SUCHIT SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application in revision is directed against an order, dated 3-7-1972 converting the trial into a committal enquiry.

(2.) First Information Report was lodged at the Jehanabad police station on 22-2-1968 by Ram Wakil Singh (P.W. 6). The police after completing investigation submitted charge-sheet against the 11 petitioners under Sections 147, 148, 323, 324 and 326 of the Indian Penal Code, 1860. On receipt of the charge-sheet the Subdivisional Magistrate took cognizance on 13-4-1968 and transferred the case to the file of Sri K. N. Jaiswal, Magistrate 1st class for disposal. The order, dated 31-10-1968 shows that copies of relevant police papers specified in Sub-section (4) of Section 173 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code') were supplied to the accused persons. The 26th of November, 1968 was fixed for framing charge against the accused persons. For some reason or other the case was adjourned from one date to another till 26-6-69 when charges under Sections 147, 148, 323, 324 and 326 of the Indian Penal Code, 1860 were framed against the accused persons. Accused persons pleaded not guilty. Prosecution witnesses were summoned. On 24-6-69 the case was transferred to the file of Sri Murli Manohar Prasad Sinha, Magistrate 1st Class for disposal. Basanti Devi (P.W. 1) was examined, cross-examined and discharged on 10-9-69. Arkali Devi (P.W. 2) was examined, cross-examined and discharged on 19-1-70. Dr. K. Rama (P.W. 3) and Sri Ram Upadhya (P.W. 4) were examined, cross-examined and discharged on 22-7-1970. Harnandan Singh (P.W. 5) (wrongly mentioned in the deposition as P.W. 4) was examined, cross-examined and discharged on 21-9-1971. Uttam Kumar Singh (P.W. 5) was examined, cross-examined and discharged on 2-4-1971, Thereafter the case was transferred to the file of Sri S. C. Sinha, Magistrate 1st Class. On a petition filed by the prosecution that the trial should be converted into a committal enquiry on the ground of seriousness of the offence, the learned Magistrate Sri S. C. Sinha passed the impugned order for conversion of the trial into a committal proceeding. The relevant portion of the impugned order runs thus:

(3.) Under the old Code offences under Sections 147 and 323 of the Indian Penal Code are triable by any Magistrate and offences under Sections 148, 324 and 326 are triable by court of session or Magistrate of the first class. Mr. Thakur Prasad, learned Counsel for the petitioners has urged that the Magistrate had jurisdiction to try the offences and as he has not said that he cannot impose adequate sentence on the accused persons in case of their conviction, his order converting the trial into a commitment enquiry is bad. In support of his contention Mr. Thakur Prasad has relied upon a Bench decision of the Calcutta High Court in Queen-Empress v. Kayemullah Mandal (1897) ILR 24 Cal 429 in which it had been held that if the Magistrate finds that the accused had committed an offence, which in his opinion, could not be adequately punished by him, there would seem to be nothing to prevent his committing the case to the court of Session. This decision was followed in Emperor v. Deo Narain Mullick AIR 1928 Pat 551 : 29 Cri LJ 612, which has also been relied upon by Mr. Thakur Prasad. In that case Jwala Prasad, J., observed: The offence in this case is not exclusively triable by the Court of Session. Therefore the Magistrate could only commit the accused to the Court of Session if he had been of opinoin that the case ought to be tried by that Court, He must give reasons for his entertaining that opinion, for the order of commitment is judicial order.