Baidyanath Sikdar vs The State

T.P. Mukherji, J.—The petitioner, who was discharged by a Magistrate, first class, at Ranaghat, in a case u/s 498/373 of the Indian Penal Code and whom the learned Sessions Judge u/s 487 of the Criminal P.C. has directed to be committed to the Court of Sessions on a charge u/s 498 of the Indian Penal Code only, obtained this rule for setting aside the order of commitment.

Mr. Mukherjee appearing in support of the Rule raises two contentions, first, that the materials on record do not justify the order for comment and, secondly, that the order for commitment straightway made u/s 437 of the Criminal P.C. is, on the facts of this case, bad in law, inasmuch as that order does away with the necessity for compliance with the provisions of his 211, 212 and 218 of the Criminal P.C. and not only that, it takes away the discretion of the enquiring Magistrate u/s 218(2) of the Code to discharge the accused if he is satisfied after compliance with the requirements of that provision that there are not sufficient grounds for committing the accused.

In connection with the fist contention above, I was taken through the entire evidence adduced on behalf of the prosecution. With the finding of the learned Sessions Judge in the case, them can be interference only if it can be found that there are no materials whatsoever on record to serve as the foundation for a charge as directed. On perusing the evidence, I cannot find that this is such a case where it can be said that the evidence adduced is such that no credence whatsoever can be put thereon. I do not feel, therefore, that there would be justification in interfering with the learned Session Judge''s order, on this Court.

u/s 187 of the Criminal P.C. the Sessions Judge, in the circumstances stated there. in, is left with two alternatives, namely, (1) to direct a fresh enquiry, or (2) to order the accused to be committed for trial upon such matter as he thinks fit. Mr. Mukherjee''s contention is that the two alternatives provided for in the section contemplate two different circumstances. if, according to him, the whole gamut of the procedure preceding the commitment has been gone through the Sessions Judge may direct a commitment Straightway. If the whole gamut of the procedure has not been gone through by the learned Magistrate, the only order, if the revisional application is intended to be allowed, is to make an order for fresh enquiry. The fresh enquiry, in the circumstances, will be limited to going through that portion of the procedure in Chap XVIII of the Criminal P.C. which was not gone through and which is required to be gone through before an order for commitment can be made. If the enquiring Magistrate is required to make an order for commitment straightway in cases where the entire procedure had not been gone through, the accused is deprived of a chance of discharge u/s 213(3) of the Criminal P.C. If, again, the discretion of the learned Magistrate u/s 213(2) of the Code is to be treated as left open in the face of the order for commitment, made by the Sessions Judge u/s 487 of the Criminal P.C., that may render the learned Judge''s order nugatory. In the face of this conflicting situation, the interpretation of Section 437 of the Criminal P.C. as made by Mr. Mukherjee, leads, in my view, to a harmonious construction both of Section 487 as well as of the provision in Chap. XVIII of the Code. In my view, an order for commitment can be made u/s 437 of the Criminal P.C. only in cases where the entire procedure up to Section 213 of the Code has been gone through. If, however, the order of discharge is made at any previous stage of the proceeding, that is, u/s 209 of the Criminal P.C. in the case of an enquiry started otherwise than under a police report, the proper order to be made u/s 437 of the Criminal P.C. would be an order for fresh enquiry. In this view of the matter, the proper order for the learned Sessions Judge to have made in this case was for a fresh enquiry u/s 437 of the Criminal P.C.

In the result, this Rule is made absolute. The order of the learned Sessions Judge directing the commitment of the accused to the Court of Sessions on a charge u/s 493 of the Indian Penal Code is set aside. The learned Magistrate is directed to hold a fresh enquiry into the matter in the light of my observations above. The fresh enquiry to be undertaken by him should be limited to the framing of a charge u/s 210 of the Code and to the following of the procedure prescribed in that section and in Section 211, 212 and 213 in the matter. Let the records be sent down as expeditiously as possible.