Radha Kanta Roy vs State

Debabrata Mookerjee, J.—This is a petition for revision of an order made by the Sessions Judge, Nadia, dated November 18, 1954, by which an order of discharge made u/s 209 of the Code of Criminal Procedure in favour of the Petitioner by a Magistrate of Ranaghat, was set aside.

The case against the Petitioner was that during the early hours of the morning of April 7, 1954, a dacoity was committed in the house of one Ramkrishna Pramanik, within police station Santipur. Ramkrishna was said to have been sleeping in his room with his wife and son. The sound of breaking open of the door roused from sleep the inmates of the room. The miscreants. entered the room, assaulted Ramkrishna and his wife and took away cash to the extent of Rs. 1,150. The case was that Ramkrishna, his wife and his son recognised two of the persons, one of them being the Petitioner, Radhakanta Roy. Some villagers were attracted to the spot who were apprised of what had happened and one of whom even recognised the Petitioner who had been seen running away with others. An information was lodged with the police which led to an investigation. A charge-sheet was submitted against the Petitioner and another and the resultant proceedings under Chapter XVIII of the Code of the Criminal Procedure were held by the learned Magistrate in the course of which 18 witnesses were examined on behalf of the prosecution.

The learned Magistrate, however, on a detailed consideration of the evidence adduced by the prosecution, discharged the accused Petitioner u/s 209 of the Code of Criminal Procedure. An application in revision was then moved before the Sessions Judge of Nadia, who made an order setting aside the order of discharge and directed commitment of the Petitioner and another person who had previously been discharged. Thereafter the Petitioner and the co-accused were committed for trial upon a charge of dacoity u/s 395 of the Indian Penal Code.

The Petitioner, thereafter, applied to this Court and obtained the present Rule which is directed against the order made by the learned Sessions Judge, dated November 18, 1954.

Mr. Mallik, appearing on behalf of the Petitioner has made two points. In the first place he has argued that having regard to the merits of the ease of the order of discharge made u/s 209 of the Code of Criminal Procedure by the learned Magistrate was a proper order which should not have been interfered with in revision by the Sessions Judge. Secondly, it has been argued that in view of the provisions contained in Section 437 of the Code of Criminal Procedure, a direction or order made by the Judge in exercise of his powers u/s 437 involves a fresh recourse to the proceedings prescribed under Chapter XVIII of the Code as from the point reached by Section 210 of the Code when a charge is framed. This argument seems to be that when the Sessions Judge or the District Magistrate orders an accused person to be committed for trial the accused person is relegated to the position which he occupied before the Magistrate at the stage represented by Section 210 of the Code. These two contentions require to be examined.

As regards the impropriety of the order of the learned Judge directing commitment of the Petitioner to the court of session or conversely the propriety of the learned Magistrate''s order directing- discharge of the Petitioner u/s 209, Mr. Mallik has invited my attention to several finding reached by the learned Magistrate. It is not necessary to set out those findings in detail except to say that some of them leave no room for doubt whatsoever that the learned Magistrate had clearly arrogated to himself a jurisdiction which he did not possess in law. He not only considered the evidence, such as it was. but criticised the absence of evidence and took upon himself the duty and the responsibility of assessing the entire body of the evidence that was adduced before him as if he was a Court of competent Jurisdiction trying a charge. Questions of probability raised and suggested by the evidence even remotely were not left out of consideration for the purpose of supporting the order of discharge. There can possibly be no doubt that this approach to the question was entirely a wrong one. What the law required the Magistrate to do was to consider whether there was sufficient ground for committing the accused for trial. He was not called upon to see whether the grounds were sufficient for a conviction. The learned Judge points out quite properly that the Magistrate''s assessment of evidence in the course of a long and laboured judgment left little room for doubt that he occupied himself as a court trying the charge with the question of appraisal of evidence which was the business of the Jury to do in a case such as this which is exclusively triable by the Court of Session. The learned Judge points out that as a result of this misdirected consideration of the evidence, the Magistrate went to the length of saying that there was no occurrence like the one alleged on the night in question in the house of Ramkrishna Pramanik and that the whole story was a fabricated one. In reaching this conclusion a sifting analysis of the facts and circumstances appearing from the evidence produced by the prosecution was undertaken with a view to completely assess the value of that evidence. The learned Judge, therefore, considered that the Magistrate had clearly gone beyond his jurisdiction in taking upon himself the duty of assessing the evidence and pronouncing upon its merits. Consequently the order made by the learned Judge directing commitment must be held to be a proper order. The reasons given by the learned Judge while ordering commitment clearly indicate the grounds why he considered that the order of discharge had been improperly made.

The other point made by Mr. Mallick now falls to be considered. Section 437 reads thus:

When, on examining the record of any case u/s 435 or otherwise, the Sessions Judge or District Magistrate considers that such case is triable 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 an opportunity of showing cause to such Judge or Magistrate why the commitment should not be made ;

(b) that, if such Judge or Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Judge or Magistrate may direct the inferior Court to inquire into such offence.

The language in which the section has been couched leaves no room for doubt that when a Sessions Judge or a District Magistrate considers that the case is triable exclusively by the Court of Session and that an accused person has been improperly discharged by the inferior court, the Sessions Judge or the District Magistrate may do either of two things. He may direct a fresh inquiry or order the person improperly discharged to be committed for trial upon the matter of which he has been improperly discharged. In the present case, the learned Judge did not think it fit to direct a fresh inquiry but ordered the Petitioner to be committed for trial. Accordingly, the matter went back to the Committing Magistrate''s Court who drew up a formal charge u/s 210 committing the Petitioner and another to the Court of Session to be tried upon a charge u/s 395 of the Indian Penal Code.

The, contention which Mr. Mallik has raised is that once an order is made by a Sessions Judge or a District Magistrate u/s 437, of the Code, the Magistrate, on receipt of the record, is bound to follow the provisions of Chapter XVIII as from Section 210 of the Code of Criminal Procedure. Section 210 indicates the point reached in the proceedings when a charge is to be framed. The section contains the further provision that the copy of the charge shall at once be read and explained to the accused and given to him free of cost. Section 211 provides that an accused should then and there be required to give in, orally or in writing a list of the persons whom he wishes to be summoned to give evidence on his trial. There is also provision leaving it to the Magistrate''s discretion to accept a further list of witnesses at a subsequent time. Section 212 gives power to the Magistrate to summon and examine any witness named in the list handed in by the accused person Section 213 provides that upon consideration of the evidence of such of the witnesses for the accused as have been examined by the Magistrate in his discretion, the latter may make an order committing the accused for trial or if the Magistrate is satisfied that there is no sufficient ground for committing the accused for trial, he may cancel the charge and discharge the accused.

Mr. Mallik''s contention is that when u/s 437 of the Code the Sessions Judge ordered the Petitioner to be committed for trial and the matter came back before the Magistrate who framed a formal charge u/s 210 of the Code it was the duty of the Magistrate thereafter to follow the procedure indicated above as contained in Section 211, 212 and 213 of the Code. The complaint which Mr. Mallik makes is that after the framing of the charge u/s 210 the Petitioner was deprived of the opportunity of calling evidence in his defence. He was not asked to give any list of witnesses and there was no occasion for the Magistrate to exercise his discretion as to whether he was going to examine any person whom the accused Petitioner wanted to examine. Consequently the Committing Magistrate did not have any occasion to consider whether the charge against the accused should be cancelled u/s 213 of the Code, since that stage was omitted altogether and a commitment was directly made by the unwarranted abridgement of the procedure indicated in Chapter XVIII of the Code. This, according to Mr. Mallik, has resulted in deprivation of a valuable right which the law gives to the accused under Sections 211, 212 and 213 of the Code.

In order to be able to appreciate the validity of this contention it is necessary to recall once again the words of Section 437 of the Code which I have already read. The section, to my mind, seems to be perfectly clear. It empowers the Sessions Judge or the District Magistrate to do either of two things, upon being satisfied that the case is one exclusively triable by the court of Session and that there has. in his opinion, been an order improperly discharging the accused person. Of the two alternative courses which the Sessions Judge or the District Magistrate may take, one is an order directing a fresh inquiry to be held, the other is an order directing the accused to be committed for trial upon the matter of which he has been improperly discharged. The two clauses mentioned in the proviso appear to be referable to the two alternatives just mentioned. The first alternative, clearly envisages an inquiry to be held afresh. That, as a matter of language, can only mean that the Magistrate has to go through the entire procedure laid down in Chapter XVIII of the Code. There can hardly be any doubt that in such case the proceedings have to commence with Section 208 under which the learned Magistrate will be required to take evidence produced by the prosecution. The Magistrate will then consider whether the accused person should be discharged. If he decides that there is evidence which is fit to be considered by the Court of Session, he will give opportunity to the accused person to hand in the list of witnesses whom he wishes to examine in his defence. The Magistrate may then examine the witnesses himself and if after such examination he is satisfied that sufficient ground for commitment does not exist he may cancel the charge which has already been framed and discharge the accused. This I conceive to be the duty of the Magistrate when u/s 437 the Sessions Judge or the District Magistrate directs a fresh inquiry to be held.

Question then arises whether in a case where a fresh inquiry has not been directed but the accused has merely been ordered to be committed for trial, is the Magistrate required to go through the process over again as envisaged above and prescribed in Chapter XVIII of the Code of Criminal Procedure; The language of Section 437 setting out this alternative form of interference seems to me to be quite precise. The section says that the Sessions Judge or the District Magistrate will "order him (accused) 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." There is, therefore, an order directing commitment upon the matter already on the record. That cannot possibly mean that any scope is left for the play of magisterial discretion to let in fresh matter or evidence. If the legislature intended that opportunity was to be given to the accused person to counter the matter or evidence already on the record, I imagine appropriate language would have been used. On the other hand, the words appear to me to be quite imperative and admit of no equivocation. There is an order or a command of the superior court which has to be and must be carried out. If it were not so, there would be no sense, in my view, in keeping up these two alternative forms of interference. In one case the Magistrate is directed to proceed afresh following the procedure indicated in Chapter XVIII and in the other case there is to be just a commitment of the accused person for trial to the Court of Session in accordance with the order made. If in every case where interference takes place u/s 437, the Magistrate is willingly bound to go through the entire proceedings, I am afraid there would be no sense in providing for the two distinct forms of interference clearly expressed in the operative part of 8. 437 of the Code.

Assuming for a moment that Mr. Mallik''s contention is right that even where the accused person has been ordered to be committed the Magistrate is required to go through the entire gamut laid down in Chapter XVIII that would, in my view, result in leaving the order of commitment made by the Judge in a fluid or rather precarious state. It will then be liable to be revised by the Magistrate since by giving to the accused person a chance of examining witnesses in his defence the whole issue is put in the melting pot which might in an appropriate case lead to cancellation of the charge and consequent amendment of the order made by the Judge. If Mr. Mallick''s contention is right the Petitioner ought to have been given opportunity to hand in a list of his witnesses u/s 211 of the Code and the Magistrate ought to have exercised his discretion as to whether he could cancel the charge or sustain it and commit the accused for trial. If upon the new matter furnished to the Magistrate in the shape of evidence called by the accused the Magistrate felt that the charge against the accused was groundless it would then surely be necessary to cancel the charge in the due performance of his duty u/s 213 of Code of Criminal Procedure. That undoubtedly would give an inferior court the right to revise an order made by a superior court in the exercise of its powers given u/s 437 of the Code.

The Legislature has not been unmindful of the desirability in appropriate cases of leaving it open to the Sessions Judge or the District Magistrate to direct a fresh inquiry when such inquiry is called for in the circumstances of the particular case; but when, on the other hand, the Judge or the District Magistrate in the exercise of his judicial discretion, thinks that he should order the accused to be committed for trial, it cannot, in such event, be held that Section 210 onwards mentioned in Chapter XVIII of the Code of Criminal Procedure are automatically called into play despite the possibility that the result of examination of the witnesses named by the accused might end in nullifying the order of the superior court. That I conceive to be a position which leads to absurdity and no construction can possibly be adopted which involves such absurdity.

I, therefore, hold that when an order is made by a Sessions Judge or a District Magistrate u/s 437 of the Code ordering the accused to be committed for trial it is not open to the accused person to ask for repetition of a part of the proceedings prescribed by Chapter XVIII of the Code.

The result, therefore, is that this Rule is discharged.