State vs Pabudan Singh

Bharadwaj, J.—Pabudan Singh was challaned in the Court of the Mag. 1st Class, Sujangarh, u/s 307, I.P.C. The learned Mag. after the inquiry framed a charge u/s 506, I.P.C. against him. The prosecution, being dissatisfied with the order of the Mag. preferred a revision petn. u/s 435, Criminal P. C. in the Ct. of the Ses. J. Churu. The learned Ses. J. after hearing both the parties, has made this report, u/s 438, Criminal P. C, to this Ct. with the recommendation that the Mag. should be ordered, by this Ct. to frame charge against the accused u/s 307, I.P.C. instead of u/s 506, I. P. C, already framed by him.

There is no doubt that the Ses. J. is within his powers, in making this report to this Ct., u/s 488, Cr. P. C, but the question arises -could not the learned Ses. J. proceed in this case under Sections 436 & 437, Criminal P. C. & dispose of the petn. himself ? In that case much of the trouble & time of this Ct. would have been saved especially when the work in this Court is already piled up. For the future guidance of the Courts it is necessary that this question should be minutely gone into.

In the present case, the charge u/s 506 was framed on 17-3-1950. The Mag. did not write anything in his order, with regard to the offence u/s 307, I.P.C. He simply wrote that in his opinion the offence u/s 506, I.P.C. is made out, against the accused, of which the order to frame the charge was given. The Mag. did not, in so many words, write in his order that the accused is discharged of the offence u/s 307, I.P.C. The action of the Mag. to frame a charge on a minor offence u/s 506, I.P.C., and to omit to write anything with regard to the major offence u/s 307, I.P.C. for which the accused was challaned in his Ct. amounted to a discharge of the accused of the major offence u/s 307, I.P.C. In the case of a discharge a Ses. J. is fully empowered u/s 436, Criminal P. C. to pass an order for further inquiry in the case. In Ganga Dutta v. Emperor A. I. R. 1986 Nag. 87 : (37 Cr, L. J. 715), the principle was enunciated thus :

"Where a Magistrate deliberately frames a charge on a minor section instead of on the major section, on which the case starts, his action is equivalent to a discharge with regard to the major offence and further inquiry can be ordered by the Sessions Court u/s 436, Cr. P. C."

Moreover, the present case was exclusively triable by the Sessions Court, and was pending before the Mag. for inquiry before the trial. The Mag. was to commit the accused, in case the offence u/s 307, was prima facie established against the accused. If in the opinion of the learned Ses. J. the case u/s 307, Penal Code was prima facie established and a charge u/s 307, Penal Code, was competent, he could himself u/s 437, Criminal P. C. order the Mag. to commit the accused to the Sessions Court to stand his trial u/s 307, Penal Code. There was no necessity of sending the case u/s 438, Criminal P. C. to this Court. In re K. V. M. Parmeswarayya AIR 1949 Mad. 430 : (50 Cr. J. 558), it was held :

"When an accused is charged u/s 307, I.P.C., but the Mag. framed a charge u/s 337, Cr. P. C. and does not frame one u/s 307, I.P.C. his action amounts to a discharge of the accused of an offence under the latter section and in such a case it Is open to the Dist. Mag. under Sections 436 or 437, Cr. P. C. either to order a farther inquiry or to order commitment to the Court of Sessions."

In the present case the learned Ses. J. is competent to proceed u/s 436, Cr. P. C. or or u/s 437, Cr. P. C , and hence without accepting his recommendation the file is sent back to the Ct. of the learned Ses. J. Churu to proceed and pass order u/s 436 or 437, Criminal P. C.