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1988 DIGILAW 378 (ORI)

JOGENDRA DAS v. STATE OF ORISSA

1988-12-23

V.GOPALASWAMY

body1988
JUDGMENT : V. Gopalaswamy, J. - This revision is preferred against the order of the learned Sessions judge, Cuttack dated 4-8-1984, partly allowing the revision petition and directing the S.D.J.M. Jajpur, in G.R. Case No. 1219 of 1982 to commit the accused persons (the present Petitioners) to stand their trial before the Court of Session for offences u/s 307 and other sections of the Indian Indian Penal Code. 2. The facts relevant for the purpose of the present revision may be briefly stated as follows: In G.R. Case No. 1219 of 1982 a charge-sheet was filed against the accused-Petitioners u/s 147, 325, 323 and 149, I.P.C. and the learned S.D.J.M. Jajpur, by his order dated 5-1-1983 took cognizance against them and those Sections 1 he Associate Public Prosecutor filed a petition on 27-6-1983 before the S.D.J.M. praying for taking cognizance against accused-Petitioners u/s 307, I.P.C. as well. On 25-8- 1983 the S.D.J.M. passed the order rejecting the petition for taking cognizance u/s 307, IPC. Being aggrieved by the order refusing to take cognizance against the accused persons u/s 307, IPC, the State preferred Criminal Revision No. 160 of 1983 before the Sessions Judge. The learned Sessions judge, on a careful consideration of the material placed on record, found that there is a prima facie case u/s 307, IPC, amongst other sections, against the accused persons and holding that the S.O.J.M. should have taken cognizance against the accused u/s 307, IPC as well, passed the impugned order directing the S.D.J.M. to commit the accused persons to face their trial before the Court of Session. Against that order the present revision is filed by the accused-Petitioners. 3. At the time of hearing, the only whether the Sessions Judge was empowered substantial point raised is, to direct the S.D.J.M. to commit G.R Case No. 1219 of 1982 against the accused-Petitioners of the Court of Session in exercise of his powers under the revisional jurisdiction. 4. Against that order the present revision is filed by the accused-Petitioners. 3. At the time of hearing, the only whether the Sessions Judge was empowered substantial point raised is, to direct the S.D.J.M. to commit G.R Case No. 1219 of 1982 against the accused-Petitioners of the Court of Session in exercise of his powers under the revisional jurisdiction. 4. On a scrutiny of the material placed on record, the learned Sessions Judge found that there was a prima facie case u/s 307, IPC against the accused-Petitioners I see no reason to disagree with the said finding of the learned Sessions Judge The offence u/s 307, IPC, is tribal by a Court of Session u/s 209, Code of Criminal Procedure in a case where the offence is exclusively tribal by the Court of Session, the Magistrate shall commit the case to the Court of Session So the Magistrate was empowered to commit the case Bur all the same the point in issue in the present revision is, whether the Sessions Judge could have directed the Magistrate to commit the case, in exercise of his revisional powers. 5. Under the Code of Criminal Procedure of 1898 (hereinafter referred to as the old Code) Section 437 expressly empowered the Sessions Judge to order an accused person wrongly discharged to be committed to tile Court of Sessions instead of directing further inquiry. There is no such express provision in the Criminal Procedure Code, 1973 (hereinafter referred to as the new Code) So the question which arises for consideration is whether under the new Code the Sessions judge is not empowered to direct commitment. 6. u/s 399 of the new Code, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 410 Thus Section 399 of the new Code invests the Sessions judge with the same powers to pass final orders as the High Court may do u/s 401(1) and the provisions of Sub-section (2) to (5) of Section 401 will be applicable to him as if the reference therein were to a Sessions judge instead of High Court. 7. For convenience of reference Section 401(1) of the new Code is quoted below: 401. 7. For convenience of reference Section 401(1) of the new Code is quoted below: 401. High Court's powers of revision-(1) In the case of any proceeding the record of which has been called for by itself or which Otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Section 386, 389,390 and 391 or on a Court of Session by Section 307 and when the judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. x x x x (Underlining is mine) Sub-section (1) of Section 401 of the new Code corresponds to and reproduces, Sub-section (1) of Section 439 of the old Code with sane changes. For Section 423, 426, 427, and 428 of the old Code, the corresponding Section 386, 329, 390 and 391 of the new Code have been substituted Section 386 of the new Code defines the powers of the Appellate Courts in dealing with appeals Hence it is seen that the nature of the powers that the High Court has in revision u/s 401(1) of the new Code is the same as that which a Court of appeal has in case of an appeal from any order against which an appeal is provided by the Code. 8. Section 386 of the new Code corresponds to Section 423 of the old Code. 8. Section 386 of the new Code corresponds to Section 423 of the old Code. Section 386(a) and 386(b) of the new Code, which correspond to Section 423(1)(a) and 423(1)(b) of the old Code, read as follows: 386 Powers of the Appellate Court-After perusing such record and hearing the Appellant or his pleader, if he appears, and the Public Prosecutor if he appears and in case of an appeal u/s 377 or Section 378 the accused, if he appears the Appellate Court may, if it considers that there is no sufficient ground for interfering dismiss the appeal or may- (a) in an appeal from an order of acquittal reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be or find him guilty and pass sentence on him according to law (b) in an appeal from a conviction (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, x x x x (underlining is mine) In The State of Uttar Pradesh Vs. Shankar and Another, the Supreme Court held that Section 423(1)(b) of the old Code expressly gives the power to the Appellate Court to dismiss the appeal to acquit or discharge the accused or order him to be re-tried or committed for trial and therefore the section does empower the Appellate Court to order commitment for trial to the Court of Session. A Full Bench of the Madras High Court in the case of Public Prosecutor 1. Ponnuswami Nayak and Ors. AIR 1923 Mad. 1257, held that Section 439 of the old Code conferred on the High Court the powers granted to a Court of Appeal by Section 423 of the old Code and one of the powers of granted was that of directing an accused to be committed for trial. Considering the scope of Section 401(1) and 386 of the new Code as earlier discussed, and relying on the above referred Full Bench decision Public prosecutor v. Ponnuswami Nayak of the Madras High Court and Shankar's case (supra) at the Supreme Court. I hold that the High Court in exercise of its revisional jurisdiction is empowered to direct the commitment of a case to the Court of Session. I hold that the High Court in exercise of its revisional jurisdiction is empowered to direct the commitment of a case to the Court of Session. As the High Court is held to have the power to direct commitment of a case in exercise of its revision of jurisdiction, in view of the provisions of Section 399 of the new Code it necessarily follows that the Sessions Judge has also the like power to direct the commitment of a case to the Court of Session in exercise of its revisional jurisdiction. The decision of the Patna High Court in Jagdish Das Ors. v. State of Bihar 1979 Cri. L.J. 1272 also fully supports my above view. 9. Under the old Code, while certain offences were tribal exclusively by a Court of Session, several others were tribal either by a Court of Session or a Magistrate. Under the new Code, an offence is triable either by a Court of Session or a Magistrate and there is no offence triable by both the Courts In view of this position, it is all the more necessary that the High Court and a Sessions Court must have the powers to direct the commitment of a case in exercise of their revisional jurisdiction to meet the contingency when a Magistrate illegally refuses to commit a case, exclusively triable by a Court of Sessions to the Sessions Court. No doubt Section 398 of the new Code confers a special jurisdiction on the Sessions Judge and the High Court to order further inquiry into a case in which the accused has been discharged In the case of Sanjay Gandhi Vs. Union of India (UOI) and Others the Supreme Court observed as follows: 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 Parliament's purpose in remolding Section 207-A (old Code) into its present non-discretionary shape. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in remolding 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 hold 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.... The above quoted observations of the Supreme Court emphasise the well accepted position of law that Section 209 of the new Code dispenses with the inquiry prior to commitment in cases triable exclusively by a Court of Session. In that view of the matter directing further inquiry in the case of an accused discharged from an offence exclusively triable by a Court of Session will be meaningless as held in Jagadish Das and Ors. v. State of Bihar (supra). 10. For the reasons stated above, I find that the learned Sessions Judge in passing the impugned order, as a consequence of which G.R. Case No. 1219 of 1982 against the accused-Petitioners would he committed to the Court of Sessions, has committed no such illegality as would justify the interference of this Court in exercise of its revisional jurisdiction. 11. In the result, the revision petition is without any merit and the same is therefore dismissed. Final Result : Dismissed