NAZRUL ALIAS NAZRUL MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE miscellaneous application is directed against the order dated 10.7.2001 of the learned Sessions Judge, Begusarai whereby and whereunder the order dated 16.4.2001 passed by the Judicial Magistrate, 1st Class, Begusarai in G.R. No. 927/94 in exercise of power under section 323 Cr. P.C. transferring the case to the court of Sessions has been set aside on the sole ground that since a private person has no locus standi to raise the issue the order passed by the learned Magistrate cannot be sustained.

(2.) IT appears that earlier on submission of final form cognizance was taken for the offence under section 435 I.P.C. Later after examination of six witnesses a partition u/s 323 Cr. PC. was filed before the learned Judicial Magistrate which was also signed by the Assistant Public Prosecutor for committing the case to the court of Sessions as the offence under section 436 I.P.C. is made out which is triable by the court of Sessions. The learned Magistrate by the order dated 16.4.2001 after considering the facts and circumstances, including the evidence on record prima facie found that the offence alleged comes under section 436 I.P.C. which is triable by the court of Sessions and accordingly, allowed the said petition and committed the case to the court of Sessions for trial. O.P. No. 2 filed a revision against the said order bearing Cr. Rev. No. 171/2001 before the learned Sessions Judge, Begusarai who passed the impugned order setting aside the order passed by the Magistrate on the sole ground that since a private person has no locus standi to raise the issue the order of the Magistrate cannot be sustained.

(3.) LEARNED counsel for the State also submitted that the power under section 323 is wide enough to commit a case to the court of Sessions at any stage of the proceeding before signing the judgment if the Magistrate on consideration finds that the case is one which ought to be tried by the court of Sessions. Learned counsel for the O.Ps. however, submitted that there is no error in the order of the learned Sessions Judge. According to him, the learned Sessions Judge has rightly found that since a private person has no locus standi to raise the issue the learned Magistrate was not legally justified in entertaining the petition filed under section 323 and committing the case to the court of Sessions. In support of this, he placed reliance on the decision of the Apex Court in the case of Thakur Ram & Ors. vs. the State of Bihar, reported in AIR 1966. S.C. 911.