STATE Vs. KASTU BEHERA

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge of Cuttack for quashing the order of commitment dated 17.9.1974 passed by the learned Sub -divisional Judicial Magistrate, Talcher and for a direction to the learned Magistrate to comply with the requirements of the proviso to Sub -Section (2) of Section 202 of the Code of Criminal Procedure, 1973 ('hereinafter referred to as the "Code").

(2.) ON 18.5.1974, one Sudam Behera filed a complaint before the learned Sub -Divisional Judicial Magistrate at Talcher. The learned Magistrate proceeded to examine the complainant and was satisfied that the allegations revealed a case punishable under Section 436 of the Indian Penal Code which was triable exclusively by the court of session. He directed notice to issue to the accused and required the police to produce the F.I.R. given at the police station. On 17.9.1974, he recorded the following order : -

(3.) UNDER Section 209 of the Code, the procedure for commitment when the offence is triable exclusively by the Court of Session has been provided. No mandate is given to the Magistrate to examine the prosecution witnesses at that stage. In fact, the existing procedure under the old code has been done away with and committal inquiry has now been omitted. Section 209 covers cases instituted on a police report as also otherwise. Therefore it could not have been the intention of Parliament to require the entire prosecution evidence to be examined by the Magistrate in an inquiry under Section 202(1) of the Code, when under Section 209, an order of commitment is required to be made without such evidence being examined. The true purpose of the proviso to Section 202(2) of the Code therefore, seems to be that where the Magistrate directs an inquiry to be made under Sub -Section (1) thereof and in the inquiry it appears to him that the offence complained of is triable exclusively by the Court of Session, he will examine the witnesses for the complainant on oath. Undoubtedly, the language of the proviso creates some amount of difficulty, but keeping the purpose of Section 202 of the Code in view and juxtaposing the provisions contained in this proviso with Section 209 of the Code which deals with commitment, a different view cannot be taken.