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1986 DIGILAW 345 (ALL)

Kuber v. State of U. P

1986-04-29

K.N.MISRA

body1986
JUDGMENT K.N. Misra, J. - Heard learned counsel Shri K.K. Dikshit appearing fir the applicants and the Government Advocate. Since a short question `s Involved for determination in this application under Section 482, Code of Criminal Procedure. I have heard arguments on merits of this application. 2. Briefly stated, the facts are that one Suresh Chandra resident of village Nagwa, Police Station Beniganj, District Hardoi had lodged a F.I.R. at Police Station Beniganj at about 5 P.M. on 31.8.81 against the present three appellants namely, Kuber son of Angnu Pasi, Surendra. son of Bhagga Passi and Sheo Raj son of Gulzari Pasi, and five other persons which was registered at Crime No. 168 of 1981 and after investigation a charge-sheet was submitted against the accused-applicants and five others under Sections 147/148/149/307, I.P.C. The applicants on getting relevant copies of the Statement recorded under Section 161, Cr.P.C. as well as injury reports, approached the learned Chief Judicial Magistrate praying that on facts and circumstances alleged by the prosecution no case is made out under Section 307 I.P.C. committing the accused to the Court of Sessions and the case deserved to be tried by Magistrate that they may not be committed to the Court of Sessions for being tried under the aforesaid sections. The learned Judicial Magistrate, vide Order dated, 15.3.86, rejected the application. 3. I have perused the order passed by the Chief Judicial Magistrate, Hardoi and I find that he has rejected the application of the accused-applicants by altogether a non- speaking and without application of mind to the facts of the case. He has rejected the application by a short order noted below: "Heard and perused the F.I.R. and injury report. The contention or the applicants accused has no force." Rejected Sd/- O.P. RUDDRA, CJM Hardoi, 15.3.1966 4. In the aforesaid order learned Magistrate has not indicated that the facts and circumstances of the case are such that the accused applicants are liable to be tried by the Court of Sessions for committing the offences under the aforesaid sections mentioned in the charge-sheet submitted by the police. In the aforesaid order learned Magistrate has not indicated that the facts and circumstances of the case are such that the accused applicants are liable to be tried by the Court of Sessions for committing the offences under the aforesaid sections mentioned in the charge-sheet submitted by the police. in Waqar Ahmad and another v. State of U.P. and another, 1978 ACC p. 76, it was observed by t his Hon'ble Court: "The word `appears' occurring in Section 209 denotes that the discretion is always with the Magistrate to find out whether the case of which he is seized, is triable by the Court of Sessions or not. To say that the Magistrate has no discretion in the matter and he is bound to commit the case to the Court of Sessions in the light of the police report, would be doing violence to the language of Section 209. The Magistrate is not to be solely guided by what the police has stated about the nature of offence in its report. He has to see the material placed before him and then come to his own conclusion whether offence committed by the accused is an offence triable exclusively by the Court of Sessions or not. To hold a view contrary to this would mean subordinating the judgment of the Magistrate to that of the police. This could never have been the intention of law-makers. As one charged with the duty of performing judicial functions, the Magistrate is not to go blindly by what the police mentions in the charge-sheet, but he has to apply his own mind to the facts of the case. If on the facts of the case it appears to him that the case is exclusively triable by the Court of Sessions, then and then alone he has to commit it to the Court of Sessions and not otherwise". (Emphasis supplied). 5. In the present case I find that the learned Magistrate has not applied his mind nor he has recorded any conclusion that the alleged offence said to have been committed by the accused is of such a nature that it is triable exclusively by the Court of Sessions. The impugned order, therefore, cannot stand and it is accordingly quashed. 6. In the present case I find that the learned Magistrate has not applied his mind nor he has recorded any conclusion that the alleged offence said to have been committed by the accused is of such a nature that it is triable exclusively by the Court of Sessions. The impugned order, therefore, cannot stand and it is accordingly quashed. 6. Learned Chief Judicial Magistrate, Hardoi is directed to consider the application moved by the acc used-applicants afresh on merits and according to law and in the light of the observations made above, and there upon if it appears to him that the case is exclusively triable by the Court of Sessions, then and then alone he should commit the case to the Court of Sessions.