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1985 DIGILAW 149 (BOM)

State of Maharashtra v. Ahmed Sayeed Khan

1985-07-10

D.N.MEHTA

body1985
JUDGMENT D.N. Mehta, J. - The State of Maharashtra has filed this Criminal Revision Application impugning the Judgment and Order passed by the learned Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, dated 31.5.1983. 2. The D.C.B., C.I.D. filed a chargesheet in Criminal Case No. 460 of 1983 in the Court of the learned Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, against three accused, two of whom are Respondent Nos. 1 and 2 herein. The three accused were charged under section 364 of the Indian Penal Code for kidnapping the Complainant Bashir Alam Haji Mohammed Sultan in order to murder the Complainant or to place him in danger of being murdered. Secondly the three accused were charged under section 395 for committing dacoity. Thirdly, the three accused were charged under section 397 for committing robbery or dacoity with deadly weapons and causing or attempting to cause death or grievous hurt to the Complainant. 3. After the chargesheet had been filed, the learned Magistrate proceeded to pass an order on 31.5.1983 where under he came to the conclusion that no offence had been disclosed in the police papers. Shri Vyas, the learned Public Prosecutor has impugned this order of the learned Metropolitan Magistrate on the ground that the learned Magistrate has travelled far beyond his jurisdiction under section 209 of the Code of Criminal Procedure, 1973. According to Shri Vyas, as soon as it appeared to the learned Magistrate that the offence was triable by the Court of Sessions, then he should commit the accused to the Court of Sessions. The learned Magistrate was not empowered under section 209 of the Code of Criminal Procedure to scan the statements recorded by the Police and furnished to him with a view to find out whether a prima facie case existed against the accused. Secondly the learned Magistrate was also not empowered to discharge the accused once he came to the conclusion that the offence was triable by the Court of Sessions. If the statements submitted by the Police did not disclose an offence then it was for the Court of Sessions to consider whether a prima facie case appeared or not and to discharge the accused or to proceed to trial. Shri Vyas has relied upon two authorities, one of the Supreme Court of India and the other of the Karnataka High Court. 4. Shri Vyas has relied upon two authorities, one of the Supreme Court of India and the other of the Karnataka High Court. 4. Before I deal with the arguments of Shri Vyas, it will be relevant to cite the provisions of section 209 of the new Code of Criminal Procedure. Section 209 provides: "When in a case instituted Oil a police report 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." Now, on a perusal of section 209 it becomes clear that if it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall proceed to commit the accused to the Court of Sessions. It is clear that the learned Magistrate has not been empowered to scrutinize the statements submitted by the police in order to find out whether a prima facie case appears against the accused. Unlike in the old Code, the learned Magistrate has been deprived of the power to find out whether any case is made out against the accused or otherwise. The Magistrate is not empowered to discharge the accused even if he finds that no case appears against the accused. This position has been made clear by the Supreme Court in its ruling in the case of Sanjay Gandhi v. Union of India1, wherein their Lordships observed: “We have heard counsel on both sides and proceed to elucidate certain clear prepositions 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 the power take oral evidence save where a specific provision like section 306 enjoins. The committing Magistrate in such cases has no power .to discharge the accused. Nor has the power take oral evidence save where a specific provision like section 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." "Secondly, it is not open to the committal court to launch on a process of satisfying itself that a prima facie case bas 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 remoulding section 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 bold 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 section 209 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. 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." 5. The Karnataka High Court bas also made similar observations in the case of The State of Karnataka v. Sangappa Yamanappa Kattimani2. The learned Single Judge observed: "On the filing of the charge-sheet, the Magistrate took cognizance of the offences and thereafter enlarged the respondents on bail as requested by them. P.C. to discharge the accused." 5. The Karnataka High Court bas also made similar observations in the case of The State of Karnataka v. Sangappa Yamanappa Kattimani2. The learned Single Judge observed: "On the filing of the charge-sheet, the Magistrate took cognizance of the offences and thereafter enlarged the respondents on bail as requested by them. By the order in question, the Magistrate has discharged the respondents of the offence under section 302 read with section 34 of the Indian Penal Code, on the reasoning that in view of the words 'it appears' occurring in section 209 of the Code of Criminal Procedure, a Magistrate has power to find out whether in fact an offence of murder appears to have been made out or not, and in case he finds in the negative, he has power to discharge the accused." "It is for a Magistrate to decide, after scrutinising the material produced before him, in regarding to what offences he should take cognizance. In this case, the Magistrate took cognizance, also of the offence under section 302 read with section 34 of the Indian Penal Code. Section 209 of the Code of Criminal Procedure lays down that 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 commit the case to the Court of Session. After the Magistrate took cognizance of the offence under section 302 read with section 34 Indian Penal Code there was no scope for interpreting the words 'it appears' occurring in section 209 of Criminal Procedure Code. Moreover, Section 209 does not at all empower a Magistrate to pass an order of discharge. That power is vested in the Sessions Judge under section 227 of the Code of Criminal Procedure." 6. In the instant case the learned Magistrate has, in an exhaustive order, taken into consideration the statements of various witnesses recorded by the Police and has come to the conclusion that no prima facie case appeared against the accused. Consequent thereupon the learned Magistrate proceeded to discharge the accused. 7. In the instant case the learned Magistrate has, in an exhaustive order, taken into consideration the statements of various witnesses recorded by the Police and has come to the conclusion that no prima facie case appeared against the accused. Consequent thereupon the learned Magistrate proceeded to discharge the accused. 7. On a reading of the provisions of section 209 of the Code of Criminal Procedure and the observations of the Supreme Court as also of the Karnataka High Court, it is clear that the procedure followed by the learned Magistrate in this case is contrary to law. The learned Magistrate was neither empowered to scrutinize the statements recorded by the Police nor was he empowered to discharge the accused. It, therefore, becomes necessary to remand the matter back to the trial Magistrate in order that the learned Magistrate may proceed according to the provisions of section 209 of the Code of Criminal Procedure and commit the case to the Court of Sessions. 8. In the result, the Rule is made absolute. The case is remanded to the Court of the learned Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, to proceed according to law. Rule made absolute. 1. A.I.R. 1978 S.C. 514. 2. 1976 Crl. L.J. 575.