K V R PANICKER Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is a petition filed by the 10th accused in preliminary Enquiry case 5 of 1964 against the order of the Sessions Judge of Trichur directing his committal to the Sessions Court, setting aside the order of discharge passed by the Sub Divisional Magistrate, Kunnamkulam. The charges against accused 1 to 8 were for offences of rioting and murder and against accused 9 and 10 for abetment, offences punishable under S. 120 B and 302 read with S. 109 I. P C. The case for the prosecution is that on 9-91964 accused 1 to 8 trespassed into the office room of deceased John, Superintendent of Thattil Rubber Estate and accused 1 and 2 stabbed him to death. On a consideration of the evidence adduced in the case and on a scrutiny of the documents produced under S. 173 Cr. P. C. the learned Magistrate who held the preliminary enquiry found that there were no grounds for committing accused 9 and 10 and discharged them. The State took up the matter in revision under SAW Cr. P. C. to the sessions Judge of Trichur , who on a reappraisal of the evidence confirmed the order of discharge as far as the 9th accused was concerned, but set aside the order of discharge of the 10th accused and directed his committal. Aggrieved with the order the 10th accused has come up in revision to this court.

(2.) IN preliminary enquiries relating to cases instituted on police report, the procedure to be adopted has been prescribed under S. 207a. The Magistrate after satisfying himself that the accused has been furnished with all the documents referred to in S. 173 has to proceed to take the evidence of witnesses produced by the prosecution. Sub S. 6 then says: "when the evidence referred to in sub-S. (4) has been taken and the Magistrate has considered all the documents referred to in S. 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence, and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. " Sub-S. (7) says : "when, upon such evidence, being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged".

(3.) LEARNED State Prosecutor first submitted that S. 215, cr. P. C. would show that the High Court cannot interfere with the Sessions judge's order directing a commitment to be made except on a point of law. But it would be seen that S. 215 refers only to commitment actually made and not to a case where the Sessions judge in exercise of the powers vested in him by SAW of the Code sets aside an order of discharge made by a Magistrate and directs a committal to the Sessions. In such cases the High Court can consider the facts, as well as the questions of law involved to determine whether the Sessions judge has exercised his discretion under SAW Cr. P. C. properly. However, I need hardly say that the High Court will exercise this power only where it is manifest that the Sessions Judge's order is improper, as for instance, where there is no evidence to prove the offence charged or where it is clear that no court would act on such evidence. (Vide the decision in Muthia Chetty v. Emperor - ILR 30 mad. 224 ).