SURJA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a complainant's revision against the order of the learned Sessions Judge, Churu, dated 20. 9. 83 by which he framed charges u/ss 147, 148, 447, 323 and 325 read with 149 I. P. C. against the non-petitioners and sent the case back to the learned Chief Judl. Magistrate for trial. The objection of the complainant is that this case need not have been sent back by the learned Sessions Judge to the learned Chief Judl. Magistrate but should have been tried by him as the learned Magistrate had committed this case to him u/s 323 Cr. P. C. , although it may not have been exclusively triable by a Court of Sessions. The ground on which the learned Sessions Judge refused to retain the case on his file and sent it back to the Chief Judl. Magistrate was that u/s 228, the Court of Sessions can try only those cases which are exclusively triable by that court. He was further of the view that before the coming into force of the amended Criminal Procedure Code of 1973, this may not have been the position but now section 228 Cr. P. C. clearly lays down that Court of Sessions shall proceed with the trial only if the case is exclusively triable by it. The Court has not disagreed with the learned Magistrate on the finding that the case was one which ought to be tried by the Court of Sessions since the cross case arising out of the same incident had been committed to it and was exclusively triable by it.

(2.) I have heard the learned counsel for the parties and the learned p. p.

(3.) LOOKING to this situation, the only harmonious interpretation given to section 228 in the light of section 323 Cr. P. C. would be that if a Magistrate finds it necessary to commit a case not exclusively triable by the Court of Sessi-ons but which ought to be tried by the Court of Sessions and the Sessions Judge also agrees with that view, the Sessions Judge will have power to try that case and he would not be bound to send it back to the Chief judicial magistrate In this connection, the view taken by the different High Courts in Girijananda v State of Assam (1), State v. Soagenskhara Kurup (2) and State of M. P. vs. Madho Ram (3) appears to be relevant.