate will take cognizance and if it appears that the offence mentioned in the report is exclusively triable by the Court of Sessions he will commit the case to that Court. completed and upon this report, the learned Magistrate will take cognizance and if it appears that the offence mentioned in the report is exclusively triable by the Court of Sessions he will commit the case to that Court. But, sub-section (5) of Section 173 provides that when such report in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; the statements recorded under Section 161 of all the persons whom the prosecution propeses to examine as its witnesses. Mr. Bose contends that it is true that along with the police report those documents are required to be sent to the learned Magistrate. But, these documents are only sent for the purpose of supplying copies of these documents, because there is nothing in the new Code, according to Mr. Bose which empowers the learned Magistrate to consider the other papers besides the chargesheet for the purpose of committing the case to the Court of Sessions, Mr. Bose also refers to Section 227 which provides that it is only the Sessions Judge who, after consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution, if it is considered by him that there is no sufficient ground for proceeding against the accused, shall discharge the accused and record his reasons for so doing. The powers of the learned committing Magistrate according to Mr. Bose is only to commit the case if an offence mentioned in the chargesheet is exclusively triable by the Court of Sessions. If there is no mention of such offence, the Magistrate cannot find out from other papers whether there are allegations against the accused which make out an offence exclusively triable by the Court of sessions and then to, commit the case to the said court. Mr. Bose next refers to Section 323 of the code. If there is no mention of such offence, the Magistrate cannot find out from other papers whether there are allegations against the accused which make out an offence exclusively triable by the Court of sessions and then to, commit the case to the said court. Mr. Bose next refers to Section 323 of the code. This Section provides that 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 sessions he shall commit it to that Court under the provisions hereinbefore contained. According to Mr. Bose it is only after commencement of inquiry or trial, the Magistrate is within his jurisdiction to opine that the case is triable exclusively by the Court of Session and if that be so, then the Magistrate without further proceeding with the case, will commit the case to the Court of Session. But, according to the provisions of Section 209 the Magistrate for the purpose of commitment must be guided by the facts and the offences mentioned in the chargesheet and nothing else. With regard to the correct interpretation of the words occurring in Section 209, namely, "it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions." Mr. Bose seeks reliance on a Supreme Court decision, reported in (2) (1978) 2 SCC 39 . Sanjay Gandhi v. Union of India and others Mr. Bose refers to the observations of Krishna Tyer, J. to the following effect. "The narrow inspections 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." Mr. Bose submits that His Lordship of the Supreme Court laid down that the Magistrate is only to look into the police report and nothing else. It may be mentioned that His Lordship further observed "Assuming the facts to be correct as stated in the police report, if the offence is plainly one under Section 201, I.P.C. (an offence triable by Sessions Court only) the Magistrate has simply to commit for trial before the Court of Session. It may be mentioned that His Lordship further observed "Assuming the facts to be correct as stated in the police report, if the offence is plainly one under Section 201, I.P.C. (an offence triable by Sessions Court only) the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong Section of the Penal Code is quoted, he may look into that aspect. Even if made-up facts unsupported by any material are reported by the police and a sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227, Cr. P.C. to discharge the accused." We do not think that the Supreme Court has laid down that the police report means only the chargesheet and the learned Magistrate for the purpose of commitment cannot look into other papers submitted along with the police report. Mr. Bose next refers to the decision in (3) 31 Cr. L.J. 461, Krishna Pannadi v. Emperor. In this case, it has been held "it is a generally recognized rule that a case and a counter case should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished thereby precluding the danger of an accused being convicted before his whole case is before the Court, and also preventing there being conflicting judgments upon similar facts, although it infringes the fundamental principle that the Court must not import any facts into a case which are not to be found upon the record of that case. "The important point that has been laid down in this decision is that a case and a counter case should be tried in quick succession by the same Judge. We do not think this decision helps the opposite parties. Mr. Bose next refers to a decision in (4) Hareram Satpathy v. Tikram Agarwala and others, AIR 1978 SC 1568 . In this case, it has been held that where the Magistrate after taking cognizance of the offence and perusal of the record and having been satisfied that there were prima facie grounds for issuing process against certain persons not mentioned in the police reports, issued process against them, the Magistrate could not be said to have exceeded the power vested in him under law. "In coming to such decision their Lordships relied on two other previous decisions in (5) AIR 1967 SC 1167 and (6) AIR 1976 SC 1947 . It was further held that "as the Magistrate is restricted to finding out whether there is a prima facie case or not for proceeding against the accused and cannot enter into a detailed discussion of the merits or demerits of the case and the scope of the revisional jurisdiction is very limited the High Court cannot launch on a detailed and meticulous examination of the case on merits and set aside the order of Magistrate directing issue of process against certain persons. "On going through the decision we are of opinion that this decision, instead of helping the opposite parties rather helps the petitioner. Mr. Bose also refers to a decision in (7) Tunesewar Prasad Singh and another v. State of Bihar, 1978 Cr L.J. 1080. This is a Bench decision of the Patna High Court and it has been held that a proceeding under Section 209 is in the nature of an 'inquiry' within the meaning of Section 2(g) and as such under the provisions of Section 309 (2) read with Section 209, the Magistrate after taking cognizance of the offence and before the committal of the case to the court of sessions, is fully empowered to remand the accused to custody." This decision also, in our opinion, does not come in aid of the contention raised by Mr. Bose. 6. On a consideration of the legal position we are of opinion that Section 209 does not restrict the learned Magistrate to look into other papers submitted along with the police report for the purpose of committing the case to the Court of Sessions. The words "it appears to the Magistrate" mean that the Magistrate is satisfied on the documents on record. We, therefore, are of opinion that the order of commitment passed by the learned Magistrate is quite legal and the learned Sessions Judge was not correct in setting aside the said order. For another reason, the order of the learned Sessions Judge cannot be supported, because it is the consistent view of all the Courts that a case and a counter case should be tried by the same Judge. For another reason, the order of the learned Sessions Judge cannot be supported, because it is the consistent view of all the Courts that a case and a counter case should be tried by the same Judge. Admittedly, the counter case has been committed to the Court of Sessions and that being so, the present case should also be tried by the Sessions Court. 7. In the result, the application succeeds and the Rule is made absolute. The order passed by the learned Sessions Judge is set aside and the order of commitment passed by the learned Magistrate is upheld. Let the records be sent down early. Guha, J. I agree.