HIRUDAYASAMI UDAYAR Vs. RAMASWAMI NAINAR

JUDGEMENT

(1.) THIS revision involves an interesting : point whether interference by this Courtwill be justified, where a learned Magistrate holding a preliminary enquiry into an alleged offence under Section 395 I. P. C has come to the conclusion that no such offence triable exclusively by a court of session was involved, and has hence framed charges under Sections 379 and 447 I. P. C. and is himself proceeding to further dispose of the case according to law. Undoubtedly the procedure adopted by the learned Magistrate is justified as a matter of strict form, and it is sufficient to refer to Section 207-A (6) of the Criminal Procedure Code Amended Code, which permits such a procedure. But the more difficult question is whether, assuming that there is more material to show that two views are possible upon the question of the applicability of Section 392 I. P. C. or 395 I. P. C. to the facts, this Courtought to interfere in what is really a discharge by implication.

(2.) MY attention has been drawn to certain observations of Ramswami J. in Satyam v. State , where the learned Judge points out page 42 of Mad WN Cri : page 272 of AIR that in regard to an offence exclusively triable by a sessions court, the Magistrate ought not ordinarily to take upon himself the duty and responsibility of discharging die accused because he considers that the ingredients of that offence are not established because this really amounts to clutching at jurisdiction. But a distinction between Sections 379 and 392 I. P. C. has always been a fine one, a question depending very largely upon the application of the words if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint. The learned District Magistrate before whom the matter was originally taken up in revision, declined to interfere, because he thought that the committing Magistrate was not patently in error with respect to the application of the law to the facts of the present case.

(3.) I think that interference by this Courtat; this sage in criminal revision is not at all called for, under the circumstances. Accordingly, I do not propose to interfere upon this alleged discharge by implication of the accused with reference to the charge under Section 395 I. P. C.