In Re: Ummadi Pulla Reddi and others

This Criminal Miscellaneous Petition to quash the order of committal made by the Sub Divisional Magistrate, Anantapur has been referred to a Division Bench by Chandra Reddi J.

The facts may be briefly stated. The Station House Officer Atmakur, filed a charge sheet against 11 accused alleging that on 3-1-1954 at about noon in Sanappa village, the said accused formed themselves into an unlawful assembly armed with deadly weapons with the common object of causing hurt to the persons belonging to the opposite faction, and, in pursuance of such common object, caused hurt to Chinna Konda Reddy and 9 others and thereby committed offences punishable under Ss. 147, 148, 323 and 324 I. P. C.

There was a counter case P. R. C. No. 2 of 1954 filed by the accused against the victims of the present case. The Sub Divisional Magistrate took the case on file as Calendar Case No. 41 of 1S54 and followed the procedure prescribed for warrant cases. The Magistrate found that the prosecution had failed to make out a prima facie ease in respect of any of the offences alleged against accused 1, 4, 6 and 3 to 11 and discharged them under S. 209 (1) Cr. P. C.

But, as regards accused 2. 3, 5 and 7 he framed charges against them under S. 323, I. P. C. but committed the said accused to Sessions on the following grounds:

As this case has been treated as a counter-case to P. R. C. No. 2 of 1954, I hereby commit the aforesaid accused under S. 213 (1). Cr. P. C. to take their trial on the charges found against them before the Court of Session sitting at Anantapur.

The aforesaid petition was filed for mashing the said order committing the accused to Sessions.

The question for consideration is whether the said order is illegal, and ii not, whether it is improper to pass such an order in the circumstances of the case. The relevant provisions of the Criminal Procedure Code which throw light on the question raised, may now be read: Section 207:

The following procedure shall be adopted in inquiries before Magistrates where the case is triable exclusively by a Court of Session or High Court or in the opinion of the Magistrate ought to be tried by such Court.

Section 254:

If when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion could be adequately punished by him he shall frame in writing a charge against the accused.

Section 347:

(1) If in any enquiry before a Magistrate or in any trial before a Magistrate before signing Judgment, it appears to him at any stage of the proceeding that the case is one which ought to be tried by the Court of Session or High Court and if he is empowered to commit for trial, he shall commit the accused under the provision hereinbefore contained;

(2) If such Magistrate is not empowered to commit for trial, he shall proceed under S. 346.

The Criminal Procedure Code prescribes the procedure for three categories of cases (1) cases triable exclusively by a Sessions Court. (2) cases in which a Magistrate is not empowered to impose adequate punishment though they are triable by him and (3) cases which a Magistrate is not only competent to try. but in respect of which he is in a position to give adequate punishment.

Chap. 18 prescribes the procedure for enquiries before Magistrate where the case is triable exclusively by a Court of Session or by the High Court or in the opinion of the Magistrate ought to be tried by such Court. In regard to the 2nd and 3rd categories of cases, in respect of warrant cases, the Magistrate shall follow the procedure prescribed by Chap. 21, of the Criminal Procedure Code.

Under S. 254 where a Magistrate is of opinion that a prima facie case has been made out against the accused, that he has committed an offence which such Magistrate is competent to try and which could be adequately punished by him, he shall frame a charge. But S. 347, Cr. P. C. confers in general terms a wide and "comprehensive power on a Magistrate to commit an accused to Sessions at any time before signing the Judgment, if it appears to him that the case is one which ought to be tried by a Court of Session.

Section 347, Cr. P. C., therefore cannot be read subject to the provisions of S. 254 without doing violence to the language or otherwise introducing words which are not there. The contention that 8. 347 will apply only to a case where a Magistrate is not competent to try it or to impose adequate punishment is not supported by the express provisions of that section.

The combined effect of the aforesaid provisions, therefore, is that in cases exclusively triable by a Sessions Court, the Magistrate shall, commit the accused to Sessions. In cases which are triable by him but in regard to which he cannot inflict adequate punishment, he may also commit the accused to Sessions. But S. 254 cannot be read by necessary implication to mean that in a case covered by that section, the Court has no power to commit the accused to Sessions, for that section only in terms enjoins a Magistrate to frame a charge if a prima facie case has been made out in regard to an offence triable by him and in respect whereof, he could impose adequate punishment.

If the Legislature intended that in regard to an offence covered by that section, a Magistrate has no power to commit an accused to Sessions, they would here added a proviso to S. 347 to that effect. The wide words of the section cannot, therefore, he restricted. At the same time, the power to commit is an exception to the general rule that, if an offence is triable by a Magistrate, he shall do so.

Therefore, he must exercise his discretion to commit the accused to Sessions in such a case judicially and not capriciously. We therefore, hold that under S. 347, Cr. P. C. a Magistrate has power to commit an accused to sessions though he is competent to try the case and also adequately punish the accused.

The next question is whether it is proper for him to do so on the ground that a counter case is committed to sessions. No particular or special procedure is prescribed for counter-cases. The fundamental principle is that the Court in deciding a case shall have regard only to the facts of that case. A Court cannot obviously decide one case having regard to the facts of another case.

A Full Bench of the Madras High Court in T.K.M. Alagappa Chetty Vs. Saminathan Chetty and Others, considered the procedure to be followed in counter cases. After considering the conflict of decisions Beasley C. J., stated at pp. 368-369 as follows:

If by that it is meant that the fundamental principles that the Court must not have repaid in one case to the facts in another is not to be observed then that view cannot be supported. Possibly if a Judge reserves judgment in both cases in order that he may consider both for the purpose of arriving at the truth, he is likely to reach a mere satisfactory result than by trying each case without reference to any of the facts in the other. But since this procedure is irregular it cannot receive our support. No hard and fast rule can be laid down. It is sufficient to say that there can be nothing irregular in a Judge trying each case to a conclusion before different assessors and afterwards pronouncing judgment in both so long as he tries the one quite independently of the facts in the other. Should the Judge, however, feels that he is likely to be embarrassed by the adoption of this procedure, he will no doubt get a transfer of the counter case to the file of another Sessions Judge. What must be made clear is: (1) that the trial must be separate i.e., before different assessors and separate judgments delivered (2) that the conclusions in each case must be founded on, and only on, the evidence in such case, and (3) that if the Judge considers himself unable to detach himself from extraneous considerations, a transfer may be necessary to deliver the Judge from this embarrassment.

We respectfully accept the aforesaid observations.

In view of the Full Bench decision, it is not necessary to multiply cases as we are bound by the Full Bench decision. It is, therefore, clear that the Full Bench did not accept the principle that counter cases shall be tried together. But as counter cases have to be tried by the same Judge, they laid down a working rule that they might be heard by him one after another without consciously or unconsciously basing his Judgment in one case on the evidence adduced in the other. Where a Judge honestly believes that he cannot perform the difficult feat of preventing the impact of the effect of evidence in one case on the evidence in the other case, he is advised to get the case transferred to another Court.

While accepting the fundamental principle that the evidence in both cases should not be mixed up the Full Bench recognising the existence of such cases on the file of the same judge, laid down a rule of procedure to be followed, at the same time admonishing a caution to the Judge to get it transferred, if he feels embarrassed. The rule of practice laid down, therefore, is not in recognition of the principles that such counter cases should be tried together in the interests of justice, but to enable the Court to avoid pitfalls when such cases appear on his file.

If that is the correct view, there is no reason why a Magistrate should add to the embarrassment of a Sessions Judge by committing counter cases to him, when he is quite competent to dispose of finally and adequately one of them himself on the simple ground that one case is counter to the other. He would not be exercising his jurisdiction judicially and reasonably if he committed an accused in a Calendar case triable by himself, when he could himself impose adequate punishment.

Under similar circumstances, the learned Judges of the Madras High Court have invariably held that a Magistrate shall not commit an accused to Sessions on the simple ground that the accused in the counter case has been committed to Sessions. In ''Chinnaswamy Nadar v. Emperor'', 1933 Mad WN 550 (B), Burn J., held that if the offence is triable by a Magistrate, and he can adequately deal with it, it should not be committed to the Sessions.

Much to the same effect Lakshmana Rao J., held in ''Majji Paidanna v. Emperor'', 1934 Mad WN 272 (C), that the fact that a case is counter to another case, which is committed to the Sessions, is no ground for committing that case also when it is triable by a Magistrate who can adequately deal with it. Lakshmana Rao J., again in ''Oonna Mudali y. Emperor'', 1940 Mad WN 530 (D), condemned such a practice. At page 530 the learned Judge says:

The offences disclosed are triable by a Second Class Magistrate and it is not stated that he cannot adequately deal with them. That the case is counter to Preliminary Register case No. 4 of 1938 which has to be committed to the Sessions, is not a sufficient reason for treating it also as a Preliminary Register Case. Vide In Re: Mounaguruswamy Naicker (A) and the Order of the Sub Magistrate converting the case into a Preliminary Register Case cannot be sustained. It is, therefore, set aside and the case will be dealt with as a Calendar case.

following the aforesaid decisions, we hold that committing a case to Sessions is the inure ground that the counter case has been committed to Sessions is irregular.

further, the Order of the Lower Court is also vitiated in this case by the fact that the Magistrate did not follow in effect and in substance the procedure prescribed by Chap. 18, Cr. P. C. Under S. 347, Cr. P. C, the Magistrate committing an accused to Sessions shall commit him under the provisions of Chap. 18 Cr. P. C.

Though the section authorises a Magistrate before signing the Judgment to commit a person to Sessions, it will not enable him to ignore the provisions of Chap. 18 causing prejudice to the accused. Though a Magistrate in trying warrant cases is entitled to commit the accused without taking ''de novo'' proceedings under Chap. 18 Cr. P. C., it has been held that he must conform to the provisions of Ss. 208, 211, 212 and 213 of the Code: See AIR 1940 389 (Lahore) . The principle behind the decision is that the committal order should not be made in such a way as to cause prejudice to the accused.

To illustrate, if a Magistrate, after following the warrant procedure in a Calendar Case decides to commit an accused after the charge is framed against him, he would be depriving him; of his right to cross-examine the witnesses.

An accused who is tried under the said procedure may be misled in thinking that he will have a further opportunity of cross-examining the witnesses after the charge is framed. It is, therefore, necessary even in exercising the power under S. 347 that the accused should be given in effect and in substance all the facilities which he would have had if the case was initiated and proceeded with as a Preliminary Register Case.

In the present case, from the aforesaid narration of facts, it is manifest that the accused were not given an opportunity to cross-examine the witnesses, if they intended to do so, for it cannot be assumed that they completely cross-examined the witnesses, when at the time they cross-examined the witnesses, they had the option to re-call the witnesses over again.

We, therefore, hold that the accused were prejudiced by the procedure followed in this case. For the aforesaid reasons, we set aside the Order of committal and direct the Magistrate to proceed with the case as a Calendar Case.