SK ADBUL KASEM Vs. STATE

JUDGEMENT

(1.) THIS revisional application under Section 482 of the Code of Criminal Procedure is directed against the order dated the 13th September, 1900 passed by the learned Additional sessions Judge, 1st Court, Hooghly in Sessions Trial No. 181 of 1989. Against the present petitioners the police, after completion of investigation started on the basis of an FIR lodged on 11-10-81, submitted charge-sheet under sections 147/148/448/323/325/427/380 Indian Penal Code. Accordingly, charges were framed against the accused persons under Sections 148/380/ 323/325/427 Indian Penal Code and the petitioners / accused persons were facing trial in respect of the said charges in the Court a Judicial Magistrate at Arambagh. During the continuance of the trial, to precise, after 14 P. Ws had been examined, the learned Magistrate felt that the evidence on record also disclosed the ingredience of offences punishable under Sections 307/ 302/304/34 Indian Penal Code which were exclusively triable by the Court of session. Accordingly he committed the case at that stage to the Court of session under Section 323 Criminal Procedure Code by his order dated 8-8-89. After such committal the case went to the First Additional Sessions Judge, hooghly and the learned Additional Sessions Judge in his order dated 18-9-90 passed after perusal of the order of the learned magistrate dated 8-6-89, charge-sheet, evidence so far adduced before the learned Magistrate, the FIR, the post mortem report etc. and after considering the arguments advanced before him by both sides, recorded is opinion that charges under Sections 149/380/325/307/304 Part- I should be framed against the accused persons. Thereafter the petitioners/accused persons have come up before this Court by filing this revisional application challenging the order of the learned additional Sessions Judge for framing charges against the accused persons as stated above and for holding trial in respect of the same. The petitioners now pray for quashing the said order of the learned Additional Sessions Judge and also pray for remand of the case to the Court of the learned Magistrate so that the learned Magistrate could proceed with the trial from the stage it had already reached there.

(2.) THE allegation against the petitioners is that on 11-10-81 the petitioners being armed with various deadly weapons attacked the house of one Sk. Tahar ali and assaulted him and others as a result of which Tahar Ali and certain others persons were injured. It appears that the injured persons were examined at the Khanakul Primary Health Centre and from there the injured tahar Ali was removed to Arambagh Sub-Divisional Hospital on 11-10-81 and was admitted there. It further appears that Tahar Ali was discharged from the arambagh Sub-Divisional Hospital on 30- 10-81 but he was readmitted to the hospital on 9-11 -81 and was taken back to his house from the hospital on 1 -12-81 by Sk. Tahedar Rahaman at his own risk. Subsequently Tahar Ali died at his home. Post mortem examination was held on his dead-body at arambagh on the 19th December, 1981 and the autopsy doctor recorded in his report that the body was decomposed and the cause of death could not be ascertained from that body. In this broad factual background Mr. Sekhar Basu appearing for the petitioners raised several objections regarding the trial proposed to be held by the Additional Sessions Judge after the committal of the case by the Judicial Magistrate.

(3.) THE first contention canvassed by Mr. Basu is that the learned Additional sessions Judge in considering the question of framing charge against the accused persons must take into consideration the entire stock of the materials on record including the evidence of the witnesses so far recorded in the Court of the learned Magistrate inasmuch as the same also forms part of the record which the learned Additional Sessions Judge is required to consider in coming to a decision whether at all any charge triable by the Court of Session is required to be framed. He attracted my attention to section 323 Cr. P. C. which inter alia provides that the Magistrate may at any stage of the proceedings pending before him commit a case to the Court of Session if it appears to him that the case is one which ought to be tried by such Court and thereupon the provisions of Chapter XVIII shall apply to the commitment so made. He argued that in view of the existing provisions of the Criminal Procedure Code the power given to a Magistrate under section 323 to commit a case to the Court of session where it appears to the Magistrate that the case is one 'which ought to be tried by the Court of Session' is confined only to cases which are exclusively triable by the Court of Session. I however find it difficult to subscribe to this view. Section 209 Cr. P. C. empowers a Magistrate to commit a case to the Court of Session where the offence is triable exclusively by the court of Session'. Had it been the intention of the legislature that the power to commit as conferred on a Magistrate by section 323 also should be confined only to cases 'triable exclusively by the Court of Session', the legislature could have very well used that expression as has been done in Section 209 instead of using the expression 'the case is one which ought to be tried by the Court of Session' in section 323. The power to commit under section 323 no doubt includes within its ambit the power to commit a case which appears triable exclusively by the Court of Session, but this power is even wider than that and includes also the power to commit to the Court of Session a case even though such case may not be exclusively triable by such Court provided the Magistrate, for some valid reason considers that the case ought to be tried by such court. The question as to what case can be committed by the Magistrate to the court of Session under section 323 even when such case is not triable exclusively by the Court of Session has been dealt with in various judicial decisions and I need not advert my attention to this aspect in this case because in this case the commitment has been made by the learned Magistrate under section 323 on the ground that some of the offences disclosed during the trial. which was going on before him are exclusively triable by the Court of Session. The committal order has not been directly challenged in this revisional application. But the said aspect of the matter was tangentially raised by Mr. Basu when he argued that on consideration of the relevant materials on record including the evidence so far adduced before the learned Magistrate, the learned Additional Session Judge, should have found that there was no ground for framing any charge against the accused persons in respect of any offence which is exclusively triable by the Court of Session and that being so the learned Additional Sessions Judge should have referred the case back to the learned Magistrate under section 228 (1) (a) Cr. P. C. for completion of the trial there in respect of the charges on which the trial was earlier proceeding before the learned Magistrate.