NOHAR CHAND Vs. ISHWAR SINGH

JUDGEMENT

(1.) THE revision-petitioner filed a criminal complaint against the accused-respondents for offences disclosed therein. Preliminary evidence was recorded on different dates by the learned Judicial Magistrate 1st Class, Dabwali, vide his order dated 5-3-1976, he ordered summoning of the accused. The occurrence involved therein had connection with a police challan which was in the nature of a cross case. The police had submitted a police report before the said Judicial Magistrate. On 20-11-1976 the complainant orally requested the Court, which he reiterated by a written application on the same day, that the coin plaint be committed to the Court of Session in the view that the cross case on the basis of the police report had bean committed to the Court. The learned Magistrate, vide his order dated 7-2-1977, committed the complaint case to the Court of Session agreeing with the complainant so as to avoid conflicting decisions in the cases. However, the learned Additional Sessions Judge, Sirsa came to the opinion in the challan case that there was ground for presuming that the offence committed by the accused in that case was not exclusively triable by the Court of Session. Consequently, he framed charges against those accused and by order transferred the case far trial to the Chief Judicial Magistrate under Section 228 of the Code of Criminal Procedure. Similarly vide his order dated 19-8-1978 he framed charges in the complaint case also against the aaccused purporting to exercise powers under Section 228 of the Code of Criminal Procedure and sent that case also to the Chief Judicial Magistrate for trial. He did so unifor-mally because the complaint case had been committed to the Court of Session since the cross case had been so committed there. The learned Chief Judicial Magistrate examined evidence of the complainant on different dates. Thereafter the complainant closed his evidence for purposes of charge on 12-101979. The case was adjourned to 17-10-79 for arguments on the point of charge and then again to different dates for purpose when on 2710-1979, the complaint was dismissed and the accused were discharged. The complainant has approached this Court claiming that the Court could not discharge the accused as charge had been framed by the Court of Session, and it could at best acquit the accused after following proper procedure of trial.

(2.) BEFORE appreciating the contention rated by the learned Counsel for the petitioners, let Sees. 209, 228 (relevant portion only) and 323 of the Code of Criminal Procedure be noted side by side: 209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall

(3.) A comparative reading of Section 209 and Section 323 of the said Code makes dt clear that those cover up two different [situations. Under Section 209, when at She stage of the appearance of the ackused, in a case instituted on a police report or otherwise, it becomes apparent to a Magistrate that the offence is triable exclusively by the Court of Session, he is required to commit the case to that Court. On the other hand, under Section 323 of the Code while enquiring into an offence or conducting a trial, it appears to a Magistrate at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained. So the order of committal again has to carry along therewith particulars and processes'of the kind contemplated in Section 209. Yet, the two instances of committal remain distinct. Whereas under Section 209, of the Code, a case disclosing an offence exclusively triable by a Court of Session is to be committed to that Court, under Section 323 if the inquiry being conducted or the trial being held, by a Magistrate discloses an offence not exclusively triable by a Court of Session but which ought otherwise in his opinion to be tried by that Court for reasons recorded by him, he can commit the case to that Court. In the instant case, the reason assigned by the Magistrate to send the complaint case to the Court of Session was that the cross case on the basis of the police report had been committed to the Court' of Session. (That case had been committed in exercise of the powers contained in Section 209, Criminal Procedure Code ). Since an inquiry was being conducted in the complaint or trial, held, as the case may be, exercising powers under Section 323, Criminal Procedure Code, he committed the complaint case to the Court of Session.