STATE Vs. BENI ISRAIL & ANR.

JUDGEMENT

(1.) This matter arises out of the reference made by Sri P.K. Acharyya, Sessions Judge, Birbhum. It appears that a sessions case No. 154/1975 was allotted to the 2nd Addl. Sessions Judge of Birbhum u/s 504/307 I.P.C. On perusal of the case diary the Ld. Addl. Sessions Judge was satisfied that no attempt was made by the accused person with the intention of causing death and he held that the ingredients required for framing of a charge u/s. 307 I.P.C., was wanting in the case and there was prima facie evidence for framing charge u/s. 504, 506, 324 and 511 I.P.C. But the offences under those sections are not exclusively triable by the Court of Sessions. Accordingly the Ld. 2nd Addl. Sessions Judge by his order No. 10 dated 11.8.76 passed in the said sessions Case No. 154/1975, transferred the case to the Court of the Ld. Chief Judicial Magistrate, Birbhum for framing appropriate charge and for trial. The Ld. Chief Judicial Magistrate in his turn by the order dated 13.8.76 transferred the case to the file of the Sub-divisional Judicial Magistrate, Birbhum for trial. The Ld, S.D.J.M., Birbhum by the order dated 20.9.76, sent the records of the G.R. case to the Ld. Sessions Judge, Birbhum for withdrawing the case from his file as according to him u/s 228(1) of the Cr. P.C., the case is to be tried by the Chief Judicial Magistrate. The Sessions Judge, Birbhum has made a reference to this Court by his letter dated 26.10.76. He has expressed his opinion that the case should be tried by the Chief Judicial Magistrate himself.

(2.) We have considered the legal position and we hold that in this p icular instance the sending back of the case to the C.J.M., by the Ld. Sessions Judge was illegal and without jurisdiction.

(3.) The referring back of a case to the Chief Judicial Magistrate by the Sessions Judge is a new and special provision of the New Code and unless she requisite formalities prescribed in Sec. 228 Crimial P.C. are complied with and the condition precedent to the exercise of the power under the section is fulfilled, the act of sending back as given in the section can hardly be permitted to be done. In the case of Nazir Ahmed Vs. King Emperor, (63 Indian Appeals 372 : 40 CWN 1221) it is laid down that where power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.