STATE OF MAHARASHTRA Vs. AHMED SAYEED KHAN

JUDGEMENT

(1.) The State of Maharashtra has filed this Criminal Revision Application impugning the Judgment and Order passed by the learned Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, dated 31.5.1983.

(2.) The D.C.B., C.I.D. filed a chargesheet in Criminal Case No. 460 of 1983 in the Court of the learned Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, against three accused, two of whom are Respondent Nos. 1 and 2 herein. The three accused were charged under section 364 of The State of Maharashtra Vs. Ahmed Sayeed K han and another IMPORTANT POINT Under section 209, Cr. P.C., the Magistrate is not empowered to discharge the accused or to take oral evidence save where a specific provision like section 306, Cr. P.C., enjoins. the Indian Penal Code for kidnapping the Complainant Bashir Alam Haji Mohammed Sultan in order to murder the Complainant or to place him in danger of being murdered. Secondly the three accused were charged under section 395 for committing dacoity. Thirdly, the three accused were charged under section 397 for committing robbery or dacoity with deadly weapons and causing or attempting to cause death or grievous hurt to the Complainant.

(3.) After the chargesheet had been filed, the learned Magistrate proceeded to pass an order on 31.5.1983 where under he came to the conclusion that no offence had been disclosed in the police papers. Shri Vyas, the learned Public Prosecutor has impugned this order of the learned Metropolitan Magistrate on the ground that the learned Magistrate has travelled far beyond his jurisdiction under section 209 of the Code of Criminal Procedure, 1973. According to Shri Vyas, as soon as it appeared to the learned Magistrate that the offence was triable by the Court of Sessions, then he should commit the accused to the Court of Sessions. The learned Magistrate was not empowered under section 209 of the Code of Criminal Procedure to scan the statements recorded by the Police and furnished to him with a view to find out whether a prima facie case existed against the accused. Secondly the learned Magistrate was also not empowered to discharge the accused once he came to the conclusion that the offence was triable by the Court of Sessions. If the statements submitted by the Police did not disclose an offence then it was for the Court of Sessions to consider whether a prima facie case appeared or not and to discharge the accused or to proceed to trial. Shri Vyas has relied upon two authorities, one of the Supreme Court of India and the other of the Karnataka High Court.