THE STATE Vs. P.J. JOB AND OTHERS

JUDGEMENT

(1.) This reference has been made by Shri S. Chakraborty, Chief Metropolitan Magistrate, Calcutta, by his letter of reference dated 20.8.77 in connection with Case No. CR 87 of 1971. The case was committed to the Court of Sessions by the Metropolitan Magistrate, 9th court, by his order dated 17.5.75 under Sec. 323 of the Code. Thereafter, the learned Sessions Judge framed charges against the accused persons under Sections 406, 477A, 381 and 120B I.P.C. on 24.2.76 and took the plea of the accused who pleaded not guilty to the charges against them and claimed to be tried. The learned Judge then fixed 19.4.76 and onwards for trial and issued summons on the prosecution witnesses. The case was adjourned to 24.5.76 and onwards for trial and the prosecution witnesses were summoned accordingly. On 24.5.76, on a petition filed by accused No. 1 praying for not holding the trial, the learned Sessions Judge heard the matter and by his order dated 25.5.76 sent the case, along with the charges framed by him to the Court of the Metropolitan Magistrate under section 228(l)(a) Cr. P.C. for trial. After receipt of the record, accused No. 2 filed an application stating that the court of the Metropolitan Magistrate cannot try the case as the learned Judge City Session Court, has already held the trial of the accused by taking the plea and summoning the witnesses for examination. Accordingly, the transfer of the case by the learned Sessions Judge under Sec. 228(1)(a) of the Code was illegal. Accused No. 2 also prayed in his application for making reference to the Honourable Court in the facts and circumstances of the case. The learned Chief Metropolitan Magistrate was of opinion that it is clear from the charges framed by the learned Judge, City Sessions Court that the endorsement made by him with regard to the plea taken by him that the learned Judge after framing the charges took the plea of the accused persons who pleaded not guilty and claimed to be tried. The learned Judge then proceeded further to fix the date for examination of prosecution witnesses accordingly, the witnesses were summoned. According to the learned Magistrate, the learned Sessions Judge took action under Sec. 230 of the Code after taking action under Sec. 228 and actually the trial of the case was started by the learned Judge from the date of taking of plea of the accused persons. In the circumstances, the transfer of the case under Sec. 228(1 J(a) of the Code which enables the Court of Sessions to transfer the case for trial to the Chief Judicial Magistrate (Chief Metropolitan Magistrate) either before or after the framing of charge, and before taking the plea to the charges does not appear to be in accordance with law. That being the opinion of the learned Chief Metropolitan Magistrate he felt that this Court may give a decision as to the point whether in the facts and circumstances of the case, the Court of the Metropolitan Magistrate should proceed with the trial or the case should be tried by the court of the learned Sessions Judge. In such circumstances, the reference has been made.

(2.) Mr. Prasoon Chandra Ghosh who was very kind to assist the Court as amicus curiae submits that the reasoning offered by the learned Sessions Judge for sending the case back seems to be cogent. It is true that the learned Sessions Judge framed change, summoned witnesses and fixed dates for examination of the witnesses. Even then it cannot be said that the trial before the learned Sessions Judge began and that being so, the Sessions Judge was quite competent to send the case back to the learned Magistrate if the Sessions Judge thought that the case ought not to have been committed to him under Sec. 323 of the Code, but ought to have been tried by the learned Magistrate.

(3.) Mr. Biren Mitra, learned Public Prosecutor, on the other hand, submits that the case was committed to the Court of Sessions by the learned Magistrate according to the provision of Sec. 323 of the Code which provides that "if, in any inquiry into an offence or a trial before the Magistrate it appears to him at any stage of the proceedings before signing judgement that the case is one which ought, to be tried by the Court of Sessions he shall commit it to that Court under the provisions of the Code." In this particular case, the learned Magistrate, on going through the papers, was of the opinion that the case ought to be tried by the court of Sessions and in that view of his finding, the learned Magistrate committed the case to the court of Sessions. That order of commitment was not challenged. As has been already indicated the learned Sessions Judge framed charges, took the plea of the accused, summoned witnesses and fixed dates of examination of the witnesses. It was at this stage applications were filed on behalf of the accused stating that the case should not be tried by the learned Sessions Judge and should be returned to the learned Magistrate for trial. That plea was accepted by the learned Sessions Judge and hence, the reference. On a consideration of the facts, I am of opinion that the learned Magistrate was quite within his jurisdiction to commit the case to the court of Sessions under Sec. 327 (323?) of the Code. There was no illegality in the order passed by the learned Magistrate. I am further of opinion that when the learned Magistrate look plea and summoned witnesses and fixed dates really the trial began and at this stage, there was no necessity for the learned Sessions Judge to send back the case again to the leaned Magistrate who earlier committed the case to the court of Sessions. I am of opinion that the learned Sessions Judge ought not to have sent the case to the learned Magistrate, but ought to have tried the same himself. The learned Sessions Judge is directed to proceed with the trial of the case. The Reference made by the learned Chief Metropolitan Magistrate is thus disposed of. Let the records go down to the court of Session. The learned Sessions Judge is further directed to dispose of the case as early as possible as the matter is pending for a long time. Direction given to the Sessions Judge.