JUDGMENT 1. - This revision petition has been filed against the order dated June 6, 1985 passed by the learned Chief Judicial Magistrate, Rajsamand. 2. One Chhogalal had filed a complaint against the petitioners for giving a beating to him on February 2, 1975, when he with his mother had gone to irrigate the field. Case under section 307 read with section 34 I.P.C. was registered at Police Station Railmagra. The police after investigation filed the challan under sections 307, 147, 148, 149 and 326 I.P.C in the Court of Munsif and Judicial Magistrate Rajsamand. The learned Magistrate committed the case to the Court of Sessions Judge, Udaipur. The learned Sessions Judge did not consider it to be a case falling under section 307 I.P.C. so as to make it exclusively triable by the Court of Sessions. The learned Judge also did not find it to be a case under section 326 I.P.C. and framed the charges under sections 324, 147 and 148 I.P.C. against the petitioners and transferred the case for trial for those charges to the Chief Judicial Magistrate, Udaipur. The case had a long journey and travelled the courts at Railmagra and Rajsamand. It again came up in the Court of Chief Judicial Magistrate, Udaipur and was transferred to the Court of Additional Chief Judicial Magistrate, Rajsamand. When the case reached the stage of arguments, the Court, at the request of the Public Prosecutor resummoned the Medical Officer for examination and recorded the statement. In view of the statement of Doctor Chiranjilal (P.W. 6) so examined, the learned Additional Chief Judicial Magistrate, Rajsamand opined that there were grounds for charge sheeting the petitioners under section 307 I.P.C. In view of that opinion the learned Additional Chief Judicial Magistrate, by the impugned order committed the case to the Court of Additional Sessions Judge, Rajsamand for the trial of the petitioners for the charges under sections 307, 307/149, 326/149 and 148/149 I.P.C. The petitioners have now challenged the legality and correctness of that order of commitment in this revision petition. 3. I heard Mr. D.S. Shishodia, learned counsel for the petitioners and Miss Sumitra Sankhla, learned Public Prosecutor for the State and carefully examined the record of the case. 4. 3. I heard Mr. D.S. Shishodia, learned counsel for the petitioners and Miss Sumitra Sankhla, learned Public Prosecutor for the State and carefully examined the record of the case. 4. The learned counsel for the petitioners strenuously contended that when the learned Sessions Judge had proceeded under section 228 of the Code of Criminal Procedure and transferred the case to the Chief Judicial Magistrate for the proceedings against the petitioners for the offences under sections 324, 147 and 148 I.P.C. it shows that the petitioners were discharged for the charges under sections 307 and 326 I.P.C. and the learned Magistrate was only to proceed with the case for those charges and it was not within his power to recommit the case. That, such an act of the Magistrate amounts to a review of the order of the Sessions Court and in doing so he has disregarded the order of the superior Court. 5. The learned Public Prosecutor controverted these contentions and referred to Section 323 of the Code of Criminal Procedure which provides that, if in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions and submitted that in this case there was material before the Court that the accused should be charged for the offences exclusively triable by the Court of Session. That there being no bar for recommitting the accused to the Court of Session to stand their trial the order under section 228 of the Code of Criminal Procedure initially passed by the Sessions Court would not come in the way of second commitment. 6. In order to appreciate the arguments of the learned counsel for the parties and to determine the question as to whether in the case where the Sessions Court proceeds under section 228 of the Code of Criminal Procedure the Magistrate has power to recommit the case it would be profitable to look to the provisions relating to the commitment of a case and the principles enunciated in the decisions throwing light on the point. 7. Section 209 of the Code of Criminal Procedure provides for commitment of case to the Court of Session, when offence is triable exclusively by it. 7. Section 209 of the Code of Criminal Procedure provides for commitment of case to the Court of Session, when offence is triable exclusively by it. When the case is so committed, the Sessions Judge would proceed under Chapter XVIII of the Code of Criminal Procedure. Section 227 provides that if upon consideration of the record of the case and the arguments submitted thereunder, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Session, he shall discharge the accused by recording reasons for doing so. 8. Section 228 lays down the procedure for framing charge where a case is considered fit for trial and reads as under : Sec 228 Framing of Charge. - (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, (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 9. Section 323 lays down the procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed and reads as under:- Sec. 323. Procedure when after commencement of inquiry or trial, Magistrate finds case should be committed - If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained (and thereupon the provisions of Chapter-XVII shall apply to the commitment so made.) 10. In the case of State of Kerala v. Vijayan, 1977 K.L.T. 458 the question of the legality of an order by a Magistrate after the first commitment of the case to the Sessions Court and the latter Court's proceedings under section 228 Cr.P.C. came for consideration. In that case the Judicial Magistrate had committed the five accused persons for trial of the offences under sessions 143, 147, 148, 149, 324 and 307 I.P.C. The Additional Sessions Judge, Mavelikara, before whom the case came up for trial, perused the records in the case, heard the State and the accused and held that the accused should be tried only under sections 143, 147, 148, 149 and 324 I.P.C. He accordingly transferred the case to the Chief Judicial Magistrate Alleppey for trial and disposal according to law. The Chief Judicial Magistrate examined P. W. 1 and on the basis of the evidence came to the conclusion that an offence under section 307 I.P.C. was also disclosed. The case was therefore again committed for trial to the Court of Additional Sessions Judge, Mavelikara for offences including one under section 307 I.P.C. While it was pending trial, the High Court ordered the transfer of the case to the Sessions Judge, Alleppey. The learned Sessions Judge, after recording the evidence held that there was already discharge of the accused for the offence under section 307 I.P.C. and also that the accused were not guilty of the remaining offences they were charged with. In those circumstances, her Lordship after discussing the relevant provisions of law held that there was a discharge of the accused by the Additional Sessions Judge, Mavelikana and that the Chief Judicial Magistrate's order committing the accused for trial of the said offence is unsustainable, and that the learned Chief Judicial Magistrate had committed a mistake in holding that the accused should be tried for the offence under section 307 I.P.C. as well. 11. In the case of Nohar Chand v. Ishwar Singh, 1981 Cr. L.J. 1906 the distinction between sections 209, 228 and 323 of the Code was pointed out. While doing so it was observed that sections 209, 228 and 323 of the Code cover up two different situations. 11. In the case of Nohar Chand v. Ishwar Singh, 1981 Cr. L.J. 1906 the distinction between sections 209, 228 and 323 of the Code was pointed out. While doing so it was observed that sections 209, 228 and 323 of the Code cover up two different situations. Whereas under section 209 case disclosing an offence exclusively triable by a Court of Session is to be committed to that Court, under section 323 if the inquiry being conducted or the trial being held by a Magistrate discloses an offence, not exclusively triable by a Court of Sessions but which caught, otherwise in his opinion, to be tried by that Court for reasons recorded by him, he can commit the case to that Court. Looking to the words not exclusively triable by the Court of Session appearing in Section 228 (1) (a) it was observed that they are converse to the similar words used in Section 209 the offence is triable exclusively by the Court of Session where under eases are committed to the Court of Session. 12. The question of legality of commitments of a case under section 323 of the Code in a matter where the Sessions Judge, after the first commitment had proceeded under section 228 (1) (a) and remitted it to the Court of Magistrate for trial, came for consideration in the case of Bondal v. State of M.P., 1983 Cr.L.J. 607 . The allegations against the appellants accused were with regard to the offences under sections 366, 376, 511,148, 354, 341 and 342 I.P.C. The committing Magistrate had committed the case to the Court of Sessions for trial under sections 366 and 376/511 I.P.C. After such commitment the Sessions Judge passed the order in accordance with Section 228 (1) (a) and after framing the charges under sections 148, 341, 342 and 354 I. P.C. against the appellate-accused remitted the case to the Court of Chief Judicial Magistrate for trial. The Magistrate proceeded with the trial on those charges. He however after recording of the evidence of the prosecution witnesses, committed the case again to the Court of Session for trial of the offence under section 366 I.P.C. along with the other offences. The conviction and sentence of the accused-appellants were challenged in the High Court. The Magistrate proceeded with the trial on those charges. He however after recording of the evidence of the prosecution witnesses, committed the case again to the Court of Session for trial of the offence under section 366 I.P.C. along with the other offences. The conviction and sentence of the accused-appellants were challenged in the High Court. The question of legality of the commitment order under section 323 of the Code in a case where the Sessions Court after first commitment had proceeded under section 228 (1) (a) of the Code was considered and it was held that the powers of Magistrate under section 323 were wide and not circumscribed to any extent, just because of the Sessions Courts earlier remittal of the case u/s 228(1) (a). According to his Lordship it cannot be said that after such recommitment by the trial Magistrate, the learned Sessions Judge, by framing the charge under section 366 I.P.C. had reviewed his earlier order whereby he had impliedly discharged the appellants accused of the offence u/s 366 I.P.C. According to his Lordship the Sessions Judge was competent to try the case for commission of the offence u/s 366 I.P.C. and as such, the Sessions trial of the appellants-accused was in order, and conviction of the appellants-accused u/s 366 I.P.C. could not be said to be vitiated. 13. The object behind the enactment of Section 323 of the Code is that even in cases where the Magistrate might not have thought it proper to commit the case u/s 209 I.P.C. and might have proceeded with the trial taking the case to be triable by him, he may finding during the course of inquiry or trial that there is material to suggest that ends of justice would meet only if the case is tried by the Sessions Judge commit the case for trial to the Court of Sessions. The difficulty however may arise when the Sessions Judge, after applying mind proceeds under section 228 (1) (a) and remits the case to the Court of Chief Judicial Magistrate for trial and disposal. On receiving the case u/s 228 (1) (a) the IV legislature is only to try the offence in accordance with law. The difficulty however may arise when the Sessions Judge, after applying mind proceeds under section 228 (1) (a) and remits the case to the Court of Chief Judicial Magistrate for trial and disposal. On receiving the case u/s 228 (1) (a) the IV legislature is only to try the offence in accordance with law. It is immaterial whether the case was instituted in the first instance on a police report or a complaint, on the remittal of the case by the Court of Session, it has to be tried as a warrant case instituted on police report. He has no authority to examine the correctness of the conclusion of the Sessions Judge in proceeding u/s 228 (1) (a) and therefore, a fresh order of commitment in such a case would be illegal. However, if while proceeding with the trial for the charges framed u/s 228 (1) (a) during the course of trial, on the basis of evidence adduced before the Court, any fact comes up which according to the Magistrate makes it a case exclusively triable by the Court of Sessions the hands of the Magistrate are not tied and in that situation it would be lawful to recommit the case to the Court of Sessions. In such cases provisions of Section 323 of the Code can be taken help of. If the second commitment is on the basis of the material not available at the time of the first commitment and the Sessions Judge proceeds u/s 228 (1) (a), the Magistrate cannot be said to sit over the order of the Sessions Judge and take a recourse not warranted by law if he proceeds u/s 323 I.P.C. The position of law, therefore is that, in certain cases, if the circumstances so warrant there may be justification for the Magistrate to commit the case second time, after proceeding with the trial of the case, in accordance with the direction u/s 228 (1) (a) of the Code. This recourse however is to be taken only if the case falls within the preview of Section 323. In other words if during the course of inquiry or trial before the Court there is material to suggest that the case is to be committed to the Court of Sessions for trial. 14. This recourse however is to be taken only if the case falls within the preview of Section 323. In other words if during the course of inquiry or trial before the Court there is material to suggest that the case is to be committed to the Court of Sessions for trial. 14. With this principle of law in view, I would now discuss the circumstances of the present case to arrive at a conclusion as to whether the second commitment by the Magistrate has any justification. 15. The learned Magistrate has passed the impugned order on the basis of the opinion of the Doctor Chirajilal who was recalled for narrating certain facts. The case is of a peculiar type. As stated earlier, the case instituted on a complaint for an occurrence of February 2, 1975 had travelled a long. The Sessions Judge on August 9, 1977 passed an order u/s 228 (1) (a) discharging the petitioners for the offence under Section 307 and 326 I.P.C. The Magistrate Railmagra had held the trial and the case was fixed for final arguments. It was at that stage that the case was again transferred to the Court of Chief Judicial Magistrate, Udaipur was passed the order permitting recross of four witnesses, but meanwhile the case was transferred to the Court of the Additional Chief Judicial Magistrate, Rajsamand and was fixed for final arguments. It was at that stage that the Court suo-moto resummoned the Medical Officer for examination and recorded his statement. 16. The perusal of the impugned order shows that it was the opinion of the Doctor expressed in Ex. P/7 in reply to the clarification sought vide Ex. P/6 which led the learned Magistrate to opine that the the petitioners should be tried under section 307 I.P.C. also. In Ex. P/7 the Doctor had opined that the injury was of serious nature. 17. It is noteworthy that Ex P/6 and Ex. P/7 to prove in which Doctor Chiranjilal had appeared second time in the witness box were already there in the charge sheet. They were not the documents produced by the prosecution subsequent to the commencement of the inquiry or trial before the Magistrate. Chhogalal injured was examined on February 3, 1975 by Doctor Chiranjilal and the injury report is Ex. P/5. On March 3, 1975 during the course of investigation vide Ex. They were not the documents produced by the prosecution subsequent to the commencement of the inquiry or trial before the Magistrate. Chhogalal injured was examined on February 3, 1975 by Doctor Chiranjilal and the injury report is Ex. P/5. On March 3, 1975 during the course of investigation vide Ex. P/6 clarification was sought regarding the nature of the injuries. On the reverse of Ex. P/6 on Ex. P/7 the Doctor has given the opinion regarding the injuries being of grievous nature because of the injured feeling unconscious and pain. Ex. P/5, Ex. P/6 and Ex P/7 were filed with the callas and were sent to the Sessions Court when the case was committed. Those papers were before the Sessions Judge when he proceeded under Chapter XVIII of the Code. 18. In Section 228, the words after such consideration and hearing as aforesaid are of significance. The words as aforesaid relate to the contents of Section 227. In that section the words upon consideration of the record of the case and the documents submitted therewith clearly indicate the intention of the Legislature that the Court should apply its mind and consider the material before it in order to arrive at a conclusion. The dictionary meaning of the word consider is to look at attentively or carefully; to think or deliberate upon. When the law casts a duty on the court to consider the record and the documents then, unless there is any allegation to the contrary it is to be presumed that the Court must have considered the material before it. Hence if the learned Sessions Judge having Ex. P/5, Ex. P/6 and Ex. P/7 before him has considered it to be a case fit for proceeding under section 228 (1) (a), it is to be taken for granted that he had done so after considering the full record of the case. Despite the opinion of the Doctor in Ex. P/7, in reply to the clarification sought vide Ex. P/6, being before him the learned Sessions Judge did not consider it to be a case exclusively triable by the Court of Sessions. 19. In these circumstances, simply because the Doctor has been examined by the Court second time and had made a reference to Ex. P/7, in reply to the clarification sought vide Ex. P/6, being before him the learned Sessions Judge did not consider it to be a case exclusively triable by the Court of Sessions. 19. In these circumstances, simply because the Doctor has been examined by the Court second time and had made a reference to Ex. P/7 in his statement, it cannot be said that any new material, not available to the Sessions Judge while proceeding u/s 228 (1) (a), was available to the Magistrate after the commencement of the inquiry and trial. 20. In view of the above discussion the conclusion to be drawn is that scope of Section 323 is wide enough and empowers the Magistrate to proceed under that section even in a case he has received under section 228 (1) (a). There should, however, be some basis for such a finding. If the material forming the basis of such a finding by the Magistrate is already before the Sessions Court while proceeding under Section 228 (1) (a) the position would however be different. In the present case, the material which led to the opinion of the Magistrate regarding the case being worth commitment to the Court of Sessions was already before the Sessions Judge when he applied his mind after the first commitment and formed the opinion that the charges under sections 307 and 326 I.P.C. are not made out. The documents already being there, the statement of the Doctor proving the documents would not in any way change the nature of the case. I am, therefore, of the opinion that it is not a fit case in which the learned Magistrate should have proceeded under section 323 of the Code. As such, the impugned order of recommitment of the case is not justifiable. 21. Consequently, the revision petition is allowed and the order dated June 6, 1985 passed by the learned Chief Judicial Magistrate, Rajsamand is set aside. The learned Chief Judicial Magistrate shall proceed with trial of the case as ordered by the Sessions Judge under section 228 (1) (a) of the Code.Revision allowed. *******