BAIDYANATH SIKDAR Vs. STATE

JUDGEMENT

(1.) THE petitioner, who was discharged by a Magistrate, first class, at Ranaghat, in a case under Section 498/373 of the Indian Penal Code and whom the learned Sessions Judge under Section 487 of the Criminal P.C. has directed to be committed to the Court of Sessions on a charge under Section 498 of the Indian Penal Code only, obtained this rule for setting aside the order of commitment.

(2.) MR . Mukherjee appearing in support of the Rule raises two contentions, first, that the materials on record do not justify the order for comment and, secondly, that the order for commitment straightway made under Section 437 of the Criminal P.C. is, on the facts of this case, bad in law, inasmuch as that order does away with the necessity for compliance with the provisions of his 211, 212 and 218 of the Criminal P.C. and not only that, it takes away the discretion of the enquiring Magistrate under Section 218(2) of the Code to discharge the accused if he is satisfied after compliance with the requirements of that provision that there are not sufficient grounds for committing the accused.

(3.) UNDER Section 187 of the Criminal P.C. the Sessions Judge, in the circumstances stated there. in, is left with two alternatives, namely, (1) to direct a fresh enquiry, or (2) to order the accused to be committed for trial upon such matter as he thinks fit. Mr. Mukherjee's contention is that the two alternatives provided for in the section contemplate two different circumstances. if, according to him, the whole gamut of the procedure preceding the commitment has been gone through the Sessions Judge may direct a commitment Straightway. If the whole gamut of the procedure has not been gone through by the learned Magistrate, the only order, if the revisional application is intended to be allowed, is to make an order for fresh enquiry. The fresh enquiry, in the circumstances, will be limited to going through that portion of the procedure in Chap XVIII of the Criminal P.C. which was not gone through and which is required to be gone through before an order for commitment can be made. If the enquiring Magistrate is required to make an order for commitment straightway in oases where the entire procedure had not been gone through, the accused is deprived of a chance of discharge under Section 213(3) of the Criminal P.C. If, again, the discretion of the learned Magistrate under Section 213(2) of the Code is to be treated as left open in the face of the order for commitment, made by the Sessions Judge under Section 487 of the Criminal P.C., that may render the learned Judge's order nugatory. In the face of this conflicting situation, the interpretation of Section 437 of the Criminal P.C. as made by Mr. Mukherjee, leads, in my view, to a harmonious construction both of Section 487 as well as of the provision in Chap. XVIII of the Code. In my view, an order for commitment can be made under Section 437 of the Criminal P.C. only in cases where the entire procedure up to Section 213 of the Code has been gone through. If, however, the order of discharge is made at any previous stage of the proceeding, that is, under Section 209 of the Criminal P.C. in the case of an enquiry started otherwise than under a police report, the proper order to be made under Section 437 of the Criminal P.C. would be an order for fresh enquiry. In this view of the matter, the proper order for the learned Sessions Judge to have made in this case was for a fresh enquiry under Section 437 of the Criminal P.C.