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1983 DIGILAW 280 (PAT)

Nand Kishore Singh v. State of Bihar

1983-10-04

K.B.SINHA

body1983
JUDGMENT : Krishna Ballabh Sinha, J. This revision petition is directed against the ORDER :passed by a Judicial Magistrate, 1st Class, by which he refused to commit the case to the court of session as, in his opinion, no offence punishable under section 307 of the Indian Penal Code (hereinafter referred to as the 'Penal Code') was made out on the materials available on the record. 2. The facts giving rise to this case is that on 10.8.1979 at about 3 P.M. the informant, Nand Kishore Singh, was returning back from his field and when he reached near the cutonerry of opposite party no. 2. Dilip Kumar Sahu, he noticed that a meeting was being held there which was attended by a large number of persons. Having seen the informant, opposite party no. 3 Mahadeo Singh stated that the informant had gone there as an agent of the landlord to get secret information. Dilip Kumar Sah, thereafter, asked the persons present there to kill the informant. All the members of the opposite party, except opposite party no. 1, along with some other persons chased Nand Kishore Singh and he ran away to save himself. Mahadeo Singh (opposite party no. 2) caught the informant and other of the mob surrounded him. All the members of the mob were varily armed. Nandlal Singh, opposite party no. 4 inflicted bhala injury on the chest of the informant and opposite party no.5 Shankar Sah gave a Mala blow causing injury on his mouth, as a result of which his tooth was broken and he fell down and, thereafter, other accused persons also assaulted him with lathi. On hulla, some witnesses rushed to the place of occurence and the members of the mob fled away. After retreat of the mob, the family members of the informant carried him to Maniari State Dispensary where his fardbeyan was recorded by the Officer-in-charge of Maniari Police Station on 17.8.1979 at about 10.30 A.M. It is stated in the fardheyan that the informant was unable to speak on account of the injury on his mouth on 10.8.1979 and 'so' he gave his statement on the following day. 3. A case was registered on the basis of the said fardbeyan and after investigation, the police submitted charge-sheet on 30.9.1979 under various section of the penal Codes, including section 307. 3. A case was registered on the basis of the said fardbeyan and after investigation, the police submitted charge-sheet on 30.9.1979 under various section of the penal Codes, including section 307. After receipt of the charge-sheet, separate petitions were filed on behalf of different accused persons on 25.2.1980 before the Sub-divisional Judicial Magistrate stating therein that no offence punishable under section 307 of the Penal Code was made out and, so, cognizance should not be taken of the said offence. After hearing the parties, a reasoned ORDER :was passed on 6.3.1980 by the Sub-divisional Judicial Magistrate by which he took cognizance of the offences punishable under sections 147, 148, 323, 326 and 307 read with section 34 of the Penal Code and the case was transferred on the same date to Shri N.K. Choudhary, Judicial Magistrate, 1st Class. In the transferee court again a petition was filed on behalf of the accused persons-opposite party with a prayer that the case should not be committed to the court of session, as no offence punishable under section 107 of the Penal Cock was made out on the materials collected by the police. The learned Magistrate asked the informant to file a rejoinder, if so advised, and, accordingly, the informant filed a rejoinder. Both the parties were heard and finally the ORDER :was passed on 15.12.1980, which is under challenge in this revision petition. 4. Learned counsel for the petitioner-informant has contended that the learned Magistrate has dealt with evidence as if he was holding a trial and thereby has gone beyond the scope of section 209 of the Code of Criminal procedure (hereinafter referred to as the Code). It is also urged that the Sub-divisional Judicial Magistrate, after hearing the parties, considered the statement of the witnesses as also the other circumstances and, thereafter, he expressed his view that there was sufficient material for further proceeding and he took cognizance of the offence punishable under section 307 of the Penal Code. Submission has been made that the transferee Magistrate has practically revised the ORDER :of the Sub-divisional Magistrate which is not permissible under the law. 5. Learned counsel for the opposite party nos. Submission has been made that the transferee Magistrate has practically revised the ORDER :of the Sub-divisional Magistrate which is not permissible under the law. 5. Learned counsel for the opposite party nos. 8 to 10, on the other hand, has contended that, according to the provisions of section 209 of the Code, the Magistrate was fully empowered to examine the statement of the witnesses and the medical report with a view to ascertain whether any offence exclusively triable by the court of session was made out. According to his submission, a proceeding under section 209 of the Code is in the nature of an enquiry and as such the Magistrate is fully competent to come to his own conclusion, irrespective of the ORDER :passed by the Sub-divisional Judicial Magistrate, to find out as to whether the case concerned is fit for commitment. Reliance has been placed on a Full Bench decision of this Court Tuneshwar Prasad Singh and another v. the State of Bihar (A.I.R. 1978 Patna 225) : 1978 PLJR 403. 6. The most important and pertinent question, which arises for consideration in this case, is as to how far the Magistrate has acted within the scope of the provision of section 209 of the Code. This section has been the subject matter of consideration by this Court as well as by the Supreme Court in enumerous decisions, Generally, a criminal case, involving offences exclusively triable by the court of session, has to pass through judicial sacrutiny at four stages before conclusion of the trial. After receipt of the charge-sheet, the Magistrate has to apply his mind for taking cognizance of the offence. The next stage comes when the Magistrate considers the allegations and material collected by the police and passes an ORDER :for commitment under section 209 of the Code. The same set of material is again taken into consideration at the initial stage of session trial at the time of framing the charge and the court can pass ORDER :under section 223 of the Code. If he comes to the conclusion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the court of session then charge will be framed. If he comes to the conclusion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the court of session then charge will be framed. At this stage; if upon consideration of the material, the Court finds that there is no sufficient ground for proceeding against the accused, it shall discharge him and record his responding for doing so. Lastly, after recording evidence and hearing the parties, the court is empowered to convict or acquit the accused person under section 235 of the Code. Although, the same set of materials are considered by the Court at the first three stages, but the purpose for consideration at each stage is quite different. This much is certain that the scope for consideration at the stage of passing an ORDER :under section 209 of the Code is very limited. The Magistrate acting under this provision, is not empowered to scrutinise the evidence and balance the same on a sensitive scale. 7. The scope for consideration of the material for passing an ORDER :under section 209 of the Code has been clearly indicated in the case of Sanjay Gandhi v. the Union of India and others (A.I.R. 1978 Supreme Court 514). I can do no better than to quote the relevant extract from the said JUDGMENT :, which is as follows :- "2. We have heard counsel on both sides and proceed to elucidate certain clear propositions under the new Code bearing upon the committal of cases where the offence is triable exclusively by the Court of session. The Committing Magistrate in such cases has no power to discharge the accused. Nor has he power to take oral evidence save where a specific provision like S. 306 enjoins. From this it follows that the argument that the accused has to cross-examine is out of bounds for the Magistrate, Save in the case of approvers. No examination-in-chief no cross-examination. 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 new under the present Code. No examination-in-chief no cross-examination. 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 new under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliaments purpose in remoulding S. 207-A (Old Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defected successfully. It interpretatively we hole 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. Assuming the facts to be correct as stated in the police report, if the offence is plainly one under S. 301 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 in quoted, he may look into that aspect. Shri Mulla submits if the Magistrate's Jurisdiction were to be severaly truncated like this the prosecution may stick a label 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 facio innocence. There is no merit in (his contention. If made up facts unsupported by any material are reported by the police and a Sessions offence is made to appear, it is perfactly open to the Sessions Court under S. 227 Cr. P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused." 8. So keeping in view the propositions laid down by the Supreme Court, it is abundantly, clear that it was not open to the Magistrate to inter into a detailed enquiry to find out as to whether a prima facie case under section 307 of the Penal Code was made out against the petitioner. 9. So keeping in view the propositions laid down by the Supreme Court, it is abundantly, clear that it was not open to the Magistrate to inter into a detailed enquiry to find out as to whether a prima facie case under section 307 of the Penal Code was made out against the petitioner. 9. The main question for consideration before the Full Bench was as to whether a Magistrate, after taking cognizance and before committal of the case to the court of session, was empowered to remand the accused to custoday and this has been answered in affirmative, I find that the Full Bench has neither taken view contrary to what has been expressed by the Supreme Court in the said case nor has enlarged the scope of section 209 & the Code. According to this decision also, a Magistrate in sersin of the case is empowered to hold an enquiry within a very narrow compass to find out whether any offence exclusively triable by the court of session is mace out. 10. In the instant case, it has to be seen as to how far the Magistrate was justified in considering the sufficiency or otherwise of the evidence produced for finding out whether prima facie an offence was made out under section 307 of the Penal Code. The Magistrate is, certainly, not expected to work as a mere post office for committing a case to the court of session, but at the same time he is also not empowered to evaluate materials available on the record like court. The Magistrate is not expected to analyse the evidence with the same angle as is permissible at the trial stage. He has to see, prima facie, the evidence brought to his notice. Such evidence will obviously be allegations made in the first information report, the materials incorporated in the charge-sheet and the statement of witnesses examined during police investigation. But the Magistrate has to consider all these materials at their face value. 11. On perusal of the impugned ORDER :. I find that the learned Magistrate has mentioned that there was no intervening circumstance which could have prevented the members of the opposite party from committing the murder of the informant, if they actually intended to do so and in absence of any such circumstance, he inferred that they had no intention to kill. I find that the learned Magistrate has mentioned that there was no intervening circumstance which could have prevented the members of the opposite party from committing the murder of the informant, if they actually intended to do so and in absence of any such circumstance, he inferred that they had no intention to kill. He also partially considered the medical evidence and referred to one of the injuries without indicating the place where it was located and its dimension. The learned Magistrate appears to have been impressed by the submission made on behalf of the State counsel who conceded that no case under section 307 of the Penal Code was made out. He has mentioned in the ORDER :that the Investigating Officer was also of the opinion that no offence punishable under section 307 of the Penal Code was made out on the statement of the witnesses. I am unable to appreciate these roasonings. I have recorded to certain portion of the ORDER :of the Magistrate only to show that he has enalysed the materials on the record on the test-bed of probabilities and thereby over-stopped his jurisdiction and assumed the function of the trial court. 12. It is contended on behalf of the petitioner that the Sub-divisional Judicial Magistrate, after hearing both the parties at length, came to the conclusion that an offence under section 307 of the Penal Code was made out and also took cognizance of the said offence. But by the impugned ORDER :, the Judicial Magistrate has virtually revised the said ORDER :, which amounts to discharge of the opposite party from the allegation made under section 307 of the Indian Penal Code. It is directly against the principle laid down in the case of Sanjay Gandhi (supra). This argument cannot be said to be devoid of merit. 13. Then it is submitted on behalf of the opposite party that this Court in revisional jurisdiction should not interfere with such ORDER :when there is no flagrant miscarriage of justice. Submission has been made that the Magistrate in seisin of the case can still commit the case to the court of session at a latter stage, if evidence is led on behalf of the prosecution in support of offence exclusively triable by the Court of Session. Submission has been made that the Magistrate in seisin of the case can still commit the case to the court of session at a latter stage, if evidence is led on behalf of the prosecution in support of offence exclusively triable by the Court of Session. It has already been hold that the learned Magistrate went beyond his jurisdiction conferred under section 209 of Code in appreciating the evidence. The illegality committed by the learned Magistrate is apparent on the face of the record and hence in such circumstances, I do not think that the argument put forward on behalf of the opposite party can be accepted. 14. In the result, this revision petition is allowed and the ORDER :dated the 15th December. 1980, passed by the learned Magistrate is set aside and tee case is sent back for reconsideration in the light of the observations made above and to pass ORDER :s in accordance with law. Petition allowed.