TIRBENI KAHAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Mahanth Kapildeo Ramji of Rajikpore was killed in his Math Mahalla Alamganj of Patna town on 4-8-1958, at about 8 P. M Injuries were caused to him by a fire-arm and also by sharp cutting weapons, A girl named Shanti (P. W. 4), aged about 8 years, was there when the assailants came, and she claims to have identified Hira Gosain as one of the assailants. At a short distance from the actual place of occurrence, Hira Gosain and petitioner Tirbeni Kahar were arrested and assaulted. A commitment enquiry was held against both of them together, and both have been committed for trial to the court of session. The petitioner has filed this application for quashing the commitment against him on the ground that there is no evidence whatsoever to support it.

(2.) A point, which has been raised on behalf of the State, is that the High Court has no power to quash any commitment made in a case started On the basis of a police report. It has been pointed out that before the Criminal Procedure Code Amendment Act (Act 26 of 1955) (hereinafter to be referred to as to the Amendment Act) came into force, there was only one procedure for commitment enquiry in all kinds of cases and that, after Section 214 was repealed by Act XII of 1923, the only Section under which commitment could be made was Section 213. Section 207, as modified by the Amendment Act, lays down that the procedure prescribed in the new Section 207A would be followed in a proceeding instituted on a police report whereas the procedure provided in the other sections of Chapter XVIII would be followed in any other proceeding. As a consequence of this change, commitment in a case arising on a police report is now made under Sub-section 10 of Section 207A and commitment in any other case continues to be made, under Section 213. Section 215 reads: "215. A commitment once made under Section 213 by a competent Magistrate or by a Civil or Revenue Court under Section 478, can be quashed by the High Court only, and only on a point of law."

(3.) The argument on behalf of the State is that as the commitment in the present case has been made under Section 207A and as Section 215 docs not provide for the quashing of a commitment made under that section, the High Court has no power to quash this commitment. In my opinion, a lacuna has been clearly left due to oversight. While modifying Section 207 and introducing Section 207A under the Amendment Act. The Legislature should have made some provision similar to Section 215 for the quashing of a commitment made under Section 207A or should have made art appropriate modification in Section 215 itself. This is a matter which requires the attention of the Government of India in the department concerned.