Order This petition under section 482, Criminal Procedure Code is filed by the Public Prosecutor for quashing the order passed by the Judicial First Class Magistrate, Kanigiri, in P.R.C. No. 8 of 1978 on the file of his Court and also the order of the Sessions Judge, Ongole in Crl.R.P. No. 4 of 1979 on the file of his Court confirming the order of the Magistrate. 2. The Station House Officer, Pamur Police Station, filed a charge-sheet against the respondent-accused in the Court of the Judicial First Class Magistrate, Kanigiri under sections 147 , 323 and 307, Indian Penal Code. After taking the case on file as P.R.C. No. 3 of 1978 the Magistrate issued summonses to the respondents-accused for their appearance in the Court. After appearing before the Court and on being furnished with the documents referred to in section 207 , Criminal Procedure Code, the respondents filed an application submitting that the allegations in the First Information Report, the facts contained in the Medical Certificate and the investigation statements of the witnesses cited in the charge-sheet do not disclose an offence under section 307, Indian Penal Code and that the case is not one triable exclusively by the Court of Session. After due notice to the prosecution and hearing arguments on behalf of the prosecution and the respondents, the learned Magistrate accepted the submission of the respondents and accordingly converted the Preliminary Register Case into a Calendar Case for offences triable by him. The prosecution preferred a revision before the Sessions Judge against the order of conversion contending that the facts disclosed an offence punishable under section 307, Indian Penal Code. The learned Sessions Judge reviewed the record and agreed with the finding of the Magistrate to the effect that the material on record did not disclose an offence punishable under section 307 , Indian Penal Code but merely an offence punishable under section 324, Indian Penal Code and accordingly dismissed the revision. 3. The learned Additional Public Prosecutor does not question the merits of the finding of the Magistrate or the Sessions Judge. He assails the legality of the action of the learned. Magistrate in hearing arguments after registering a Preliminary Register Case and converting the Preliminary Register Case into a Calendar Case. 3. The learned Additional Public Prosecutor does not question the merits of the finding of the Magistrate or the Sessions Judge. He assails the legality of the action of the learned. Magistrate in hearing arguments after registering a Preliminary Register Case and converting the Preliminary Register Case into a Calendar Case. His contention is that under the new Code of Criminal Procedure, preliminary enquiry has been dispensed with and so, when a Magistrate takes cognisance of an offence triable exclusively by a Sessions Court, it is not open to him to make any enquiry even in regard to the nature of the offence. According to the learned Additional Public Prosecutor, under the new provision as contained in section 209 , Criminal Procedure Code, the Magistrate has to straight way commit the case to the Court of Session and it would be for the Sessions Judge to examine the merits and discharge or convert the case as provided in sections 227 and 228, Criminal Procedure Code. 4. The learned Counsel for the respondents, Sri B. Srinivasamurthy, contends that the order of the Magistrate is legal and proper and that even under the new Code, the Magistrate has jurisdiction to convert a Preliminary Register Case into a Calendar Case. 5. To appreciate the contentions, it may be necessary to examine the relevant provisions of the new Code of Criminal Procedure and they will be extracted hereunder to the extent necessary. “Section 190 (1): Subject to the provisions of this Chapter, any Magistrate of the first class and any Magistrate of the Second Class specially empowered in this behalf under sub- section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts. “Section 190 (1): Subject to the provisions of this Chapter, any Magistrate of the first class and any Magistrate of the Second Class specially empowered in this behalf under sub- section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts. Section 204 (1): If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be…… (a) a summons case, he shall issue the summons for the attendance of the accused, or (b) a warrant case, he may issue a warrant or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.” “Section 207: In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: (i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173; (iv) the confessions and statements, if any. recorded under section 164; (v) any other documents or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173”. recorded under section 164; (v) any other documents or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173”. “Section 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.” “Section 226 : 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 state by what evidence he proposes to prove the guilt of the accused.” “Section 227: If, upon consideration of the record¡ of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused, and record his reasons for so doing.” “Section 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.” In cases instituted on a police report containing facts constituting an offence, on taking cognizance of the offence constituted by the facts alleged, the Court becomes seized of the case relating to the criminal transaction referred to in the police report and thus gets jurisdiction over the entire case. The Court may first proceed on the footing that a particular offence has been committed by a particular person and in the course of the proceedings, if it is disclosed that the criminal transaction under enquiry involves a different offence or a different person, the jurisdiction of the Court extends to such different offence and different person also. Taking cognizance of an offence is no doubt a judicial act, but it is merely the [fulfilment of a condition requisite for the initiation of judicial proceedings. In Ajir Kumar v. State of West Bengal1 their Lordships of the Supreme Court pointed out as follows: “The word ‘cognizance’ has no esoteric or mystic significance in criminal law or procedure. It merely means become aware of and when used with reference to a Court or Judge, to take notice of judicially. Taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.” Again, in Darshan Singh Ram Kishan v. State of Maharastra2 their Lordships reiterated the same view observing: “As has often been held, taken cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on a police report, or upon information of a person other than a police officer.” 6. The judicial proceedings against an accused commence only on the accused being made a party before the Court by issue of process for his appearance or other similar step, as pointed out in E.P. Subba Reddy v. State3. 7. As can be seen from the provisions extracted above, the question of committal arises under section 209 , Criminal Procedure Code, not immediately after the Magistrate takes cognizance of an offence exclusively triable by a Court of Session, but after the appearance of the accused before him and the Magistrate complied with the mandate in section 207, Criminal Procedure Code. As can be seen from the provisions extracted above, the question of committal arises under section 209 , Criminal Procedure Code, not immediately after the Magistrate takes cognizance of an offence exclusively triable by a Court of Session, but after the appearance of the accused before him and the Magistrate complied with the mandate in section 207, Criminal Procedure Code. The Magistrate shall commit the accused to the Court of Session not simply when he took cognizance of an offence, but only when “the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court or Session”. The Magistrate cannot be bound by nor will it be proper for him to stick to his earlier tentative view when he took cognizance of the offence in the absence of the accused. It is only when, on the appearance of the accused, it appears to the Magistrate that the offence is triable exclusively by the Court of Session that the Magistrate should commit the accused to the Court of Session and not otherwise. The language of section 209, Criminal Procedure Code makes it abundantly clear that the Magistrate is not to act as an automation or a mere post-office for despatch of the case to the Court of Session merely because, in the absence of the accused at the initiation of the proceedings, he was of the view that the offence in question was triable exclusively by a Court of Session. In a case instituted on police report, after furnishing to the accused the required documents, the Magistrate should examine the first information report, the investigation statements and other documents on which the prosecution relies and see not as a Court of trial, but as a Court of mere enquiry whether there is prima facie material against the accused constituting an offence exclusively triable by a Court of Session. If the Magistrate opines from the relevant records that there is a prima facie case of a sessions offence, he shall have to commit the accused to the Court of Session. If not, he shall have to frame a charge against the accused for such other offence that appears to have been committed by the accused. If the Magistrate opines from the relevant records that there is a prima facie case of a sessions offence, he shall have to commit the accused to the Court of Session. If not, he shall have to frame a charge against the accused for such other offence that appears to have been committed by the accused. The power and duty of the Magistrate under section 209, Criminal Procedure Code, are no doubt very very limited, but they cannot be dispensed with or negatived on the ground that the new Code dispensed with committal enquiries. No doubt, even the preliminary enquiries abbreviated under the Amendment Act of 1955 in cases exclusively triable by the Court of Session have been dispensed with under the new Code. But even under the new Code, a Magistrate is required to discharge judicial functions in dealing with amy case arising before him whether it involves an offence triable by him or by a superior Court of exclusively by a Court of Session. As pointed out by their Lordships of the Supreme Court in Sanjay Gandhi v. Union of India1 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 the merits. The preliminary enquiry, which is dispensed with under the new Code, is the enquiry as to whether the accused committed the offence or not, once it appears to the Magistrate that the offence in question is one exclusively triable by a Court of Session. The committing Magistrate cannot embark upon an enquiry in regard to the truth or otherwise of the facts constituting an offence if it appears to him that the facts constituted an offence exclusively triable by a Court of Session. section 209, Criminal Procedure Code, enjoins upon the Magistrate to commit the accused to the Court of Session “if it appears to the Magistrate that the offence is triable exclusively by the Court of Session”. When the Legislature uses the expression “it appears to the Magistrate that the offence is triable exclusively by the Court of Session”. It is clear that the intendment of the provision is the judicial formulation of an opinion by the Magistrate with regard to the nature of the offence. When the Legislature uses the expression “it appears to the Magistrate that the offence is triable exclusively by the Court of Session”. It is clear that the intendment of the provision is the judicial formulation of an opinion by the Magistrate with regard to the nature of the offence. A Magistrate is not expected even under the new Code to simply commit the accused to the Court of Session whenever the investigating officer files a charge-sheet citing an offence exclusively triable by a Court of Session and the Magistrate initially takes cognizance of the offence on the basis of the charge-sheet. If after taking cognizance of an offence merely on the basis of the charge-sheet under the impression that the offence is exclusively triable by a Court of Session, the Magistrate opines, on an examination of the records contemplated in section 207, Criminal Procedure Code, and on hearing the prosecution and the accused, that the offence in question is one not triable exclusively by a Court of Session, it would not be proper for him to commit the accused to the Court of Session. It would be, on the other hand, proper and in fact his duty to proceed against the accused for such offence as is opined by him to have been made out from the record. There may be cases where the Police Officer might cite in the police report a wrong provision of law showing that the offence is exclusively triable by a Court of Session and the Magistrate might have registered the case without noticing the error which might subsequently come to his notice on the appearance of the accused and before he actually proceeds to commit the accused. To contend that, in such a case also, the Magistrate has to commit the accused to the Court of Session would be relegating the Magistrate to the position of a mere despatch-clerk and such a situation is incomprehensible. Before committing an accused to the Court of Session under section 209. Criminal Procedure Code, a Magistrate has to formulate a prima facie opinion in regard to the nature of the offence vis., whether it is an offence exclusively triable by a Court of Session or not and commit the accused only in the former case and not in the latter case. Criminal Procedure Code, a Magistrate has to formulate a prima facie opinion in regard to the nature of the offence vis., whether it is an offence exclusively triable by a Court of Session or not and commit the accused only in the former case and not in the latter case. I am fortified in this view of mine by the decisions of the Calcutta, Karnataka and“Patna High Courts. 8. In Jaswant Singh v. The State of West Bengal2 the Calcutta High Court held: “The language of section 209 makes it obligatory on the Magistrate to see that the offence is triable exclusively by the Court Session. In doing so, the Magistrate has very limited power. Even then, for his satisfaction that an offence is exclusively triable, by the Court of Session, he is required to look into the materials produced before him and not to act mechanically on the charge-sheet submitted by the police”. 9. In State of Karnataka v. Shakthi Velu1 it was held by the Karnataka High Court as follows: “It is no doubt correct that the Magistrate in order to formulate his opinion as to whether or not an offence triable exclusively by the Court of Session is made out has to consider the police report or the complaint submitted to him for taking cognizance of the offence. It would also be correct to submit that in order to arrive at a prima facie finding the Magistrate has to consider the evidence recorded during investigation. But the crux of the matter would be as to whether he was justified to adumbrate upon a regular appreciation of evidence. In other words, will he be justified to consider sufficiency or insufficiency of evidence produced on behalf of the prosecution at that stage. It may be stated that the Magistrate is not to act in an automatic manner so 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. 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. But the Magistrate has to consider, all that evidence at its face value and it is not open to him to hold a mini trial without the witnesses being produced in the Court, properly cross-examined and their evidence assessed, in a manner so that the accused could be convicted or acquitted upon that evidence”. 10. In Prem Sukh Lal v. State2, the Patna High Court held: “The Magistrate while acting under section 209 of the Code has to look into the allegations against the accused with a view to find out as to whether the offence is one which is prima facie exclusively triable by the Court of Session. In case it appears to him that the offence is prima facie triable exclusively by the Court of Session, then the case has to be committed to the Court of Session”. 11. In Tuneshwar Prasad v. State of Bihar3 a Full Bench of the Patna High Court held that a proceeding under section 209 , Criminal Procedure Code, is in the nature an ‘inquiry’ within the meaning of section 2 (g). In that Full Bench case, S.K. Jha, J., observed as follows: “The language of section 209 itself makes it clear that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session. When the Legislature uses the expression. “It appears to the Magistrate”, it means the formation of an opinion of the Magistrate on the materials on record. This evidently implies a judicial application of mind”. Shambhu Prasad Singh, J., observed: “Even though section 209 of the Code does not specifically say that the Magistrate should hear the accused before passing an order under section 209 of the Code, prima facie, I am of the view that he should be heard for determining whether the offence on the evidence recorded by the Magistrate in the inquiry under section 202 of the Code an offence exclusively triable by the Court of Session is made out. Of course, the Magistrate is not required to weigh the evidence. Of course, the Magistrate is not required to weigh the evidence. He was not required to weigh the evidence even before the amendment introduced by the present Code doing away with the commitment proceeding under the old Code which was like a pre-trial. But in the cases where the evidence as recorded does not prove all the ingredients of an offence exclusively triable by a Court of Session, but the Magistrate has wrongly passed an order saying that he is taking cognizance of an offence under such a section it will be against the ends of justice to hold that in such cases even though the mistake is pointed out on behalf of the accused, the Magistrate cannot revise his earlier order and must commit the accused to the Court of Session. If that be so, then there cannot be two standards, one for the cases instituted on a police report, and another for cases instituted otherwise than on a police report, such as on a petition of complaint”. 12. Relying on section 228 , Criminal Procedure Code, Sri Chandrasekhara Reddy, the learned Additional Public Prosecutor, contends that the power to frame a charge for an offence different from the offence exclusively triable by a Court of Session is vested only in the Sessions Judge and if the Legislature vested the Magistrate with such power, it would not have incorporated section 228 (1) (a) in the Code. I am unable to accept his contention. An accused is committed by a Magistrate to the Court of Session whenever it appeared to him that the offence in question is one exclusively triable by a Court of Session. The opinion of the Magistrate may not be all correct. The Legislature thought it proper to introduce a further safeguard to the accused. The provision of an additional safeguard under section 228 (1) (a) does not mean that the Legislature did not intend the committing Magistrates to discharge judicial functions in cases charge-sheeted by the Police citing offences exclusively triable by the Court of Session. 13. The Legislature thought it proper to introduce a further safeguard to the accused. The provision of an additional safeguard under section 228 (1) (a) does not mean that the Legislature did not intend the committing Magistrates to discharge judicial functions in cases charge-sheeted by the Police citing offences exclusively triable by the Court of Session. 13. In the light of the above discussion and in so far as both the learned Magistrate and the learned Sessions Judge held that the relevant material does not disclose any offence exclusively triable by a Court of Session and as I do not find any valid reason to hold otherwise, this application for quashing the order of the Magistrate converting the Preliminary Register Case into a Calender Case has to be and is accordingly dismissed. Case accordingly dismissed.