Pargan Singh vs Surjit Singh and ors.

S.S. Grewal, J.

This petition under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code''), is directed against the order of the judicial Magistrate Ist Class, Kapurthala dated 341989 whereby the Magistrate himself framed charge under sections 326, 325 and 323 read with section of 34 IPC.

The grievance of the petitioner who incidently is the complainant in this case, is to the effect that the learned Magistrate had no jurisdiction to decide as to whether offence under section 307 or section 307 read with section 34 IPC., exclusively triable by the Court of Sessions, was, or was not made out against the accusedrespondents, and, it was only the prerogative of the Court of Sessions to decide this question. Only course open for the Magistrate was to commit the case, particularly when the doctor had opined that the head injury coupled with the other injuries could prove dangerous to life of the injured complainant. There is considerable merit in this contention in as much as the Magistrate had no jurisdiction in the instant case to decide as to whether offence under section 307 or section 307 read with section 34 IPC, which is exclusively triable by the Court of Sessions, has been made out or not.

Faced with this situation it was submitted on behalf of the accused respondents that the Magistrate had such jurisdiction in view of the proviso (a) to subsection (1) of Section 202 of the Code. It is true that in the said proviso it is specified, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he cannot give any direction to send the complaint for investigation as contemplated under section 202 of the Code. The facts and circumstances of the present case are entirely different inasmuch as after recording preliminary evidence, the accused were summoned by the Magistrate and, after the recording precharge evidence he has framed the charge under Sections other than section 307 or section 307 read with section 34 of the Indian Penal Code, against the accused respondents.

The Court of Sessions has exclusive jurisdiction under Section 228 of the Code to decide as to whether a case is, or, is not exclusively triable by the Court of Sessions, and in the latter case, the trial has to be remitted. back to the Magistrate concerned for trial. Thus, there cannot be two opinions about the exclusive jurisdiction of the Court of Sessions to decide, as to whether in the instant case particular prima facie offence under section 307 or section 307 read with section 34 IPC had or had not been made out against the accusedrespondents.

Mere fact that the complainant went in revision against the order of the learned Magistrate to the court of Sessions, or the latter declined to interfere in its revisional jurisdiction, to my mind, would not confer jurisdiction on the judicial Magistrate to decide the question as to whether any offence under section 307 or section 307 read with section 34 of the Indian Penal Code has been made out against the accused or not. The Court of Sessions has to exercise its exclusive jurisdiction as contemplated under section 202 and other relevant provisions of the Code.

For the foregoing reasons, the impugned orders passed by the Courts below are set aside. The trial court would consider the feasibility of committing the case to the Court of Sessions and the latter would then decide whether it has to decide the case itself or send itback to the Chief Judicial Magistrate, for trial, as contemplated under section 228 of the Code. It is clarified that nothing herein observed for the disposal of this petition, shall in any manner, affect the rights of the parties. The petition is accordingly allowed. Copy of this order be sent to the trial Court for compliance forthwith.