PURNA CHANDRA JANA Vs. STATE

JUDGEMENT

(1.) This Revisional Application is directed against an order dated 7.1.81 passed by the learned Sessions Judge, midnapur in Criminal Motion No. 112 of 1980 setting aside the order dated 5.11.80 of the learned Judicial Magistrate, Second Court, Tumluk in G.R. Case No. 934 of 1979.

(2.) In the wake of an incident of fight between two groups over cultivation of land on 16.8.79 two cross cases were registered at Panskura P.S. on the same date, at the instance of the petitioner No. 1 - Purna Chandra-Jana and the opposite party No. 2 Prakash Chandra Jana respectively as informants The police investigated and submitted charge-sheet in both the cases. The learned Magistrate committed the case under Sec. 147/148/447/324/304 of the Indian Penal Code against the opposite party No. 2 and others in March 1980 to the Court of Session for trial. The learned Magistrate framed charge under Sec. 147/447/324 of the Indian Penal Code in the other case being G. R. Case No. 934 of 1979 against the petitioners on 12.7.80 and fixed the case for evidence. At that stage the opposite party No. 2 filed a petition on 1.10.80 for committing the G. R. Case No. 934 of 1979 to the Court of Session for trial for just decision thereof as both the cross cases should be heard by the same judge contemporaneously to avoid material prejudice to the defence in the case committed to the Court of Session. The learned Magistrate rejected the prayer by an order dated 5.11.80 on the ground that there is no provision for commitment of a case under Sections 147/447/324 Penal Code to the Court of Session for trial. Against the said order of the learned Magistrate the opposite party No. 2 moved the learned Sessions Judge Midnapur in Criminal Motion No. 112 of 1980. The learned Sessions Judge by his impugned order set aside the order of the learned Magistrate and in effect directed the learned Magistral to commit the G. R. Case No. 934 of 1979 to the Court of Session to enable that Court to hear both the cases in quick succession for avoiding conflicting decisions in them.

(3.) Before this Court the learned advocate for the petitioners has raised three points. Firstly it is contended that in view of Sec. 209 of the Code of Criminal Procedure 1973 the learned Magistrate is not competent to commit a case which is not exclusively triable by the Court of Session and in this connection reference is made to the Supreme Court's decision in the case of Sanjay Gandhi Vs. Union of India AIR 1978 SC 514 laying down the limited power of the committing Magistrate who cannot probe beyond the face of the police report in deciding whether or not to commit a case to the Court of Session. Secondly it is argued that the expression "at any stage of the proceeding" in Sec. 323 of the Code signifies that the learned Magistrate has to decide whether the case before him ought to be tried by the Court of Session only in course of taking evidence during trial and not before evidence is taken. The third submission on behalf of the petitioners is that the learned Sessions Judge has no power to direct the learned Magistrate to commit a cases triable by the learned Magistrate to the Court oft Session.