RAMA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The short question in this case is whether a Magistrate, after diking cognizance of an offence, which is exclusively triable by a Court of Session, is competent to pass an order in terms of section 321 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') discharging one or more of the accused persons.

(2.) The relevant facts are that amongst others the petitioners are two of the accused in Kurnani P. S. Case. No. 10(12) 75 under section 393 of the Indian Penal Code. The first information report in the case was lodged on the 28th December, 1973. Amongst others, the two petitioners were also named as accused in it. The police after investigation submitted charge-sheet on the 20th September, 1976 recommending prosecution for offence under section 395 of the Indian Penal Code. On receipt of the charge-sheet, the learned Subdivlsional Judicial Magistrate, Muzaffarpur West, took cognizance of an offence under section 395 of the Indian Penal Code on 15.11.1976. Before, however, any order committing the case to the Court of Session was passed, an application was filed on 20.11.1977 by the Assistant Public Prosecutor requesting the learned Sub-divisional Judicial Magistrate to accord permission to withdraw from prosecution two of the accused persons, namely, the two petitioners in this case. The learned Sub-divisional Judicial Magistrate by his impugned order dated 15.12.1977 has refused to entertain that application on the ground that he was not competent to take such a petition into consideration. The petitioners being aggrieved by the said order have moved this Court.

(3.) Learned Counsel appearing on behalf of the petitioners has contended that in terms of section 321 of the Code, the Court below was fully competent to entertain such an application and pass the necessary orders thereon. According to learned Counsel, the learned Sub-divisional Judicial Magistrate being still in seisin of the case against the petitioners was the only competent authority at that time to pass an order under section 321 of the Code. He has, therefore, submitted that the learned Magistrate had erred in thinking that he was not competent to entertain an application under section. 321 of the Code.