State vs Bhagla and another

Bal Raj Tuli, J.—The prosecution story, on the basis of which the petitioners were sent up for trial, is that Puran was murdered at about 2 PM on May 5, 1967 and the petitioners were named as his murderers Bhagla petitioner is a brother of Puran deceased while Rameshwar petitioner owns land adjoining to the land of Puran deceased. The alleged eye-witnesses are the widow and two minor sons of Paran deceased. Their evidence was recorded by the Judicial Magistrate 1st Class, Karnal, and since they did not support, the prosecution story and stated that they were not on the spot when Puran was murdered, but were in the village, the petitioners were discharged by the learned Judicial Magistrate by order dated January 29, 1968. Against that order the State filed a revision petition, which was accepted by the learned Chief Judicial Magistrate and the case was sent back to the learned Judicial Magistrate for holding commitment proceedings in accordance with law after taking into consideration the extra-judicial Confession made by the petitioners as well. After remand the learned Judicial Magistrate 1st Class, Karnal, committed the petitioners to the Court of Session after framing charges under Sections 302/34 and 302 of the Indian Penal Code for intentionally causing the death of Puran. This order was passed after examining five more witnesses. The order of commitment shows that the learned Judicial Magistrate did not appreciate the evidence nor expressed his opinion in any manner that a prima facie case had been established against the petitioners which required commitment to the Court of Session for trial. The order of commitment was passed on November 12, 1970, and the learned Sessions Judge, Karnal took cognizance of the same on December 11, 1970, and directed that the petitioners should be summoned for December 16, 1970, since they were on bail. On that day the learned counsel for the petitioners requested for a short adjournment to enable him to file an application for quashing the charge. The case was consequently adjourned to December 18, 1970. On that date an application under Sections 435/438 of the Code of Criminal Procedure was filed with the prayer that the case should be recommended to this Court for quashing of the charge and the commitment order against the petitioners. A copy of this application was delivered to the learned Public Prosecutor and the case was adjourned to the next day for arguments. After hearing the arguments the learned Sessions Judge held that there was no evidence before the learned Judicial Magistrate justifying the committal of the petitioners to the Court of Session for trial. He accordingly sent the papers of the case to this Court with the recommendation that the charge framed against the petitioners and the order of commitment should be quashed.

The first question that arises for determination in this case is whether the learned Sessions Judge had the jurisdiction to entertain the application under Sections 435/438 of the Code of Criminal Procedure for the quashing of the charge and order of commitment. The Code of Criminal Procedure, 1898, was extensively amended by the Criminal Procedure Code (Amendment) Act 26 of 1955 and one of the amendments made was that Section 207-A was inserted in Chapter XVIII of the Code relating to the procedure for inquiry into cases triable by Court of Session or High Court. Previous to the amendment, the procedure was prescribed under Sections 207 to 213 for every case, whether instituted on a police report or otherwise. By the Amendment Act, 1955, Section 207 A was added, which prescribes the procedure for commitment in relation to the cases instituted on a police report while Sections 208 to 213 prescribe the procedure for commitment in cases, cognizance of which is taken by the learned Magistrate otherwise than on a police report, that is, on the basis of a private complaint. Under the unamended Code, the order of commitment had to be passed u/s 213, whether the case had been taken cognizance of on the basis of the police report or otherwise Section 215 of the Code, which has remained unamended, reads as under:

A commitment once made u/s 213 by a competent Magistrate or by a Civil or Revenue Court u/s 478, can be quashed by the High Court only, and only on a point of law.

Apparently it escaped the notice of the Legislature at that time that order of commitment on a police report is made under sub-section (10) of Section 207 A and not u/s 213. u/s 213, according to the amended Code, an order of commitment can be made only on a private complaint excluding all cases in which the commitment proceedings start on a police report. Evidently this inadvertment omission to mention Section 207A(10) in Section 215 of the Code has given rise to the controversy whether the order of commitment passed u/s 207A(10) of the Code can also be quashed u/s 215 only or it can be quashed by resort to Sections 435 to 439 or 561 A of the Code or Article 227 of the Constitution, some of the High Courts have taken the view that an order of commitment passed u/s 207A of the Code can be revised by the High Court in exercise of its revisional jurisdiction under Sections 435 to 439 of the Code or Section 561 A of the Code. Their Lordships of the Supreme Court ruled in Khushi Ram v. Hashim AIR 1959 SC 542 that--

It is unnecessary to emphasise that the inherent power of the High Court u/s 561-A cannot be invoked in regard to matters which are directly covered by the specific provisions of the Code; and the matter with which the learned Judge was concerned in the present proceedings is directly covered by Section 215. Therefore, in our opinion the learned Judge was clearly in error in allowing his inherent power to he invoked u/s 561-A and in setting aside the order of commitment.

That was a case in which proceedings for commitment were started on a police report and the order of commitment was passed u/s 207A It was not argued before their Lordships that in that case Section 215 did not apply and, therefore, that matter was not considered. Again in Mohinder Singh v. State of Punjab AIR 1865 SC 79, there Lordships expressed themselves as under:

Mr. Gopal Singh has raised seven points and claims that the conviction of Mohinder Singh cannot be sustained. He first attacks the order of commitment which he says was not based on any evidence and, therefore, deserved to be quashed. Apart from the fact that u/s 215 of the Criminal Procedure Code the order of commitment once made becomes final and can only be quashed by the High Court on a point of law, we are satisfied on looking into the record of the case that there was evidence on which the order of commitment could be passed.

That was also a case in which commitment proceedings had been initiated on a police report and the order of commitment was u/s 207A(10) and not u/s 213 of the Code. Inspite of that their Lordships held that the order of commitment once made could be quashed only by the High Court u/s 215 of the Code on a point of law only. No distinction was made between the cases in which orders of commitment are passed u/s 207 A or 213 of the Code. In view of these two judgments I hold that the power of revision under Sections 435 to 439 or the inherent powers of the High Court u/s 561A of the Code cannot be invoked for the quashing of the order of commitment passed either u/s 207A(10) or Section 213 of the Code. I feel support in this view of mine from the difference of the ambit of powers of this Court under Sections 435 to 439 of the Code and Section 215 of the Code. u/s 215 the order of commitment can be passed only on a point of law while under Sections 435 to 439 correctness, legality or propriety of any (sic) or order recorded or passed or the regularity of any (sic) can inferior Court can be considered and adjudicated (sic) orders passed. The only remedy for getting the (sic) quashed is to apply to the High Court under or Article 227 of the Constitution of India, which power is (sic) prescribed by any other law. In view of this position the (sic) adopted by the learned Sessions Judge in this case was (sic) contrary to the provisions of the Code.

There is another way of looking at this case. The learned judicial Magistrate had committed the petitioners for trial to the Court of Session and the learned Sessions Judge took cognizance of the case for trial on December 11, 1970. He could not entertain thereafter a revision petition for the quashing of the order of commitment or the charge framed by the committing Court. He could have directed the petitioners to apply to this Court u/s 215 of the Code. He could not hear a revision in a case, pending before him, although the orders sought to be revised had been passed by the learned Judicial Magistrate The order of commitment becomes final if it is not challenged u/s 215 of the Code. No challenge admittedly had been made to that order under that provision. The reference of the case by the learned Sessions Judge to this Court is, therefore, not in accordance with the provisions of the Code of Criminal Procedure.

In this situation the question arises whether at this stage I should exercise the powers of this Court u/s 215 of the Code. That power is in the nature of inherent powers of this Court and can be exercised only on a point of law. There is no time limit prescribed for the exercise of this power. The occurrence took place more than five years ago. I have gone through the record to find whether the order of commitment can be sustained on the ground that there is evidence to connect the petitioners with the crime. As I have said above the learned Magistrate has not expressed any opinion whatsoever nor has considered the evidence of any witness recorded in the case. He has merely narrated the course of proceedings before his predecessors and himself and in the last paragraph of his judgment he has mentioned about the charged framed and then has passed the order committing the petitioners to the Court of Session. The learned Magistrate evidently forgot that the committing Court has not to act merely as a Post Office but has to apply its mind to consider if, on its own findings, at least a prima facie case is made out against the accused, liable to be committed to the Court of Session. Without applying his mind the committing Magistrate cannot commit the accused to the Court of Session for trial, merely because a case, triable by the Court of Session, has been instituted for inquiry in this Court. Exercise of a judicial mind by the Committing Court is absolutely necessary in order to avoid the waste of time of the Court of Session and the expense of prosecuting the case by the State and of defending himself by the accused, and the harassment that is caused to the accused person for standing a futile trial.

The perusal of the record discloses that the First Information Report was recorded in the Police Station on May 6, 1967, but the case was forwarded to the Illaqa Magistrate for commitment proceedings on September 26, 1967. The Investigating Officer has not been examined as a witness and so it is not known why the delay of nearly five months occurred in filing the case for commitment in the Court. One fact is clear from the evidence of Shri N.K. Jain, Magistrate, PW 10, that he recorded the statements of the three alleged eye-witnesses on September 15, 1967, u/s 164 of the Cods of Criminal Procedure. It was after the recording of those statements that the Station House Officer forwarded the papers to the Illaqa Magistrate for starting commitment proceedings. The alleged eyewitnesses, who are none other than the widow and two minor sons of the deceased, have deposed before the committing Magistrate that they were not present on the spot on the day of occurrence, but were in the village and, therefore, did not know who had murdered Puran, and that they made their statements u/s 164 of the Criminal Procedure Code, before the Magistrate, under pressure of the Police The delay in tiling the case in the Court for commitment proceedings leads to the reasonable inference that the alleged eye witnesses, who are the nearest relations of the deceased, had really not seen the occurrence, but were made to say that the murder took place in their presence and they were witnesses to that. On the basis of their testimony, therefore, no conviction is possible and the learned Judicial Magistrate had rightly discharged the petitioners on January 29, 1968 After remand the evidence of the four witnesses P. W. 6 Duli Chand, P. W. 7 Lal Singh, P. W. 8 Net Ram and P. W. 9 Jugti was recorded, as it had been alleged that the petitioners had confessed their guilt before them. All of them have denied that the petitioners made any such confession before them. Net Ram P. W. 8 is a brother of the deceased and he lodged the First Information Report, but he states that it was based on the facts that had been told to him by Mst. Chhano and Jai Kishan about the occurrence. Mst. Chhano is the widow of Puran who has appeared as P. W. 5 while Jai Kishan is the son of the deceased who has appeared as P. W. 4. On this evidence, therefore, no conviction of the petitioners is at all possible and the holding of the trial will be a mere exercise in futility besides involving expenses and harassment to the State as well as to the petitioners. It is well established by now that a commitment made when 1 there is no evidence to connect the accused with the crime is against law and can be set aside u/s 215 of the Code of Criminal Procedure. I, therefore, in exercise of power u/s 215 of the Code, quash the charge framed against the petitioners and the order of commitment passed by the learned Judicial Magistrate 1st Class on November 12, 1970 and discharge the petitioner. They are on bail and need not surrender to the bail bonds.