STATE Vs. JAI RAM

JUDGEMENT

(1.) This is a reference by a Metropolitan Magistrate under sub-section (2) of section 395 of the Code of Criminal Procedure (hereinafter called the Code), The point of law referred for the decision, of this Court is whether in a challan submitted under Section 307/34 Indian Penal Code a Magistrate under Section 209 of the Code in deciding whether the offence alleged is exclusively triable by a court of Session is bound to hear the accused.

(2.) Section 209 of the Code which finds place in Chapter XVI of the Code and under the heading "commencement of proceedings before the Magistrate" is in the following terms :- "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, he 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.

(3.) Chapter XVIII deals with trial before a Court of Session. Section 226 provides that when an accused appears or is brought before the court in pursuance of a commitment of the case under Section 209 the prosecutor shall open his case by describing the charge brought against the accused and state by what evidence he proposes to prove the guilt of the accused. Section 227 provides that if on 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. Section 228 which is relevant for the decision of the point before us provides that if after such consideration and hearing as aforesaid the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Session he may frame a charge against the accused and by order transfer the case for trial to the Chief Metropolitan Magistrate and thereupon the Chief Metropolitan Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; and (b) is exclusively triable by the Court of Session shall frame in writing a charge against the accused.