Achchey Lal and Others vs State of U.P.

M. Murtaza Husain, J.—A charge-sheet was submitted by the police of P.S. Dhammaur in the district of Sultanpur before a Magistrate of the First Class against the six revisionists, namely, Achchey Lal, Pratap Bahadur, Dilesar, Sadhai, Girdhari and Sher Bahadur for having committed offences under Sections 147, 323/149 and 324/149 IPC. Those offences were triable by the learned Magistrate himself but he committed the case of the revisionists to Sessions, because another case u/s 307 IPC with respect to the same occurrence, had already been committed to Sessions. This committal was obviously made to avoid the possibility of conflicting findings by different courts of competent jurisdiction with respect to one and the same matter.

The case thus committed was registered as Sessions Trial No. 73 of 1978. It was tried by an Assistant Sessions Judge, who convicted the revisionists and sentenced them to undergo different terms of imprisonment for the aforesaid offences. The appeal preferred by the revisionists before the Sessions Judge was dismissed. The revisionists then filed the present revision in this Court.

This revision earlier came up for hearing before a learned Single Judge of this Court. It was argued on behalf of the revisionists before his Lordship that the offences said to have been committed by the revisionists being exclusively triable by a Magistrate of the 1st Class, it was not open to the learned Magistrate to commit the case of the revisionists to Sessions. It was consequently urged that the learned Assistant Sessions Judge, who convicted the revisionists, had no jurisdiction to try them, with the result that the trial of the revisionists stood vitiated and their conviction and sentences could not be sustained. It was, on the other hand, urged on behalf of the State that u/s 323 Code of Criminal Procedure a Magistrate can commit a case to Sessions even if it is not exclusively triable by the Sessions court but the circumstances of the case indicate that it ought to be tried by that Court. The learned Single Judge was of the opinion that there was no authentic pronouncement of this Court on these points. He, therefore, referred the following two questions for being answered by a larger Bench:-

Whether u/s 323 Code of Criminal Procedure a Magistrate has powers to commit a case to the court of Session in some appropriate circumstances, even about an offence which is not exclusively triable by the Court of Session ? and,

Whether in view of such commitment the procedure of Sections 208, 209 and 228 Code of Criminal Procedure stands modified, if so, to what extent ?

The matter has, in this way, come before us. We have heard the learned Counsel for the parties and, in our opinion, question No. 1 referred to us must be replied in the affirmative.

Section 209 Code of Criminal Procedure lays down that 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 commit the case to the Court of Session. Section 323 Code of Criminal Procedure, on the other hand, lays down that 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 the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that court.

Section 209 and Section 323 Code of Criminal Procedure thus contemplate two different situationst u/s 209 Code of Criminal Procedure a case disclosing an offence exclusively triable by a Court of Session has to be committed to that court, whereas u/s 323 Code of Criminal Procedure if the inquiry being conducted, or the trial being held by a Magistrate discloses an offence, which ought to be tried by the Court of Session, the Magistrate is bound to commit it to that Court. The present Code of Criminal Procedure has divided offences into two watertight compartments. One category of cases is exclusively triable by the Court of Session, whereas the other one is exclusively triable by Magistrates. There is no overlapping of jurisdiction of those Courts under the present Code as was the situation under the old Code. If a case instituted before a Magistrate prima facie shows that it is triable by the court of Session, the Magistrate, has no option but to commit it to that Court. After the receipt of the record of the committed case the Sessions Judge can discharge the accused u/s 227 Code of Criminal Procedure or if in his opinion, the material discloses commission of a lesser offence, triable by a Magistrate he can frame a charge against the accused for that lesser offence and can transfer the case for trial to the Chief Judicial Magistrate concerned. If, on the other hand, the case instituted before a Magistrate discloses offences triable by him, he has to proceed with the trial. Situations can, however, arise before a Magistrate which may justify him to keep his hands off the case, or to commit it to Sessions, or to transfer it to a court which may be in a position to award adequate punishment to the accused. Those situations are contemplated by Sections 322, 323 and 325 Code of Criminal Procedure.

Section 322 Code of Criminal Procedure lays down that if in the course of an inquiry into an offence or a trial before a Magistrate in any district, the evidence appears to him to warrant a presumption--

(a) that he has no jurisdiction to try the case or commit it for trial, or

(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or

(c) that the case should be tried by the Chief Judicial Magistrate,

he shall stay the proceedings and submit the case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate, having jurisdiction as the Chief Judicial Magistrate directs.

Section 323 Code of Criminal Procedure contemplates a case where during inquiry or trial and before signing the judgment, it appears to the Magistrate at any stage of the proceedings that the case is one which ought to be tried by a Court of Session. That section empowers him to commit such a case to that court.

Section 325 Code of Criminal Procedure relates to a case where the Magistrate holding trial cannot pass sufficiently severe sentence. It lays down that whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that he is guilty and he ought to receive a punishment, different in kind from, or more severe than that which such Magistrate is empowered to inflict, or being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond u/s 106, he may record the opinion and submit his proceedings and forward the accused to the Chief Judicial Magistrate to whom he is subordinate.

In the present case we are concerned with the committal powers of a Magistrate contained in Section 323 Code of Criminal Procedure. We are not concerned with the scope of Sections 322 and 325 Code of Criminal Procedure. Learned Counsel for the revisionists has urged before us that u/s 323 Code of Criminal Procedure also a Magistrate can commit only such cases to the Court of Session which are exclusively triable by that Court. We do not agree with this contention because commitment of cases exclusively triable by the Court of Session is contemplated by Section 209 Code of Criminal Procedure and not by Section 323 Code of Criminal Procedure. This later section, namely, Section 323 Code of Criminal Procedure comes into play only when during the inquiry or trial of a case and before signing the judgment the Magistrate comes to the conclusion that though the case was not exclusively triable by the Court of Session, yet the peculiar circumstances of the case require that it be tried by that Court. One category of such cases is a case triable exclusively by a Magistrate but relating to an occurrence with respect to which the cross-case has already been committed to Sessions.

A Full Bench of this Court laid down in Rex v. Matohley 1948 AWR 258 that:-

Where there were two cross-cases, one a complaint u/s 323 IPC read with Section 24 of the Cattle Trespass Act, and another u/s 304 IPC and the Magistrate committed the accused charged u/s 304 to the court of Session and subsequently committed the other accused persons charged u/s 323 to the court of Session on the only ground that it was a cross-case to the case u/s 304 which had already been committed to the Court of Session, the commitment of the accused in the case u/s 323 to the Court of Session was not bad in law.

The Supreme Court also laid down in Akhlaq alias Islaq v. State of U. P. 1962 AWR SC 109that:-

Wherever the parties are prosecuted for attack on each other in the same occurrence and there are counter cases with counter versions, both trials should be held separately; but, one after the other, by the same Judge who should not pronounce judgments till after both cases are heard and finished; and the same would apply to appeals also.

The aforesaid view has been recently reiterated by the Supreme Court in Kewal Krishan Vs. Suraj Bhan and Another, . Their Lordships have observed in that authority that:-

Where two cases exclusively triable by the Court of Session, one instituted on a police report u/s 173 Code of Criminal Procedure and the other initiated on a criminal complaint, arise out of the same transaction, if the two cases are tried by two different courts, there is a risk of two courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately but by the same Court.

The two cases involved in the above authority were undoubtedly triable by the Court of Session exclusively but the principle of law recognised by the Supreme Court in the said authority is that conflicting findings by two different courts in different cases arising out of the same transaction should be avoided, and ordinarily it is desirable that two cases arising out of the same transaction should be decided by one and the same court. If during the trial of a case the Magistrate comes to the conclusion that the case though triable by him relates to a transaction with respect to which a cross-case, exclusively triable by the court of Session, has already been committed to that court he, in order to avoid the risk of conflicting findings by two courts with respect to one and the same transaction, can justifiably hold that the case ought to be tried by the court of Session. In such a situation he commit the case to u/s 323 Code of Criminal Procedure even though it was not exclusively triable by the Court of Session. If the Magistrate fails to order such a commitment it is open to the High Court to do so u/s 407(1)(iii) Code of Criminal Procedure (new).

While interpreting Section 323 Code of Criminal Procedure, it was laid down by a learned Judge of the Madras High Court in V. Veena Raghavallo and Others Vs. State, that:-

To invoke the provisions of Section 323 Code of Criminal Procedure it should appear to the Magistrate in any inquiry into an offence or a trial before him that the case is one which ought to be tried by the Court of Session. The case need not be one exclusively triable by a Court of Session. If the material in the case discloses an offence triable exclusively by a Court of Session, the Magistrate has then no option but to commit it to the Sessions. On the other hand, if the material discloses only an offence which is triable by the Magistrate himself, then he has a discretion either to try it himself or commit. What is essential for the commitment of the case to the Court of Session is merely the opinion of the Magistrate that the case is one which ought to be tried by the Court of Session.

The above decision was followed by another learned Judge of Madras High Court in Ramaswamy Gounder and Others Vs. State, and by a learned Judge of Andhra Pardesh in A.K. Joshi Vs. The State of Andhra Pradesh, .

A Division Bench of Andhra Pradesh has also laid down in The State Vs. Rajkumar Satthi and Others, that:-

If the case appears to be one which is exclusively triable by a court of Session the Magistrate has no alteranative but to commit the case to a Court of Session as required u/s 209 Code of Criminal Procedure. It is only a case which appears to the Magistrate to be one which ought to be tried by the Court of Session that the Magistrate can act u/s 323. The words "if it appears to him" contemplate the formulation of a judicial opinion. Though the discretion to commit is wide under this Section , the discretion has to be exercised judicially and no hard and fast rule can be enunciated as to in what case committal should be made under this Section and in what other cases it should not be made. It all depends on the facts and circumstances of each case." In State Vs. Somasekhara Kurup, the Magistrate on receipt of charge-sheet against the accused u/s 307 IPC (exclusively triable by the Court of Session) committed the case to that Court. Subsequently another charge-sheet for alleged attempt to commit suicide u/s 309 IPC (exclusively triable by a Magistrate) was received against the same accused. The Magistrate felt satisfied that the case was connected with the case u/s 308 IPC which was already committed to Sessions. He therefore, committed the case u/s 309 IPC also to the Court of Session. It was held by Kerala High Court, that the commitment so made was not illegal.

It follows from the above decisions that commitment of a case, exclusively triable by a Magistrate, by him to the Court of Session at any time during the trial of that case and before signing the judgment on the ground that the cross-case had already been committed to Sessions and conflicting findings by two different courts with respect to the same transaction should be avoided is permissible by Section 3233 Code of Criminal Procedure.

Agreeing with these decisions we are of the opinion that where a case exclusively triable by a court of Session has already been committed to that Court, its cross case, though exclusively triable by a Magistrate, can be committed by him to the Court of Session at any time during its trial, if he comes to the conclusion that the disposal of that case by him could result in conflicting decisions of two courts with respect to one and the same transaction which situation has to be avoided in the interest of justice.

Coming to the second question, Section 208, Code of Criminal Procedure prescribes that where in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process u/s 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, copies of statements of all persons recorded by the Magistrate u/s 200 and 202 Code of Criminal Procedure, all statements and confessions, if any, recorded u/s 161 or Section 164 Code of Criminal Procedure and, of any documents produced before the Magistrate on which the prosecution proposes to rely. Apparently this section refers to those cases which are exclusively triable by the Court of Session and are bound to be committed by the Magistrate to that Court.

We have already remarked above that Section 323 Code of Criminal Procedure comes into play only when during the inquiry or trial of a case, and before signing the judgment, the Magistrate is of the opinion that the case ought to be tried by the court of Session. Before the commencement of inquiry or trial copies of relevant documents, on which the prosecution proposes to rely are already supplied to the accused u/s 173(7) Code of Criminal Procedure Section 208 Code of Criminal Procedure could, therefore, not apply to a case which is committed by a Magistrate to the Court of Sessions u/s 323 Code of Criminal Procedure. Similarly Section 209 Code of Criminal Procedure has no application to such a case because that section relates to commitment of cases which on the face thereof are exclusively triable by the Court of Session.

Section 228 Code of Criminal Procedure empowers a Sessions Judge to frame charge of a lesser offence if the same appears to have been committed by the accused in cases committed to Sessions as the same appeared to be exclusively triable by the Court of Session. After the framing of charge the Sessions Judge has to transfer the case for trial to the Chief Judicial Magistrate concerned. This section also does not refer to commitals ordered u/s 323 Code of Criminal Procedure wherein a judicial opinion is expressed by the Magistrate that on account of the peculiar features of the case, appearing on record during its inquiry or trial, the same ought to be tried by a Court of Session. Where committal has been ordered by a Magistrate u/s 323 Code of Criminal Procedure with a definite finding that because the cross case of the same transaction being exclusively triable by the Court of Session has been committed to that Court, and the case pending before the Magistrate with respect to the same transaction, though triable by the Magistrate, ought to be tried by the Court of Session in order to avoid conflicting findings with respect to the same matter by two courts of competent jursidiction, the Sessions Judge cannot proceed u/s 228 Code of Criminal Procedure. We are, therefore, of the opinion that Section 208, 209 and 228 Code of Criminal Procedure refer to cases exclusively triable by the Court of Session and those [sections do not refer to committals made by a Magistrate u/s 323 Code of Criminal Procedure on account of the peculiar features and circumstances of a particular case.

Our reply to the two questions referred to us by the learned Single Judge is as follows:-

Question No. 1

Sections 209 and 323 Code of Criminal Procedure operate in different fields. Section 209 Code of Criminal Procedure relates to commitment of only those cases to the Court of Session which are exclusively triable by that Court. Section 323 Code of Criminal Procedure, on the other hand, relates to the commitment of those cases to the Court of Session which, to start with are triable by the Magistrate concerned but during the inquiry or trial thereof the Magistrate comes to the conclusion that on account of the peculiar features and circumstances of the case, the same ought to be tried by the Court of Session though the offences to which the said case relates were not exclusively triable by the Court of Session.

Question No. 2

The procedure prescribed by Sections 208, 209 and 228 Code of Criminal Procedure relates to commitment of cases exclusively triable by the Court of Session and not to those cases which are not so triable, but which, on account of the special circumstances, are committed to that Court as the same ought to be tried by it. No question of modification of the procedure prescribed by those cases (?) (sections) arises as the same do not relate to commitments made u/s 323 Code of Criminal Procedure.

Let our reply to the two questions referred to us by the learned Single Judge be placed before him for the disposal of the Criminal revision wherein those questions have arisen.