Daropti vs Chandgi Ram etc.

B.S. Dhillon, J.—Smt. Daropti filed a complaint against the Respondents Nos. 1 to 3, under Sections 427/436/34 of the Indian Penal Code, complaining that Respondents Nos. 1 to 3 set on fire her Jhuggi on June 5, 1974, at about 9.30 p.m. It has been alleged that since the local police was helping the accused persons, therefore, the case was not registered. The motive for the alleged crime as stated in the complaint, is that Chandgi accused, who was arrayed as a Respondent, wanted to marry Smt. Kamla daughter of the complainant to his son but the complainant refused saying that the accused was not from her brotherhood. Therefore, they started harassing the complainant and her family members. On the preliminary evidence having been recorded, the learned'' trial Magistrate vide his order dated 20th July, 1974, found sufficient grounds for prosecuting the accused under Sections 427/436/34 of the Indian Penal Code and summoned the accused for August 17, 1974. He again summoned the evidence of the complainant for October 24, 1974 vide his order dated September 27, 1974. The Petitioner challenged this order of the learned Magistrate summoning- the evidence afresh on the ground that he has no jurisdiction to go into this question again, he having prima facie found that the Respondents are liable to be prosecuted for offences under Sections 427/436/34 of the Indian Penal Code, he has no option but to'' commit the Respondents to the Court of Session for the Sessions trial as the offence u/s 436 of the Indian Penal Code is an offence which is exclusively triable by the Court of Session. It is on this law point that this petition was admitted.

Shri Y. P. Gandhi, the learned Counsel for the Petitioner, vehemently contends that there is no jurisdiction vested in the Magistrate to record evidence of the prosecution witnesses in the complaint afresh and then to come to an independent conclusion whether the accused should be committed to the Court of Session or not. This proposition of law is in fact conceded by Shri Harrinder Singh, Advocate, the learned Counsel for the Respondents. The relevant provisions of the Code of Criminal Procedure may be referred to.

Chapter XV of the Code of Criminal Procedure, 1973, deals with the subject of complaints to Magistrate. Section 200 provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.

u/s 203, the Magistrate is empowered to dismiss the complaint after considering the statement on oath of the complainant or of any other witnesses produced by him, if in his opinion, there is no sufficient grounds for proceeding with the complaint.

u/s 204, if in the ''opinion of a Magistrate taking cognizance of an Offence, there is sufficient ground for proceeding, and the case appears to be summons-case, the is to issue summons for the attendance of the accused, and if the case is a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before him.

The next relevant section is Section 209 of the Code of Criminal Procedure, 1973, which is as follows:

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 the case to the Court of Session;

(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.

The contention of the learned Counsel for the Petitioner is that the provisions in the repealed Code wherein the commitment proceedings in challan cases and so also in the complaint cases were to be conducted by a Magistrate before the case triable by the Court of Session could be committed for trial to the Court of Session, does not figure in the New Code and, therefore, the intention of the Legislature is quite clear that the Magistrate has no jurisdiction to record the evidence of the complainant for the second time and to come to a different conclusion than the one to which he came after recording the preliminary evidence produced by the complainant u/s 202 of the New Code.

I find force in the contention of the learned Counsel for the Petitioner. Section 208 of the repealed Code specifically provided a procedure for taking evidence during the commitment proceedings in a case triable by the Court of Session, so that under the repealed Code in a complaint case, the Magistrate had to record the evidence as produced by the complainant and then to form an opinion whether a prima facie case has been made out for summoning the accused and after he had formed such an opinion and the accused had been summoned, the provisions of the old Code of Criminal Procedure specifically enjoined upon him to examine whether the accused so summoned are liable to be committed to the Court of Session for a trial of an offence which offence is exclusively triable by the Court of Session and while determining that jurisdiction was vested in the Magistrate to record evidence afresh and then to form an opinion and pass the commitment order, if, in his opinion, the case was to be committed. But in the new Code, this procedure has been completely eliminated. The language of Section 209 of the New Code clearly excludes the possibility of re-recording the evidence if the accused have been summoned in a complaint case. If that is so, it is difficult to contend that when the Magistrate has already formed a prima fade opinion that the accused persons are liable to be tried for an offence triable by the Court of Session on the same material, he may be again allowed to form an opinion which may, in some cases, be contrary to the one already formed by him. This interpretation is not in keeping with the spirit of the provisions of Section 209 of the New Code and, therefore, cannot be given. It, therefore, appears that in a complaint case where the accused have been summoned for being tried for an offence triable by the Court of Session, the Magistrate has no option but to commit the accused for being tried by the Court of Session u/s 209 of the New Code which section deals with the challan cases as well as the complaint cases.

It has been contended by Shri V.P. Prashar, the learned Counsel for the State, that the words "and it appears to the Magistrate" used in Section 209, would entitle the Magistrate to form opinion otherwise than the one formed by him while summoning the accused on the same material. It is difficult to give this interpretation to the words "and it appears to the Magistrate" as is being given by the learned Assistant Advocate-General, Punjab, Shri V.P. Prashar. If on the same material, a Magistrate has already expressed his opinion, it is difficult to hold that on the same material on which the presence of the accused has been procured and they have been heard, he can form a contrary opinion.

For the reasons recorded above, this petition is accepted. The order of the learned Magistrate dated September 27, 1974, ordering the complainant to produce evidence is quashed. The learned Magistrate will proceed further in accordance with the provisions of Section 209 of the New Code of Criminal Procedure. The parties have been directed through their counsel to appear before the learned Magistrate on February 17, 1975.