The petitioner was the accused of Complaint Case No. 1144 of 1987 under sections 307/324/506 of the Indian Penal Code pending in the Court of the Chief Judicial Magistrate, Imphal. He impugnes the order dated 10.12. 1987 of the Chief Judicial Magistrate dropping the charge under section 307 and deciding to proceed with the trial for offences under sections 324/506 I.P.C. 2. Heard learned counsel Mr. Kh. Chonjon Singh on behalf of the petitioner. Also heard learned counsel Mr. N.G. Kumar on behalf of the Complainant-Respondent No.1 and learned Public Prosecutor Mr. Promode Singh for the State of Manipur. 3. The Chief Judicial Magistrate took cognizance of the offences including one under section 307 of the I. P. C. by his order dated 7.7.1987 on examining the Complainant under section 200 Cr.P.C. and issued the process. On appearnce of the accused, the Magistrate released him on bail and proceed to record evidence for trial. The accused demanded for commitment of the case to the Court of Sessions by application dated 21.11.1987. The Magisrtate passed the impugned order as follows :- “Heard the counsel of both sides and they too admit that there is no prima facie evidence against the accused u/s 307 I. P. C. Hence Charge u/s 307 I. P. C. against the accused is dropped. I too have perused the evidence given by two P, Ws. and I am satisfied that there is no prima facie evidence to charge the accused u/s 307 I.P.C. Charge u/s 324 & 506 I.P.C. will be heard on 30.12.87. 4. It was mandatory on the part of the Magistrate to follow the procedure of provision to sub-section (2) of section 202 of the Cr. P. C. read with section 208 Cr. P. C. and then commit the case inconformity with section 209, because the offence under section 307 was exclusively triable by the Court of Sessions. The Magistrate had applied his mind of having a prima facie case under sections 307/324/506 I.P.C. on examining the complainant under section 200 took cognizance and issued process. His order dated 7.7. 1987 in short was:-- 'Complainant examined, ground for proceeding exists, cognizance taken under sections 307/324/506 I.P.C., issue non-bailable W/A'. Issuance of the process and appearance of the accused do not confer power to a Magistrate to proceed with the trial ignoring the mandatory provisions of sections 202 (2) and 208.
His order dated 7.7. 1987 in short was:-- 'Complainant examined, ground for proceeding exists, cognizance taken under sections 307/324/506 I.P.C., issue non-bailable W/A'. Issuance of the process and appearance of the accused do not confer power to a Magistrate to proceed with the trial ignoring the mandatory provisions of sections 202 (2) and 208. The process of weighing and scrutinising evidence after examining two witnesses, for ascertaining prima facie case under section 307 I.P.C. and dropping that offence by forming opinion as to the absence of prima facie evidence for charge, and deciding to try the other offences, were all erroneous. A concession by the counsel agreeing with the opinion of the Magistrate, as evident from the impugned order, does not empower the Court to follow a procedure ignoring mandatory provisions. Magistrate had no power to screen evidence for satisfying himself whether a prima facie case has been made out on merit. The Magistrate should confine only to find out if prima facie the offence alleged is exclusively triable by the Court of Sessions. Magistrate has no power to drop the offence alleged, as done in the instant case, because it would amount discharge of accused of that offence, which power is vested only in the Sessions Judge under section 2?7. 5. The meaning of the words 'it appears to the Magistrate' in section 209 do not empower a Magistrate for weighing evidence and sorting out probabilities in the case, to form opinion as to a prima facie case for framing charge. He should confine only to examine if the offence alleged appears to be one exclusively triable by the Court of Sessions. Magistrate's scope is very limited and he cannot go deep into the materials/evidence to ascertain or satisfy as to existence of prima facie case for framing charge for that offence. This power is vested in the Sessions Judge under section 228. 6. In the instant case, the Magistrate had once applied his mind on the statement of complainant, recorded under section 200 Cr. P. C., and issued process for the offences including one exclusively triable by the Court of Sessions, so the recording of the statements of the other witnesses would be nothing but an enquiry leading to the process of commitment. The Magistrate misconceived the procedure and had no power to re-apply his mind after examining two witnesses.
P. C., and issued process for the offences including one exclusively triable by the Court of Sessions, so the recording of the statements of the other witnesses would be nothing but an enquiry leading to the process of commitment. The Magistrate misconceived the procedure and had no power to re-apply his mind after examining two witnesses. The Magistrate was duty bound to commit the case and left it to the Court of Sessions for doing needful under Chapter XVIH Cr. P.C. (Cases :-(i) Sanjay Gandhi vs. Union of India A.I.R. 1978 SC 514, (ii) State vs. Jairam-1976 Cr. L. J. 42, (iii) Swaroop Singh vs. State of Rajasthan-1976 Cr. L. J. 1655 and (iv) State of Karnataka vs. S. Y. Kattimani, 1976 Cr. L, J. 575, relied). 7. The impugned order dated 10.12.1987 of the Chief Judicial Magistrate was illegal, and is hereby set aside. 8. It is directed that the Chief Judicial Magistrate shall now offer an opportunity to the Complainant to produce his remaining witnesses, if any, besides the two (2) already examined. The Magistrate shall confine to record statements of the witnesses whose names had been given in the complaint petition. However, the Magistrate for the interest of justice, may record statement of an expert viz. Medical Officer, if considered necessary in the case, even his name was not shown in the list of witnesses. The statements of all the witnesses should be treated as done under the proviso to subsection (2) of section 202 Cr. P. C. Thereafter, Magistrate shall furnish copies to the accused-petitioner in conformity with the section 208 and then commit the case to the Court of Sessions under the provision of section 209 of the Cr. P. C. 9. This Revision is allowed with the above order and directions. 10. Send copy of this order immediately to the Court of Chief Judicial Magistrate, Imphal for necessary action.