Mohan and Others vs State of U.P.

V.P. Mathur, J.—Mr. B.B.S. Sisodia, the then Additional Sessions Judge of Jaunpur vide his order dated 8-2-1978, passed in ST No. 234 of 1974, convicted Mohan u/s 457, IPC, 324 IPC and 323 IPO read with Section 34 IPC and sentenced him to three years'', two years'' and one year RI respectively, making all the sentences concurrent. Mangroo and Rajbali were convicted, under Sections 452 IPC, 324/34 IPC and 323/34 IPC and sentenced to one year; two years and one year''s RI, respectively. All the sentences have been made concurrent and it is against this order that the present appeal has been filed.

This case started on a criminal complaint and there were five accused who faced the trial. The learned Sessions Judge acquitted Lalla and Bahadur, giving them the benefit of doubt and convicted the others. The criminal complaint which was filed on 2-5-72 was in respect of an occurrence that allegedly took place at 8.00 PM on 29-7-72. The learned Magistrate before whom the proceedings started recorded the statement of the complainant u/s 200 Code of Criminal Procedure. Thereafter the statements of two witnesses u/s 202 Code of Criminal Procedure were taken down but they were not examined as witnesses of fact in the case. Subsequently the order of committal was passed on 21-12-74. The main argument which has been advanced is that the procedure followed by the learned Magistrate for committing the case to the Sessions was improper and the trial, therefore, stands vitiated. It may be mentioned here that the new Original Procedure Code, 1973, came into force on the 1st April, 1974. Prior to that the old Code was in operation. The facts of this case show that the occurrence took place on 29-3-72, when the old Code was in force. The criminal complaint was also filed on 2-5-72, when again the procedure prescribed by the Criminal Procedure Code, 1898 was in force. Therefore, the learned Magistrate should have proceeded according to the provisions laid down in old Code. Chapter XVIII of the old Code was applicable to the present case and the learned Magistrate, if was of the view that the case was either exclusively triable by a court of Sessions or that it ought to be tried by such court, should have proceeded according to the provisions of Section 208 onward of the old Code of Criminal Procedure. A similar matter came up before the Supreme Court in the case of Chhadami Lal Jain and Others Vs. The State of Uttar Pradesh and Another, and in that case it was held that the words ''under the provisions here-in before contained'', used in Section 347(1), mean that if the Magistrate decides at some stage of the trial to commit the accused, he has to follow the provisions contained in Chapter XVIII. This of course does not mean that the Magistrate must begin over again from the beginning. All that he has to do when he decides that the case ought to be committed is to inform the accused and see that the provisions of Chapter XVIII are complied with so far as they have not been complied with upto the stage at which he decides that there ought to be commitment. The procedure under Chapter XVIII is laid down in Section 208 - 213 of the Code. It is necessary that the accused should know when the Magistrate makes up his mind to commit, so that their right u/s 208 to produce defence, if any, before commitment Is made, is safe-guarded. If the accused is denied opportunity of leading evidence which he has a right to do u/s 208, the denial of such right is sufficient to cause prejudice to the accused and Section 537 would have no application to such a case. The possibility that the accused may not have produced the defence if asked by the Magistrate whether he would do so is of no consequence. The Supreme Court in this case held that breach of Section 206 was sufficient to invalidate the commitment. The order of commitment was, therefore, quashed along with the charges that were framed and the case was sent back to the Magistrate to proceed according to law.

In the present case before me also the same defect has crept in. Since old Code was in force, the learned Magistrate should have proceeded in accordance with the provisions of Chapter XVIII and should have followed the procedure laid down by Sections 208 - 213. This has not been done and the only way out will be to send the case back to the Magistrate to proceed according to law.

The appeal is, therefore, allowed. The order of commitment and all further proceedings thereafter stand quashed. The case shall go back to the Chief Judicial Magistrate, Jaunpur, who will either dispose of the case himself or transfer it to some other Magistrate competent to do so. The Magistrate shall proceed with the matter and dispose it of in accordance with the law and in the light of the observations made above.