Smt. Kaushaliaben A. Thakkar and Others vs State of Maharashtra and Others

F.I. Rebello, J.—Rule.

Respondents waive service. By consent, Rule made returnable and heard forthwith.

The petitioners in this case have approached this Court against the order dated 12th October, 1998 allowing the application by the respondents accused dated 9th July, 1998 in C.G. 361/P/98. The short facts which may have to be stated are as under :

The Police had filed a charge-sheet against the accused amongst others u/s 307 of the Indian Penal Code. An offence u/s 307 of IPC is triable by the Court of Sessions. The matter was before the Magistrate for committing the proceedings. On behalf of the accused/respondents, it was submitted that initially the case was registered u/s 326, no deadly weapons were used nor grievous hurt caused and consequently there was no material on record disclosing an offence u/s 307 of IPC and prayed that the proceedings u/s 307 be dropped. Learned Magistrate impressed by the said arguments allowed the said application and held considering the nature of the injuries, nature of weapon, nature of allegations and nature of day, date, place and timing, Section 307 was not attracted and dropped the said charge and held that the respondents accused can be charged for offence under Sections 326, 506(2) r/w 34 of Indian Penal Code. It is this order which is assailed before this Court.

On behalf of the petitioners learned Counsel contends that the Magistrate in exercise of powers vested in him u/s 209 of the Criminal Procedure Code could not have dropped the charges and that was beyond his jurisdiction. On the other hand Counsel for the accused respondents contends that such a discretion is still vested in the Magistrate and for that purpose he has relied on the Judgment of the Single Judge of this Court in the case of Dr. Dattatraya Samant v. The State of Maharashtra and Ors.; 1981 Bom. C.R. 193 : 1981 Mh. L.R. 174 and the Judgment of the Apex Court in the case of Rizwan v. Waqar Ahmad and Ors. Section 209 has been the subject matter of catena of decisions by the Apex Court and the law is no longer res Integra. In Sanjay Gandhi Vs. Union of India (UOI) and Others, . The Apex Court while examining the scope of Section 209 of the Criminal Procedure Code held that under the new Code in cases triable exclusively by the Court of Sessions the committing Magistrate has no power to discharge the accused and further it was also not to the committing Magistrate Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits and the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Sessions. If it is so, the Magistrate has simply to commit for trial before the Court of Sessions. If by error, wrong section of the Penal Code is quoted, he may look into that aspect. Thereafter in the case of Raj Kishore Prasad Vs. State of Bihar and another, the Apex Court apart from Section 209 of the Criminal Procedure Code also considered the provisions of Section 319 of the Criminal Procedure Code. It is no doubt true that what was in issue before the Apex Court in that case was whether a Magistrate in the course of committal proceedings u/s 209 of the Criminal Procedure Code of a case triable by Court of Sessions can associate another person accused in exercise of power u/s 319 of the Criminal Procedure Code. While so discussing in paragraph 11 the Apex Court has considered the scope of Section 209 of Criminal Procedure Code. It will be worthwhile to reproduce the said paragraph as under:-

The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "committal proceedings" have been abolished in cases triable by a Court of Sessions. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the public prosecutor, etc. are thus preliminary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Sessions, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the Magistrate, no application of mind is required in order to determine any issue raised, or to adjudge any one guilty or not, or otherwise to pronounce upon the truthfulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Sessions is in order, so that it can proceed straightaway with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in out opinion do not fall squarely within the ambit of "inquiry" as defined in Section 2(g) of the Code of Criminal Procedure, which defines that "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court", because of the prelude of its being "subject to the context otherwise requiring". As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notice based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 Cr.P.C. is forbidden to apply his mind to the merit of matter and determine as to whether any accused need to be added or subtracted to face trial before the Court of Sessions.

From the aforesaid two judgments, it is clear that the Magistrate has no power to shift or asses the material of find out whether the case can fall u/s 307 of the Indian Penal Code or Section 326 of the Indian Penal Code as was done in the present case.

In so far as the Judgment in Dr. Dattatraya (supra) is concerned, no doubt a learned Single Judge of this Court held that it cannot be said that the Magistrate is obliged to almost mechanically commit a case even if the offence does not appear to him to be triable exclusively by the Court of Sessions. Before the learned Signal Judge what was directly in issue as can be ascertained more specifically in paragraphs 6, 7 and 8 of the Judgment was the question of enlarging the applicant on bail'' Section 209 has been considered incidentally. Even otherwise considering the view of the Apex Court in the case of Raj Kishore Prasad (supra) I am unable both on facts and in law to accept the view taken by the learned Single Judge in the case of Dr. Dattatraya (supra). The case is distinguishable from what is in issue before this Court. It could be said to be a ratio of the case when the matter was directly in issue. Section 209 was not directly in issue in the case of Dr. Dattatraya (supra) as what was directly in issue in that case was the question of rejection of the bail application of the applicant therein. Next reliance is placed on the Judgment of the Apex Court in the case of Rizwan v. Waqar Ahmad (supra). In my respectful submission all what was in issue before the Apex Court was whether the order of the High Court in interfering with the order of the Sessions could be said to be legal and proper. Section 209 was not directly in issue nor was the scope decided therein. Considering the law laid down by the Apex Court in the case of Sanjay Gandhi (supra) and subsequent Judgment of the Apex Court in the case of Raj Kishore Prasad (supra). I am clearly of the opinion therefore, that the Magistrate exceeded his jurisdiction in arriving at the conclusion that the matter was not to be committed to Sessions considering the nature of injuries, etc. and allowing the application which resulted in order dated 12th October, 1998.

It is made clear that if the matter is committed to Sessions the observation of this Court in this Judgment will not stand in the way of the accused moving application before the Sessions Court either for discharge or for any other reliefs that they are entitled to.

In the light of that the order dated 12th October, 1998 is quashed and set aside. Matter is remanded back for hearing afresh. The Metropolitan Magistrate 27th Court, Mulund, Mumbai to proceed according to law in terms of committing the proceedings u/s 209 of the Criminal Procedure Code. Prayer (c) of the writ petition rejected. Rule made absolute in terms aforesaid.

In the circumstances of the case, there shall be no order as to costs.