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2002 DIGILAW 732 (PAT)

Bimlesh Kumar Singh v. State of Bihar

2002-07-11

R.S.GARG

body2002
ORDER On some report, respondent no. 2 was made an accused in a Sessions Trial, thereafter the respondent no. 2 filed a private complaint interalia alleging - that the present applicants are guilty of offences punishable under Sections 302 and 201 read with 34 I.P.C. The learned Magistrate after recording the verification statement rejected the private complaint that order was quashed by the High Court in Cr. Revision No. 398/1995 on 13.5.1996 and the Magistrate was directed to re-consider the case and pass orders in accordance with law. 2. After remittance the concerned Magistrate by its order dated 2.9.1996 again held that no prima-facie case is made out against the present applicant, again dismissed the complaint. Being aggrieved by order dated 2.9.1996, the complainant-respondent no. 2 came to this Court in Cr. Misc. No. 22936/1996. The said petition was allowed by this court on 26.6.1997. This Court observed that there were two cases in relation to the same occurrence, one by the wife of the petitioner and the other by the son of the decease and as in the police matter, the Magistrate was pleased to take cognizance and as the law is clear that such cases should be tried together, the order dated 2.9.1996 cannot be allowed to stand. This Court accordingly quashed the said order, remitted the matter to the learned Magistrate to proceed further in the matter in view of the observations made in the said order. 3. It appears that after the matter was remitted to the Judicial Magistrate, 1st Class, without observing the provisions of Section 202 of making a further enquiry into matter and record a finding that a prima-facie offence or an offence exclusively triable by the Court of Sessions was committed, he transmitted the records to the Court of Sessions. The present matter was tagged with Sessions Case No. 116/96. An objection was raised by the present applicants that the learned Sessions Judge could not take cognizance in the matter because matter was not committed in accordance with law and unless the provisions of Section 202 Cr.P.C. are observed there could be no commitment order and in absence of an order of commitment, a Court of Sessions would have no jurisdiction to take cognizance or proceed further with the trial. However, the objection raised by the present applicants was over-ruled and the learned 4th Additional Sessions Judge, Ara observed that since the record has been sent to the said Court in accordance with the directions of the High Court, it would be deemed that the case has been committed to the Court can take cognizance under Section 193 Cr.P.C. The Court also observed that in accordance with Section 194 of the Code an Additional Judge shall try such cases as the Sessions Judge of a division may, by general or special order, make over to him for trial or as the High Court may by special order, direct him to trial. 4. Learned counsel for the petitioner submits that the observations made by the learned 4th Additional Sessions Judge are contrary to record and the reliance by the said learned Judge on Sections 193 and 194 of the Code are misplaced. He submits that unless the procedure as prescribed under Section 202 is observed and thereafter the case is committed in accordance with the provisions of the Code of Criminal Procedure, the Sessions Judge would have no jurisdiction to proceed further with the trial. 5. Learned counsel for the private respondent submitted that from the observations made by the High Court, it would appear that the case was to be tried with the Sessions case and if the matter was transmitted by the said Judicial Magistrate 1st Class, it would only be a procedural irregularity, which would not affect the legality of the trial. 6. I have heard both the parties. 7. The order passed in Cr. Misc. No.22936/1996 if is appreciated appropriately, it would simply say that the trial of two cases arising out of the same occurrence should be conducted together. The order does not say that if one case is yet not committed to the Court of Sessions then such a case shall also be transmitted to the Court of Sessions. It is trite law that unless a case is committed to a Court of Sessions, the Sessions Court would have no jurisdiction to assume any jurisdiction and proceed with the trial. The catena of the authority say that unless the provisions contained under Section 209 Cr.P.C. are observed there can be no commitment and the Sessions Judge would have no jurisdiction to assume jurisdiction in the matter. 8. The catena of the authority say that unless the provisions contained under Section 209 Cr.P.C. are observed there can be no commitment and the Sessions Judge would have no jurisdiction to assume jurisdiction in the matter. 8. The earlier order of the High Court simply said that it would be desirable that both the cases are heard together, the order does not mean that all the procedural formalities are to be sacrificed in view of the observations made by this Court. I will not accept anything to say that this Court passed an order without looking into the provisions of law. This Court while making such observations must have kept into mind the provisions contained under Section 200, 202 and so on. Section 202 relates to postponement of issue of process. It empowers Magistrate that on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him, if he thinks fit, postpone the issue to process against the accused, made an enquiry into the matter or may direct that an investigation may be made into the complaint. Sub-section (2) provides that in an enquiry under sub-section (1) of Section 202 the Magistrate may, if he thinks fit, take evidence of witness on oath; provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. Undisputedly, the charges levelled against the present applicants are under Section 302 and the offence is exclusively triable by the Court of Sessions. In absence of due compliance of proviso appended to sub-section (2) of Section 202 and drawing further proceedings for committing the case to the Court of Sessions, neither the concerned Magistrate could transmit the records to the Court of Sessions nor the Sessions Judge could assume jurisdiction nor the concerned 4th Additional Sessions Judge presume that under the directions of the High Court it shall be deemed that the matter has already been committed. The High Court had simply said that the trial of both the matters together is desirable. 9. The High Court had simply said that the trial of both the matters together is desirable. 9. Section 193 says that except as otherwise expressly provided by the Code or by any other law for time being in force, no court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by Magistrate under the Code. The very language of Section 193 would make it clear that power to take cognizance in sessions triable cases can be exercised only for the cases, which has been committed by the concerned competent magistrate to the Court of Sessions. 10. Section 194 Cr.P.C. on which reliance has been placed by the learned 4th Additional Sessions Judge, in the opinion of this Court would have no application. Section 194 says that Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may by general or special order may offer to him for trial or as the High Court may, by special order, direct him to try. A Sessions Judge after taking cognizance in the matter can transfer the case to any other competent Judge for trial of the matter but a Sessions Judge can take cognizance of any offence only if matter has been committed to him not otherwise. So far as the direction by the High Court is concerned, there has to be a special order after taking into consideration the merits of the matter. A special order may be passed under Section 407 of the Code of Criminal Procedure that is transfer of a case from records of any Sub-ordinate Court to any other Court for its trial or its simultaneous trial with any other trial. In the present matter the High Court did not exercise its powers under Section 407 Cr.P.C. but simply expressed that it is desirable that both the cases are tried together. In absence of exercise of powers under Section 407 Cr.P.C. by the High Court, it would not be proper to presume that there would be a deemed commitment of the matter. The order passed by the learned Additional Sessions Judge in fact is based on misconception of law and misinterpretation of the earlier order of the High Court. In absence of exercise of powers under Section 407 Cr.P.C. by the High Court, it would not be proper to presume that there would be a deemed commitment of the matter. The order passed by the learned Additional Sessions Judge in fact is based on misconception of law and misinterpretation of the earlier order of the High Court. The order dated 11.9.2000 cannot be allowed to stand because neither the learned Sessions Judge could assume cognizance under Section 193, in absence of an order of commitment nor could he transfer the case to learned 4th Additional Sessions Judge for its trial. The orders passed by the Sessions Judge handing over or transferring the case to learned 4th Additional Sessions Judge are also quashed, the order passed by the learned Judicial Magistrate submitting the records to the Court of Sessions are also quashed. These orders are required to be quashed in exercise of the powers under Section 482 Cr.P.C. because a glaring illegality has been brought to the notice of this Court and if the trial is allowed ton continue in absence of the order of commitment, the trial would be void-ab-initio. The records shall be sent by the concerned 4th Additional Sessions Judge to the learned Judicial Magistrate 1st Class, who shall observe the provisions as contained under Section 202 and if after recording the evidences, he comes to the conclusion that the matter deserves to be committed to the Court of sessions than observing the further requirements of law he shall make the commitment order. 11. The petition is, allowed to the extent indicated above.