Kothavaranga alias Goviada Pariayacal and Others vs State and Another

Somasundaram, J.—The Petitioners herein, who are eight in number were committed for trial to the Court of Sessions at Cuddalore by the

Sub-Magistrate. Kaliakurichi for offences u/s 147, 148, 323, 324 and 304 read with Section 149, I.P.C. There is a specific charge against the

third Petitioner u/s 304 I.P.C. with a charge of constructive liability u/s 149, I.P.C. against the sent. On revision, the learned Sessions Judge has

directed the committal of the third Petitioner for an offence u/s 302 and the other Petitioners u/s 302 read with Section 149, I.P.C.

The Petitioners Contend that this direction to the Sub-Magistrate to commit the. Petitioners for an offences u/s 302 read with Section 149,

I.P.C. is erroneous .

Section 437 of the Code of Criminal Procedure under which the learned Sessions Judge has acted is as below:

When, on examining the record of any case u/s 435 or otherwise, the Sessions Judge or District Magistrate considers that such case is tribal

exclusively by the court of Session and that an accused person has been improperly discharged by the Inferior court, the Sessions Judge or District

Magistrate may cause him to be arrested, and may thereupon, instead of directing a fresh. inquiry, order him to be committed for trial upon the

matter of which he has been in the opinion of the Sessions Judge or District Magistrate, improperly discharged;

Provided as follows: (a) that the accused has had as opportunity of showing cause to such Judge or Magistrate why the commitments should not

be made;

(b) that if such Judge or Magistrate thinks that the evidence shows that some ether offence has been committed by the causal, such Judge or

Magistrate may direct the inferior count to enquire into such offence.

On behalf of the Petitioner, it is urged that the learned Sessions Judge if he considered that the discharge was improper, should have himself

committed the accused by framing the necessary charge for the proper offence instead of giving a direction to the trial court to frama such a charge

and then commit. In Sessions Judge, Mangalore v. Malinga alias Savappa 31 Mad. 40 it has been held that the words ""order him to be committed

scan more than "" pass an order for his committal"" and enable the authority exercising the powers of revision, himself to make a committal, or to

direct a subordinate Magistrate ;to make a committal. In Mukat Behari Lal Vs. Emperor, the complainant had filed complaint u/s 466I.P.C. The

trial court proceeded with this case as a warrant case and framed a charge against the accused u/s 466. The Session Judge, acting u/s 437 of the

Code of Criminal Procedure directed the accused to be committed to the Court of Season for trial u/s 466 of the Penal Code; the trial court

refused the permission to cross-examine the witnesses or to examine witnesses in defense. This was challenged in revision by the accused. It was

held that when an order that an accused be committed to the Court of Session after framing a charge against, him has been passed by the Sessions

Judge, the Magistrate had so power to proceed in accordance with the provisions of Chapter XVIII of the Code. The power given to the Sessions

Judge is independent of the provisions of Chapter XVIII The learned Counsel appearing for the Petitioner relies on the decision in Karuppiah

Ambalam v. Andiappa Serrai, 1950 M.W.N. Cri. 61, and, contends that the direction made by the Sessions Judge is not correct. This case was a

case which was started on a private complaint, and Govinda Menon J. said that when dealing with a preliminary enquiry in a case initiated by a

private complaint, the Magistrate has the power to examine the witnesses and discharge the accused even after the framing of the charge, that a

direction by the Sessions Court to him to frame a particular charge will be a bar to such a procedure and that as such the direction was wrong.

Now, u/s 207-A. (9) and (10) of the Code of Criminal Procedure as amended, the accused person is to give a list, either orally or in writing, of the

persons whom be wishes to be summoned to give evidence his trial, and after receiving such a list the Magistrate has to make as order committing

him for trial by the Court of Session after briefly recording the reasons for such commitment. Under Sub-Section 11, the Magistrate has to issue

summons to the person mentioned for the appearance before the court to which he has committed the accused for trial. thus no question of the

Magistrate examining any witnesses after the framing of the charge new arises in proceed-in which are committed on a police report.

What the learned Session Judge has done is in order.

Next it is argued that the material on record do not justify the reaming of a charge u/s 302 of the Indian Penal Code.

Where two viruses are possible about the eviction in a case before the Magistrate, it would not be; for him to evaluate the evidence and strike a

balance before dealing whether or not to commit the case to a Court of Session -vide Viruppan Gowda v. State of Mysore, 1967 M.L.J. Rep. Cri

61, 66.

The order passed by the Sessions Judge is correct and the revision falls and is dismissed.