Dr. Dattatraya Samant and vs State of Maharashtra

1 to 32. x x x 33. Before parting at least a passing reference to another aspect has become necessary. The learned Magistrate expressed some doubts about his jurisdiction and amongst other matters, he relied on the ratio of a decision of this Court in Criminal Application No. 166 of 1979. On perusal of the said decision it becomes manifest that the facts therein were obviously peculiar, where the accused was alleged to have stabbed the victim with a dagger in the stomach and also assaulted him with an iron rod on the skull causing serious extensive damage both externally and internally to vital organs on account of which the victim succumbed soon thereafter. On the first occasion, the learned Magistrate refused bail indicating that the offence would not be short of one u/s 302 of the Penal Code while within a few days thereafter, the accused was produced for further extension of remand. The learned Magistrate while granting bail observed that the offence would fall u/s 304 Part II of the Penal Code even though the full details of the medical evidence were not available, the investigation was still in progress and hardly a few days earlier, he had observed to the contrary. It is in that context and having regard to the nature of the assault by lethal weapons, extensive serious damage caused to vital organs giving no chance for survival coupled with the observation by the learned Magistrate on the first occasion, that this Court doubted the validity of the said order. Though this aspect is not germane to this proceeding and also may not arise directly, yet, the learned defence counsel has requested and strenuously canvassed to deal with the same at least incidentally as it is of some general importance and such a situation has arisen also and he has canvassed certain points in support of his submission and referred to relevant provisions. The other side has also made their reply to these contentions. A few words would, therefore, not be out of place.

Examination of some provisions indicating in no uncertain terms the sharp change brought about by the new Code of Criminal Procedure would be relevant. Provisions relating to enquiry which were recognized as committal proceedings into cases triable by the Court of Sessions are incorporated in Chapter XVIII of the old Code and Section 207-A is more relevant. On observing preliminary formalities the Magistrate had to record evidence of material witnesses who could also be subjected to cross-examination and it is thereafter that he had to decide judicially as to whether the accused could earn a discharge or not. It is on consideration of the evidence and the material if he felt that the same disclosed no grounds for committing the accused for trial, he had to discharge him, and if not, he had to frame a charge and commit the accused to the Court of Session whether full dressed trial after framing of the charge is envisaged by the provisions contained in Chapter 23 was held.

The new Code makes a sharp distinction and change practically abolishing the committal proceedings in cases instituted on police report and substantially curbing down the lengthy process in other cases. In cases instituted on police report, copies of relevant documents are to be supplied, whereas, in case instituted otherwise than on police report, evidence has to be recorded copies of which along with other documents are to be supplied to the accused. It is thereafter that provisions contained in Section 209 of the Code come into operation under which the accused is to be committed if it appears to the Magistrate that the offence is exclusively triable by the Court of Session and under sub-section (b), he has to remand the accused to custody and it is made subject to the provisions of the Code relating to bail.

The forum is then transferred to the Court of Session under Chap. XVIII of the new Code, the two termini being Sections 225 and 237. If on considering the material on record, the Court finds that there is no sufficient ground for proceeding against the accused, then, it has to discharge him u/s 227. It is thereafter that u/s 228, if the Court declines to discharge the accused, a charge is framed in order to proceed with the case, and if the Court opines that the accused has committed an offence which is not exclusively triable by the Court of Session, it may frame charge for any lesser offence and then transfer the case to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, for trial. If however, the Court is of the opinion that the accused has committed an offence exclusively triable by that Court, then it has to frame a charge and proceed with the trial to its logical terminus.

The combined reading of the recommendations of the Law Commission and the objects and reasons would highlight the premise for such change in this category under the new Code, it was realised that the primary object of protecting innocent persons from harassment of straightway facing the trial in Sessions Court in contrast to those against whom prima facie case was made out as also of trying to effectively screening flimsy cases was frustrated rather than achieved due to several factors, one being the meagre fraction of cases which are discharged at the preliminary stage. The consideration of the accused getting a full and clear picture of the case by recording of evidence was also found to be adequately compensated and substituted by supply of copies beforehand. A reference to some cases such as contemplated u/s 198(b) of the Code for defaming public servants or prosecution under the Prevention of Corruption Act when cognizance is directly taken by the Sessions Judge as such or as the Special Judge, was made. In the final analysis it was concluded that committal proceedings are time consuming without serving any essential purpose and without contributing to the efficiency of the trial, and while they do not advance the cause of justice, they only tend to delay the steps of an early trial, and the primary object is also not achieved in practice. Abolition of such procedure was, therefore, recommended with an equally important resultant consequence of divesting the power of discharge that initially vested in the committing Court.

The scheme of the new Code in this context makes some features quite prominent and sharp. In cases instituted otherwise than on police report, evidence is required to be recorded which is obviously necessary as there is no pre-screening by any agency as the copies are supplied to the defence. In other cases, the copies of relevant documents including the F.I.R. and statements recorded u/s 161 and 164 of the Code are to be supplied. Both these types of cases up to that stage travel on different tracks but thereafter both are regulated on the same track culminating in the operation of Section 209 of the Code whereunder the case is committed to the Court of Session. In that behalf, two aspects stand out on the forefront, namely, that the Magistrate has to concentrate predominantly on the offence being exclusively triable by the Court of Session and further it is the case that is to be committed and thus the consideration vis-a-vis the involvement of the accused being pushed in the background which may be in contrast with the provisions of the old Code. This is further reinforced by such consideration about the involvement of the accused and adequacy of the material in support of that claim being pulled out of the background on the forum of the Sessions Court after commitment. Further, the only requirement is that it should appear to the Magistrate about the existence of such offence. It is true that implicit therein is the further expectation that it should so appear to the judicial mind on the basis of the material on record. The perusal of the record and application of judicial mind to that limited extent becomes inevitable. In that context and in that limited field, the judicial mind is not supposed to surrender its judgment to the Police or otherwise, if a wrong label is tagged by the Police it would make the goods saleable. The legislative intent is apparent when the forum of the Magistrate and his satisfaction is incorporated in the provision itself. However, parallel to it is also the other shade of the legislative intent about the limited field available to the Magistrate. The user of the terminology "if it appears to the Magistrate" makes both these aspects to co-exist. The blending of these two integral aspects is inescapable which would mean that though there is no wholesale clipping of the jurisdiction of the Magistrate rendering it to a nullity, yet, it is circumscribed by all these limitations and restrictions. There should be application of judicial mind for which purpose perusal of the material on record is implied and in that sense, the approach may not be mechanical, but the judicial satisfaction is elevated only to the limited pedestal where it is made to appear to the authority on the face of the record and not further. The employment of the word "appear" is pregnant with all these inevitable inferences which, in turn, negative a deeper probe or involving the process of appreciation of finer shades. In effect, therefore, on a plain reading of the material on record which impliedly excludes appreciation of finer shades involving a deeper probe as at the full dressed trial, it is appears to the judicial mind of the Magistrate that there exists an offence triable exclusively by Sessions Court, or on such plain reading such an offence is prima facie or on the face of the record is disclosed, then he has no option but to commit the case to the Court of Session. The counterpart obviously would be that even on such plain reading, it does not appear to the judicial mind that any such offence exclusively triable by the Court of Session exists or even prima facie and on the face of the record no such offence is disclosed at all, then, in that limited field and contingency, he may decline to commit the case. Annexing of wrong label or application of wrong section on the face of the record would be one of such contingencies. Apart from such gross cases, there may occur a situation in an appropriate case where on the plain reading of the material placed before the Magistrate, the offence may not appear to him to be exclusively triable by the Court of Session in which event, he may not commit the case to the Court of Session. I may incidentally observe that in the case of a private complaint, there exists an additional factor at the intervening stage, after recording of evidence and before issuance of process, when such a complaint can be dismissed if on the material the Magistrate forms an opinion that there is no sufficient ground to proceed.

When the forum is changed to the Court of Session, the nature of offence as also the involvement of the accused come into play. If an offence triable exclusively by the Court of Session is disclosed, but, there is no adequate material to indicate involvement of the accused; then, notwithstanding the committal, the Court has to discharge the accused. If however, there is adequate material for the complicity of the accused in that particular offence and yet, the said offence disclosed is not exclusively triable by the Court of Session, then u/s 228(1)(a), it can on framing of the charge, send back the case to the Court below for trial for such a lesser offence. The discretionary nature of the power is indicated in the provision itself and it also appears that if the offence is equally serious, the Sessions Court may itself retain the case. If, however, both the things co-exist, namely, offence being exclusively triable by the Court of Session is disclosed as also involvement or complicity of the accused therein, then u/s 228(1)(b), it has to frame charge and conduct the trial itself. As stated earlier, Section 209 speaks of the offence and the case and not necessarily of the accused, whereas. Section 227 deals mainly with the adequacy of the material about the involvement of the accused for the purpose of proceeding against him, while Section 228 deals with both, the nature of the offence and the involvement of the accused. In short, there is thus a three-tier system where, at the first level the offence is relevant; at the second, the accused, and at the third, both.

There was no corresponding section to one u/s 228(1)(a) in the old Code, whereunder if an accused was committed to the Court of Session, unless, it was set aside or the committal proceeding were quashed, the Sessions Court had no powers to send back the case to the Magistrate to try for a lesser offence though the object could be achieved by making a reference for quashing of the committal order and those provisions for making a reference are deleted under the new Code. Therefore, the specific provision u/s 228(1)(a) has now been made under which only when the Sessions Court is of the opinion that there is adequate material to proceed against the accused for the offence though the offence made out appears to be of a lesser degree that it may exercise discretion either to try it by itself or send it back to the Court below. This provision should not be confused while interpreting the powers of the Magistrate u/s 209 of the Code. On a plain and harmonious reading of Section 228(1)(a) and Section 209 of the new Code, it does not follow that merely because the Sessions Court is vested with the discretionary powers to set aside a committal u/s 228(1)(a) and to send the case back, the Magistrate is obliged to almost mechanically commit a case even if the offence does not appear to him to be triable exclusively by the Court of Session.

In this connection, with advantage, reference may be made to the ratio in Sanjay Gandhi Vs. Union of India (UOI) and Others, wherein it is observed as :-

"Secondly, it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the old Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament''s purpose in remoulding Section 207-A (old Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully, if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the committing Magistrate has to look at the case, limits him merely to ascertain whether the case, as disclosed by the Police report, appears to the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the Police report, if the offence is plainly one u/s 201 IPC the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. Shri Mulla submits, if the Magistrate''s jurisdiction were to be severely truncated like this, the prosecution may stick a label mentioning a sessions offence (if we may use that expression for brevity''s sake) and the accused will be denied a valuable opportunity to prove his ex facie innocence. There is no merit in this contention. If made-up facts unsupported by any material are reported by the Police and a sessions offence is made to appear, it is perfectly open to the Sessions Court u/s 227 Cr.P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused."

It is apparent that the Supreme Court was essentially concerned with the powers of the committal Magistrate to discharge the accused in view of the contention raised by the petitioner therein and it is in that context that these observations were made. Even taking into account the total impact of all the observations and the evidence ratio, the same supports my view.

This takes us to the other side of the coin vis-a-vis the scope and jurisdiction of the Magistrate in releasing the accused on bail. The provisions are contained in Chapter XXXIII of the Code. As regards the persons accused of bailable offences, when they are prepared to give bail, then, if the other conditions are satisfied, the Magistrate shall grant bail u/s 436 of the Code. As regards the person accused of or suspected of the commission of any non-bailable offence, the matter of course is transformed into a matter of discretion and u/s 437 of the Code, if there is no prohibition otherwise and if the guidelines for enlarging on bail are satisfied, then, the Magistrate in his discretion may release such person on bail. It thus gives the jurisdiction that contains a discretion which must be utilised judicially. It is stipulated that bail may not be denied only on the ground that the accused is required for getting him identified by the witnesses. Certain conditions can be annexed to the liberty and in certain contingencies liberty already granted can be snatched by cancellation of bail. In addition to these provisions, there is a ban even on such discretionary power of the Magistrate when there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life in which case, the Magistrate has no jurisdiction and power to release the accused on bail as it is well emphasized by the user of the words "but he shall not so release." Exception to this general ban finds place in the proviso relating to young persons or sick or infirm persons or women. u/s 439 of the Code relating to the powers of this Court and the Sessions Court, these are no fetters on the powers, meaning thereby that the ban incorporated on the power of the Magistrate for a particular offence is lifted even in such contingencies u/s 439 of the Code, subject of course to the other governing guidelines and further subject to the judicial exercise of the said discretion. Section 437 of the Code embraces a situation either before filling of the charge-sheet or even thereafter and in that sense it is common to both these situations. The terminology for the said ban indicates that there appear reasonable grounds for believing that the accused has been guilty of such an offence which is punishable with death or imprisonment for life. If the three clauses are dissected, it would mean that first of all, there should appear reasonable grounds; secondly, those should be for believing; and lastly, that belief must be to the effect that the accused is guilty of such an offence. Read together, if can be equated to mean that there are apparent grounds for believing that the accused has been guilty of the said offence. The inclusion of the second and the third clauses about the belief and the guilt of the accused indicates something more than suspicion. All this postulates application of judicial mind in the search of finding if there exist reasonable grounds for such a belief and further the belief should be about the guilt of the accused for the said offence, which necessarily implies some probe of judicial mind to the extent necessary for forming such a belief. Section 209 no doubt contemplates the proceedings after the filing of the police report or the complaint. In the said provisions itself no ban on granting of bail is echoed or stipulated in sub-section (b) when it is mentioned as :-

"Subject to the provisions of this Code relating to bail."

Therefore, in an appropriate case, notwithstanding the committal u/s 209, vis-a-vis an offence exclusively triable by the Court of Session, a discretion in the matter of granting bail can be legitimately and lawfully exercised, though in a judicial manner, u/s 437 even in respect of such an offence, provided that the requirement of all the clauses of the said provisions are satisfied and fulfilled. Further, more or less similar considerations may apply to the principles of granting of bail or otherwise u/s 437 of the Code even before filing of the charge-sheet. Therefore, it can be said that the jurisdiction in that behalf does vest in the Magistrate at both the stages as the provision governs both such situations. Needless to say that this discretion has to be exercised judicially with reference to the facts of each case and at the pre-charge-sheet stage these facts may include, amongst other items, the stage and progress of investigation.

All said and done, it cannot be overlooked that existence of jurisdiction vested in the Magistrate only lifts the ban, yet, it is governed by the pivot that there should be a judicial exercise of the discretion in deciding either way in all such matters.

Ordered accordingly.