Hansaria, J.:- Has the Magistrate to act like an automation while discharging his duty under section 209 Code of Criminal Procedure, or he has some judicial function to perform while examining the question of committing an accused to the Court of Session ? It is this important question which has fallen for consideration in this petition. Facts which have given rise to this question a narrow compass. The petitioners were charged sheeted under section 307/34 I.P.C.; but the learned Sub-Divisional Judicial Magistrate did not commit them to the Court of Session though the offence is exclusively triable by that Court because on examining the medical certificate of the injured, it appeared to the learned Sub-Divisional Judicial Magistrate there "There is no material to hold that the offence is one under section 307 of the Indian Penal Code". Therefore he proceeded to try the case himself and framed charge under section 324/34, Feeling aggrieved, the complainant approached the learned Sessions Judge who has held that section 209 of the Code has not empowered the Magistrate to weigh the evidence and the proba­bilities of the case; and that a Magistrate is bound to act on the facts stated in the charge sheet and if the same discloses an offence or offences triable by a Court of Session, the Magis­trate is to commit the case to that court. On merits, the learned Session Judge has felt that the medical report having disclosed that Jainuddin has sustained gun shot wounds, that was sufficient to hold that the case is exclusively triable by a court of Session. Being of this view, the revision was allowed and the learned Sub-divisional Judicial Magistrate was directed to commit the case to the court of Session. Feeling aggrieved, the accused have approached this court under section 401/482 of the Code. 2. Sri Sarma, appearing for the petitioners, has first urged that the revision before learned Sessions Judge was not main­tainable because that was against an interlocutory order of framing charge under section 394/34. The impugned order of learned Sub-divisional Judicial Magistrate can also be need to be an order of discharge for the offence under section 307 and as such I do not think if there was a bar in approaching the learned Sessions Judge. 3. The real point for consideration is about the scope and ambit of the power conferred upon the Magistrate under section 209. 3. The real point for consideration is about the scope and ambit of the power conferred upon the Magistrate under section 209. As is known, the old Code of Criminal Procedure had contained in its section 207-A the procedure to be adopted in committing an accused person for trial by the Court of Session in proceedings instituted on police report. This procedure has been substituted now by section 209 in the new Code whose relevant part reads : "When in a case instituted on police report or, other wise, 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 fee shall- (a) commit, after complying with the provisions of section 207 or 208, as the case may be, the case to the court of Session and......" Sot in place of a detailed committal proceeding under the old Code, a summary procedure finds place in the new Code. Ques­tion is what is the power still with the Magistrate in such a matter before he orders for committal). As this aspect has been specifically dealt with by the Supreme Court in Sanjay Gandhi vs. Union of India, AIR 1978 SC 514 in which one of the alleged offences was under section 201 I.P.C. which is exclusively triable by a Sessions Court, ratio of that decision has to be noted first. Reference is therefore not being made to various earlier decisions rendered by High Courts. The ratio is in paras 2 and 3 of the judgment which read : "2.....The Committing Magistrate in such cases has no power to discharge the accused. Nor he has power to take oral evidence save where a specific provision like Section 306 enjoins ....". "3. Secondly, 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 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 remolding S. 207-A (old Code) into its present Don-discre­tionary shape. 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 remolding S. 207-A (old Code) into its present Don-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 hold 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. Assuming the facts to be correct as stated in the police report; if the offence is plainly one under S. 20 I.P.C. 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, Sri Mulla submits if the Magistrate's jurisdiction severely truncated like this prosecution may stick a lavel mentioning a sessions offence (if we may use that expression for brevity's sake) and the accused will be denied a valuable opportunity to prove his ex-facie innocence. There is no merit in this contention. 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 S. 227 Cr. P. C. to discharge the accused. This provision takes case of the alleged grievance of the accused". Thus it is clear that it is not open to a committing Magistrate under section 209 to try to satisfy itself that a prima facie case on merits has been made out. That jurisdiction vests in the Sessions Judge under section 227 of the Code. Still then it can not be held that the Magistrate has to act like a dispatch clerk. If that was the function which was sought to be assigned to the Magistrate under the new Code, the Parliament could have well provided that in a case exclusively triable by a Court of Session, the charge sheet shall be submitted in that court. If that was the function which was sought to be assigned to the Magistrate under the new Code, the Parliament could have well provided that in a case exclusively triable by a Court of Session, the charge sheet shall be submitted in that court. It is difficult to think that the Magistrate has been brought in the picture only to see that copies of statements and documents referred to in section 207 or 208 were supplied to the accused. This function could have been well assigned to the Court of Session. Therefore, the purpose of processing the case through the Magistrate has to be found somewhere else, ft would do well to remember that the he Code has retained the provision find­ing place in the old Code that a Court of Session shall not take cognizance of any offences as a court of original jurisdiction unless the case has been committed to It by a Magistrate. This was provided for in section 193(1) of the old Code and is retained in section 193 of new Code. If one were to think aloud about the purpose behind insisting for commitment of a case by a Magistrate, the same could be to avoid congestion in higher courts (required to deal with graver offences) of cases which they are not called upon to try exclusively. A judicial mind was therefore interposed between the prosecuting agency and the trial court. It may be questioned as to what difference does it really make if a case is committed to the court of Session almost mechanically, as if subsequently It is found that the case is are not exclusively triable by that court, tie same would come back as visualised by section 228(1 Ka). In the process, forever the case would get delayed and the accused would have been harassed by dragging him from one forum to another and then sending him back to the original court. This apart, when an accused is tried by a Magistrate, an appeal lies to the Court of Session, which being nearer at hand and closer to door than the High Court, who alone can be approached in , appeal from th-3 judgment of the Sessions Court, the legislature did want that only that case which appears to the Magistrate to be exclusively triable by the Court of Session is committed to that Court. 6. 6. It would definitely be apposite at this stage to refer to the view of the Law Commission of India, who in its 41st Report (1969 and 1970) had examined the necessity of amending the old Code. While dealing with this aspect in Vol.1. Chap, XVIII, the Commission recommended abolition of committal proceeding because these proceedings were "largely a waste of time and effort" and did not "contribute appreciably to the efficiency of the trial before the court of Sessions". So, though they were obviously time consuming, they did not serve "any essential purpose", he according to the Commission. Nonetheless the Commission did not desire direct institution of cases in the Sessions Court and recommended that such cases, whether on police report or otherwise, be instituted in the Court of a Magistrate. One does not, however find any reason for this in the Report. About the Magistrate's function in the proposed scheme, the Commission had to say this in para 18.28 : When a Sessions case is instituted before a Magistrate on a police report, he will first see to it that all these copies (meaning copies of statements of witnesses and relevant documents) are furnished to the accused in good time and will also decide that prima facie, the cone is triable exclusively by the court of Section?' (Emphasis supplied). The statement of objects and Reasons accompanying the introduction of the new Code shows that after considering the above report, the committal proceeding was proposed for abolition as "it does not serve any useful purpose and has been the cause of considerable delay in the trial of offence". 7. The Parliament in enacting Section 209 has retained the phraseology mentioned by the Law Commission in its draft of the new Code. (See Section 214 of the draft at p. 82 of Vol.11 of the Report). The draft states that the committal will be when "it appears to the Magistrate" that the offence is exclusively triable by the Court of Sessions which shows that the Parliament accepted the thinking of the Commission as to the power of the Magistrate under the new setup- This apart, how can it appear to a Magistrate that a case is exclusively triable by a Sessions Court unless he applies his mind to this. It may also have a look into the definition of the word "appears". It may also have a look into the definition of the word "appears". As per the Concise Oxford Dictionary "appear" means "become, be visible; present oneself formally, publicly to be published; be manifest, seem (occasionally with implication of illusion)". The Twentieth Century Chambers Dictionary defines "appear" to mean "to become visible, to present one's self formally before an authority or tribunal, hence to act as the representative or counsel for another : to be manifest : to be in one's opinion, to seem to come into view, to go before the public, to be published (of a book) to seem though not real". The appropriate meaning of the word "appear" for the case at hand would be "to be manifest; to be in one's opinion, to seem". Now, how can a thing be manifest, or how could one be of the opinion unless one applies one's mind to the materials before him ? For the Magistrate to be of the opinion that the offence is triable exclusively by the Court of Session, he must look into the materials and be satisfied about this aspect. 8. It has also been stated in Sanjay Gandhi that the narrow inspection hole through which the committing Magistrate has to look at the case limits him to ascertain whether the case appears to him to show an offence triable solely by Court of Session. As further stated, if the offence is plainly one triable exclusively as aforesaid, the Magistrate has simply to commit the accused. Question is if the offence be plainly one not triable exclusively by Court of Session, what has the Magistrate to do ? No doubt in trying to find out even this aspect, the committal court cannot launch on a process to satisfy itself whether a prima facie case has been made out on the merits. That function has been left for the Sessions Court under section 227 Cr.P.C.. Then, as pointed out in Sanjay Gandhi if by error a wrong section of Penal Code Is quoted, the committing Magistrate can definitely look to that aspect. This is only an illustration of the power remaining with the Magistrate even under the new scheme of things and cannot be regarded as the only instance in which the committal may be refused. 9. This is only an illustration of the power remaining with the Magistrate even under the new scheme of things and cannot be regarded as the only instance in which the committal may be refused. 9. Another facet which has to be borne in mind in this connection is hit section 209 is not confined to cases instituted on police report, but takes within its fold complaint cases also. Qua a complaint case, it would be difficult to say that the Magistrate is not to be satisfied on perusal of the materials before him that the offence is triable exclusively by the higher Court. As one phraseology has been used for both the complaint and police cases, it can safely be said that two different standards were not visualised by the section. Of course, in view of what has been stated in Sanjay Gandhi a discussion on merits to find out a prima facie case is out of bound at this stage. But is a Magistrate bound to commit if a case is plainly not triable by a Sessions Court ? To illustrate, if the allegation be that the accused had caused simple hurt by blunt weapon, say on the fore-arm, could citation of section 307 I. P. C. either in the complaint or in the charge sheet be enough to call for the committal of the case ? I would think not. Because then the Magistrate merely becomes an automation and ceases to perform any judicial function. It is not permissible to read in section 209 that a Magistrate while discharging his function under that section would work like a sorting clerk in a post Office. 10. Reference may now be made to another decision of the apex court in Kewal Krishnan vs. Suraj Bhan, ATR 1980 SC 1780. That was a complaint case and after concluding the enquiry under section 202 Cr. P. C. the Magistrate recorded a detailed order, discussed the evidence and reached the conclusion that the occurrence had taken place not in the manner alleged by the complainant and there was no prima facie case against the accused. He therefore dismissed the complaint under section 203. P. C. the Magistrate recorded a detailed order, discussed the evidence and reached the conclusion that the occurrence had taken place not in the manner alleged by the complainant and there was no prima facie case against the accused. He therefore dismissed the complaint under section 203. The only debatable question before the court was whether the Magistrate could have summarily dismissed the complaint under section 203 being of the view that there was "no sufficient ground for proceeding", when the complaint was under section 302 and 307. The court had however occasion to say something not only about the power under section 203, but about the scope of section 209 as well. It was stated in para 9 that at the stage of sections 203 and 204 Cr. P. C. in cases of the present nature all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during preliminary enquiry, there is prima facie evidence in support of the charge. At this stage the Magistrate is not to weigh the evidence meticulously as if he is the trial court. The standard to be adopted by the Magistrate in scrutinizing the evidence at this stage is not the same as one which has to be kept in view at the stage of framing charges. The submission that in such cases the standard for ascertaining whether or not the evidence collected in a preliminary enquiry discloses sufficient grounds for proceeding is lower than the one to be adopted at the stage of framing charges was accepted in para 10 by stating that the same is evident from the scheme of the new Code. 11. It would be in fitness of things to refer to a post-Sanjay Gandhi decision rendered by a learned Single Judge of Andhra Pradesh High Court in Public Prosecutor vs. T. D. Khajavalli 1980-11-2 Andhra Weekly Reporter 142 (=1980 MLJ (Crl) 648). The learned Judge has stated that in view of the judgment in Sanjay Gandhi the committal court cannot go into the question whether there is any prima facie case on merits. So, a committing Magistrate cannot upon an enquiry in regard to the truth or otherwise of the facts constituting an offence if it appears to him that the facts constituting the offence is exclusively triable by Court of Session. So, a committing Magistrate cannot upon an enquiry in regard to the truth or otherwise of the facts constituting an offence if it appears to him that the facts constituting the offence is exclusively triable by Court of Session. But to decide whether the offence is so triable "the judicial formulation of an opinion by the Magistrate with regard to the nature of the offence" is still required. In coming to this conclusion reference was made to some decisions of the Calcutta, Karnataka and Patna High Courts which I do not propose to traverse. 12. Having considered the controversy in the light of the Law Commission's views, the decision in Sanjay Gandhi and what has been stated in Ktwal Krishan, I have no doubt that a Magistrate will have to be satisfied under section 209 that the alleged offence is triable exclusively by the Court of Session. For this limited purpose, he shall have to undertake a 'cursory perusal' of the police papers, or the complaint and the evidence recorded during the preliminary enquiry under section 200 and 202, as the case may be. The standard to be adopted at this stage in scrutinising the matter will not however be the same as the one which has to be applied even at the stage of framing charge, not to speak of the yardstick used at the time of final judgment. If on cursory perusal of the relevant papers, it seems to the Magistrate that case is plainly one which is not exclusively triable by the court of Session, the Magistrate may refuse to commit. The occasion for this may be rears but that should be no ground to refuse the power. Such an interpretation of section 209 will on the one hand advance the purpose in remolding the old provisions which Is to avoid delay or waste of time and at the same time would prevent harassment of the accused, which is bound to result if plainly "non-exclusive cases" (to use a convenient expression) are committed to the Sessions Court. This will also accord well with the judicial function which the incumbent passing the order has to discharge while ordering or refusing to commit. This will also accord well with the judicial function which the incumbent passing the order has to discharge while ordering or refusing to commit. So, quoting of wrong section apart, if the nature of the offence ex facie be such which is not exclusively triable by a Court of Session, the Magistrate exercising power under section 209 may not commit If fie comes to this conclusion on cursory perusal of the relevant materials. He cannot however discharge the accused at together-not altogether because non-framing of charge under the graver section may be regarded as discharge under that section. 13. This conclusion will be fortified if it is remembered that proceeding under section 209 has to be regarded as an "enquiry" within the meaning of section 2(g) of the new Code. A full Bench of the Patna High Court which looked into this matter from this angle in Tuneshwar Prasad vs. State of Bihar, AIR 1978 Patna 225 came to the conclusion that while exercising power under section 209 judicial application of mind by the Magistrate is called for. I do not propose to burden this judg­ment by mentioning in detail what was stated in that decision, by the Patna High Court. Sufficient to say that the emphasis there he was that the word "enquiry", whose dictionary meaning is "search for knowledge; investigation; a question" indicated that committal proceeding is not a mechanical act. 14. Let it now be seen whether the order of learned Sub-divisional Judicial Magistrate in the present case was rightly set aside or not by the learned Sessions Judge. The learned Sub divisional Judicial Magistrate has merely stated by referring to the melba outdebates that there was material to hold that the offence was under section 307. No reason has been assigned to this. As against this, the learned Session Judge has specifically mentioned that the medical report disclosed receipt of gun shot injuries. A perusal of that report further shows that the injured had five penetrating gun shot wounds on different parts of his body - these being dorsum of left foot, dorsum of right foot, right calf muscle, left thigh and right thigh. On a cursory perusal of such a report, it could not have been said by the learned SDJM that the offence was plainly not under section 307. 15. On a cursory perusal of such a report, it could not have been said by the learned SDJM that the offence was plainly not under section 307. 15. I, therefore, do not read any infirmity in the impugned order of the learned Sessions Judge. The petition is therefore dismissed. As the matter has already become old, it is expected tint the trial would be expeditiously held by the learned Sessions Jadgi. Lot the records be transmitted back with due dispatch.