STATE OF MAHARASHTRA Vs. KALURAM JANARDHAN BARNE

JUDGEMENT

(1.) The D.B. Marg Police presented a charge sheet before the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay, against the present respondents under section 304, Part II r.w. 109 of the I.P.C. on the allegation that on 27th March, 1982, the respondent No. 1 caused the death of one Haribhau Sukale by giving him a hard push as a result of which the deceased who was drunk, lost balance and fell down on the kerb of the footpath. The respondents No. 1 is also alleged to have assaulted the deceased with kicks. The allegations against respondents No. 2 and 3 are that they abetted the respondent No. 1 by hurling abuses at the deceased. The learned Magistrate summoned the Medical Officer who had carried out the autopsy as a witness and in the light of the police papers and the evidence of this witness, came to the conclusion that an offence punishable under section 325, I.P.C. only was prima facie made out that too against respondent No. 1 alone. As regards respondent Nos. 2 and 3, the learned Magistrate felt that there were absolutely no materials to show that they had abetted the offence punishable under section 304, Part II I.P.C. In the result, he proceeded to frame charge against respondent No. 1 alone under section 325 I.P.C. and discharge the other two respondents. The State now challenges this order by this revision.

(2.) The learned Public Prosecutor who appears for the State, submits that the learned Magistrate has grossly exceeded his legitimate jurisdiction and powers under section 209 Cri.P.C. It is pointed out that there is absolutely no warrant for the Magistrates recording evidence of the Medical Officer and undertaking appreciation of his evidence and other materials on the record, as if he was trying the case. According to the learned Public Prosecutor, the Magistrate was bound to commit the case to the Sessions Court. As against this, Shri Korde who appears for the three respondents supports the order of the Magistrate and submits that even if the learned Magistrate is presumed to have committed any irregularity, on merits his decision is right and it should not be interfered with by this Court in exercise of its revisional powers.

(3.) I have been taken through the record of the case and I find that so far as respondent No. 1 is concerned, the learned Magistrate has clearly exceeded the limited jurisdiction vested in him under section 209 Cri.P.C. As stated at the outset, the charge-sheet was presented under section 304, Part II I.P.C. only. This offence is undeniably triable by a Court of Session alone. As to the limits within which a committal Magistrate has to act under section 209 Cri.P.C., I can do no better than reproduce the apt observations of my brother Kotval, J., in 1981 Cri.L.J. 1819 (Dr. Dattatraya Samant and etc. v. State of Maharashtra) as under :