Sk. Khairati and Others vs Sk. Rashid Mahammad

P.K. Mohanti, J.—The only point for consideration in this criminal revision is whether the accused has the right of being heard in a proceeding u/s 209, Criminal Procedure Code.

The opposite party filed a complaint petition against the Petitioners alleging commission of offences under Sections 307, 325 and 504, Indian Penal Code. The learned Sub-divisional Judicial Magistrate took cognizance of the offences and held an enquiry u/s 202, Criminal Procedure Code. After enquiry, he directed issue of processes against the Petitioners for the offences under Sections 307, 325 and 504, Indian Penal Code vide order dated 17-11-1977. Thereafter the dispute between the parties was amicably settled. On 8-2-1978 both the parties sought for permission to compound the offence under Sections 325 and 504, Indian Penal Code. The offence u/s 307, Indian Penal Code is non-compoundable and triable exclusively by a Court of Session. On 2-3-1978 the Petitioners filed an application stating therein that the materials on record did not make out a prima facie case for an offence u/s 307, Indian Penal Code and that it was not a fit case to be committed to the Court of Session. They prayed for an opportunity of being heard in the proceeding u/s 209, Criminal Procedure Code. The learned Magistrate, by his order dated 13-3-1978, rejected the petition, holding that be had no jurisdiction to reconsider the finding already given by him after an enquiry u/s 202, Criminal Procedure Code, that an offence u/s 307, Indian Penal Code had been made out. Aggrieved by this order the Petitioners have come up in revision.

It will be worthwhile to read the provisions of Section 209, Code of Criminal Procedure before I embark upon a decision of the precise point involved:

Section 209. Commitment of case to Court of Session when offence is triable exclusively by it

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 be than

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

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(r) send to tint Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

It is necessary to consider the significance of the expression "it appears to the Magistrate''" occurring in the first paragraph of Section 209, Criminal Procedure Code. The normal connotation of the word "appear" is ''to seem,'' ''to come into view: ''to become visible'' or ''to be in one''s opinion''. So the expression means the formation of an opinion by the Magistrate on the materials on record. He is not required to weigh the evidence and the probability of the case. Once he forms the opinion after looking into the materials on record that an offence enable exclusively by a Court of Session has been made out, he is to do no more than to commit the case to the Court of Session. The expression "it appears to the Magistrate" does not contemplate that the Magistrate should hear the accused as to whether the case is exclusively triable by the Court of Session.

The formal committal enquiry under the old Code has been abolished under the scheme of the new Code. Expedition in disposal of cases was intended by this change. If the accused is to be given an opportunity to argue that no prima facie case has been made out there will be delay in disposal of the proceeding u/s 209, Criminal Procedure Code.

In the case of Sanjay Gandhi Vs. Union of India (UOI) and Others, , their Lordships of the Supreme Court considered the scope of Section 209, Code of Criminal Procedure and laid down that it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits.

In the instant case the Magistrate after complying with the provisions of Section 202(2) Proviso had formed an opinion on the preliminary evidence that an offence u/s 307, Indian Penal Code had been made out. There was no scope for a further enquiry after the processes were issued. The learned Magistrate was, therefore, justified In refusing to hear the accused in the proceeding u/s 209, Criminal Procedure Code.

Under the old Code commitment was final, but under the new Code it is not so. Under the new Code the Sessions Judge has been conferred with power to discharge the accused if he is satisfied on a consideration of the materials on record that no prima facie case has been made out against the accused. So the accused will not be prejudiced in any way even if he is not given an opportunity of being heard in the proceeding u/s 209, Criminal Procedure Code.

Mr. P.K. Dhal, the learned Counsel for the Petitioners relied on a Full Bench decision of the Patna High Court reported in Tuneshwar Prasad Singh and Another Vs. State of Bihar, , in support of his contention that the Magistrate is required to hear the accused before committing the case to the Court of Session. The question for decision by the Full Bench was whether the Magistrate has any power to remand the accused persons to custody during the period between the date of taking congnizance of offences and the date of commitment of the case to the Court of Session. The Full Bench decided that the accused can be remanded to custody before the committal of the case to the Court of Session. Delivering a separate but concurring judgment Hon''ble Shambhu Prasad Singh, J. observed:

Even though Section 209 of the Code does not specifically say that the Magistrate should hear the accused before passing an order u/s 209 of the Code, prima facie, I am of the view that he should be heard for determining whether the offence on the evidence recorded by the Magistrate in the inquiry u/s 202 of the Code an offence exclusively triable by the Court of Session is made out.

His Lordship, however, made it clear that on the facts of that case it was not necessary to give a definite finding on the question whether the accused has got a right of being heard u/s 209 of the Code or not before the Magistrate passes an order of commitment. His Lordship, therefore, refrained from discussing that question. Thus the above observation must be treated as being mere obiter dictum.

In the result, the criminal revision is devoid of any merit and it is accordingly dismissed.

Revision dismissed.