IN RE: SHANMUGHAM AND ORS. Vs. STATE

JUDGEMENT

(1.) This revision petition has been preferred by the 39 accused, against whom a charge -sheet was filed for offences of rioting and attempt to murder under Sec. 307, Penal Code before the learned II Class Magistrates, Gudiyattam, in P. R. C. No. 4 of 1965. The offence under Sec. 307, Penal Code being exclusively triable by the Court of Session, the Sub -Magistrate had to hold an enquiry under the provisions of chap. XVIII of the Code, and since the proceeding was instituted on a police report, the procedure applicable was that under Sec. 207 -A, Criminal P. C. .3 The case against the accused was that they formed themselves into an unlawful assembly to attack the police station and murder the Sub -Inspector and others in connection with the anti -Hindi agitation. The learned Sub -Magistrate examined some witnesses and being of the opinion that no offence under Sec. 307, Penal Code was made out, but only offences triable by a I Class Magistrate, submitted the papers to the First Class Magistrate. He apparently acted under Sec. 207 -A(6). Criminal P. C.

(2.) Against this order, the State preferred a revision petition to the learned Sessions Judge. The learned Sessions Judge felt that there was a prima facie case under Sec. 307, Penal Code but, instead of straightaway committing the accused, as he could have done under Sec. 437, Criminal P. C. directed further enquiry to be done, because it was represented to him that some more prosecution evidence remained to be adduced. It is against this order of the learned Sessions Judge that this revision petition has been filed.

(3.) The order of the learned Sub -Magistrate discharging the accused has not been filed before me. But it is clear from a perusal of the judgment of the learned Sessions Judge that the learned Sub -Magistrate exceeded his jurisdiction in discharging the accused in respect of the offence under Sec. 307, Penal Code. Certainly, there was some prima facie evidence and therefore it was the duty of the Sub -Magistrate to order commitment. He should not have undertaken the task of weighing the evidence himself which was the province of the Sessions Court Normally, therefore, it would have been right for the learned Sessions Judge to order commitment of the accused under Sec. 307, Penal Code but the reason why he directed further enquiry was, as already stated, that some further prosecution evidence had to be adduced I do not see how the order can be said to be wrong.