Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 305 (ALL)

Ashok v. State of U. P.

2018-02-05

KARUNA NAND BAJPAYEE

body2018
JUDGMENT & ORDER : Karuna Nand Bajpayee, J. The present application u/s 482 Cr.P.C. has been preferred on behalf of applicants Ashok and Ravindra seeking the quashing of impugned order dated 14.07.2017 whereby application moved on behalf of applicants u/s 245 Cr.P.C. has been rejected and order dated 10.11.2017 passed by the Chief Judicial Magistrate, Baghpat in Complaint Case No.5018 of 2015 (Smt. Subhasana vs. Pankaj and others), u/s 302 I.P.C., Police Station-Doghat, District-Baghpat whereby application moved u/s 323 Cr.P.C. seeking committal of the case to the court of Sessions has also been rejected and non bailable warrant has been issued against the applicant. 2. Heard learned counsel for the applicants. 3. Submission of counsel for the applicants is that on earlier point of time the accused-applicants had approached the High Court wherein another bench of this Court vide its order dated 23.6.2017 had given the finding that at that stage it could not be said that no offence was made out against the applicants and all the submissions raised by the counsel related to disputed questions of fact but the Court had given the liberty to move a discharge application, if the applicants so desired, through counsel within two weeks. Further submission is that later on the applicants had moved an application dated 07.07.2017 before the court of Chief Judicial Magistrate and sought discharge under Section-245 Cr.P.C. It has been argued that this application has been wrongly rejected by the court below by passing impugned order dated 14.7.2017. Counsel has tried to enter into the merits of the case and touched upon the aspects which relate to the appreciation of evidence and with regard to judging the credibility of witnesses and the value of the statements of different witnesses and the material available on record. 4. Heard learned A.G.A. and perused the record. 5. So far as the impugned order dated 14.07.2017 is concerned, this Court does not see anything wrong in the order which reflects judicial application of mind. It has been rightly observed by the court that the matter related to Section-302 I.P.C. which is an offence triable by the court of Sessions and the court of Magistrate had absolutely no right to either frame the charges or to discharge the accused. In such circumstances moving this application before the court of Magistrate seeking discharge was a wholly misconceived application. In such circumstances moving this application before the court of Magistrate seeking discharge was a wholly misconceived application. Apart from this something which though has not been mentioned in the impugned order, but is so apparent on the face of record, that moving this application for discharge u/s 245 Cr.P.C. could have been done with regard to the offences which related to the warrant cases triable by the court of Magistrate only. Therefore also this application rightly attended the fate which it deserved. There could not have been any other order passed on this application and there is no reason to interfere in the same. 6. Another order which has been challenged by the applicants is dated 10.11.2017 which has been passed in an application which appears to have been moved seeking the commitment of the case to the court of Sessions u/s 323 Cr.P.C. Though this application has not been annexed along with this application u/s 482 Cr.P.C. moved before this Court but the impugned order reflects that the same was moved to seek the committal of the case as aforesaid. The order passed by the court below upon this application again does not call for any interference for several reasons. It was rightly noted by the court below that the accused had not obtained their bail till that stage. The process of the commitment to the court of Sessions has to be dealt with in the light of the statutory provisions of Section-209 Cr.P.C., which very clearly stipulates that before the case is committed the accused has to submit to the jurisdiction of the court and has to be dealt with in accordance with the provisions relating to bail and the accused is to be either bailed out or to be committed to the custody, if not bailed out. The only submission in this regard made by the counsel is that because the High Court had made an observation on the earlier occasion while passing its order dated 23.06.2017 that the accused would appear through counsel and that is why the presence of the accused should have been exempted by the court below. This Court does not propose to enter into that aspect in any great detail but it appears that this fact was never brought to the notice of the court that the accused had not obtained their bail till that stage. This Court does not propose to enter into that aspect in any great detail but it appears that this fact was never brought to the notice of the court that the accused had not obtained their bail till that stage. It also appears that probably even this fact was not brought to the notice of the court that the case had not been committed till that stage. Apart from this it is also to be noted that commitment of the case to the court of Sessions u/s 323 Cr.P.C. is having a different ambit and scope than what is stipulated u/s- 209 Cr.P.C. It shall be of help to quote both the Sections i.e. 209 and 323 Cr.P.C. herein below: "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 to 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; (c) 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." "323. Procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained 1 and thereupon the provisions of Chapter XVIII shall apply to the commitment so made]." 7. Whether the case is exclusively triable by the court of Sessions or not is to be determined according to the Schedule-Chart that has been provided under the Code of Criminal Procedure, in which the triability of an offence has been provided. The classification of the offences has been done in the schedule chart, in which certain offences have been declared to be triable by the court of Magistrate while certain offences have been declared to be triable by the court of Sessions. Section 209 Cr.P.C. is obviously applied to the offences which have been declared to be triable by the court of Sessions. In fact there may be large number of other cases which though may not be triable by the court of Sessions but still the court of Magistrate may find it appropriate to commit them to the court of Sessions for various other reasons. That is why a very specific expression has been used u/s 323 Cr.P.C. and the language used in the section is of substantial importance when it stipulates ".....that the case is one which ought to be tried by the court of Sessions." There may be various reasons quite different, in the presence of which, the court of Magistrate may deem it appropriate and feel inclined that the case is one which ought to be tried by the court of Sessions. A very common illustration for committing the offences to the court of Sessions, even when they are not exclusively triable by the court of Sessions, is the commitment of cross case to the court of Sessions. This is an everyday happening in the court that the case triable by the Magistrate is committed to the court of Sessions because a related cross case is already pending in the court of Sessions. The reason for commitment is not because such case is exclusively triable by the court of Sessions but the same is still committed to the court of Sessions because the Magistrate finds that that is a case which 'ought to be tried' by the court of Sessions. Such is not the language used under Section-209 of the Criminal Procedure Code. There are many other reasons and this Court does not propose to enter into the great details. There may be cases which may involve a point of law of exceptional importance. Such is not the language used under Section-209 of the Criminal Procedure Code. There are many other reasons and this Court does not propose to enter into the great details. There may be cases which may involve a point of law of exceptional importance. There may be cases which may involve some such wide repercussions which may have grave social or political or economic consequences of wide implications. Such cases may be committed to the court of Sessions, if the court of Magistrate feels that in the given circumstances they ought to be tried by the court of Sessions. Such cases may be committed not because they are exclusively triable by the court of Sessions, they are committed simply because the opinion the Magistrate in that case may be that the case deserved to be tried by the court of Sessions for some exceptional other reasons. 8. Now coming back to the facts of the present case, the commitment of the present case has to be done because this case relates to an offence which is exclusively triable by the court of Sessions. There is absolutely no reason to bring into application Section-323 Cr.P.C. in the present matter, and therefore, even this application that was moved on behalf of applicant seeking the committal of the case u/s 323 Cr.P.C. was again a misconceived application. It appears that probably the counsel there, was aware that the commitment of a case u/s 209 Cr.P.C. will necessarily involve the presence of the accused and he shall have to submit to the jurisdiction of the court and subject to the provisions of the bail he may be committed to the custody. It appears that in order to circumvent the statutory provision of Section 209 Cr.P.C. an application u/s 323 Cr.P.C. was moved on behalf of applicant with purpose. 9. Be that as it may, both the impugned orders do not deserve any interference as they have been correctly passed on applications which were clearly misconceived for various reasons discussed hereinbefore and had to be rejected. 10. The application lacks merit and therefore same stands dismissed.