Ramaswamy Gounder and Others vs State

This revision is filed against the order D/- 24-1-1980 on the file of the Court of the Sub-Divisional Judicial Magistrate, Pollachi in converting

C.C. No. 336 of 1978 into P.R.C. No. 1 of 1980 for an offence u/s 307 I.P.C. and committing the petitioners to the Sessions Court to take their

trial.

The facts of the case are as follows :- The petitioners were charge-sheeted under Sections 148, 448, 342, 426 and 506 (Part II) I.P.C. and u/s

7(1)(c) of the Civil Rights Act. According to the prosecution, the petitioners belong to Gounder community and the prosecution witnesses belong

to Madari (Harijans) community. On 13-5-1978, the eleventh petitioner''s uncle died at Udayakulam village. Due to misunderstandings, the

Madaris (Harijans) refused to come to beat drums in connection with the death ceremony. Since the Madaris refused to beat the drums during the

death ceremony, the petitioners, forming themselves into an unlawful assembly and armed with sticks and carrying petromax lights, marched at 8-

45 p.m. on 13-5-1978, to the residential area of Madaris, and to the house of P.W. 1 and caused injuries to the persons and committed mischief.

It is on these allegations, the Sub-Inspector of Police charge-sheeted the petitioners under the aforesaid sections, before the Sub-Divisional Judicial

Magistrate at Pollachi. The case against the petitioners was taken on file as C.C. No. 336 of 1978. On 30th November, 1979, P.W. 1 was

examined before the Magistrate but his cross-examination was deferred to. Thereafter, P.W. 2 was examined. P.W. 2 while deposing the facts of

the case before the Magistrate has stated :

On the basis of this evidence, the Assistant Public Prosecutor filed a memo before the Magistrate contending that from deposition of P.W. 2, an

offence coming within the purview u/s 307 I.P.C. is spoken to. The Magistrate, having recorded the chief-examination and also considering the

relevant portion of the evidence recorded above converted the case before him into P.R.C. No. 1 of 1980 and all the petitioners were committed

to take their trial before the Sessions Court. It is, this order of the Magistrate, that is questioned in the above criminal revision case.

The learned counsel appearing for the petitioners contends that the evidence of P.W. 2 was not recorded in full by the Magistrate and on the

deposition of P.W. 2 with reference to the offence alleged to have been committed by the fourth petitioner, the Magistrate has erred in committing

the petitioners to take their trial before the Sessions Judge under S. 323. Cr.P.C. The question that has to be considered is, whether the

Magistrate, who has been trying for the offences stated above, can commit the petitioners u/s 323, Cr.P.C. to the Sessions Court on the evidence

of P.W. 2.

Section 323, Cr.P.C. contemplates the procedure as to when the Magistrate should commit the case before the Sessions Court. ""If, in any

inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one

which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon, the

provisions of Chapter XVIII shall apply to the commitment so made."" In this case, it is clear, from the deposition of P.W. 2, that a prima facie case

u/s 307, I.P.C. has been made out. The learned counsel for the petitioners contends, that taking cognizance of an offence is a judicial act and the

Magistrate, on the lone evidence of P.W. 2 with reference to the allegation of an offence u/s 307. I.P.C. cannot commit the petitioners to Sessions

Court when the prosecution itself has charge-sheeted petitioners 1 to 3, 5, 6, 8, 10 to 14 under Sections 148, 448(2) 426(3) and 324(3), I.P.C.

read with S. 7(1)(c) of the Civil Rights Act, petitioner No. 4 under Ss. 148, 448(2) 426(3) , 324(3), and 506(2), I.P.C. read with S. 7(1)(c) of

the Civil Rights Act and petitioners 7, 9, 15 under Sections 148, 448(2) and 426(3), I.P.C. The learned counsel for the petitioners relies on a

decision reported in Public Prosecutor v. T. D. Khajavalli, (1980 Mad LJ (Cri) 648), which deals with S. 209 Cr.P.C. The learned Judge of the

Andhra Pradesh High Court at p. 648 observed thus :-

The question of committal arises u/s 209. Criminal Procedure Code, not immediately after the Magistrate takes cognizance of an offence

exclusively triable by a Court of Session, but after the appearance of the accused before him and the Magistrate complied with the mandate in S.

207, Criminal Procedure Code. It is only when, on the appearance of the accused, it appears to the Magistrate that the offence is triable

exclusively by the Court of Session that the Magistrate should commit the accused to the Court of Session and not otherwise. The language of S.

209, Criminal Procedure Code, makes it abundantly clear that the Magistrate is not to act as an automation or a mere post-office for despatch of

the case to the Court of Session merely because, in the absence of the accused at the initiation of the proceedings, he was of the view that the

offence in question was triable exclusively by a Court of Session.

It is on the basis of these observations, the learned counsel appearing for the petitioners contends that the Magistrate has to satisfy himself judicially

whether he has materials before him for committing the case before sessions, and of a single deposition, as in the case of P.W. 2, the counsel

contends, that it cannot be said that the petitioners can be committed to the Sessions Court and that the Magistrate ought to have proceeded

against the accused petitioners only for such offences as are levelled against them in the charge-sheet filed.

This argument of the learned counsel appearing for the petitioners lead to the interpretation of S. 323 Cr.P.C. S. 323, Cr.P.C. clearly points out

that if in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings, that the case is one which ought

to be tried by the Court of Session, the Magistrate shall commit the said case to the Sessions Court under the provisions of the Act. The power

enjoined upon the Magistrate, is ""at any stage of the proceedings"". In this case, the Magistrate, while recording the evidence of P.W. 2 and on a

petition presented by the Assistant Public Prosecutor that the case falls u/s 307. I.P.C. as could be seen from the evidence adduced by P.W. 2 has

committed the petitioners to sessions and converted the Calender Case into a P.R. case.

The learned Public Prosecutor contends that to invoke the provisions of S. 323, Cr.P.C., the Magistrate during enquiry or during trial, if he

comes to the conclusion, on the materials placed before him, that the case has to be committed to sessions, he has no other alternative but to

commit the case to sessions and the impugned order of the Magistrate in this case is perfectly legal and does not suffer from any material

irregularity or illegality. The learned Public Prosecutor relies on a decision reported in Kathan Maistry v. Muthuveera (1952) 2 MLJ 549 : AIR

1959 Mad 998. Somasundaram, J. while dealing with S. 347 of the old Criminal Procedure Code, has observed that the section permits the

Magistrate to convert a Calender case into a P.R. Case even in cases where in the course of enquiry, the evidence discloses an offence exclusively

triable by a Sessions Court. ""It cannot be said that S. 347 applies only to cases which are triable both by the Sessions Court as well as by the

Magistrates and not to cases which are exclusively triable by the Sessions Court"". The short judgment of Somasundaram, J., clearly points out that

the power of the Magistrate is such that where in the course of enquiry the evidence discloses that the case has to be tried by a Sessions Court, the

Magistrate can commit the petitioners to Sessions and convert the Calendar case into P.R. Case. Reliance is also placed by the learned Public

Prosecutor on a decision reported in V. Veena Raghavallo and Others Vs. State, , where Chennakesav Reddy, J., has observed thus :-

To invoke the provisions of S. 323, Criminal Procedure Code, it should appear to the Magistrate in any inquiry into an offence or a trial before

him that the case is one which ought to be tried by the Court of Session. The case need not be one exclusively triable by a Court of Session. If the

material in the case discloses an offence triable exclusively by a Court of Session, the Magistrate has then no option but to commit the case to the

Sessions. On the other hand, if the material discloses only an offence which is triable by the Magistrate himself then he has a discretion either to try

it himself or commit. What is essential for the commitment of the case to the Court of Session is merely the opinion of the Magistrate that the case

is one which ought to be tried by the Court of Session.

On the basis of this decision and on the purport of S. 323. Cr.P.C., the learned Public Prosecutor contends that during the inquiry into an offence,

by a Magistrate or during the trial before a Magistrate if it appears to the Magistrate from the evidence placed before him that the case has to be

tried by the Court of Session, the Magistrate has no other alternative but to commit the case to the Court of Session. I agree with the learned

Public Prosecutor. No doubt the evidence in this case is that of P.W. 2, which remained only partheard and the evidence has not been fully

completed before the Magistrate. But the question is if, before the Magistrate, a material is placed by a witness with reference to the offence

warranting the framing of a charge u/s 307 I.P.C. the duty of the Magistrate is not to try the case, but should commit the case to the Court of

Session. Much more so, if the case is a Calendar case, he has to convert it into a P.R. case and renumber it and send it to the Court of Session. I

am of the view that u/s 323, Cr.P.C., the Magistrate can commit a criminal case to the Sessions Court, if it appears to him, on the materials and the

evidence placed before him, that the case ought to be tried by that Court and this power of the Magistrate is in addition to his power u/s 209.

Cr.P.C. to commit cases exclusively triable by the Court of Session.

In the instant case, what the Magistrate has done is, that on hearing the evidence of P.W. 2, a portion of which is extracted supra, has

committed the case to the Court of Session, as he was of the opinion that a case u/s 307, I.P.C. has been made out. The learned counsel for the

petitioner contends that if, during the course of cross-examination, the petitioners were permitted to cross-examine P.W. 2, then he would have

made out a case to show that P.W. 2 is uttering falsehood. I am of the view that in view of the starring provisions of S. 323, Cr.P.C., the

Magistrate has committed the case in question on the material placed before him to the Sessions Court and if the petitioners want to prove that

P.W. 2 is uttering falsehood, nothing prevents the petitioners to cross-examine the witness to testify the veracity when it is taken up by the Sessions

Court. Under the circumstances, and on the facts of the case. I am of the view that the impugned order of the Magistrate does not suffer from any

irregularity or illegality in committing the case to the Sessions Court.

The learned counsel for the petitioners lastly contends that the evidence of P.W. 2 refers to the offence u/s 307, I.P.C. only with respect to the

fourth petitioner, and there is nothing to say with reference to the other petitioners to warrant the committal of the case by the Magistrate in entirety

to the Court of Session. This argument of the counsel appearing for the petitioners has no substance. In so far as the fourth petitioner is concerned,

a prima facie case has been made out under S. 307, I.P.C., and when the entire case is committed to Sessions the Sessions Judge will hear the

case and frame charges against the petitioners according to the evidence placed before him and against the petitioners.

Under these circumstances, I am of the view that this criminal revision case lacks merit and there is no illegality or perversity in the impugned

order of the Magistrate. Hence this criminal revision case is dismissed.

Revision dismissed.