State of Haryana vs Harbhajan Singh and Another

B.S. Dhillon, J.—This reference has been made by the Additional Sessions Judge, Karnal,--vide his order dated 18th May, 1978, under Sub-section (2) of Section 395 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code).

Briefly stated, the facts giving rise to this reference are that the police filed a challan under Sections 324 and 323 of the Indian Penal Code against the Respondents. In a cross-case, which resulted from the same incident, the other side was charged with an offence u/s 302 of the Indian Penal Code in addition to the other offence. Consequently, the cross-case being exclusively triable by the Court of Session, was committed to the Court of Session. When the challan was presented before the Sub-Divisional Judicial Magistrate, Panipat, in which the Respondents are the accused, he,--vide his order dated 24th March, 1978, committed this case to the Court of Session on the ground that the cross-case which resulted out of one and the fame occurrence, was being tried by the Court of Session as the same was exclusively triable by the Court of Session. The learned Additional Sessions Judge has made a reference to this Court recommending that the order of commitment be quashed on the ground that the offences for which the Respondents were being charged were not exclusively triable by the Court of Session. The learned Additional Sessions Judge has made reference to a Single Bench decision of the Lahore High Court in AIR 1930 312 (Lahore) and a Single Bench decision of this Court in State of Punjab v. Gurmukh Singh and Anr. 1973 G.L.R. 59, for coming to the conclusion that under the provisions of Section 323 of the New Code the words "ought to be tried" should be construed to be exclusively triable. I have carefully gone through the provisions of the New Code and find that it is not possible to give such an interpretation. The provisions of Section 209 of the New Code are as follows:

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 shall:

(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;

(c) Send to that 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.

The provisions of Section 323 of the New Code are as under:

If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions herein before contained.

As regards the provisions in the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code), it is quite significant that the procedure for commitment proceedings was different and therefore, elaborate procedure was provided in Chapter XVIII of the Old Code. Sections 205 and 207 of the Old Code were in the following terms--

206 (1) Any Chief Judicial Magistrate or a Judicial Magistrate of the first class or any Judicial Magistrate of the second class empowered in this behalf by the High Court, may commit any person for trial to the Court of Session or High Court for any offence triable by such Court.

(2) But, save as herein otherwise provided, no person triable by the Court of Session shall be committed for" trial to the High Court.

In every inquiry before a Magistrate where the case is triable exclusively by a court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall:

(a) in any proceeding instituted on a police report, follow the procedure specified in Section 207-A, and

(b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter.

As is clear under the provisions of Section 206 of the Old Code, the Magistrate empowered to order commitment, could order commitment of any person for trial to the Court of Session or High Court for any offence triable by such Court. This would essentially mean that the offences which were exclusively triable by the Court of Session were to be taken into consideration while ordering commitment. Section 207 of the Old Code follows Section 206. It has been clearly mentioned in Section 207 of the Old Code that in every inquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall follow the procedure thereinafter provided in the Code. The words "ought to be tried by such Court" appearing in Section 207 of the Old Code, have to be interpreted in the light of the provisions of Section 206 of the Old Code which precedes this section. Moreover, the provisions of Section 347 of the Old Code are in the similar words as Section 323 of the New Code. In any case, the procedure for commitment of cases to the Court of Session under the old Code has been radically changed in the New Code and the lengthy procedure has been deleted. Therefore, the provisions of the Old Code will not provide any guidance for the interpretation of the provisions of Section 299 read with Section 323 of the Code. The reading of the provisions of Sections 209 and 323 of the New Code makes it abundantly clear that the two provisions are to operate in different situations. Sections 209 of the New Code will operate at the stage when the case is instituted by a police report or otherwise and-it appears to the Magistrate that the offence is triable exclusively by the Court of Session, whereas Section 323 of the New Code will come into operation at the later stage and even upto the stage before the judgment is delivered by the Magistrate as if at any stage it appears to the Magistrate that the case "ought to be tried by the Court of Session", he shall commit the case to the Court of Session, under the provisions contained in the Code, which only refers to the procedural part of Section 209 and not the substantive part. The words "ought to be tried by the Court of Session", are significant. The Legislature designedly used these words so as to cover those cases which are not exclusively triable by the Court of Session but which otherwise "ought to be tried by the Court of Session." Every word used by the Legislature has to be given its true meaning keeping in view the background under which the said words have been used. This interpretation, in my view, will further the cause of justice. In a given case, a particular incident may give rise to the commission of offences for which both the parties participating in the crime may be separately charged. One set of offences against one party may happen to be exclusively triable by a Magistrate and the other set of offences may happen to the exclusively triable by the Court of Session. It would be perversity of justice if the same incident which resulted into two different sets of offences against the parties participating in the assault, is to be determined by two separate Courts and separately. The incident may not be even separable. Such an interpretation may result into miscarriage of justice. The Code has been enacted to further the cause of justice and to give fair chance to the culprits to bring forth their view point before the Court. Any interpretation which results in anomalies, as has been mentioned above and which may result in a grave injustice to a given set of accused persons, has to be avoided. It is of course true that there is tendency among the Magistrates to commit the cases to the Court of Session without there being a good reason for doing so. That tendency has to be deprecated. It is, therefore, desirable to lay down that a Magistrate exercising the powers u/s 323 of the New Code shall have to pass a reasoned order justifying that the offences with which the accused are charged, ought to be tried by the Court of Session. If the reasons are germane to the object to be achieved, in that case, the said order of the Magistrate will be clearly with jurisdiction, but if the reason for passing the commitment order are not germane to the object, i.e., as to on what ground the Magistrate is of the opinion that the case ought to be tried by the Court of Session, in that case, the order will be without jurisdiction.

As regards the decision of the Lahore High Court in Karam Singh''s case (supra), do not think that the said decision lays down the proposition as has been understood by the learned Additional Sessions Judge. In the same judgment, it has been clearly held that in committing a case not exclusively triable by the Court of Session, the Magistrate should exercise a proper discretion and give adequate reasons for committing the case to the Court of Session. This clearly visualises that there may be a case which may not be exclusively triable by a Court of Session, even in such a case the Magistrate can commit the case to the Court of Session but he has to give good reasons for passing the committing order. In fact that was a case on the facts and circumstances of which the commitment order was not found to be justified and the reference made by the Additional Sessions Judge was accepted by Chief Justice Shadi Lal by accepting the reasons given in the reference order. Similarly, the Single Bench decision of this Court in Gurmukh Singh''s case (supra), is a decision on the facts and circumstances of that case. It is clear from the reference order in that case that the learned Sessions Judge, who made the reference found that no good reasons had been given by the Magistrate to pass an order of commitment. Moreover, the said case was a case under the provisions of the Old Code. As have already observed, the commitment proceedings under the Old Code were quite different than the ones contained in the New Code.

For the reasons recorded above, the reference made by the learned Additional Sessions Judge, Karnal is declined. The learned Additional Sessions Judge is directed to proceed with the decision of this case and the cross-case forthwith. The parties have been directed through their counsel to appear before the learned Additional Sessions Judge, Karnal, on 22nd December, 1978.