Rasool Buksh and Others etc. vs State of Biahar etc.

Siveshwar Prasad Sinha, J.—Both these applications have been heard together and are being decided by this judgment.

Criminal Miscellaneous No. 4524 of 1975 arises out of a complaint case in which charges against the petitioners have been framed under Sections 323, 324, 147 and 148 of the Indian Penal Code (hereinafter referred as ''the Code'') against the petitioners.

Criminal Miscellaneous No. 3202 of 1975 arises out of a police case in which, charge-sheet having been submitted, cognizance has been taken for offences under Sections 307, 147, 148, 324, 325 and 379 of the Code.

Now the contention on behalf of petitioners of Criminal Misc. No. 4524 of 1975 is that the impugned order dated 11.8.1975 treating the case as counter to the other case (out of which Criminal Misc. No. 3202 of 1975 has arisen) is wrong and so also the committing of this case for trial by the Sessions Court. In Criminal Miscellaneous. No. 3202 of 1975 the contention is that in view of the findings given by the learned Magistrate, the impugned order dated 17.5.1975 committing the case to the Court of Session was illegal. On that finding, according to the learned Counsel for the petitioners the case should have been tried by the learned Magistrate himself.

Thus, in the former case the question primarily is whether that was a case counter to the other and in the latter the question is whether it had rightly been committed to the Court of Session for trial.

The facts relevant for the purpose of deciding Criminal Misc. No. 4524 of 1975 are as under:

A petition of complaint was filed by one Md. Yunus alleging that on Tuesday, the 15th October, 1974 at about 8-9 A.M. the accused persons, of whom petitioner No. 1 is named as the first accused, tried to raise a wall in front of the complainant''s house. When the complainant tried to stop them from doing so the accused persons not only abused the complainant in filthy language, but also assaulted him with Lathi and Garasa. The place of occurrence is stated to be the Imambara land in front of the complainant''s house in village Chakpur Police Station Hajipur, discrict, Vaishali. The cognizance of offences under Sections 324, 148 and 147 of the Code was taken in due course of law and the petitioners were summoned. On the 20th May, 1975 the complainant filed an application before the learned Magistrate, in seizin of the said case, that since the case was counter to the other which had been committed to the Court of Session, this case also may be committed for trial to the Court of Session. The accused petitioners contested the said application but after hearing the parties the learned Magistrate passed the impugned order dated 11.8.1975 holding that this case was counter to the other and so committed it to the Court of Session for being tried along with the other case.

Mr. Shyam Kishore Prasad appearing for the petitioners submitted that the learned Magistrate has erred in holding that the two cases were counter to each other, because besides the offences said to have been committed by the petitioners being of a minor nature, only some persons were concerned in the other case.

In my opinion, the contention has no merit. The criteria to decide as to whether one case is counter to the other is not the nature of the offence in the two cases nor the persons either as accused or as informant or complainant in the two. It is but natural that when two parties come to clash in an occurrence one of them may suffer more than the other. So, if two cases are filed the allegations in the one would relate to graver offence than the other. Similarly the persons complained against or the complainant or the informant in the two cases may differ. These factors, therefore, cannot be any criteria for deciding whether two cases are counter to each other. The criteria mainly is whether it is in respect of the same occurrence that two cases have emerged. If it is so, there can be no difficulty in saying that the one is counter to the other.

Now in the instant case as the learned Magistrate has found, and rightly so, that it is the same occurrence, at the same place, and at the same time, of which the rival parties have differently reported. The one, who has lodged the first information report, having suffered more, has filed the fardbeyan and a first information report of offences like attempt to murder and of causing grievous hurt. In other case, however, for which complaint has been filed, the offences alleged are less serious, namely, Sections 323, 147 and 148 of the Code. The offence alleged 147 and 148 of the Code. The offences alleged in the two cases are indeed different and so are the persons complained against, but the fact remains that both the cases are two different versions relating to the same occurrence. Such being the position I cannot say that the impugned order dated 11.8.1975 suffer from any infirmity either on the question that the two cases were counter to each other, or on the question that both should be tried by the Court of Sessions together.

This brings me to the consideration of the other case, namely, Criminal Misc. No. 3202 of 1975 in which the contention is that on the observations made, the learned Magistrate ought not to have committed the case to the Court of Session for trial.

In this case on the basis of an investigation in a case lodged by a fardbeyan, the Police submitted charge-sheet for offences under Sections 307, 147, 148, 323 and 379 of the Code. On receiving the charge-sheet, cognizance was taken of those very offences against the petitioners. Section 307 of the Code is triable by the Court of Sessions.

It appears that after the accused persons had been served with copies of Police report and other documents in the proceedings instituted against them (Criminal Misc. No. 3202 of 1975), they appeared before the Magistrate and made submissions on the question as to whether the case against them was one which should be sent to the Court of Session. The learned Magistrate observed that so far as the charge u/s 307 of the Code is concerned the facts did not support such a charge against the accused per sons. The learned Magistrate, however, observed that since cognizance had been taken of offence u/s 307 of the Code also, he was powerless and was bound to commit the case to the Court of Session. Having said so, the learned Magistrate, by the impugned order dated 17.5.1975, has committed the case to Court of Session for trial in regard to the offences for which cognizance had been taken.

Mr. Gupteshwar Prasad appearing for the petitioners submitted that the learned Magistrate had erred in feeling helpless in the matter, because, according to him, in terms of Section 209 of the Criminal Procedure Code itself he had the discretion not to commit the case to the Court of Session. In the instant case, Mr. Prasad submitted t hat since the learned Magistrate was definitely of the view that facts did not support the charge u/s 307 of the Indian Penal Code, he should have refrained from committing the case to the Court of Session.

I do not find any merit in this submission. Section 209 of the Criminal Procedure Code in so far as is relevant for the purposes of this case reads as under:

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit the case to the Court of Session;

The expression ''and it appears to the Magistrate'' are the expressions on which Mr. Prasad has built up his argument that the concerned Magistrate was still competent to commit the case to the Court of Session or not to do so. In the context in which the words "appears to the Magistrate" have been used in Section 209 of the Criminal Procedure Code, it is clear that the Magistrate has no option but to commit the case to the Court of Session. The provisions of Section 209 are meant for committing a case to the Court of Session and not for any other purpose, muchless, for not committing a case to Court of Session. The expression ''it appears to the Magistrate'' is governed by the following expressions "that the offence is triable exclusively by a Court of Session." Therefore when the offence is triable exclusively by a Court of Session then in terms of the provisions of Section 209 the only thing which a Magistrate is empowered to do is to commit the case to the Court of Session.

Mr. Prasad put before me an analogy that what would happen in a case in which the charge was u/s 302 of the Code for murdering a person by the name of X and at the stage of the proceeding u/s 209, the said person who was alleged to have been murdered, appeared before the Magistrate, fully alive; should the Magistrate still commit the case to the Court of Session or should he not?

I think this problem cannot be answered by reference to Section 209 of the Criminal Procedure Code. The analogy is not proper. The case in question is one in which rightly or wrongly cognizance has been taken of an offence which is triable exclusively by a Court of Session. In such a case, I think, cognizance having been taken of an offence triable exclusively by a Court of Session, the learned Magistrate could not sit in revision over it, but he can certainly record his findings on the basis of which the Court of Session, acting u/s 228(1) of the Code, may remit the case back, for trial by a competent Magistrate.

Section 228 of the Criminal Procedure Code, it may be stated, deals with a situation in which even though a case might have been committed to the Court of Session as being exclusively triable by it, the Court of Session may, after framing charge against the accused, transfer the case for trial to the Chief Judicial Magistrate. Be that as it may, I think, this much is clear that Section 209 of the Code does not empower a Magistrate to refrain from committing a case for trial to the court of session where the offence, for which cognizance has been taken, is triable exclusively by the Court of Session. Cognizance having been taken of such offence, the learned Magistrate cannot, at the stage of Section 209 of the Code, sit in revision over that order and hold that that was not triable by the Court of Session but by himself. Having taken cognizance, there is no power left in the court to revise that order of cognizance. Such being the position, if cognizance is taken of an offence which would exclusively be triable by the Court of Session, it is but incumbent on the Magistrateat the stage of Section 209 of the case to commit the case to the Court of Session. It will now be for the Court of session to consider the committing Magistrate''s comments, as has been given in this case and to decide whether u/s 228(1)(a) of the Code it should transfer the case for trial to the Chief Judicial Magistrate.

I accordingly hold that the impugned order dated 17.5.1975 is valid and proper. The learned Magistrate has rightly refrained from interfering with the cognizance taken for the offence u/s 307 and other offences. It will be now for the Sessions Court to determine an to whether in view of the observations made by the learned Magistrate it was a case, exclusively triable by it.

In view of the discussions made above both the applications are dismissed.