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1987 DIGILAW 4 (PAT)

Ahmad Hussain v. State of Bihar

1987-01-03

S.N.JHA

body1987
JUDGMENT S. N. Jha, J. This is an application for quashing of an order dated 31.1.1983, whereby the petitioners were directed to appear in person in court on 24.2.1983 for commitment of the case to the court of Sessions. 2. The relevant facts which led to the filing of this application, in short, are that on 1.2.1980 at 7.00 P. M. the complainant/opposite party no. 2 lodged a first information report at Pupri Police Station under Sections 147,323.342 and 307/34 of the Indian Penal Code alleging, inter alia, that petitioner no. 1 Ahmad Hussain, threw the complainant on the ground and the other accused persons assaulted him with lathi. It was further alleged that the petitioner no. I, Ahmad Hussain, pressed the neck of the complainant and petitioner no. 7 Abdul Latif, told him to kill the complainant. 3. The police after investigation submitted final report on 20.4.1980 stating that the case was one under Section 323 of the Indian Penal Code and hence non-cognizable. . 4. It appears that on 6.2.1981, the Judicial Magistrate took cognizance of the case under Section 323 of the Indian Penal Code and transferred the case to Shri O. P. Singh, another Judicial Magistrate, 1st Class, for disposal. During the pendency of" the case the complainant/opposite party no. 2 filed an application on 8.7.1982 stating that the case be registered under Section 307 of the Indian Penal Code. It further appears that on 16.12.1982 the complainant as well as these petitioners filed an application for compromise in the trial Court. 5. The grievance of the petitioners is that without disposing of the compromise petition the learned Magistrate passed the impugned order. 6. From the impugned order, it appears that a petition as already indicated above, was filed on 8.7.82 on behalf of the prosecution that from the first information report as well as from the injury report and the evidences led, the case has been made out under Section 307 of the Indian Penal Code and the case be committed to the Court of Sessions for trial. The prosecution adduced eight witnesses including the doctor in support of the prosecution case. The prosecution adduced eight witnesses including the doctor in support of the prosecution case. The learned Magistrate after considering all the facts, materials and evidences available on the record, came to the conclusion that prima facie a case has also been made out under Section 307 of the I. P. C. (in short Penal Code) and the justice demands that the petitioners be committed to the court of Sessions. 7 Mr. Wasi Akhtar, the learned counsel for the petitioner vehemently argued that once a compromise petition has been filed in the proceeding, the court becomes functus officio and the compromise petition will have an effect of an acquittal. In support of his contention he has relied upon a decision in case of Dharichhan Singh and others vs. Emperor, A.I.R. 1929 Patna, 141. In the said case it was held that the Magistrate was in duty bound to order an acquittal on the filing of the compromise petition signed by both parties in court for an offence for which no leave of the court is required. It is, no doubt, true that where an offence is a compoundable offence and for which no leave of the court is required and a compromise petition is filed, the effect of the compromise petition would be the acquittal of the accused, but if an offence is not compoundable under Section 320 of the Code of Criminal Procedure (in short Code), in that case, that proposition of law cannot be accepted. It is well known that if no prima facie, case has been made out against the accused, the proceeding may be quashed to prevent abuse of the process of the court and secure ends of justice but if facts are otherwise and in course of investigation or enquiry, the police or the Magistrate bas found the case against the petitioner, supported by other materials, namely, the evidence, medical report etc., this court will not quash the proceeding under its inherent jurisdiction. 8. In the instant case, I find that during the course of trial the Magistrate while recording the evidence of the witnesses has found that a case has been made out under Section 307 of the Penal Code, which is exclusively triable by a Court of Sessions. Therefore, he has directed the petitioners to appear in the court for commitment of the case to the court of Sessions for proper trial. Therefore, he has directed the petitioners to appear in the court for commitment of the case to the court of Sessions for proper trial. This power is vested in the court as envisaged under Section 323 of the Code. Section 323 lays down: "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" 9. From a bare reading of this provision, it is clear that if it appears to the Magistrate at any stage of the proceedings before signing of the judgment that the case is one which ought to be tried by the court of Sessions, he shall commit it to the court of Sessions. 10. I do not find any illegality in the impugned order so that it can be interfered with under section 4b2 of the Code. 11. Mr. Akhtar has also relied upon a decision in case of Prithvi Bhagat and another vs. Birju Sada, (Cr. Ref. No. 94 of 1962), 1962 (2) Cr. Law Journal, 206. In the said case it has been held that when the parties have filed a petition of compromise, they cannot afterwards be allowed to withdraw the petition and insist upon the case being tried. It was a case for an offence under Section 323 of the Penal Code. Therefore, the facts of the instant case is distinguishable from the facts of that case. 12. I have already indicated above that where an offence is a compoundable offence and a compromise petition is filed, the effect of such petition would be of acquittal of the accused, but in the present case the Magistrate has found a case against the petitioners under section 207 of the Penal Code on the materials available on the record, which is exclusively triable by a court of session. In that view of the matter the decision in the case of Prithvi Bhagat & anr. vs. Birju Sada (supra) will not help the petitioners in this case. 13. In that view of the matter the decision in the case of Prithvi Bhagat & anr. vs. Birju Sada (supra) will not help the petitioners in this case. 13. Taking into consideration all the facts and circumstances of the case, I am of the opinion that no illegality has been committed by the Trial Court, which can be interfered with 'under the inherent jurisdiction of this court. 14. In the result this application is dismissed.