SHIVANGOUDA MALLIANGOUDA Vs. STATE OF MYSORE

JUDGEMENT

(1.) This revision petition is filed under Sections 215 and 561-A of the Code of Criminal Procedure (Section 215 of the Code of Criminal Procedure is obviously a mistake and it is not applicable) for (finishing of the order, dated 10-1-1967, passed by the Additional Sessions Judge, Dharwar, Ex. 6, in Sessions Case No. 63 of 1966 dismissing the application filed by the petitioners (accused) to quash the committal order, dated 18-11-1966, passed by the Judicial Magistrate, First Class. Ranebennur, in C. C. No. 630 of 1966

(2.) A charge-sheet for offences punishable under Sections 147, 148 and 326 read with Section 149 of the Indian Penal Code was placed against the petitioners accused in the Court of the Judicial Magistrate, First Class, Ranebennur, in C. C. No. 630 of 1966. The learned Magistrate proceeded to deal with the case under Chapter XXI of the Code of Criminal Procedure When the learned Magistrate, was considering the papers filed under Section 173, Cr. P. C. a memo was filed by the Prosecuting Inspector to the effect that the allegations in the charge sheet clearly indicated that the accused were also guilty of an offence punishable under Section 307 of the Indian Penal Code and that the accused should be committed in take their trial in the Court of Sessions for all the offences. At that stage the accused made an application before the learned Magistrate to examine the witnesses before he made up his mind in this regard The learned Magistrate framed a charge for offences punishable under Sections 147, 148 and 307 read with Section 149 of the Indian Penal Code and committed the accused to take their trial in the Court of Sessions. He did not adopt the procedure prescribed under Chapter XVIII of the Code of Criminal Procedure. When the case was transferred to the file of the Additional Sessions Judge. Dharwar. The accused filed an application for recommending the case for quashing of the order of committal to this Court on the ground that the procedure adopted by the learned Magistrate is illegal and has resulted in the miscarriage of justice. The learned Judge heard the arguments addressed on behalf of the accused and the prosecution and dismissed the application. After all these the accused have made this application to this Court to invoke our inherent jurisdiction to quash the order of committal

(3.) It cannot be disputed that the order passed by the learned Magistrate committing the accused straightway without adopting the procedure prescribed under Section 207(A) of the Code of Criminal Procedure is illegal. The charge-sheet against the accused, as already stated was for offences punishable under Sections 147, 148 and 326 read with Section 149 of the Indian Penal Code which are all triable by the learned Magistrate himself under Chapter XXI of the Code of Criminal Procedure As a matter of fact the learned Magistrate proceeded to consider the papers treating them as a case instituted under Chapter XXI and not under Section 207-A of the Code of Criminal Procedure. It is only after the Prosecuting Inspector filed a memo and prayed the learned Magistrate to commit the accused to lake their trial before the Court of Sessions, the learned Magistrate thought it fit to commit the accused to take their trial in the Court of Sessions at Dharwar after rejecting the application made on behalf of the accused to examine the witnesses before he decided as to whether it was a fit case to commit the accused to take their trial before the Court of Sessions or not. The learned Magistrate in the circumstances should have conducted a preliminary enquiry under Chapter XVIII of the Code of Criminal Procedure and in accordance with Section 207-A of the Code of Criminal Procedure Mr. G. Shankara Chetty, the learned State Public Prosecutor, does not dispute this proposition, but he contends that the learned Magistrate who was dealing with the case under Chapter XXI of the Code of Criminal Procedure was entitled at any stage to commit the accused to take their trial under Section 347 of the Code of Criminal Procedure. We are afraid that the provisions of Section 347 of the Code of Criminal Procedure are not at all attracted in this case inasmuch as the proceedings had just then been initiated and had not at all been started immediately after the Prosecuting Inspector brought it to the notice of the learned Magistrate that the allegations made in the charge-sheet indicated that the accused had also committed an offence or offences triable exclusively by a Court of Session, it was his duty to hold an inquiry under Chapter XVII of the Code of Criminal Procedure There was absolutely no impediment for the learned Magistrate to have done so in the circumstances of the case.