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2008 DIGILAW 1576 (PAT)

Sunita Devi v. State Of Bihar

2008-11-07

KISHORE K.MANDAL, R.M.LODHA

body2008
Judgment 1. The petitioner, by means of this habeas corpus petition, seeks her release on the ground that her judicial custody in Chowk P.S. Case No. 96/2003 registered for the offences punishable under Sections 328, 302 read with Section 34 of the Indian Penal Code, after submission of the charge-sheet but without taking cognizance, is bad in law. 2. In the case of S.K. Lal vs. Lalu Prasad & Others, the Special Judge, C.B.I. (A.H.D.), Patna, referred two questions of law for answer by this court. The two questions read thus: (i) Whether the proceeding in between filing of charge-sheet and commencement of trial in a warrant case is an enquiry? (ii) Whether the undertrial can be remanded to custody after submission of charge-sheet even before taking cognizance during such enquiry? 3. The Division Bench in its judgment, which is reported in 1998(1) PLJR 782, held that proceedings between the filing of charge-sheet and commencement of trial are proceedings in the course of trial and not an inquiry. The Division Bench answered the first question thus: "After a police report under Section 170 is received by the Special Judge under Section 173 of the Code, he must proceed under Section 190 of the Code and take cognizance, or refuse to take cognizance, having regard to the provisions of Sections 195 to 199 of the Code. If he decides not to take cognizance, no case is instituted before him on a police report. If he decides to take cognizance and the accused appears before him, or is produced before him, the stage of commencement of trial is reached. He must then, as required by Section 238 satisfy himself that the provisions of Section 207 have been complied with. After he is satisfied that Section 207 is complied with, he must proceed to consider the relevant material required to be placed before him and either discharge the accused under Section 239 of the Code or proceed to frame charge under Section 240. After he decides to frame charge, he must proceed with the trial of the accused in accordance with the relevant provision of Chapter- XIX of the Code prescribing the procedure for trial of warrant cases by Magistrate. The proceeding under Section 190 of the Code is a judicial proceeding, but is not an enquiry within the meaning of that expression in the Code. The proceeding under Section 190 of the Code is a judicial proceeding, but is not an enquiry within the meaning of that expression in the Code. The proceeding under Section 238 is not an enquiry in view of the judgment of the Supreme Court in (1996)4 SCC 495 : 1996(1) PLJR (SC)123 (Raj Kishore Prasad V/s. State of Bihar). The stage under Sections 239 and 240 is reached after institution of a case on police report and after appearance of the accused and is therefore a proceeding in the course of trial, and not an enquiry." 4. With regard to the second question, the Division Bench held that if the Special Judge was unable to take cognizance under Section 190 of the Code of Criminal Procedure for any reason whatsoever, or refused to take cognizance, he would have no authority to remand the accused in custody in view of Section 309(2) of the Code which makes the taking of cognizance, condition precedent for the exercise of power of remand in a pending inquiry or trial. 5. In the case of State of U.P. V/s. Lakshmi Brahman and Another, AIR 1983 Supreme Court 439, the Supreme Court in paragraphs 13, 14 and 16 of the report considered the matter thus: "13. Now, if under Sec. 207, the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an inquiry for the purpose of satisfying himself that Sec. 207 has been complied with in letter and spirit. That satisfaction has to be judicial satisfaction. It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry. The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment. Thus, from the time the accused appears or is produced before the Magistrate with the police report under Sec. 170 and the Magistrate proceeds to enquire whether Sec. 207 has been complied with and then proceeds to commit the accused to the Court of Sessions, the proceeding before the Magistrate would be an inquiry as contemplated by Sec. 2(g) of the Code. We find it difficult to agree with the High Court that the function discharged by the Magistrate under Sec. 207 is something other than a judicial function and while discharging the function the Magistrate is not holding an inquiry as contemplated by the Code. If the Magistrate is holding the inquiry obviously Sec. 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. Sub-sec. (2) of Sec. 309 provides that if the Court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, it may, om time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it things fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. There are three provisos to sub-section (2) which are not material. If, therefore, the proceedings before the Magistrate since the submission of the police report under Sec. 170 and till the order of commitment is made under Sec. 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Sec. 309(2) would enable the Magistrate to remand the accused to the custody. Therefore, with respect, the High Court committed an error in holding that "the order remanding the respondents to custody, made after cognizance of offence was taken, cannot be justified under Sections 167(2), 209 and 309 of the Code and no other provision under which the respondents can be remanded to custody at this stage, having been indicated by the learned Govt. Advocate, we feel that it would be proper to accede to the request made by the respondents and to direct that they would be released on bail after furnishing adequate security to the satisfaction of the Chief Judicial Magistrate, Banda". 14. The view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code, and, therefore, also the view of the High Court cannot be upheld. 14. The view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code, and, therefore, also the view of the High Court cannot be upheld. According to the High Court after the accused is brought before the court alongwith the police report, the Magistrate must forthwith commit the accused to the Court of session because the Magistrate would have no jurisdiction in the absence of any provision to remand the accused to custody till the order committing the case to Court of Session is made. The view, with respect, is wholly untenable and must be set aside. 16. In view of the discussion, this appeal is allowed and the order of the High Court granting bail to the respondents on the short ground that they could not be remanded to the custody before the order committing them to the Court of Session is made, is set aside. However, if in the meantime, the trial is over, no question of taking the respondents into custody pursuant to the order would arise." 6. The Supreme Court in its subsequent decision in Raj Kishore Prasad V/s. State of Bihar, (1996)4 SCC 495 [:1996(1) PLJR (SC) 123] has, however, differed from the view taken by the court earlier in Lakshmi Brahman case. While dealing with the question as to whether the Magistrate undertaking commitment under Section 209 of the Code of Criminal Procedure of a case triable by a Court of Session, associate another person as accused, in exercise of power under Section 319 of the Code of Criminal Procedure, also considered the question whether the commitment proceedings had the essential attributes of the inquiry. In other words, the Supreme Court, inter alia, considered the question whether the proceedings under Section 209 of the Code are inquiry. This is how the Supreme Court considered the matter: "8. Proceedings before a Magistrate under Section 209 Cr.P.C. are patently not trial proceedings and were never considered so at any point of time historically. There has never been any doubt on that account. Before the amendment of the Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. Proceedings before a Magistrate under Section 209 Cr.P.C. are patently not trial proceedings and were never considered so at any point of time historically. There has never been any doubt on that account. Before the amendment of the Code of Criminal Procedure in the present form, commitment proceedings had the essential attributes of an inquiry and were termed as such. Now do they continue to be so, is the core question, to determine and spell out the powers of the Magistrates under Section 209 Cr.P.C. If proceedings under Section 209 Cr.P.C. continue to be an inquiry. Section 319 Cr.P.C. would be obviously attracted, subject of course to deciding whether the material put forth by the investigation could be termed as evidence as otherwise no evidence is recordable by a Magistrate in such proceedings. 9. While enacting the Code of Criminal Procedure, 1973, the prefatory note before the Parliament containing Objects and Reasons gave out the changes proposed to be made with a view to speed up the disposal of criminal cases. Item (a) specifically provided "the preliminary inquiry which precedes the trial by a Court of Session, otherwise known as committal proceeding, is being abolished as it does not serve any useful purpose and has been the cause of considerable delay in the trial of offences". 10. The Law Commission beforehand in its 41st Report while recommending change on the subject opined as follows: "17.11. Where the case (whether instituted on a police report or on complaint) relates to an offence triable by the Court of Session, the Magistrate has to send up the case to the Court of Session. Since an inquiry by the Magistrate is not contemplated in the scheme which we propose in regard to such offences, the provision in this respect can take a simple form and can be placed in this chapter as forming part of the commencement of proceedings before Magistrate. It will be convenient to refer to this process as "commitment of the case to the Court of Session" although the procedure is radically different from the commitment proceedings at present provided in chapter 16. (ii) Cl. It will be convenient to refer to this process as "commitment of the case to the Court of Session" although the procedure is radically different from the commitment proceedings at present provided in chapter 16. (ii) Cl. 214 (S. 209)"Preliminary inquiries by Magistrates in cases exclusively triable by the Court of Sessions are being dispensed with as such an inquiry has served no useful purpose and, on the contrary, it involves a great deal of infructuous work causing delay in the trial of serious cases. The abbreviated form of inquiry provided for by the amendments made in 1955 and contained in Section 207A has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, created fresh problems. Preliminary inquires are therefore, being dispensed with in cases triable by a Court of Session. However, to perform certain preliminary functions like granting copies, preparing the records, notifying the Public Prosecutor, etc. provision is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the Court of Session. As regards private complaints in cases triable exclusively by a Court of Session the inquiry into the complaint by the Magistrate under the existing Section 202 will serve the purpose of a preliminary scrutiny. "S.O.R. Gaz. Of Ind. 10.12.1970. Pt. II S. 2, Extra, p. 1309 (1320)." (Emphasis supplied). 11. The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "committal proceedings" have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the Public Prosecutor etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being the adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. It is thus manifest that in the sphere of the limited functioning of the Magistrate no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straightaway with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of "inquiry" as defined in Section 2(g) of the Code of Criminal Procedure, which defines that "inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a Court", because of the prelude of its being "subject to the context otherwise requiting". As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session. 12. This Court in State of U.P. V/s. Lakshmi Brahman and Another [AIR 1983 Supreme Court 439 (445)] took a view which prima facie does not seem to be in accord with our views afore-expressed. It was held as follows: "The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment. Thus, from the time the accused appears or is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to enquire under Section 207 has been complied with and then proceeds to commit the case to the Court of Session, the proceedings before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code. We find it difficult to agree with the High Court that the functions discharged by the Magistrate under Section 207 is something other than a judicial function and while discharging the function the Magistrate is not holding an inquiry as contemplated by the Code." From the text of the judgment it is clear that the statement of "Objects and Reasons" reflecting legislative policy as to the quality of inquiry was not laid before this court as well as the report of the 41st Law Commission recommending abolishing of "inquiry" before the Magistrate, which was responsible for the change. Had the Bench been apprised of the historical perspective, we have no doubt in our mind that the comprehension of the word "inquiry" as meant for Section 209 Cr.P.C. would have been the same as gathered by us on becoming cognizant of the legislative scheme for early disposal of cases triable by a Court of Session." 7. Not accepting the view expressed in Lakshmi Brahman, the Supreme Court in Raj Kishore Prasad held that the proceedings before the Magistrate at the stage of Section 209 (proceedings for commitment of the case to the Court of Session) are not inquiry. 8. The Full Bench of this Court in the case of Rabindra Rai V/s. The State of Bihar, 1984 PLJR 701, followed the Supreme Court judgment in the case of Lakshmi Brahman and held thus: "What is meant by taking cognizance has been explained from time to time by different Court, including the Supreme Court. In a nutshell the expressions "taking cognizance" mean application of mind. In one of the earliest cases on the point in the case of Dalu Gour and Others V/s. Moheswar Mahato (AIR 1948 Patna 25) it was pointed out that "the expression "cognizance" has not been defined in the Code. There are several decisions to the effect that taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate, as such applies his mind to the suspected commission of an offence". There has been a common practice that Magistrates before whom police report/charge-sheet is submitted they mention on the order-sheet that cognizance had been taken. But to establish in a particular case that cognizance has been taken any such order saying that cognizance has been taken is not a must. There has been a common practice that Magistrates before whom police report/charge-sheet is submitted they mention on the order-sheet that cognizance had been taken. But to establish in a particular case that cognizance has been taken any such order saying that cognizance has been taken is not a must. As such, an inquiry within the meaning of Section 309(2) may commence before the Magistrate no sooner charge-sheet is submitted so as to vest him power of remand under sub-section (2) of Section 309 of the Code. This aspect of the matter has recently been considered by the Supreme Court in the case of State of U.P. V/s. Lakshmi Brahman and Another ( AIR 1983 SC 439 ). From the judgment of that case it will appear that the accused concerned had surrendered before the Magistrate on November 2, 1974, charge-sheet was submitted on February 5, 1974, (sic) i.e., beyond the statutory period of sixty days as it was under original Code prior to amendment of Section 167(2) by the Criminal Procedure (Amendment) Act, 1978. There is nothing in the judgment to show that in that particular case cognizance had been taken on the date of the submission of the charge-sheet. A question arose whether an order of remand could have been passed under Section 309(2) of the Code between the period commencing from the date of submission of the charge-sheet and passing of an order of commitment under Section 209 of the Code. A question arose whether an order of remand could have been passed under Section 309(2) of the Code between the period commencing from the date of submission of the charge-sheet and passing of an order of commitment under Section 209 of the Code. In that connection it was held as follows: "Thus, from the time the accused appears or is produced before the Magistrate with the police report under Sec. 170 and the Magistrate proceeds to enquire whether Sec. 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Sec. 2(g) of the Code." After making a reference to sub-section (2) of Section 309, it was further observed: "If, therefore, the proceeding before the Magistrate since the submission of the police report under Sec. 170 and till the order of commitment is made under Sec. 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Sec. 309(2) would enable the Magistrate to remand the accused to the custody." In view of the clear enunciation of the position that an inquiry within the meaning of Section 2(g) of the Code shall deem to have commenced since the submission of the police report, and shall continue till an order of commitment is made under Section 209, it is difficult for this Court to hold that such inquiry shall commence only after a formal order is passed by the Magistrate saying that cognizance has been taken. Once it is held that inquiry commences since the submission of the police report-chargesheet there should not be any difficulty in holding that the Magistrate has during that period power to remand the accused in terms of sub-section (2) of Section 309 of the Code. 7. Faced with the aforesaid decision of the Supreme Court, learned counsel appearing for the petitioner tried to distinguish the said decision saying that in the judgment it is not mentioned whether the cognizance had been taken on the day the charge-sheet was submitted or at a later stage. 7. Faced with the aforesaid decision of the Supreme Court, learned counsel appearing for the petitioner tried to distinguish the said decision saying that in the judgment it is not mentioned whether the cognizance had been taken on the day the charge-sheet was submitted or at a later stage. According to the learned counsel, the Supreme Court was considering in the aforesaid case only the question as to whether after taking cognizance under Section 190 of the Code and before passing of an order of commitment under Section 209 of the Code there is an inquiry before the Magistrate. In view of the unambiguous and clear statement that an inquiry shall deem to have commenced since the submission of the police report, it is difficult to accept the aforesaid contention of the counsel for the petitioner. In a Full Bench decision of this Court in the case of Tuneshwar Pd. Singh V/s. Ram Pravesh Yadav (1978 Bihar Bar Council Journal 111) (:1978 P.L.J.R. 403) one of the learned Judges Mr. Justice Shambhu Prasad Singh observed: "During the period when the Magistrate receives charge-sheet from the police and takes cognizance and till he passes an order under Section 209 of the Code, the matter is pending inquiry before him for ascertaining whether the offence made out on the evidence recorded by the police is exclusively triable by the Court of session or not." 9. In the case of Ramayan Singh V/s. State of Bihar & Anr., 2000(3) PLJR 407 , the Division Bench of this Court was concerned with the habeas corpus petition wherein a prayer was made to release the petitioner from the judicial custody on the ground that his remand by the Chief Judicial Magistrate was illegal and without jurisdiction as he had no power to remand the petitioner after submission of the charge-sheet and before taking of the cognizance. The Division Bench preferred to follow the judgment of the Supreme Court in the case of Raj Kishore Prasad (supra) and held that custody by the Judicial Magistrate after submission of the charge-sheet and before taking of the cognizance was not illegal. 10. The Division Bench preferred to follow the judgment of the Supreme Court in the case of Raj Kishore Prasad (supra) and held that custody by the Judicial Magistrate after submission of the charge-sheet and before taking of the cognizance was not illegal. 10. In yet another decision, the Division Bench of this Court in the case of Ramanuj Tiwari and Nagendrapati Tripathi @ Laljee V/s. The State of Bihar & Ors., 2002(2) PLJR 88, where the question was whether the remand by the Magistrate in the judicial custody after submission of charge-sheet and without taking cognizance of the offence is invalid, preferred to follow the judgment in the case of Ramayan Singh (supra) while noticing the Full Bench decision in the case of Rabindra Rai and earlier Division Bench judgment of this Court in the case of S.K. Lal. This is how the Division Bench considered the matter: 6. The law on this point is almost settled by various decisions of this Court. In the case of S.K. Lal (supra), a Bench of this Court held that taking cognizance of the offence is prerequisite to the exercise of powers of remand under Section 309 of the Code and unless cognizance is taken in a warrant case, the court has no jurisdiction to remand the accused to judicial custody under Section 309 of the Code. It was further held that the intervening period between filing of the charge-sheet and commencement of the trial must not be mistaken as inquiry, rather it would be a judicial proceeding and in view of Section 309 of the Code, if the court is unable to take cognizance under Section 190 of the Code, then it has no authority to remand the accused. 7. The ratio laid down in the case of S.K. Lal (supra) was considered by subsequent Bench of this Court in Ramayan Singh V/s. State of Bihar and Anr. [2000(3) Patna Law Journal Reports 407]. 7. The ratio laid down in the case of S.K. Lal (supra) was considered by subsequent Bench of this Court in Ramayan Singh V/s. State of Bihar and Anr. [2000(3) Patna Law Journal Reports 407]. This Court in Ramayan Singh (supra) relying upon a Full Bench decision of this Court rendered in Rabindra Rai V/s. State of Bihar (1984 Patna Law Journal Reports 701) held: "Thus, the binding precedents are that after submissions of the charge-sheet and before passing an order under Section 209 committing an accused to the court of session in a case triable by the court of session, the proceeding pending before the Magistrate is an enquiry and during that period he can exercise the power of remand either under Section 309 of the Code or under Section 209(a) of the Code after its amendment by Act 45 of 1978, which clearly provides that during the commitment an accused can be remanded to custody subject to the provision of bail. This amendment in Section 209 of the Code by the aforesaid Act was made to remove the difficulty actually experienced in cases where the Committing Magistrate is unable to commit the accused on the same day." 8. The subsequent Bench in Ramayan Singh (supra), however, distinguished the ratio laid down by this court in S.K. Lals case (supra) in the following terms: "The decision in the case of S.K. Lal (supra) has no application to the facts of this case and the same is evident from the observations made by the Division Bench in paragraph no. 22 of the judgment, wherein it has been clearly stated "The case with which we are concerned, is not a sessions case, but a case triable as a warrant case". In that case, the decisions rendered by the Supreme Court in the case of Lakshmi Brahman (supra) and by the Full Bench in the case of Rabindra Rai (supra) were also cited but they were distinguished and their lordships relying upon the judgment in the case of Raj Kishore Prasad (supra) came to the aforesaid conclusion. As stated above, that was a warrant case and there is no question of commitment or enquiry at any time after final form is submitted and after the cognizance is taken the trial begins. As stated above, that was a warrant case and there is no question of commitment or enquiry at any time after final form is submitted and after the cognizance is taken the trial begins. This apart, even assuming that this question has been decided by the Division Bench and has been held that taking of cognizance is a condition precedent for exercise of power of remand in a case pending for trial, I am of the view that the said judgment cannot be relied upon in preference to the law laid down by the Supreme Court and the Full Bench of this Court. It is settled by a catena of decisions of the Apex Court that if the matter is pending before a Division Bench and it is submitted that the earlier Full Bench judgment on the said point was erroneous by virtue of a subsequent judgment of the Supreme Court, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said matter to a Full Bench. In the words of the Supreme Court "the judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court." [See (1997)5 S.C.C. 1 ]. So far as the cases of Pawan Kumar Jaiswal (supra) and Magni Mahto (supra) are concerned, the same were decided relying upon the judgment rendered in the case of S.K. Lal (supra) and the remand was held to be illegal." 9. It is further held in the case of Ramayan Singh (supra) that the word "cognizance" does not require any formal action and when the court applies its mind judicially to the relevant materials on record, then it is said to have taken cognizance. Under the scheme of the Code it has not been treated the stage like inquiry, investigation or trial. There are only three stages in criminal case, namely, investigation, inquiry and trial depending upon the nature of the cases and power of remand has been provided during the aforesaid stages if the accused is not on bail. Under the scheme of the Code it has not been treated the stage like inquiry, investigation or trial. There are only three stages in criminal case, namely, investigation, inquiry and trial depending upon the nature of the cases and power of remand has been provided during the aforesaid stages if the accused is not on bail. While summing up their Lordships in Ramayan Singh (supra) further held: "With all humility and with respect to the Honble Judges, who have rendered judgment in the case of Raj Kishore Prasad (supra), I follow the judgments rendered by the Apex Court in the earlier two cases and which have been followed by a Full Bench of this court in the case of Rabindra Rai (supra) and hold that a proceeding before the Magistrate after submission of the charge-sheet and before commitment of the case in a case where the commitment is to be made, is an enquiry under Section 2(g) of the Code and during that period the Magistrate has power to remand either under Section 209(a) or under Section 309(2) of the Code." 9. The question raised by learned counsel appearing on behalf of the petitioners, in our opinion, is squarely covered by the decision rendered by this Court in the case of Ramayan Singh (supra) and detention of the petitioners in the given case would not be illegal or without jurisdiction, as the learned Magistrate has not in specific words recorded that he took cognizance of the offence after filing of the charge-sheet." 11. There is, thus, divergent opinion amongst the different Benches of the Court. The Division Bench of this Court in the case of S.K. Lal read the Full Bench decision of this Court in Rabindra Rai in a particular way and held that unless cognizance is taken in warrant case, the court has no jurisdiction to remand the accused to judicial custody under Section 309 of the Code and it has also been held therein that committal proceedings are not inquiry but the proceedings during the course of trial. In the case of Ramayan Singh, another Division Bench of this Court followed Rabindra Rai and held that decision in S.K. Lal was not applicable to the case triable by sessions exclusively. 12. Another Division Bench of this court in Ramanuj Tiwari followed the decision of the Division Bench in the case cf Ramayan Singh. In the case of Ramayan Singh, another Division Bench of this Court followed Rabindra Rai and held that decision in S.K. Lal was not applicable to the case triable by sessions exclusively. 12. Another Division Bench of this court in Ramanuj Tiwari followed the decision of the Division Bench in the case cf Ramayan Singh. The decision in Lakshmi Brahman case has been differed by subsequent two Judges Bench in the case of Raj Kishore Prasad holding that the proceedings for commitment of the case to the court of Session are not inquiry. 13. With such differing views of this court as well as the Supreme Court, we are of the considered view that the matter needs to be referred to the Larger Bench of three Judges for an authoritative pronouncement on the question: whether remand by the Magistrate to judicial custody after submission of charge-sheet but before taking cognizance of the offence in a sessions case is legally permissible? 14. . Since the fate of the writ petition is dependant on the answer to the aforesaid question, the petition itself is referred to the Larger Bench for disposal. The Larger Bench may reframe the question and/or frame other incidental questions..... for disposal of the matter. Order accordingly.