STATE Vs. MEHTAB KHAN

JUDGEMENT

(1.) THIS is a reference under Section 395(2) of the Code of Criminal Procedure by the Additional Sessions Judge, Nagpur for a decision on the following question of law:

(2.) A private complaint disclosing commission of offences exclusively triable by the Court of Sessions came to be filed in the Court of Chief Judicial Magistrate, Nagpur on March 25, 1985. It had a list of 11 witnesses. One out of the four complainants was examined on November 27, 1985, two witnesses were examined on December 19, 1985 and one on January 16, 1986. The complainants did not close their case, but the learned. CJM chose to issue process against the accused on February, 7, 1986 and committed them to the Court of Sessions, vide order dated October 4, 1986. In the Court of Sessions the accused filed an application (Ex. 25) under Section 203 Cr.P.C. for dismissal of the complaint on the ground that mandatory requirement of examining all the witnesses was not followed by the CJM and hence the committal order was void. The accused also prayed for discharge under Section 227 Cr.P.C. on that very ground. The complainants filed an application (Ex. 41) for making a reference to the High Court. The learned Additional Sessions Judge while disposing of both those applications by a common order held that (i) Section 203 Cr.P.C. does not apply to Sessions Trial; (ii) the evidence on record did not warrant discharge; and (iii) the committal order was illegal in the absence of examination of all the witnesses of the complainants as required by proviso to Sub -section (2) of Section 202 Cr.P.C.

(3.) IT does not appear that the only object behind Section 202(2) Cr.P.C. is to protect the interest of the accused. It has in its view also the interest of the complainant. The purpose of the inquiry is not merely for the subjective satisfaction of the Magistrate in the matter of existence or otherwise of the sufficient ground to proceed. On the basis of the material produced the order is passed and the matter is transmitted to the Court of Sessions which is not bound by the opinion formed by the Magistrate on the basis of that material. Sessions trial begins with opening of a case by the Prosecutor by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Section 226 Cr.P.C. Upon consideration of the material before him and hearing parties if the Sessions Judge feels that there is no sufficient ground for proceeding against the accused, he can indeed he is duty bound to discharge the accused. Section 227 Cr.P.C. If the accused is committed to the Court of Sessions only upon the basis of part of the material and without full material which the complainant wanted to put forth, the complainant is exposed to the risk of the accused being discharged for no fault of the complainant. The order of discharge under Section 227 is not confined only to the total absence of factual material. Presence of legal flaw is also a sufficient ground for discharge. In this connection useful reference may be made to the case of T.V. Sarma v. R. Meeriah : AIR1980AP219 . Thus invalidity of the order of committal can also be one of the grounds for discharge.