In Re: Shanmugham and Others

Venkataraman, J.—This revision petition has been preferred by the 39 accused, against whom a charge-sheet was filed for offences of rioting and attempt to murder u/s 307, Penal Code before the learned II Class Magistrates, Gudiyattam, in P. R. C. No. 4 of 1965. The offence u/s 307, Penal Code being exclusively triable by the Court of Session, the Sub-Magistrate had to hold an enquiry under the provisions of chap, XVIII of the Code, and since the proceeding was instituted on a police report, the procedure applicable was that u/s 207-A, Criminal P. C. .3 The case against the accused was that they formed themselves into an unlawful assembly to attack the police station and murder the Sub-Inspector and others in connection with the anti-Hindi agitation. The learned Sub-Magistrate examined some witnesses and being of the opinion that no offence u/s 307, Penal Code was made out, but only offences triable by a I Class Magistrate, submitted the papers to the First Class Magistrate. He apparently acted u/s 207-A (6). Criminal P. C.

Against this order, the State preferred a revision petition to the learned Sessions Judge. The learned Sessions Judge felt that there was a prima facie case u/s 307, Penal Code but, instead of straightaway committing the accused, as he could have done u/s 437, Criminal P. C. directed further enquiry to be done, because it was represented to him that some more prosecution evidence remained to be adduced. It is against this order of the learned Sessions Judge that this revision petition has been filed.

The order of the learned Sub-Magistrate discharging the accused has not been filed before me. But it is clear from a perusal of the judgment of the learned Sessions Judge that the learned Sub-Magistrate exceeded his jurisdiction in discharging the accused in respect of the offence u/s 307, Penal Code. Certainly, there was some prima facie evidence and therefore it was the duty of the Sub-Magistrate) to order commitment. He should not have undertaken the task of weighing the evidence himself which was the province of the Sessions Court Normally, therefore, it would have been right for the learned Sessions Judge to order commitment of the accused u/s 307, Penal Code but the reason why he directed further enquiry was, as already stated, that some further prosecution evidence had to be adduced I do not see how the order can be said to be wrong.

Learned Counsel for the petitioners has however cited before me a decision of the Mysore High Court in Abbas Beary v. State of Mysore AIR 1965 Mys 35. That decision has no application to the present case. That was a case where the police filed a charge-sheet u/s 406. Penal Code before the Additional Munsif. Magistrate and that Magistrate acting u/s 251-A (2), Criminal P. C. considered the charge against the accused to be groundless and discharged him. u/s 251-A (2), Criminal P. C. he had only to consider the documents referred to u/s 173 and examine the accused if he thought necessary and should give the prosecution and the accused an opportunity of being heard. Aggrieved against that order, the State preferred a revision to the District Magistrate. The learned District Magistrate, purporting to act u/s 436, Criminal P. C. directed the Magistrate to make a further enquiry, because the learned District Magistrate felt that there was prima facie material for a charge being framed. Against that order the accused filed a revision petition in the High Court, and the question posed before the learned Judge was whether the District Magistrate was empowered u/s 436, Criminal P. C. to direct the Subordinate Magistrate to hold a further enquiry, or whether the District Magistrate should have submitted the papers to the High Court u/s 438, Criminal P. C. The question arose in that form, because u/s 251-A (2) the Subordinate Magistrate had jurisdiction to discharge the accused if on a consideration of the document referred to in Section 173 and examination of the accused if any and giving an opportunity to the prosecution and the accused of being heard, he felt that the charge was groundless. If he did not feel the charge to be groundless, he had to frame a charge u/s 251-(A) (s) and once a charge was framed there could be no question of any further enquiry and the trial would begin. In other words, there is no provision in Section 251-A, Criminal P. C. for any enquiry apart from the procedure prescribed in Section 251-A (2) Criminal P. 0. which in the opinion of Kalagate J. did not con. template any further enquiry, apart from the opportunity to be given to the prosecution and the accused to be heard.

In those circumstances Kalagate J. was of the opinion that what had to be done on the learned District Magistrate differing from the learned Sub-Magistrate was that a charge should be framed, but the direction to frame the charge could be given only by the High Court and could not be given by the District Magistrate. There being no provision in the Code for any further enquiry to be done, Kalagate J. held that the order of the District Magistrate directing further enquiry was illegal and futile. Apparently, the learned Judge implied that there was a contract between the new procedure prescribed in Section 251-A Criminal P. 0 on a police report in a warrant case and the procedure prescribed with respect to a warrant case starting on, a private complaint. In the case of the latter, there would be scope for further enquiry and Section 436, Criminal P. C. could well operate not so in the case of a proceeding instituted on a police report.

It is unnecessary to consider whether I can agree with the above decision, as to which see Jadeja Muraji alias Bhurubhai Modji and Others Vs. The State of Gujarat, It is sufficient to say that the above decision does not apply to this case. It is not applicable to the present case, because here we are concerned only with an enquiry u/s 207.A and, as I have already pointed out, normally, the learned Sessions Judge could have straightaway committed the accused, but the reason why he ordered further enquiry was that some further prosecution evidence remained to be adduced. The substantial point to be borne in mind is that the learned Sub-Magistrate exceeded his jurisdiction in taking upon himself the duty of weighing the evidence u/s 307, Penal Code.

In the result, there is no merit in this petition and it is dismissed.