STATE Vs. DILIP KUMAR DAS AND ANOTHER

JUDGEMENT

(1.) This is a reference made by the learned Chief Metropolitan Magistrate, Calcutta under Sec. 395(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). The facts and circumstances leading to the reference are as follows:-

(2.) On a charge sheet submitted by the Officer-in-Charge, Taltola Police Station against two accused persons, namely, Dilip Kumar Das and Manik Lal Das, the learned Chief Metropolitan Magistrate took cognizance of the offences punishable under Sections 120B/420, 420, 467 and 471 of the Indian Penal Code and transferred the case to the Court of the Learned Metropolitan Magistrate, 8th Court, Calcutta for disposal. The transferee Court tendered pardon to the accused No. 2 Manik Lal Das and on acceptance of such tender, sent the case back to the learned Chief Metropolitan Magistrate who took cognizance for examination of the approver as a witness. The learned Chief Metropolitan Magistrate examined him and by his order dated Aug. 29, 1977 committed the case to the Court of City Sessions, Calcutta under Sec. 306(5)(a)(i) of the Code for trial. The learned Sessions Judge, by his order dated Nov. 18, 1977, transferred the case back to the Court of the learned Chief Metropolitan Magistrate under Sec. 228(1)(a) of the Code of Criminal Procedure for trial as the offences involved were not exclusively triable by the Court of Sessions and as according to the learned Judge, the two sections, namely Sections 228(1)(a) and 306(5)(a)(i) of the Code were not inconsistent with each other. He further held that the accused will not be prejudiced in his trial before the learned Chief Metropolitan Magistrate because the pardon was tendered by the learned Metropolitan Magistrate, 8th Court and not by the learned Chief Metropolitan Magistrate. The learned Chief Metropolitan Magistrate, in his turn, observed that in view of the provisions of Sec. 306(5)(a)(i) of the Code he was statutorily obligated to commit the case for trial to the Court of Sessions as he took cognizance, notwithstanding the fact the offences were not triable exclusively by the Court. He has therefore referred the case to this Court for a proper decision on the question as to whether as per the direction of the learned Judge, City Sessions Court it should be tried by the learned Chief Metropolitan Magistrate or by the City Sessions Court.

(3.) The general provision for commitment of a case to the Court of Sessions are to be found in Sec. 209, Chapter XVI of the Code which provides that in a case instituted on a police report or otherwise when the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offences are triable exclusively by the Court of Sessions he shall commit the case to the Court of Sessions after complying with the requirements of the said section. Sec. 226 in Chapter XVIII provides that when the accused appears or is brought before the Court in pursuance such a commitment the Public Prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Under Sec. 227 if, upon consideration of the records of the case by the learned Magistrate under Sec. 209, the learned Judge considers that there is no sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing' If the learned Judge finds sufficient grounds for proceeding against the accused then he has to ascertain under Sec. 228 of the Code as to whether the offences, as disclosed by the materials on record, are exclusively triable by the Court of Sessions. If they are so triable he has to frame a charge under Sec. 228(b) of the Code and proceed with the trial. If however he finds the offences are not exclusively triable by the Court of Sessions he may transfer the case for trial to the Chief Judicial Magistrate.