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2010 DIGILAW 487 (PNJ)

Avtar Singh Alias Manna v. Balwinder Singh Sekhon

2010-01-20

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1. Assailed in this petition is the order dated 31.10.2007 passed by the Sub Divisional Judicial Magistrate, Phillaur, accepting the application under Sec.245 Cr. P. C and discharging the petitioners (now respondents) (herein referred as the respondents) under Sections 211/298/342/365 read with section 120-B IPC, on the grounds that the respondents are the police officials and, therefore, Sec.197 Cr. P. C. was applicable. As such, apparently, without seeking sanction against the respondents, they could not be discharged. 2. Facts in the background of the case are that Avtar Singh petitioner-complainant (herein referred as the petitioner) filed a complaint against the 11 police officials as well as three private persons namely Gurvinder Singh, Dev raj and Baldeep Singh for the aforesaid offences and vide order dated 18.9.1999, they were ordered to be summoned. In response to the summons, only Balwinder singh and Jangir Singh appeared and filed application under Sec.245 Cr. P. C. for dropping the proceedings. Later on, the other respondents also joined the proceedings. Thereafter, the court finding that all the respondents except Dev raj, Gurvinder Singh and Baldeep Singh, were the public servants and sanction under Sec.197 Cr. P. C. was required, therefore, Judicial Magistrate Ist class, Phillaur discharged them for want of sanction. 3. Before proceeding to decide whether sanction was required or not for service of the respondents, the crucial question before me was whether the magistrate after summoning the respondents for the offences, one of which was triable by the court of Session , could himself discharge them for the said offences while exercising the powers under Sec.245 Cr. P. C. 4. The procedure in cases Triable by the court of Session instituted upon a police report or otherwise is referred in Sec.209 Cr. P. C. which is reproduced as under :- "209. P. C. 4. The procedure in cases Triable by the court of Session instituted upon a police report or otherwise is referred in Sec.209 Cr. P. C. which is reproduced as under :- "209. Commitment of case to Court of Session when offence is triable exclusively by it : when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session , he shall :- (a) Commit, after Complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session , and subject to the provisions of this code relating to bail, remand the accused the custody until Such commitment has been made; (b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) Notify the Public Prosecutor of the commitment of the case to the Court of Session. " 5 As soon as the case is committed to the court of Session for the offence triable by it, Sec.227 of Cr. P. C. comes into play which is reproduced as under : "227. Discharge : if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. " 6. Section 228 of the Code further refers to the cases where there are some grounds for presuming that the accused has committed the offence then the court will proceed to frame the charge accordingly against those accused. However, after recording the preliminary evidence and summoning the accused by the Magistrate, the court was not left with any other function except to commit the case to the court of Session for trial if the same is triable by the Court of Session. The court of Judicial Magistrate cannot substitute itself to the court of Session and exercise the powers under Sections 227 and 228 of the Code. The court of Judicial Magistrate cannot substitute itself to the court of Session and exercise the powers under Sections 227 and 228 of the Code. However, the court before issuing the process could duly examine if there were sufficient grounds to issue the process are made out against the accused but after the due application of mind at the time of summoning, the provisions of section 227 and 228 of the Code are not available with the Magistrate in case the offence is triable by the court of Session. Sec.245 of the Code as incorporated in Chapter XIX of the Code of Criminal Procedure, 1973, are applicable to the cases dealt with by the Magistrate as warrant cases instituted otherwise than on police report. Notwithstanding the fact that the prosecution was instituted other than on a police report i. e. on complaint but it was triable by the court of Session as such remedy with the respondents to apply under Sec.245 Cr. P. C. was not available. 7. As regards the sanction for prosecution of the public servant, I need not to delve to decide the issue as the same is left for the trial court to decide the same independently without having been influenced by the impugned order. 8. Resultantly, I accept the revision petition, set aside the impugned order dated 31.10.2007 and remit the case back to the Magistrate to proceed further in accordance with law. However, it is made clear that if the court commits the case to the court of Session, the respondents would remain on bail, or if the offence under Sec.211 IPC is dropped at the instance of the complainant, then the Magistrate would be at liberty to consider the framing of the charge for the remaining offences.