STATE Vs. BHAGLA AND ANOTHER

JUDGEMENT

(1.) THE prosecution story, on the basis of which the petitioners were sent up for trial, is that Puran was murdered at about 2 PM on May 5, 1967 and the petitioners were named as his murderers Bhagla petitioner is a brother of Puran deceased while Rameshwar petitioner owns land adjoining to the land of Puran deceased. The alleged eye -witnesses are the widow and two minor sons of Paran deceased. Their evidence was recorded by the Judicial Magistrate 1st Class, Karnal, and since they did not support, the prosecution story and stated that they were not on the spot when Puran was murdered, but were in the village, the petitioners were discharged by the learned Judicial Magistrate by order dated January 29, 1968. Against that order the State filed a revision petition, which was accepted by the learned Chief Judicial Magistrate and the case was sent back to the learned Judicial Magistrate for holding commitment proceedings in accordance with law after taking into consideration the extra -judicial Confession made by the petitioners as well. After remand the learned Judicial Magistrate 1st Class, Karnal, committed the petitioners to the Court of Session after framing charges under Sections 302/34 and 302 of the Indian Penal Code for intentionally causing the death of Puran. This order was passed after examining five more witnesses. The order of commitment shows that the learned Judicial Magistrate did not appreciate the evidence nor expressed his opinion in any manner that a prima facie case had been established against the petitioners which required commitment to the Court of Session for trial. The order of commitment was passed on November 12, 1970, and the learned Sessions Judge, Karnal took cognizance of the same on December 11, 1970, and directed that the petitioners should be summoned for December 16, 1970, since they were on bail. On that day the learned counsel for the petitioners requested for a short adjournment to enable him to file an application for quashing the charge. The case was consequently adjourned to December 18, 1970. On that date an application under Sections 435/438 of the Code of Criminal Procedure was filed with the prayer that the case should be recommended to this Court for quashing of the charge and the commitment order against the petitioners. A copy of this application was delivered to the learned Public Prosecutor and the case was adjourned to the next day for arguments. After hearing the arguments the learned Sessions Judge held that there was no evidence before the learned Judicial Magistrate justifying the committal of the petitioners to the Court of Session for trial. He accordingly sent the papers of the case to this Court with the recommendation that the charge framed against the petitioners and the order of commitment should be quashed.

(2.) THE first question that arises for determination in this case is whether the learned Sessions Judge had the jurisdiction to entertain the application under Sections 435/438 of the Code of Criminal Procedure for the quashing of the charge and order of commitment. The Code of Criminal Procedure, 1898, was extensively amended by the Criminal Procedure Code (Amendment) Act 26 of 1955 and one of the amendments made was that Section 207 -A was inserted in Chapter XVIII of the Code relating to the procedure for inquiry into cases triable by Court of Session or High Court. Previous to the amendment, the procedure was prescribed under Sections 207 to 213 for every case, whether instituted on a police report or otherwise. By the Amendment Act, 1955, Section 207 A was added, which prescribes the procedure for commitment in relation to the cases instituted on a police report while Sections 208 to 213 prescribe the procedure for commitment in cases, cognizance of which is taken by the learned Magistrate otherwise than on a police report, that is, on the basis of a private complaint. Under the unamended Code, the order of commitment had to be passed under Section 213, whether the case had been taken cognizance of on the basis of the police report or otherwise Section 215 of the Code, which has remained unamended, reads as under:

(3.) IN this situation the question arises whether at this stage I should exercise the powers of this Court under Section 215 of the Code. That power is in the nature of inherent powers of this Court and can be exercised only on a point of law. There is no time limit prescribed for the exercise of this power. The occurrence took place more than five years ago. I have gone through the record to find whether the order of commitment can be sustained on the ground that there is evidence to connect the petitioners with the crime. As I have said above the learned Magistrate has not expressed any opinion whatsoever nor has considered the evidence of any witness recorded in the case. He has merely narrated the course of proceedings before his predecessors and himself and in the last paragraph of his judgment he has mentioned about the charged framed and then has passed the order committing the petitioners to the Court of Session. The learned Magistrate evidently forgot that the committing Court has not to act merely as a Post Office but has to apply its mind to consider if, on its own findings, at least a prima facie case is made out against the accused, liable to be committed to the Court of Session. Without applying his mind the committing Magistrate cannot commit the accused to the Court of Session for trial, merely because a case, triable by the Court of Session, has been instituted for inquiry in this Court. Exercise of a judicial mind by the Committing Court is absolutely necessary in order to avoid the waste of time of the Court of Session and the expense of prosecuting the case by the State and of defending himself by the accused, and the harassment that is caused to the accused person for standing a futile trial.