Sambhu Charan Mandal and Others vs The State and Another

Sen, J.—This revisional application is directed against an order of the Additional Sessions Judge, Alipur, directing commitment of the petitioners Sambhu Charan Mondal and four others in respect of an offence under sec. 304 of the Indian Penal Code. The Magistrate before whom the case was pending had framed a charge against the petitioners under sec. 147 | 323 of the Indian Penal Code and was proceeding with the trial of the case himself. At that stage the complainant Lalit Chandra Sarkar filed an application under sec. 437 of the Code of Criminal Procedure before the learned Sessions Judge and the learned Additional Sessions Judge who heard the application directed commitment as already stated. The facts of the case are briefly as follows:

The complainant Lalit Chandra Sarkar together with his brothers and father claimed to be in possession of C.S. plot No. . . 300 of Mouza Magurkhali on the strength of a purchase from Surat Ali Sarkar and others by a sale deed. The plot in question is to the adjacent south of the homestead of the complainant Lalit Chandra Sarkar. A hut had been erected by the complainant on the plot of land three or four days before the date of occurrence which took place on 18th October, 1953. In the night of 17th | 18th October, 1953, the complainant''s father Bhusan Sarkar was sleeping in the aforesaid hut. In the early morning the accused petitioners Sambhu Mondal, Rakhal Bachhar, Birendra Roy, Pulin Goldar, Bistu Namasudra and others came up there armed with lathis and trespassed into the hut and beat Bhusan Sarkar, father of the complainant, with lathis.

They at first asked Bhusan Sarkar to leave the hut and beat him on his refusal to do so. Bhusan cried out on being beaten and thereupon the complainant and his wife and mother ran to Bhusan''s help but they were also assaulted with lathis. The accused party then drove away Bhusan, the complainant and his family from C S. plot No. . . 300 and the hut erected, thereon. Shortly after receiving the injuries including a bleeding injury on the head, Bhusan became unconscious; and he was partly paralysed. As a result of the injuries, he died ten or eleven days later, namely, on 28th October, 1953. Lalit Kumar Sarkar filed a first information report at Basirhat Police Station on 18th October, 1953, at 9 A.M. After the death of the complainant''s father the Police submitted a charge sheet against the five accused petitioners under sec. 147 and sec. 304 of the Indian Penal Code. The learned Magistrate, after examining the witnesses, thought that no case under sec. 304 of the Indian Penal Code had been made out and he framed a charge sheet against the accused under sec. 147 | 323 of the Indian Penal Code. There was also a counter case brought by the accused party against the complainant and his family, the case of the petitioners being that they were in possession of the plot and that the complainant''s party had committed criminal trespass into the land and had also assaulted the accused petitioners. That counter-case was withdrawn by the accused petitioners and thereupon the complainant moved the Sessions Judge under sec. 437 of the Code of Criminal Procedure for committing the accused petitioners to the Court of Session and the learned Additional Sessions Judge ordered commitment as already mentioned.

The first point arising in the revisional application is whether the learned Additional Sessions Judge had jurisdiction under sec. 437 of the Code of Criminal Procedure to direct commitment in such a case. See. 437 of the Criminal Procedure Code runs as follows:

When, on examining the record of any case under sec. 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.

There are two provisos to the section which are not relevant for the purpose of this case. It appears from the words of the section that the Sessions Judge has jurisdiction to direct commitment only when an accused person has been "improperly discharged" by the inferior Court. In the present case, there was no discharge of the accused petitioners under sec. 209 of the Code of Criminal Procedure or under sec. 253 of the Code of Criminal Procedure. The learned Additional Sessions Judge was of the opinion that the omission or refusal to frame a charge for an offence triable by the: Court of Session amounted to discharge and where the discharge has been improper the Sessions Judge has jurisdiction to direct commitment. In support of this proposition, the learned Additional Sessions Judge discussed some cases and relied chiefly on some rulings of the Allahabad and Madras High Courts. It is true that the Madras High Court has taken the view that the omission or refusal to frame a charge in respect of au offence triable by the Court of Session amounts to a discharge and that in such cases, the Sessions Judge has jurisdiction to direct commitment under sec. 437 of the Code of Criminal Procedure. Reference may be made to the case of Krishna Reddi v. Subbamma (1) (I.L.R. 24 Mad. 136). In that case certain persons were charged before a Magistrate of the First Class under sec. 379 of the Indian Penal Code with the theft of a promissory note and the prosecution applied also for the framing of a charge under sec. 477 of the Indian Penal Code but the Magistrate declined to do so as, in his opinion, there was no direct evidence that the accused had destroyed or secreted the note. The Sessions Judge on a revisional application made to him directed commitment of the accused in respect of the charge under sec. 477 of the Indian Penal Code. The High Court held that the order of the Magistrate was. in substonce, an order discharging the accused in respect of the alleged offence under sec. 477 of the Indian Penal Code and, therefore, the Sessions Judge had jurisdiction to make the order directing commitment There are other cases of the Madras High Court where a similar view has been taken. With due respect, however, to the learned Judges of the Madras High Court, the decision appears to be against the clear terms of sec. 437 of the Code of Criminal Procedure. As already pointed out, the section provides for the Sessions Judge or the District Magistrate directing a commitment only in a case where the accused persons have been improperly discharged by an inferior court. Where the inferior court has omitted or declined to frame a charge in respect of an offence triable by the Court of Session and has proceeded with the trial under other sections, it is not a case of discharge, not to speak of improper discharge. In such a case, the person aggrieved has remedy by applying to the High Court for revision of the order of the inferior court under sec. 439 of the Criminal Procedure Code. There appears to be no reason to extend the meaning of the words "improperly discharged" to cover a case where the Magistrate has omitted or declined to frame a charge. In our opinion, the words "an accused person has been improperly discharged" should be given their direct meaning and there is really no need for the ends of justice or for any other reason to extend the meaning thereof because, as already pointed out, a person aggrieved always has a remedy under sec. 439 of the Code of Criminal Procedure. There is no ruling of the Calcutta High Court where the words "improperly discharged" have been extended to include a case where a Magistrate has omitted or declined to frame a charge in respect of an offence triable by the Court of Session. The learned Additional Sessions Judge referred to the case of Baijnath Pandey v. Gauri Kanta Mandal (2) (I.L.R. 20 Cal. 633). In that case a complaint was made before a Magistrate in respect of a charge of dacoity. The Magistrate held that no dacoity had been prima facie established and he framed a charge under sec. 380 and 448 of the Indian Penal Code and he proceeded with the trial and acquitted the accused. The complainant moved the Sessions Judge and the Sessions Judge directed commitment of the accused to the Sessions. The High Court held that the Sessions Judge had exercised a jurisdiction not vested in him by law and that the Sessions Judge could have directed commitment in such a case only if there had been conviction of the accused in respect of a charge under sec. 380 or sec. 448 of the Indian Penal Code and there had been an appeal from such conviction, for, in that case the Sessions Judge could have exercised jurisdiction vested in him under sec. 423 of the Code of Criminal Procedure. The High Court pointed out that the Sessions Judge could also have exercised the jurisdiction if there had been an appeal against the acquittal. The learned Assistant Sessions Judge distinguished the case on the ground that there had been an order of acquittal by an inferior court, namely, the court of the trying Magistrate, but in any case the learned Magistrate declined to frame a charge in respect of the offence under sec. 395 of the Indian Penal Code which was a Sessions triable case and the ultimate result,--whether there was conviction or acquittal in respect of the minor charges framed by the learned Magistrate--is really immaterial in considering the question whether the Sessions Judge had jurisdiction to direct commitment under sec. 437 of the Code of Criminal Procedure. Even if it is conceded that it is not a clear authority to the contrary, it, at least, does not support the view that the Sessions Judge has the jurisdiction to direct commitment when the Magistrate has omitted or declined to frame a charge in respect of a Sessions triable case.

The next case of the Calcutta High Court is the case of A jab Ali Khirer v. Emperor (3) (I.L.R. 32 Cal. 783: 9 C.W.N. 807). The learned Additional Sessions Judge relied upon this case as establishing the proposition that the order of the Magistrate recalling warrants against three accused for whose arrest warrants had been issued amounted to their discharge; but in the case referred to above the only question before the Court was whether further enquiry could be ordered into a case in respect of a person against whom the inferior court or the court of the Magistrate had declined to proceed. There was a complaint against several persons and only some of them had been summoned in the first instance and after the disposal of that case the complainant had asked for issuing summons against the remaining accused and the trying Magistrate had declined to do so. In that case it was held by one of the learned Judges constituting the Bench that the order of the Magistrate might be held to amount to a discharge; but the other learned Judge, namely, Geidt J. did not consider it necessary to lay down any such proposition and he merely observed that the Magistrate who was in seisin of the case had jurisdiction to issue processes against the remaining accused. In this case, the case might more properly be regarded as a case of a complaint against a certain person which had been dismissed by the learned Magistrate under sec. 203 of the Criminal Procedure Code. In such a case the Superior Court has jurisdiction to direct further enquiry under sec. 436 of the Criminal Procedure Code. Thus, this case (Ajabali Khirer v. Emperor (3) ILR 32 Cal. 783) is not a case dealing with section 437 of the Code of Criminal Procedure as it now stands.

The learned Additional Sessions Judge also relied on the case of Abdul Hakim v. Bazruk Ali (4) (22 C.W.N. 117) and he quoted from the judgment of Richardson J, at page 120 of the above case as follows:

......His order refusing to frame a charge u/s 477 was held to be in substance an order discharging the accused in respect of the offence alleged under that section, In cases arising u/s 437 of the Criminal Procedure Code it has been similarly held in this Court that an order, though not in terms of an order of discharge, may amount to such an order (See Ajabali Khirer v. Emperor) (3) (supra)......

As regards the first portion of the extract, we may point out that this was a reference to the case of Krishna Reddy v. Subbamma (1) (I.L.R. 24 Mad. 136) to which reference has already been made in the beginning of the judgment. As regards the latter portion of the extract, we have already referred also to the case of Ajabali Khirer v. Emperor (3) (I.L.R. 32 Cal. 783) and pointed out that it was really a case not under sec. 437 of the Criminal Procedure Code but under sec. 436 of the Code as it stands at present. It may be mentioned that by the amendment of the Code in 1923 the position of secs. 436 and 437 was interchanged; what was sec. 437 of the Code before the amendment of 1923 is now sec. 436 of the Code., In the case of Abdul Hakim v. Bazruk Ali (4) (22 C.W.N. 117) the accused was tried and acquitted by a competent Magistrate on a charge under sec. 465 of the Indian Penal Code. The Sessions Judge by an order under sec. 436 of the Code of Criminal Procedure (which is now sec. 437) directed the commitment of the petitioner on a charge under sec. 467 of the Indian Penal Code. Richardson J, held that in such a case the Sessions Judge was wrong in directing commitment in respect of the charge under sec. 467 of the Indian Penal Code. After referring to the Madras case and the case of Ajabali Khirer, Richardson J., declined to follow the principle of implied discharge and held that it was sufficient to observe that the Magistrate made no order which was either in terms or in substance an order of discharge in respect of a Sessions triable case. He held, therefore, that the learned Sessions Judge had no jurisdiction to direct commitment of the accused to the Sessions Court for trial. The other learned Judge, Teunon J., also agreed with Richardson J. on the facts of the case although he made an observation that the question of implied discharge might have to be considered in future by a bigger Bench. In spite of the observation of Teunon J. the Bench actually decided that in such a case where the Magistrate had declined to frame any charge under sec. 467 of the Indian Penal Code, --a Sessions triable offence--and had. framed a charge under sec. 465 of the Code and had proceeded with the trial under that section, the Sessions Judge had no jurisdiction to order commitment under sec. 437 of the Code as it is at present.

The latest case of the Calcutta: High Court is the case of Yunus Shaikh Vs. The State, . In that case it was held that an order of commitment under sec. 487 of the Code of Criminal Procedure could only be made when the accused had been improperly discharged and that where out of two possible charges under sec. 366 and sec. 498 of the Indian Penal Code the Magistrate has framed a charge under sec. 498 of the Code, the Sessions Judge could not order commitment in respect of the offence under sec. 366. The learned Additional Sessions Judge distinguished this case by pointing out that in that case it was possible to frame two alternative charges, namely, under sec. 366 or under sec. 498 of the Indian Penal Code, and the Magistrate chose to frame a charge under sec. 498 of the Indian Penal Code, and in the circumstances the case was quite different from a case where the Magistrate had omitted or declined to frame a charge in respect of a sessions triable offence. It does not appear to us that there is reason for the distinction, because in that case also the learned Magistrate had omitted or declined to frame a charge under sec. 366 of the Indian Penal Code which was a Sessions triable offence and had proceeded with the trial after framing the charge for the lesser offence under sec. 498 of the Indian Penal Code. It was observed by Harris C.J. in that case (Yunus Shaik v. The State) (5) that the Sessions Judge had jurisdiction to direct commitment only in a case which falls within the four corners of sec. 437 of the Code of Criminal Procedure. That is the view we are also taking, that the Sessions Judge has jurisdiction to direct commitment under sec. 437 of the Code of Criminal Procedure only when an accused has been in terms discharged in respect of a Sessions triable offence, that is, the case must strictly come within the terms of sec. 437 of the Code of Criminal Procedure. As observed before, in a case where the Magistrate has not framed a charge in respect of the more serious offence triable by the Court of Session but has framed a minor charge, the remedy is always open to the aggrieved party to move the High Court in revision and to obtain a proper order under sec. 439 of the Criminal Procedure Code.

The learned Additional Sessions Judge also referred to some cases of the Allahabad High Court. There are some decisions of the Allahabad High Court taking a view similar to the one taken by the Madras High Court in (1) (I.L.R. 24 Madras, 136); but a Full Bench of the Allahabad High Court has overruled those decisions and has decided that a Sessions Judge has jurisdiction to direct commitment only in a case where there has been in terms a discharge in respect of an offence triable by the Court of Session. I refer to the case of Nahar Singh Vs. The State, . In that case a person was accused by the complainant for a major offence under sec. 304 of the Indian Penal Code and the Court framed a charge for a minor offence, namely, under sec. 304A of the Indian Penal Code. It was held that it did not amount to a discharge, because the case had been proceeding in the court of the Magistrate on the same facts and the Sessions Judge or the District Magistrate was not competent under sec. 437 of the Code of Criminal Procedure to direct commitment of the accused to the Sessions in respect of the major offence.

Accordingly, we must, clearly hold that the learned Additional Sessions Judge had no jurisdiction in such a case to direct commitment of the accused petitioners in respect of the charge under sec. 304 of the Indian Penal Code and that, therefore, the order of the learned Additional Sessions Judge must be set aside.

It is not necessary to go into the facts of the case in the view we have taken of the law in the case. In the circumstances, this Rule is made absolute and the order of the learned Additional Sessions Judge directing commitment of the accused petitioners is set aside. The trial will now proceed in the court of the learned Magistrate.

Mitter, J.

I agree.