Om Dutt and Others vs State of U.P. and Another

J.C. Gupta, J.—Heard applicants'' counsel and the learned A.G.A. as well as Sri V.P. Srivastava learned Counsel for the complainant.

By means of this application, inherent powers of this Court are being invoked for quashing the order dated 24.3.99 passed by Chief Judicial Magistrate, Agra in Case No. 7/97, State v. Om Dutt and others arising out of Crime No. 159/96 u/s 232/324/504/308, I.P.C. P.S. Kagarol, district Agra whereby the application moved on behalf of the applicants for not committing the case to the Court of Session has been rejected. It appears that on an earlier occasion also, the applicants had approached this Court by filing Writ Petition No. 750/97 and the same was disposed of by Hon''ble P.K. Jain, J. by the order dated 22.8.97 and the learned Magistrate was directed to reconsider the matter whether case u/s 308, I.P.C. was made out against the applicants after properly scanning the material on record. In compliance of the said order, the learned Magistrate this time by a detailed order came to the conclusion that from the material placed from the prosecution side, an offence u/s 308, I.P.C. is prima facie made out against the applicants.

Learned Counsel for the applicants argued before this Court that from the injury report which was placed before the learned Magistrate, it could not be said that an offence punishable u/s 308, I.P.C. has been made out and, therefore, it is not a case which requires committal to the Court of Session.

It is well-established law that at the stage of Section 209, Code of Criminal Procedure, the Magistrate has no power to examine the evidence and other material in a meticulous manner and the matter has to be left to the discretion of the Court of Session. The narrow inspection hole through which the committing Magistrate has to look to the case limits him merely to ascertain whether the case as disclosed by police report appears to him to be triable by Session Court exclusively. If it is so, he has no option but to commit the case to the Court of Session. At the stage of Section 209, Code of Criminal Procedure, the Magistrate in such matters cannot discharge the accused because discharge is an antithesis of charge. u/s 209, Code of Criminal Procedure, a Magistrate cannot frame charge so he also does not have power to discharge. While on the other hand. Section 228, Code of Criminal Procedure provides that if after consideration of the record of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution in this behalf, the Sessions Judge is of the opinion that there is ground for presuming that the accused has committed offence which is not exclusively triable by the Court of Session, he may frame a charge against the accused, and, by an order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report ; or, if the learned Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Session, he shall frame in writing a charge against the accused and thereupon the accused shall be tried under the provisions of the Code.

A comparative study of Sections 209 and 228 of the Code of Criminal Procedure leaves no room of doubt that the powers conferred on the Sessions Court u/s 228 are much wider than those of the Magistrate u/s 209, Code of Criminal Procedure The Legislature with some intent and purpose has made the use of the word "appears" in Section 209, Code of Criminal Procedure ; whereas a totally different language has been used in Section 228, Code of Criminal Procedure It would not be correct to lay down that u/s 209, Code of Criminal Procedure also, the Magistrate has same wide powers as are possessed by a Court of Session in examining the question whether or not the offence is exclusively triable by the Court of Session.

It is also well-established that merely on the basis of injury report, a conclusion about the nature of offence cannot always be arrived at and the entire facts and circumstances appearing in the case are also to be looked into decide as to what offence is prima-facie made out. The consideration of such facts and circumstances is the exclusive domain of a Court of Session. In the present case, it may not be appropriate and proper for this Court to make any observations in these incidental proceedings as the same may unwittingly influence the mind of the Sessions Judge while considering the question of framing of charge. Though this Court has restrained himself from making any such observations on the merits of the case, it is made clear that this order shall not influence the mind of the Sessions Judge and he shall be free to assess and evaluate the merits of the case unhampered by any observation, this Court may have happened to make and it is suffice to say that the order of the Magistrate rejecting the application of the applicant does not call for interference especially when the cross case has also been committed to the Court of Sessions.

However, in the peculiar circumstances of the case, it is provided that as and when application for bail is moved by the applicants before the Courts below on their arrest or surrender, as the case may be, the same shall be heard and disposed of expeditiously in accordance with law. Learned Counsel for the applicants then submitted that since non-bail able warrants of arrest have been issued against the applicants, they may be given a reasonable time to make appearance before the concerned Court and till then the execution of the warrant be stayed. In the interest of justice, it is provided that for a period of two weeks from today execution of warrants of arrest if issued against the applicants shall remain stayed, provided they appear before the Magistrate concerned during the said period of two weeks.

With the above observations, this application is disposed of.