Sumesh Chand etc. vs State of Harayana

D.S. Tewatia, J.—This is a petition u/s 482, Criminal Procedure Code, wherein the petitioners seek the quashing of the commitment order dated 31st March, 1977, whereby the Chief Judicial Magistrate, Hissar, had committed the case to the Court of Session, Hissar, under sections 306, 307, 343, 354, 109 and 120-B, Indian Penal Code.

Mr. Gill appearing for the respondent State has raised a preliminary objection to the maintainability of the petition. It has been urged by him that this Court should refrain from exercising its inherent power u/s 482 of the Criminal Procedure Code when the relief sought by the petitioners could be granted by the Court of Session u/s 227 of the Code of Criminal Procedure (also referred hereafter as the new Code).

I think that there is considerable merit in the preliminary objection raised on behalf of the State. Provisions of section 227 of the 1973 Code are in the following terms:

If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

This provision is a new addition to the Criminal Procedure Code. In my way of looking at this provision, this provision invests the Sessions Court with a power which earlier in substance used to be exercised by the committing Court under the old Code. Under the new Code of 1973, the committing Court while exercising power u/s 209 has no power whatsoever to go into the question as to whether any prima facie case is made out or not, which it used to do under the old Code u/s 207-A. What the Magistrate u/s 209 of the new Code has to see is as to whether the offence mentioned in the police report or otherwise is triable by the Sessions'' Court and if it is so triable, then to submit the papers to the Sessions'' Court alongwith the documents placed before it by the police. It is absolutely unnecessary for the committing Court to pass any detailed order or to go into the question as to whether a prima facie case is made out or not. That the committing Court has not to apply its mind to find out as to whether a prima facie case is made out is borne out from the different phraseology used in section 207-A, sub-section (7) of the old Code and section 209, sub-section (a) of the new Code. While under the old Code the committing Magistrate was required to commit the case for trial to the Court of Session on charges framed by him, but under the new Code he merely commits the case to the Court of Session and the question as to whether the person so committed is to be tried or not is to be decided by the Court of Session after applying its mind in the manner envisaged u/s 227 of the new Code, with the result that under the old Code the accused was placed on trial by the order of the committing Court u/s 207-A, while under the new Code the accused is not placed on trial but only the case is committed to the Court of Session which itself places the accused on trial if a prima facie case is made out from the record and the documents submitted to it by the committing Court.

In the light of the above, I am of the considered view that the order u/s 209 of the new Code is in the nature of an Interlocutory order against which the revisional jurisdiction of this Court is expressly barred by sub-section (2) of section 397 of the new Code and where the new Code bars the revisional jurisdiction, it would be mere abuse of the process of the Court if a party is permitted to invoke its inherent jurisdiction, more particularly when the said party can get the desired relief nearer home u/s 227 of the new Code from the Sessions'' Court itself.

For the reasons stated, this petition stands dismissed.