PUNA LAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) The prayer in this application under section 482 of the Code of Criminal Procedure is to quash the order dated 6-12-1978 pasted by the Subdivisional Judicial Magistrate, Jehanabad, in Karpi P. S. Case No. 7 (3)-78 wherein he held that this case had to be committed to the court of session being a counter case to Karpi P. S. Case No. 6 (3)-78 which had already been committed to the court of session.

(2.) The Karpi Police station registered Karpi P. S. Case No. 6 (3)-78 for offence under sections 147, 148, 149, 326, 307, 325 and 323 of the Indian Penal Code. Another case being Karpi P. S. Case No. 7 (3)-78 was also registered by the Police for offences under sections 147, 148, 149, 326, 325 and 323 of the Indian Penal Code and section 27 of the Arms Act. The police after completion of investigation submitted charge-sheet in both the cases. It appears that the case arising out of Karpi P. S. Case No. 6 (3)-78 has been committed to the court of session under section 209 of the Code of Criminal Procedure as the offence under section 307 of the Indian Penal Code was exclusively triable by the court of session. It also appears that there was some controversy between the parties as to whether the case arising out of Karpi P. S. Case No. 7 (3)-78 was a counter version of Karpi P. S. Case No. 6 (3)-78. The learned Subdivisional Judicial Magistrate by his order dated 20-11-1978 held that the two cases arose out of the same incident and were counter to each other. Thereafter by the impugned order (order dated 6-12-1978) the learned Subdivisional Judicial Magistrate held that the case arising out of Karpi P. S. Case No. 7 (3)-78 had also to be committed to the court of session under section 323 of the Code of Criminal Procedure to be tried along with the case arising out of Karpi P. S. Case No. 6 (3)-78.

(3.) Mr. Nagendra Kumar Roy, learned counsel for the petitioner strenuously attached the impugned order and urged that the court below had absolutely no jurisdiction to commit a case to the Court of Session which was not exclusively triable by the court of session, According to learned counsel, the petitioner is an accused of offences under sections 147, 148, 149, 326 and 323 of the Indian Penal Code and section 27 of the Indian Arms Act and neither of these offences are triable exclusively by the court of session. His argument, therefore, is that the learned Magistrate was wrong in holding that this case also had to be committed to the court of session. He further urged that the stage of passing an order under section 323 of the Code of Criminal Procedure had not arrived. To support his argument, learned counsel referred to the decision in the case of Prayag Mahto v. The State of Bihar, (1978 BBCJ 663). This case fully supports the argument advanced by Mr. Roy wherein it has been inter alias, held tbat merely because a case has been committed to the court of session, the counter case cannot be committed to the court of session. It has also been held that where none of the offences is exclusively triable by the court of session, the case cannot be committed to the court of session by a Magistrate under section 323 of the Code of Criminal Procedure. Mr. Braj Kishore Prasad No. 2 did not challenge this aspect of the argument advanced by Mr. Roy. In fact, he conceded that in case it was held that neither of the offences involved in the case was exclusively triable by the court of session then the case could not be committed to the court of session. According to him, however, the allegations in the case made out an offence under section 307 of the Indian Penal Code which was exclusively triable by the court of session and as such it had to be committed to the court of session under section 209 of the Code of Criminal Procedure. According to Mr. Nagendra Kumar Roy, this could not be done. The police had submitted charge-sheet for offences which were not exclusively triable by the court of session and according to him, the learned Magistrate was bound by that was hot competent to look into anything beyond the charge-sheet. I find it difficult to accept this argument of Mr. Roy. In case this argument is accepted then that will mean that the police is the final judge regarding forum of trial and also the offences for which the accused is to be put on trial. The Supreme Court in the case of Sanjay Gandhi v. Union of India, (AIR 1978 SC 514) had occasion to examine the scope of section 209 of the Code of Criminal Procedure. In that connection, it was observed as follows :-