Hirudayasami Udayar vs Ramaswami Nainar and Others

Anantanarayanan, J.—This revision involves an interesting : point whether interference by this Courtwill be justified, where a learned Magistrate holding a preliminary enquiry into an alleged offence u/s 395 I. P. C has come to the conclusion that no such offence triable exclusively by a court of session was involved, and has hence framed charges under Sections 379 and 447 I.P.C. and is himself proceeding to further dispose of the case according to law.

Undoubtedly the procedure adopted by the learned Magistrate is justified as a matter of strict form, and it is sufficient to refer to Section 207-A(6) of the Criminal Procedure Code Amended Code, which permits such a procedure. But the more difficult question is whether, assuming that there is more material to show that two views are possible upon the question of the applicability of Section 392 I.P.C. or 395 I.P.C. to the facts, this Courtought to interfere in what is really a discharge by implication.

My attention has been drawn to certain observations of Ramswami J. in In Re: Kadiam Satyam and Another, , where the learned Judge points out page 42 of Mad WN Cri : page 272 of AIR that in regard to an offence exclusively triable by a sessions court, the Magistrate ought not ordinarily to take upon himself the duty and responsibility of discharging die accused because he considers that the ingredients of that offence are not established because this really amounts to clutching at jurisdiction.

But a distinction between Sections 379 and 392 I.P.C. has always been a fine one, a question depending very largely upon the application of the words

if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint.

The learned District Magistrate before whom the matter was originally taken up in revision, declined to interfere, because he thought that the committing Magistrate was not patently in error with respect to the application of the law to the facts of the present case.

I think that interference by this Courtat; this sage in criminal revision is not at all called for, under the circumstances. Accordingly, I do not propose to interfere upon this alleged discharge by implication of the accused with reference to the charge u/s 395 I.P.C.

But it seems to me to be equally clear that, prima facie the police considered the case after investigation, to be sufficiently grave to be dealt with as a preliminary register case after filing a charge sheet u/s 395 I.P.C. This implies, that to case there is a conviction even for a lesser offence either u/s 379 I.P.C. or 447 I P C or both, the concerned offender or offenders must be dealt with in an adequately deterrent manner. Hence, it is clearly desirable, that the case, should be tried from this stage onward, the charges having been framed, by a first class Magistrate of competent jurisdiction.

Consequently, I direct the transfer of the case from the file of the learned Sub Magistrate to the file of the learned Sub Divisional Magistrate, Ariyalur, for disposal according to law. In the interests of the accused, I desire to observe that these remarks do not contain any implication whatever upon the actual merits, or the extent to which the prosecution evidence justifies a conviction of any or of all the accused in the case. DE/B. Order accordingly.