GORRELA LATCHANNA Vs. GORRELA RAMAMURTHY

JUDGEMENT

(1.) This is an application under sections 482 and 407, Criminal Procedure Code. The facts leading to this application are as follows: The petitioner filed a complaint against five accused alleging that they committed offences punishable under sections 147, 448, 436, 352 and 323, Indian Penal Code. After recording the sworn statement of the complainant, the Magistrate took cognisance of offences punishable? under sections 147, 448, 436, 352 and 323, Indian Penal Code, and registered a case under P.R.C. No. 8 of 1976 for the said offences. As the offence under section 436, Indian Penal Code, is one exclusively triable by a Court of Sessions, he postponed the issue of process against the accused and held an enquiry under section 202 (2), Criminal Procedure Code.

(2.) After examining all the nine witnesses produced by the complainant, he opined that there are sufficient grounds for proceeding and accordingly issued suromonses to the five accused in the case for their appearance before him on a certain day. On the appearance of the accused on the appointed day, he furnished them with copies of all the necessary documents and then passed an order committing the accused 1, 4 and 5 to the Court of Session on the ground that A-1 appears to have committed an offence punishable under section 436, Indian Penal Code, and A-4 and A-5 appear to have abetted the offence under section 436, Indian Penal Code, and further directed separation of the case against A-2 and A-3 for being tried before him in so far as the evidence disclosed that A-2 and A-3 merely beat the complainant with stones. The separated case against A-2 and A-3 in erely beat the complainant of 1977 on the file of his Court. The complainant thereupon came up to this Court with this petition for quashing the order separating the case against A-2 and A-3 and for a direction that A-2 and A-3 also may be committed to the Court of Session to take their trial along with A-l, A-4 and A-5. The question for consideration is whether, on the facts and in the circumstances of the case, the Magistrate should have committed all the five accused to the Court of Session for a joint trial and is his action liable to be struck down?

(3.) Smt. D. Prasanna Kumari, the learned Counsel for the petitioner, contends that, once the Magistrate is of the opinion that the case involves an offence triable exclusively by the Court of Session, he shall have to commit the case to the Court of Session as provided in section 209 (a), Criminal Procedure Code, and it is not open to him to bisect the case so as to commit only some of the accused for trial by the Court of Session and to keep the case aginst the remaining accused for trial before him. It is argued that section 209 (a), Criminal Procedure Code, is a clear mandate to the Magistrate for committing the entire case and not a portion of the case. The learned Additional Public Prosecutor stales that he is not in a position to justify the action of the Magistrate. He also says that in the circumstances, the Magistrate ought to have committed all the five accused to the Court of Session instead of separating the case against two of the accused for trial before him. The accused, who are respondents in this proceeding, received notices but have not chosen to appear either in person or by Counsel.