MOHAN Vs. STATE OF U P

JUDGEMENT

(1.) MR. B. B. S. Sisccdia, the then Additional Sessions Judge of Jaunpur vide his order dated 8-2-1978, passed in ST No. 254 of 1974, convicted Mohan under Sec. 457, IPC, 324 IPC and 323 IPC read with Sec. 34 IPC and sentenced him to three years', two years' and one year RI respectively, making all the sentences concurrent. Mangroo and Rajbali were convicted, under Sections 452 IPC, 324/34 IPC and 323/34 IPC and sentenced to one year; two years and one year's RI, respectively. All the sentences have been made concurrent and it is against this order that the present appeal has been filed.

(2.) THIS case started on a criminal complaint and there were five accused who faced the trial. The learned Sessions Judge acquitted Lalla and Bahadur, giving them the benefit of doubt and convicted the others. The criminal complaint which was filed on 2-5-72 was in respect of an occurrence that allegedly took place at 8.00 PM on 29-7-72. The learned Magistrate before whom the proceedings started recorded the statement of the complainant under Sec. 200 CrPC. Thereafter the statements of two witnesses under Sec. 202 CrPC were taken down but they were not examined as witnesses of fact in the case. Subsequently the order of commital was passed on 21-12-74. Tha main argument which has been advanced is that the procedure followed by the learned Magistrate for committing the case to the Sessions was improper and the trial, therefore, stands vitiated. It may be mentioned here that the new Criminal Procedure Code, 1973, came into force on the 1st April, 1974. Prior to that the old Code was in operation. The facts of this case show that the occurrence took place on 29-3-72, when the old Code was in force. The criminal complaint was also filed on 2-3-72, when again the procedure prescribed by the Criminal Procedure Code, 1898 was in force. Therefore, the learned Magistrate should have proceeded according to the provisions laid down in old Code. Chapter XVIII of the old Code was applicable to the present case and the learned Magistrate, if was of the view that the case was either exclusively triable by a court of Sessions or that it ought to be tried by such court, should have proceeded according to the provisions of Sec. 208 onward of the old Code of Criminal Procedure. A similar matter came up before the Supreme Court in the case of Chhadami Lal Jain v. State of UP, AIR 1960 SC 41 and in that case it was held that the words 'under the provisions here- in before contained', used in Sec. 347 (1), mean that if the Magistrate. decides at some stage of the trial to commit the accused, he has to follow the provisions contained in Chapter XVIII. THIS of course does not mean that the Magistrate must begin over again from the beginning. All that be has to do when he decides that the case ought to be committed is to inform the accused and see that the provisions of Chapter XVIIl are complied with so far as they have not been complied with upto the stage at which he decides that there ought to be commitment. The procedure under Chapter XVllI is laid down in Sec. 208 to 2113 of the Code. It is necessary that the accused should know when the Magistrate makes up his mind to commit, so that their right under Sec. 208 to produce defence, if any, before commitment is made, is safe-guarded. If the accused is denied opportunity of leading evidence which he has a right to do under Sec. 208, the denial of such right is sufficient to cause prejudice to the accused and Sec. 537 would have no application to such a case. The possibility that the accused may not have produced the defence if asked by the Magistrate whether he would do so, is of no consequence. The Supreme Court in this case held that breach of Sec. 208 was sufficient to invalidate the commitment. The order of commitment was, therefore, quashed along with the charges that were framed and the case was sent back to the Magistrate to proceed according to law.