Virupan Gowda v. State of Mysore — 1999 DIGILAW 1570 (MAD)

Bhimiah, J.- The above two Revision Petitions are filed under sections 435, 439 and 561(A), Criminal Procedure Code. They arise out of the order dated 21st July, 1966 passed by the Sessions Judge, Raichur in Crl.R.P. No. 18/7 of 1966 setting aside the order of discharge of the petitioners (A-1 to A-4) for an offence under section 302 read with Section 34, Indian Penal Code, passed by the Special First Class Magistrate, Lingaugur in C.C.No. 152/1 of 1966, directing the Magistrate to commit the accused to Court of Sessions according to law in the light of the observation made in the order and also directing the Magistrate to commit the accused by warrant to custody under section 220, Criminal Procedure Code. The Police of Manvi Taluka filed a charge-sheet against the accused under section 302 read with section 34, Indian Penal Code alleging that on 15th January, 1966 at about 12 noon in Nagdoni, Hosur Village in front of the house of Sag appa, in the course of a quarrel between witness Amaranna and A-1, A-2 to A-4 caught hold of the deceased who came to the rescue of Amaranna, and that A-1 stubbed deceased Basanna with a jambia on the left side of his abdomen; thereby they committed an offence punishable under section 302 read with section 34, Indian Penal Code. The inquiring Magistrate came to the conclusion that the evidence on record did not disclose any grounds for committing A-2 to A-4 for trial to the Court of Sessions and he discharged them. He further came to the conclusion that the attack was unpremeditated and the blow was struck in the heat of passion. He committed A-1 to take his trial for an offence under section 304, Part II, Indian Penal Code. The State filed a revision petition under sections 435 and 437, Criminal Procedure Code before the Court of Sessions at Raichur against the order of discharge of A-2 to A-4 as well as against the partial commitment order passed against A-1 by the inquiring Magistrate. The learned Sessions Judge allowed the revision petition and directed the Magistrate to commit the accused according to law in the light of the observations made by him in the course of his order. A-2 to A-4 are the petitioners in Cr.R.P. No. 268 of 1966 and A-1 is the petitioner in Cr.R.P. No. 270 of 1966. The learned Sessions Judge allowed the revision petition and directed the Magistrate to commit the accused according to law in the light of the observations made by him in the course of his order. A-2 to A-4 are the petitioners in Cr.R.P. No. 268 of 1966 and A-1 is the petitioner in Cr.R.P. No. 270 of 1966. Since common questions of fact and law arise in these revision petitions, they are dealt with together and disposed of by a common order. Sri Jagannatha Shetty, the learned Advocate for the petitioner (A-1) in Cr.R.P. No. 270 of 1966, contended that the Magistrate in this case, not having made an order expressly to the effect that the accused had been discharged in respect if the offence alleged to have been committed by them under section 302 read with section 34, Indian Penal Code, this is not a case in which the learned Sessions Judge could, Under section 437, Criminal Procedure Code have interfered with that order and directed the accused to be committed for trial for that offence to the Court of Sessions. He further urged that the Sessions Judge could interfere under section 437, Criminal Procedure Code only if the accused had been improperly discharged. He argues that there is no order of Magistrate discharging the accused. Therefore it could not be said that the accused had been discharged and much less improperly discharged and therefore the impugned order is illegal and not valid in law. On the other hand, the learned Public Prosecutor appearing for the State contended that there is an implied discharge in the case. He argues that all the accused were charge-sheeted by the Police for an offence under section 302 read with section 34 Indian Penal Code and that the Magistrate has, after applying his mind to all the facts of the case, framed a charge against A-1 for an offence under section 304, Part II, Indian Penal Code and discharged A-2 to 4 and therefore, there is an implied discharge in respect of the offence Under section 302 read with section 34, Indian Penal Code. The questions for decision are whether there is an implied discharge of the accused in so far as the charge Under section 302 read with section 34, Indian Penal Code, is concerned and whether the accused are thereby improperly discharged and whether the Sessions Judge could interfere with the order of implied discharge under section 437, Criminal Procedure Code. Sri Jagannatha Shetty relied upon the decision of this Court in State of Mysore v.S.J. Ramegowda1. In that decision Kalagate, J., has held as follows: “Where the Police charge-sheet was for an offence punishable under section 302, Indian Penal Code and the committal Magistrate on the evidence held that the accused had to be committed for an offence under section 304, Indian Penal Code (which was also exclusively triable by Court of Session there is no implied discharge of the accused by the committing Magistrate of the offence under section 302, Indian Penal Code. To contend that the inquiring Magistrate should commit the accused only in respect of the offence charge-sheeted by the Police is to ignore altogether the provisions of section 207-A, Criminal Procedure Code. The committing Magistrate is under statutory obligation to consider the evidence or record and come to his own conclusion, though he is not entitled to decide or try the case himself which is exclusively triable by Court of Session. In such circumstances the accused is not discharged of the offence under section 302. It will be open to the Sessions Judge to add or alter the charge under section 226, Criminal Procedure Code.” Our learned brother, Kalagate, J., while laying down the law, as stated above, has relied upon the decision of this Court reported in Hanumappa v. State of Mysore2, and also the decision of the Supreme Court in Ramagopal Ganapatrai Ruia v. State of Bombay3. The decision, in Ramagopal Ganapatrai Ruia v. State of Bombay3, has not laid down the law relating to the principle of implied discharge of an accused in a committal proceeding. The decision, in Ramagopal Ganapatrai Ruia v. State of Bombay3, has not laid down the law relating to the principle of implied discharge of an accused in a committal proceeding. In re Hanumappa and others case2, Narayana Pai, J., speaking for the Court has observed as follows: “On a reading of the discussion contained in his Lordship’s judgment, including the extracts from the several rulings relied upon by his Lordship it is clear that no rule of law has been formulated to the effect that wherever a Magistrate frames charges in respect of some only of the offences mentioned in a charge-sheet and refrains from framing charges in respect of the rest of them his order necessarily amounts to a discharge in respect of the latter offences. It is really a matter of interpreting the order of the Magistrate and seeing whether his action in framing a charge in respect of a particular offence necessarily implies a discharge in respect of certain other offences either included in it orconnected with it. Obviously such an inference may be possible when it can be shown that the Magistrate has applied his mind to all facts of the case before deciding to frame charges only in respect of some offences and not in respect of the others. Obviously such an inference may be possible when it can be shown that the Magistrate has applied his mind to all facts of the case before deciding to frame charges only in respect of some offences and not in respect of the others. When there is no such conscious application of the mind supporting an inference that he had decided not to frame charges in respect of some offences, an implied discharge of the type contended by the learned Counsel for the appellants cannot be postulated.” Further his Lordship observed: “That it is clear from the discussion contained in the judgment of the learned Magistrate that he did adjudicate on the question as to whether there were sufficient grounds for committing the accused to the Court of Session for trial for an offence of dacoity and on that basis held that his order refusing to frame a charge under section 395 clearly amounted to an order of discharge......” It is further observed that: “Whereas there may be stronger grounds for inferring such an implied discharge in cases where a Magistrate declining to commit an accused to Court of Session proceeds to try him for a minor offence before himself or sends him to another Magistrate for trial in respect of such a smaller offence, there will be hardly any basis for such an inference where he actually commits the accused for trial before the Court of Session, which under section 226 of the Code of Criminal Procedure, has ample jurisdiction to frame additional charges or alter the charges already framed by the committing Magistrate. Indeed to accept the theory of implied discharge of the type propounded by the learned Counsel for the appellants in such cases would mean that the jurisdiction expressly conferred by the statute on a superior Court can be impliedly taken away by a mistake or omission on the part of an inferior Court which cannot be correct.” While stating the proposition of law as above, their Lordships have relied upon the judgment of Somanath Iyer, J. in Criminal Revision Petitions Nos. 215 and 270 of 1958. In the above revision petitions, the facts were that the accused having been charge-sheeted under sections 342, 379 and 395 of the Indian Penal Code, the Magistrate expressly discharged the accused in respect of the offences under sections 342 and 379, Indian Penal Code. 215 and 270 of 1958. In the above revision petitions, the facts were that the accused having been charge-sheeted under sections 342, 379 and 395 of the Indian Penal Code, the Magistrate expressly discharged the accused in respect of the offences under sections 342 and 379, Indian Penal Code. He refused to frame a charge under section 395, Indian Penal Code cited in the charge-sheet. He proceeded to try the accused before himself for an offence under section 380, Indian Penal Code. The Sessions Judge upon revision by the prosecution having held that the accused had been improperly discharged in regard to the offence under section 395 of the Code, directed that the accused be committed to the Court of Session for trial in respect of that offence. It was contended before Somanath Iyer, J., that the Sessions Judge had no jurisdiction to make that order Under section 437 of the Code of Crimnal Procedure, because there was no order of discharge at all by the Magistrate, much less, therefore, an improper discharge within the meaning of that section. His Lordship after a consideration of the several decisions of the various High Courts held that in the circumstances of the case the order of the Magistrate amour ted to an implied discharge of the accused in respect of an offence under section 395. It is clear from the decision in In re Hanumappa and other1 that the Division Bench of this Court has elucidated the law relating to implied discharge in respect of offences for which no charge is framed, as laid down in the decision of this Court in Criminal Revision Petitions Nos. 215 and 270 of 1958 by Somanath Iyer, J. An inference of an implied discharge is a matter of interpreting the orders of Magistrate and seeing whether his action in framing a charge in respect of a particular offence necessarily implies a discharge in respect of certain other offences either induced in it or connected with it. Such an inference may be possible when it can be shown that the Magistrate has applied his mind to all the facts of the case before deciding to frame charges only in respect of some offences and no. in respect of others. Such an inference may be possible when it can be shown that the Magistrate has applied his mind to all the facts of the case before deciding to frame charges only in respect of some offences and no. in respect of others. When there is no conscious application of the mind supporting an inference that the Magistrate has decided not to frame charges in respect of some offences, an implied discharge is not postulated. No doubt their Lordships, as quoted earlier, have further laid down that there will be hardly any basis for an inference of discharge when the Magistrate actually commits the accused for trial before the Court of Sessions which, under section. 226 of the Code of Criminal Procedure, has ample jurisdiction to frame additional charges or alter the charges framed by the committing Magistrate. This observation has been made by their Lordships in repelling a contention raised by the learned Counsel for the appellant in the said case. The contention raised by the learned Counsel in that case was that the accused having been charge-sheeted for offences under sections 308 and 148, Indian Penal Code and the committing Magistrate having committed them after framing a charge under former section alone, must be held to have impliedly discharged the accused in respect of the offence under section 148. What actually happened in that case was that the accused were first charge-sheeted for offences under sections 324 and 148 of the Indian Penal Code which, with the permission of the Magistrate, was subsequently altered into one for offences under sections 302 and 148 of the Indian Penal Code after the death of the injured. There were in all 11 accused persons in that case. The Magistrate discharged 3 persons and committed eight appellants to the Court of Sessions to stand their trial for an offence punishable under section 302 of the Indian Penal Code. The learned Public Prosecutor, in the Court of Sessions moved the learned Sessions Judge to frame a further charge under section 148 of the Indian Penal Code also. After hearing both the Public Prosecutor and the Counsel for the accused, the learned Sessions Judge took the view that there was sufficient material to indicate that the accused must have been acting in concert and that they had inflicted some injuries on the prosecution witnesses as well. After hearing both the Public Prosecutor and the Counsel for the accused, the learned Sessions Judge took the view that there was sufficient material to indicate that the accused must have been acting in concert and that they had inflicted some injuries on the prosecution witnesses as well. Having regard apparently to the nature of the weapons used the learned Judge thought that only the first four accused should be charged under section 148 and the remaining four under section 147 of the Indian Penal Code. He passed orders accordingly. However, while actually framing the charges sections 302 and 148 are cited in the charge against all the accused, with the addition of section 324 in the case of the first four accused and section 323 in the case of the rest. It is under these circumstances that the learned Counsel for the appellants in that case raised the contention stated above. It is in this context their Lordships have observed as follows: “Indeed to accept the theory of implied discharge of the type propounded by the learned Counsel for the appellant in such cases would mean that the jurisdiction expressly conferred by the statute on a superior Court can be impliedly taken away by a mistake or omission on the part of an inferior Court which cannot be correct.” The principle of law laid down in the decisions of this Court in Criminal Revision Petitions Nos. 215 and 270 of 1958 and In re Hanmappa and others1 support the view that the Sessions Judge has jurisdiction to make an order under section 437 of the Code of Criminal Procedure in cases where the Magistrate applied his mind to all facts of the cases before deciding to frame charges only in respect of some offences and not in respect of others. Further it lays down that the Sessions Court to which the accused is committed to take his trial, has jurisdiction to frame a charge against the accused where by mistake or omission the inferior Court has failed to frame a charge. We are in respectful agreement with the law laid down in the decisions of this Court cited above. Further it lays down that the Sessions Court to which the accused is committed to take his trial, has jurisdiction to frame a charge against the accused where by mistake or omission the inferior Court has failed to frame a charge. We are in respectful agreement with the law laid down in the decisions of this Court cited above. With respect, we are unable to agree with the view taken by his Lordship, Kalagate, J., in State of Mysore v. S.J. Ramegowda2 in the matter of implied discharge and competency of the Sessions Judge to interfere with such an order of discharge under section 437 of the Code of Criminal Procedure. In our opinion whether the order is an order of implied discharge or not, would not depend on what the Sessions Judge may or may not do in future. The order has to be judged independently and not in the light of what the Sessions Judge may or may not do later. In the instant case, as stated earlier, the petitioners were charge-sheeted by the police for an offence under section 302 read with section 34, Indian Penal Code. The learned Magistrate of Lingsugur has fully applied his mind to the evidence of the witnesses examined for the prosecution and has come to the following conclusions after full appreciation of the evidence: “The evidence disclosed that the first accused had no enmity against the deceased. The deceased in his dying declaration and his statement recorded by the Inspector of Police also states that the accused had no enmity against him and that the main or primary dispute was between first accused and P.W. 5 over canal water. Thus it is patent that the first accused had no enmity against the deceased. The first accused went with the sole object of quarrelling with P.W. 5, relating to the canal water. Besides there is no evidence that he along With the other accused with a common intention wanted to commit the murder of the deceased. The evidence if at all discloses that at the spur of the moment the first accused whipped out the jambya and inflicted the stab injury, which later on proved fatal. There Was no quarrel between the first accused and the deceased, nor was there any feeling of enmity between them. The evidence if at all discloses that at the spur of the moment the first accused whipped out the jambya and inflicted the stab injury, which later on proved fatal. There Was no quarrel between the first accused and the deceased, nor was there any feeling of enmity between them. The attack if at all was unpremeditated and the blow was struck in the heat of passion. Evidence let in by the prosecution and the documents disclose that the act of stabbing the deceased was done by the first accused with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury to the deceased as is likely to cause death.” Accordingly he framed a charge under section 304, second proviso, Indian Penal Code against the first accused. But in revision, the learned Sessions Judge has quoted the evidence of several P.Ws. in extenso and observed as follows: “There is hardly any doubt from what is quoted above that the learned Magistrate took the responsibility of weighing evidence and coming to the conclusion that the accused Nos. 2 to 4 Were not guilty and the offence committed by the first accused is one of culpable homicide not amounting to murder.” He has further come to the conclusion: “That the Magistrate under subjection (6) of section 207-A, Criminal Procedure Code is not entitled to try the case on his own and forestall the decision of the Court of Sessions. If he passes an order of discharge he exceeds his jurisdiction and his order deserves to be set aside.” He has also observed that: “The Magistrate has tried to weigh the evidence and value it, which he cannot do under section 207-A.” Therefore, he has directed the Committal Court to commit the accused according to law in the light of the observations made by him in the course of his order. The reasons given by the learned Magistrate for framing a charge under section 304, Part II, Indian Penal Code and not a charge under section 302, Indian Penal Code are that there was no enmity between A-1 and deceased, that the dispute was in respect of canal water and that it was between A-1 and P.W. 5, and that there was no evidence that A-1 along with other accused with common intention wanted to commit murder, and that the evidence disclosed that at the spur of the moment A-1 whipped out a jambya and inflicted a stab injury which later proved fatal. But the evidence extracted and quoted by the learned Sessions Judge does not support the view taken by the Magistrate. Where two views are possible about the evidence in a case before the Magistrate, it would not be for him to evaluate the evidence and strike a balance before deciding whether or not to commit the case to a Court of Session. If, instead of committing the case to a Court of Sessions, he proceeds to try the accused upon the view that on the evidence found acceptable by him only a minor offence is made out for which no commitment is required he would obviously be making an encroachment on the jurisdiction of the appropriate Court. This may lead to miscarriage of justice and the only way to prevent it would be by a superior Court stepping in and exercising its revisional jurisdiction under section 437, Criminal Procedure Code (see Thakur Ram v. The State of Bihar1). We find in the evidence of P.Ws. examined before the Committal Magistrate that A-2 had instigated A-1 to beat the deceased, as the deceased would always interfere. Further the other 3 accused came running from the side of A-3’s hotel when A-1 raised cries being caught by the deceased, when A-1 attempted to assault Mulimane Amaranna a relative of the deceased. The learned Magistrate has omitted to consider the circumstances that A-2 to A-4 came running from the hotel side after A-1 raising “kaay kay”. The occurrence, according to the evidence, took place when A-1 and P.W. 5 were proceeding to the house of Sagrappa for the purpose of getting the matter squared up by him. The learned Magistrate has omitted to consider the circumstances that A-2 to A-4 came running from the hotel side after A-1 raising “kaay kay”. The occurrence, according to the evidence, took place when A-1 and P.W. 5 were proceeding to the house of Sagrappa for the purpose of getting the matter squared up by him. The learned Magistrate instead of merely considering the question as to whether the prosecution has made out a prima facie case, has elaborately gone into the question as to whether those acts constituted an offence under section 302 or an offence under section 304, Part II, Indian Penal Code. The learned Sessions Judge was quite right in taking the view that the learned Magistrate took the responsibility of weighing the evidence and coming to the conclusion that A-2 to A-4 were not guilty and the offence committed by the first accused is one of culpable homicide not amounting to murder. We are extremely surprised that the learned Magistrate has allowed himself to come to the conclusion that the evidence let in by the prosecution and the documents disclosed that the act of stabbing the deceased was done by the first accused with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury to the deceased as is likely to cause death. We are, therefore, clearly of the view that this was a case in which if the accused could be regarded to have been discharged in respect of an offence of murder, they are improperly discharged. The learned Sessions Judge had competence in the circumstances of the case to make an order under revision to commit the accused according to law in the light of the observations made by him in the course of his order. The facts of this case clearly fall within the ratio of the decisions of this Court in Criminal Revision Petitions Nos. 215 and 270 of 1958 and In re Hanmappa and others2 Sri Jagannatha Shetty relied upon a recent ruling of the Supreme Court in Thakurram and others v. State of Bihar1, in support of his contention that the Sessions Judge had no power to interfere when there is no express order of discharge. We do not think that the decision of the Supreme Court is of any assistance of the contention raised by Sri Jagannatha Shetty. We do not think that the decision of the Supreme Court is of any assistance of the contention raised by Sri Jagannatha Shetty. In the above decision, it is laid down as follows: “Section 437 does not contemplate that the power under the section is not exercisable during the pendency of a trial before a Magistrate or that this power can be exercised only where the Magistrate has made any express order of discharge. Express orders of discharge are not required to be passed by the Court in cases, where upon the same facts it is possible to say that though no offence exclusively or appropriately triable by a court of Session is made out an offence triable by a Magistrate is nevertheless made out. To imply a discharge from the Magistrate’s omission to commit or refusal to commit, would not be inconsistent with the existence of the Magistrate’s power to order commitment at any time. The power to commit at any stage is exercisable by virtue of the express provisions of section 347 or 206 and a previous discharge of an accused from a case triable by a Court of Session would not render the power unexercisable thereafter. Moreover, even if an express order of discharge is made by a Magistrate in respect of an offence exclusively triable by a Court of Session but a trial on the same facts for a minor offence is proceeded with, the Magistrate has undoubtedly power to order his commitment in respect of the very offence regarding which he has passed an order of discharge provided of course the material before him justified such a course.” There is nothing in the above ruling of the Supreme Court to indicate that the Sessions Court has no competence to interfere under section 437, Criminal Procedure Code with orders involving implied discharge of an accused. On the other hand their Lordships of the Supreme Court are of the view that to imply a discharge from the Magistrate’s omission to commit or refusal to commit, would not be inconsistent with the existence of the Magistrate’s power to order commitment at any time. It is relevant to note in para. On the other hand their Lordships of the Supreme Court are of the view that to imply a discharge from the Magistrate’s omission to commit or refusal to commit, would not be inconsistent with the existence of the Magistrate’s power to order commitment at any time. It is relevant to note in para. 7 at page 916 of the above decision, the following passage: “It would follow from this that where on a certain state of facts the accused is alleged by the prose -cution to have commited an offence exclusively triable by a Court of Session but the Magistrate is of the opinion that the offence disclosed is only an offence which he is himself competent to try and either acquits or convicts him there is an end of the matter in so far as the very set of facts are concerned. The facts may disclose really a very grave offence such as, say, one undersection 305, Indian Penal Code but the Magistrate thinks that the offence falls under section 304-A which he can try and after trying the accused either convicts or acquits him. In either case the result would be that the appropriate Court will be prevented frcm trying the accused for the grave offence which those very facts disclose. It is to obviate such a consequence and to prevent inferior Courts from clutching at jurisdiction that the provisions of section 437, Criminal Procedure Code have been enacted. To say that they can be availed of only where an express order of discharge is made by a Magistrate despite the wide language used in section 437 would have the result of rendering those provisions inapplicable to the very class of cases for which they were intended. When a case is brought before a Magistrate in respect of an offence exclusively or appropriately triable by a Court of Session what the Magistrate has to be satisfied about is whether the material placed before him makes out an offence which can be tried only by a Court of Sessions or can be appropriately tried by that Court or whet her it makes out an offence which he can try or Whether it does not make out any offence at all.” In the light of the above observations, it cannot be said that the Court of Sessions has no competence to interfere with an order of implied discharge. Of course, the facts of the above case are slightly different from the facts of the instant case. In the above case, the Magistrate refused to frame charges under section 386 or 387 of the Indian Penal Code, but tried the case himself. But in the instant case the learned Magistrate has framed a charge for a lesser offence, though the accused were charge-sheeted for a major offence and committed A-1 for trial to the Court of Sessions and discharged A-2 to A-4. But the ratio of the decision supports the contention raised by the Public Prosecutor in this case. Therefore, the above ruling of the Supreme Court relied upon by Sri Jagannatha Shetty. is of little assistance to the contention raised by him. As stated earlier, the facts of the instant case fall within the ratio of the decisions of this Court already cited above. There is an implied discharge of all the accused in so far as the offence under section 302 read with section 34, Indian Penal Code is.concerned. They have also been improperly discharged by the learned Magistrate. The Sessions Judge was right in interfering with the order of implied discharge under section 437, Criminal Procedure Code. For the reasons stated above, the order of the learned Sessions Judge is entirely within his competence. These Revision Petitions, therefore, fail and are dismissed. S.V.S. ----- Petitions dismissed.