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2010 DIGILAW 882 (ALL)

JIMEDAR YADAV v. STATE OF U. P.

2010-03-17

VIRENDRA SINGH

body2010
JUDGMENT Honble Virendra Singh, J.—Jimedar Yadav, the revisionist has preferred this revision against the judgement and order dated 16.12.2009 passed by IXth Additional Civil Judge Jr. Division/Judicial Magistrate Ghazipur in Case Crime No. 897 of 2007 State v. Jimedar Yadav, by which the learned Magistrate has committed the case against the accused/revisionist as per provisions under Section 323, CrPC before the Court of Sessions for trial. 2. No one appeared on behalf of the revisionist at the time of hearing of this revision while learned AGA has been heard in the light of the grounds of this revision. 3. As per the grounds of this revision, it is stated that the impugned order is based on misreading of records, is arbitrary and against the principles of natural justice, which is not tenable in the eyes of law. The prosecution never made any protest/objection on the charge sheet filed against the accused for the offence under Section 304-A, IPC. It is settled law that if the learned Magistrate does not rely upon the police report, it should be treated as a complaint case. The provisions of Section 202 (2), CrPC have not been followed in this case and therefore, the impugned order is liable to be quashed. 4. Learned AGA contended that there is no error either of law or on the facts of this case as the impugned order has been passed by the learned Magistrate very much perfect in the eyes of law, thereby invoking the jurisdiction vested in the Magistrate as per provisions under Section 323, CrPC. The law relating to Revision as held by Hon’ble Apex Court in various cases as well as various High Courts of this country is summarized as below : “The revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401, Cr.P.C. Section 397, Cr.P.C. confers power on the High Court or Sessions Court as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as the regularity of any proceeding of such inferior Court. It is for the above purpose, if necessary, the High Court or Sessions Court can exercise of appellate powers. It is for the above purpose, if necessary, the High Court or Sessions Court can exercise of appellate powers. Section 401, Cr.P.C. conferring power of Appellate Court on the Revision Court is with the above limited purpose. Section 395 to 401, Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as the consequent appellate power. The revision powers though very wide are purely discretionary, to be fairly exercised according to the exigencies of each case. It is very well settled that it is normally to be exercised only unexceptional case if there is glaring defect in the procedure or there is manifest error of point of law and consequently there has been a flagrant miscarriage of justice. These powers are extraordinary powers which must be exercised with due regard to the circumstances of each particular case. High Court will not interfere on a technical ground, but only when substantial question arises or when a material error effects the decision. It may interfere when a jurisdiction vested has been exercised in an improper manner or improper ground. Even if the order is wrong or illegal, The High Court will not always interfere when substantial justice has been done or no prejudice has resulted to the accused. The error of law must lead to a failure of justice. In Revisional matter the High Court does not take a technical view and interfere in every case when an order has been made irregular or improper. The fact that the High Court as an Court of appeal might have taken different view is no ground for interference. The revisional jurisdiction will not be exercised in such a way as a given right of appeal in cases excluded by the Criminal Procedure Code.” 5. In the light of the contentions as is raised on behalf of the State and the grounds in the revision, I have gone through the facts on record. In this case, the charge sheet was submitted against the revisionist for offence under Section 304-A, IPC. The First Informant - Respondent No. 2 was examined as PW 1 on 12.11.2001 by the Trial Court. In this case, the charge sheet was submitted against the revisionist for offence under Section 304-A, IPC. The First Informant - Respondent No. 2 was examined as PW 1 on 12.11.2001 by the Trial Court. Smt. Shamli Devi, the wife of the deceased was examined as PW 2 on 26.11.2001, in which though she supported the FIR version, but subsequently in her statement she stated the direct role of shooting by the revisionist as was heard by her. Uma Shankar Yadav as PW 3 before the trial Court deposed the direct role of shooting on the deceased by the revisionist. 6. Section 323, CrPC provides the procedure regarding when after commencement of enquiry or trial, Magistrate finds that the case should be committed for trial to the Sessions providing that If, in any enquiry into an offence or a trial before a Magistrate, it appears to him at any stage of proceedings before signing the judgement that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that Court under the provisions contained in the CrPC. The section applies only when after commencing an enquiry into an offence or trial with a view to disposing it of himself, a Magistrate comes to the opinion from the facts disclosed that the case should be committed to the Sessions, he will then commit under the provisions in Section 209, the case to the Court of Session. It is only the satisfaction of the Magistrate concerned upon which, at any stage of the Magistrate can commit the case to the Court of Session. The moment the Magistrate judicially perceives that the case should be committed to the Court of Session, the magistrate loses jurisdiction to entertain and try the case. In the case of Bheru Singh v. State of Rajasthan, 2006 CRLJ 4344 , it has been held that “appears” means “seems” or “to be in one’s opinion” and it does not mean “satisfied”. However, the Magistrate is required to give reasons for thinking that the case ought to be tried by the Sessions Court. The powers of the Magistrate under Section 323, CrPC are wide in nature and not circumscribed to any extent . However, the Magistrate is required to give reasons for thinking that the case ought to be tried by the Sessions Court. The powers of the Magistrate under Section 323, CrPC are wide in nature and not circumscribed to any extent . The words “ought to be tried by the Court of Session” gives very wide powers to the Magistrate and gives the power to commit the case to Session, though not exclusively triable by Sessions, the case in the Magistrate’s opinion should be tried by the Session’s Court, is the only essence in the aforesaid provisions. 7. Here in this case before me since the magistrate has formed his opinion as per the evidence collected him at the time of trial that the case against the accused/revisionist ought to be tried by the Court of Sessions, therefore, I do not find any illegality or any procedural irregularity in the impugned order, against which this revision deserves to be dismissed and is hereby dismissed accordingly. ————