Adya Prasad and Others vs Rajindra Mahto

C.P. Sinha, J.—This application in revision by the three accused persons is directed against the order dated 22-3-1972 of the Sessions Judge of Monghyr in Criminal Revision No. 4 of 1971. Under this order, the Sessions Judge has directed the Magistrate to commit these petitioners to the Court of Session, for trial u/s 386, Indian Penal Code.

On 13-12-1968, this Opposite Party (Rajindra Mahto) filed a petition of complaint against these accused persons on allegations that they wanted him to sell his homestead land to them and on his refusal to do so, they were trying to vex him in different ways. In that sequence, they had made, assault on him, for which he has instituted a regular case against them. They, however, wanted him t0 withdraw that case, to which he was not agreeable. On 12-12-1968, they caught hold of him and, after assaulting him with lathi, forcibly dragged him to their house where accused Adya Prasad brought out four stamped and two sada papers and asked the complainant to put his thumb marks on them, threatening to kill him if he did not do so. On complainant''s protest against that high-handed act of theirs, accused Adva again made assault on him with lathi and asked his son to bring bhala so that he could kill him with that. Being frightened for his life, the complainant, out of fear, put his signature and thumb impressions on those papers whereafter they released him saying that if he filed airiy case against them, he would have to reap the consequences. Being so released, the complainant went to the police out-post but did not meet the police officer in charge. He then went to Begusarai and got his injuries examined by the doctor for which he obtained the necessary medical certificate.

After receiving the above complaint, the Sub-divisional Magistrate examined the complainant on solemn affirmation and finding a prima facie case made out against the accused persons, he took cognizance under Sections 386, 432 and 323, Indian Penal Code, in the case and transferred it to the Magistrate, Mr. M. P. Gupta, for disposal. In due course, this case happened to come to the court of Mr. Q. Hoda. Before him. on behalf of the prosecution, 5 witnesses, including the complainant (P. W. 5), were examin-, ed. They were all cross-examined for the accused persons. This was in course of an enauiry under Chapter XVIII of the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code), Learned Magistrate, after having scrutinised these evidence, passed his order dated 15-1-1971 holding that a charge u/s 384 and not u/s 386, Indian Penal Code, was made out against the accused persons. He further held that since an offence u/s 384, Indian Penal Code was triable by that court, hence the case will proceed as warrant trial before him and charges under Sections 384, 452 and 323, Indian Penal Code will be framed against the accused persons. Against this order of the Magistrate, in so far as it related to his declination to frame charge u/s 386, Indian Penal Code against the accused, the complainant moved the the aforesaid revision u/s 437 of the old Code before the Sessions Judge. In that revision, the Sessions Judge, after going through the evidence of P.W.s 2, 3, 4 and 5. held that prima facie there was sufficient material for their committed u/s 386, Indian Penal Code. On that finding, he allowed the revision and directed the Magistrate to commit them to the court of session to face trial u/s 386, Indian Penal Code. It is against this order of the Sessions Judge that the present revision has been preferred.

The powers of the Sessions Judge u/s 437 of the old.Code to order an accused person to be committed for trial if on consideration of the materials on record he found that he had been improperly discharged by the inferior court, cannot be challenged. It has not also been challenged before me. From a perusal of the impugned order of the Sessions Judge it is manifest that he had, on looking into the evidence as produced by the prosecution during the commitment enquiry before the Magistrate, treated the case to be one of improper discharge of the accused persons for the offence u/s 386, Indian Penal Code, and holding that on those evidence a prima facie case for commitment for the samej had been made out, he directed the Magistrate to commit them as such. It has not been possible for the petitioners to show here that the Sessions Judge had fallen, into any error in holding so on appraisal of the materials on record. In such a circumstance, this Court cannot possibly find any fault with the order so made by the Sessions Judge in this matter and it has to be sustained on the face of it. The question whether such a charge against them would be established to secure their conviction or not during the sessions trial is not a relevant point at the present consideration. It is a matter, to be thrashed at the trial on merit.

Mr. Ramnandan Sahai Sinha, appearing for the petitioners, has, during his arguments, taken a legal objection to their commitment being effected in pursuance to this order of the Sessions Judge. According to him, the Magistrate has still to commit them for which he is required to pass a formal order in that behalf.

He cannot, however, do so in view of the -changed position of law consequent upon "the enforcement of the new Code of Cri-niinal Procedure, 1973 (hereinafter referred to as the new Code), which has already come into operation, with effect from the 1st of April, 1974, As he has pointed out, though under the old Code -an offence u/s 386, Indian Penal Code, was exclusively triable by a Court of Session, but under the new "Code, it has been made triable by a Magistrate of the First Class. u/s 209 of this new Code a Magistrate is enjoined to straightway commit an accused person to the court of session, if it appears to him that the offence is triable exclusively by a court of session. Since the offence u/s 386, Indian Penal Code, under the new Code, is not exclusively triable by a Court of Session and has been made triable by a Magistrate of the First Class, the Magistrate cannot now commit these petitioners to the Court of Session for the same, under this Section 209. In this connection, he has invited my attention to the proviso of Section 484(2)(a)-of the new Code -which lays down that every enquiry under Chapter XVIII of the old Code, -which is pending at the commencement of this be his and the in of In with Code, shall disposed accordance provisions new Code. submission, reading proviso dealt 209 together it would be manifest that now it is not open to the Magistrate to commit these petitioners to the Court of Session to stand trial for the offence u/s 386, Indian Penal Code, which has now been made triable by a Magistrate of the First Class against its being triable exclusively by a Court of Session under the old Code.

No argument on behalf of the Opposite Party represented by Counsel Mrs. Sabita Gupta has been available in this hearing because she has expressed her inability to do so for want of further instructions from her client. In view of the importance of this law point raised by Mr. Sinha, learned Government Advocate has,, at Court''s request, assisted it. According to him, all that the new Code provides in this behalf is to do away with the elaborate procedure of the commitment enquiry which old Code reauired to be dene under its Chapter XVIII before committing an accused to the Court of ''Session, this has been done to shorten the procedure in this regard to save court''s time and to avoid unnecessary harassment to the parties. His contention is that, consequent upon the aforesaid order of the Sessions Judge calling upon the Magistrate to commit the accused persons for facing trial u/s 386, Indian Penal Code, commitment ..Enquiry under Chapter XVIII of the old Code in that behalf would have to be deemed to be pending at the commencement of this new Code, i.e., 1-4-1974. which, in view of the clear provision in the aforesaid proviso to Clause (a) of subsection (2) of Section 484, has to be dealt with and disposed of by the Magistrate in accordance with the provisions of the new Code, which in turn means that the Magistrate must now commit them to the Court of Session without undergoing the formality of making any enquiry in the manner provided in Chapter XVIII of the old Code, as per Section 209 of the new Code. The mere fact that under the new Code an offence u/s 386, Indian Penal Code, has been made triable by a Magistrate of the First Class, to his mind, is not of any material consequence so far as the question of this commitment is concerned because in respect of this commitment its old character of being triable by a court of session has to be treated as retained.

After having heard the two counsel on this point, I am. inclined to think that this objection, so raised by Mr, Sinha, is not well founded. The impugned order of the Sessions Judge directing the Magistrate to commit the accused persons to the court of session for facing trial u/s 386, Indian Penal Code, was passed on 22-3-1972. On 11-4-1S72, they filed the instant revision in this Court. It was admitted on 12-4-1972 with the direction for stay of further proceedings in the court below till the disposal of this revision. It is, perhaps, in this context that their formal commitment by the Magistrate in pursuance to that order of the Sessions Judge could not be effected prior to the coming into being of the new Code on 1-4-1974. But for this stay taken out by these petitioners, it may be presumed the Magistrate must have recorded his commitment order earlier to 1-4-1974 in view of the clear direction of the Sessions Judge to do so in his order dated 22-3-1972. It is not disputed that, after order of the Sessions Judge, the Magistrate was not to enter into commitment enquiry afresh under Chapter XVIII of the old Code so as to find out whether on the evidence produced before him in that course, he should commit them or not. The Sessions Judge''s order for that commitment on appraisal of the materials on record was there and he was to obey that and commit them accordingly. On the facts as they obtained in this behalf on 1-4-1974, the date on which this new Code came into force, at the most this enquiry under Chapter XVIII could be treated as pending before the Magistrate. In that situation, under the aforesaid proviso the Magistrate was to deal with and dispose it of in accordance with its Section 209, under which he was required to commit the accused to the Court of Session since the matter related to an offence u/s 386, Indian Penal Code, which in its nature had been made exclusively triable by a Court of Session under the law as it then existed. Merely because, this offence under the new Code has been made triable by a Magistrate of the First Class could not to my mind, make any substantial change so far as the contemplated commitment is concerned. The matter would have stood on a different footing if the committment proceeding in this behalf was not pending from before the commencement of this new Code. As shown above, however, this matter was pending for necessary commitment by the Magistrate, to do which a firm direction had been given by the Sessions Judge at the time when the offence was exclusively triable by a Court of Session.

For the above reasons, I have no manner of doubt in my mind that the objection taken by the petitioners that in view of this new Code, where this offence has been made triable by a. First Class Magistrate, it is now not open to the Magistrate to commit them to the court of session about it, is not tenable and must be rejected. On the facts of the case, there would seem np legal bar witn the Magistrate in committing them to have their trial for this offence in the court of session in compliance with the aforesaid order of the Sessions Judge, and he has to do so notwithstanding the enforcement of this new Code in the meanwhile.

From what I have said above, it will be manifest that this application is without merit and must, therefore, fail. It is, accordingly, dismissed.