STATE OF MAHARASHTRA v. KALI EDULJI VAID — 1998 DIGILAW 139 (BOM)

Judgment ( 1 ) THIS is a revision application filed by the State against order dated 12-12-1990 passed by the Metropolitan Magistrate, 15th Court, mazgaon, Bombay in C. C. No. 3806/p/90. In that case the present respondents were chargesheeted for the offence punishable under section 302 read with section 149 and other allied sections having committed murder of Natha Appa Sawant. By the impugned order, the Magistrate, instead of committing the case of Sessions Court has converted the said charge into the charge under section 304-A and took upon himself the responsibility of trying the offence in purported exercise of his power under section 209 of the criminal Procedure Code. According to prosecution, at about 2. 30 p. m. on 28-3-1989 at Jivla Pada, saibaba Compound, in front of Bhor Company, boriwali (East), Bombay the respondents formed an unlawful assembly with a common object to assault and cause injury to Mohammed Alamgir Mohamad ismail Sayyed and assaulted Natha Appa Sawant and who succumbed to injuries. The Magistrate on going through the records, converted the charges into 304a read with section 143, 149 of Indian Penal code. ( 2 ) THE main contention of the State is that the Magistrate has no such powers to convert the charge into a lesser offence and take upon himself the responsibility of trying the offence instead of committing the case to the Sessions Court on the face of the records submitted by the prosecution. The State further contended that even if assuming that the Magistrate has jurisdiction, the Magistrate cannot appreciate the materials disclosed in the records and come to the conclusion as if he was exercising the power of the Sessions Court under section 227 of the criminal Procedure Code. ( 3 ) HEARD counsel Shri S. R. Chitnis for respondents and Shri R. Y. Mirza for State. On the basis of the Medical report, the cause of the death was Neuregenic Shock with pulmonary Oedema (Un-Natural ). On the basis of the medical report. Magistrate came to the conclusion that there is no material to show that Neuregenic shock caused to the deceased is direct result of the assault and therefore, if at all the assault is attributable to the respondents, it cannot be said that the death is due to the assault. On the basis of the medical report. Magistrate came to the conclusion that there is no material to show that Neuregenic shock caused to the deceased is direct result of the assault and therefore, if at all the assault is attributable to the respondents, it cannot be said that the death is due to the assault. The approach of the magistrate proceeds on the basis that he can appreciate the materials before it and come to the conclusion that whether it would commit the matter to the Sessions Judge or not. Though it can be said that the Magistrate is not a mere post office in the committal case and that the Magistrate has got certain discretionary powers which he can exercise under section 209 of Criminal Procedure code, the question arises in this case is to what extent this discretion can be exercised by the magistrate. According to me that discretion cannot be extended to the level of appreciation of the materials and come to a different conclusion. In other words, he cannot embark upon the task of evaluating the materials or drawing his own inferences, other than materials disclosed to him. The limited discretion that Magistrate can exercise is that in a case where from the records before him on the face of it, if he can come to the conclusion other than prosecution alleged, he can exercise discretion and convert the charge or discharge the accused. But this discretion as I observed earlier is travelling in a very narrow compass. His decision can be rested only on an appraisal of the materials apparent on the face of record. By exercising the jurisdiction under section 209, he cannot exercise similar jurisdiction that the Sessions Court has under section 227 of Criminal Procedure Code. ( 4 ) SHRI Chitnis, learned counsel for the respondents argues that the Magistrate s jurisdiction under section 209 is not mere a formality. Though I quite agree with this submissions, the discretion cannot extend to the level of appreciation of the evidence which the sessions Judge can do in exercise of jurisdiction under section 227 of Criminal Procedure Code. The learned Magistrate on analysing the post mortem report drew his own inferences that there is no material to establish a nexus between the assault by the accused and cause of death by Neuregenic shock. The learned Magistrate on analysing the post mortem report drew his own inferences that there is no material to establish a nexus between the assault by the accused and cause of death by Neuregenic shock. Magistrate was of the view of as there are no internal injuries on the body of the deceased, death cannot be attributed to the assault by the accused. He came to the conclusion that it was only an accident. Such an appreciation of evidence on the material available on record is impermissible. Therefore, I have no hesitation to hold that the Magistrate has transgressed his jurisdiction in converting the charge under section 302 to oneunder section 304a in the present case. Of course, Shri Chitnis drew my attention to the certain aspects contained in the material on record based on which, according to him, the respondents are entitled for discharge. I have no doubt that the learned counsel can very well raise all such contentions when he applies for the discharge under section 227 of Criminal procedure Code before the Sessions Court, after the case is committed to the Sessions Court. ( 5 ) IN view of this with the above observations, Revision Application is allowed. Magistrate s order dated 12-12-1990 impugned in this case is set aside and the Magistrate is directed to commit the matter before the Sessions court. The respondents are directed to appear before Magistrate on 23rd March, 1998. ( 6 ) OFFICE to send R. and P. immediately. ( 7 ) C. C. expedited. Revision application allowed.