State of U.P. vs Shardendu Bhattacharya alias Kamal Bose and Others

C.A. Rahim, J.—Three Government Revision Nos. 891 of 1983. 892 of 1983 and 893 of 1983 are taken up together for the sake of convenience. These three revisions arise out of the order dated 18.2.1983 passed by the learned III Additional Sessions Judge. Varanasi in ST. Nos. 388 of 1976, 389 of 1976 and 390 of 1976. On that day separate orders were passed in connection with those three sessions trials on the same point in which common question of law is involved.

Three separate cases u/s 409/418/419/467/468/471, I.P.C. etc. along with Section 120B, I.P.C. were started against the Respondents with an allegation of embezzlement, forgery, cheating, conspiracy amongst others. All the three cases were triable by the learned Magistrate 1st Class but all the three cases were committed to the Court of Sessions u/s 323, Code of Criminal Procedure the learned Additional Sessions Judge by his order dated 18.2.1983 passed orders in all the three cases to the effect that since the learned Chief Judicial Magistrate, Varanasi is competent enough to award sentence upto seven years and that would meet the ends of justice and hence all those cases were sent back to the learned Chief Judicial Magistrate for trial presumably u/s 228, Code of Criminal Procedure. This is subject matter of the grievance and on behalf of the State of U.P. all the three revisions have been filed.

Learned A.G.A., Sri. Shreeprakash Singh, has referred three decisions and has submitted that when a case is committed u/s 323, Code of Criminal Procedure learned Additional Sessions Judge cannot retransfer the same, as Section 228, Code of Criminal Procedure is not applicable in these circumstances. In the case of Vijendra Vijai v. State of U.P. reported in 1986 UP Cr R page 354, it was held that when two cases were started u/s 302/394, I.P.C. and Section 3/25 of the Arms Act and both cases were committed to the Court of sessions the Sessions Judge should not transfer the case of Arms Act to the Court of learned Magistrate on the ground that it was triable by the learned Magistrate. Since due to the recovery of arms from the possession of the applicant, punishable under the Arms Act, the doctrine of issue estoppel was likely to operate one way or the other if both the cases were not tried by sessions Court. So accordingly it was held that the commitment of the case under Sections 3/25 of the Arms Act to the Court of Sessions was fair and proper exercise of his power u/s 323, Code of Criminal Procedure by the learned Magistrate and the order of the learned Additional Sessions Judge transferring the case to the learned Chief Judicial Magistrate for trial was bound to result in prejudice and injustice to either party. Accordingly, the discretion exercised by the learned Additional Sessions Judge, therefore, was not sound and must be remedied by this Court. Similar decision was passed in the case of Achchey Lal v. State of U.P. reported in 1993 UP Cr R 11, referred by Sri. Singh, wherein it was also held by the Division Bench that when commitment has been ordered by the Magistrate u/s 323, Code of Criminal Procedure with a definite finding that because the cross case of the same transaction being exclusively triable by the Court of Sessions has been committed to that Court and the case pending before the learned Magistrate with respect to the same transaction though triable by the Magistrate has to be tried by the Court of Sessions in order to avoid conflicting finding with respect to the same matter by the two Courts of competent jurisdiction. the Sessions Judge cannot proceed u/s 228, Code of Criminal Procedure. The facts of these two cases do not find any similarity with the instant one and there is no cross case which has been committed to the Court of Sessions as exclusively triable by the Court of Sessions. In this premises, the Division Bench in Achchey Lal''s case has held that when a case has been committed to the Court of Sessions u/s 323, Code of Criminal Procedure Sessions Court has got no power to retransfer the case u/s 228, Code of Criminal Procedure.

Sri. Singh has also referred another decision reported in 1991 (Supp) ACC page 141, Gopal Das and Ors. v. State of U.P. and Anr. wherein the power of the learned Magistrate for committing the case u/s 323, Code of Criminal Procedure has been discussed. It has been held that the Magistrate can exercise his discretion suo moto or on an application of any one of the parties. If he exercises power u/s 323, Code of Criminal Procedure and commits the case to the Court of sessions, proceeding before him is terminated. The order of refusal to exercise power to terminate proceeding by committing the case to Sessions is final order and is amenable to revisional Jurisdiction of the Sessions Judge. There is no express finding in this decision over the issue in question. But it has answered to another question put forward on behalf of the opposite parties whether the order is interlocutory order and revision is maintainable. All the aforesaid decisions are out come of the revisional application preferred by one side or the other and one of the Court including the Division Bench in Achchey Lal''s case has held that such revision is maintainable.

Normally an order of commitment is made u/s 209, Code of Criminal Procedure if the case is exclusively triable by the Court of sessions and u/s 323, Code of Criminal Procedure where the power of the learned Magistrate to commit the case is also extended to those cases which are one which ought to be tried by the Court of sessions. Section 228, Code of Criminal Procedure provides that the learned Sessions Judge may transfer the case for trial to the Chief Judicial Magistrate if there is ground for presuming that the accused has committed offence which is not exclusively triable by the Court of sessions and he will send the record of the case after framing the charge against the accused. In A.N. Shah''s Criminal Reference (Vth Edition) at page 290 the case of Nohar Chand Vs. Ishwar Singh and Others, , has been mentioned wherein it was held that when the Magistrate commits the case u/s 323, Code of Criminal Procedure but the sessions Court differs and remits it u/s 228, Code of Criminal Procedure no charge is required to be framed by the Court of sessions. From all these decisions it appears that the retransfer of case u/s 228, Code of Criminal Procedure is equally applicable to a case committed u/s 209, Code of Criminal Procedure or u/s 323, Code of Criminal Procedure. It cannot be said that when a case has been committed to the Court of sessions u/s 323, Code of Criminal Procedure the learned Additional Sessions Judge is devoid of power in applying Section 228, Code of Criminal Procedure and in that case he is bound to hold trial. But while applying to such provisions it is necessary that there should be proper reasons to do so. The learned Sessions Judge by his order dated 18.2.1983 in all these three cases transferred the case to the Court of Chief Judicial Magistrate with the finding that when the Chief Judicial Magistrate is competent to award sentence upto 7 years that would meet the ends of justice. It has also been held that the maximum sentence of the sections charged is 10 years. Mr. Singh has drawn my attention to Section 409/467/471, I.P.C. where maximum sentence has been provided for imprisonment for life in each of those sections. So the very basis of the reasoning for sending the case to the Chief Judicial Magistrate having been made on wrong conception, the order cannot stand. Considering the gravity of the allegations also it is necessary that trial should be conducted by the Court of sessions.

Accordingly, all the three Government Revisions namely, 891 of 1983, 892 of 1983 and 893 of 1983 are allowed. The order dated 18.2.1983 passed separately in S.T. Nos. 388 of 1976, 389 of 1976 and 390 of 1976 are hereby set aside. Considering the delay in disposing of the revisional application it is hereby ordered that trial should be started after framing charge as expeditiously as possible.

All the three aforesaid Government Revisions are disposed of accordingly. All interim orders are vacated.