L SHIAM LAL Vs. NAND RAM

JUDGEMENT

(1.) This is an application in revision from an order of the Sessions Judge of Bulandshahr setting aside an order of the District Magistrate under Section 250, Criminal P.C., on the ground that that order had been passed in a case in which the charge was Under Section 307, I. P.C., which was exclusively triable by the Court of Session, and that Section 250, Criminal P.C., was not applicable. The question raised is not without difficulty. Section 250, Criminal P.C., is included in Chap. 20, which deals with the trials of summons cases by Magistrates, but the section itself comes under the heading " Frivolous accusations in summons and warrant cases " and the section itself shows that it applies to all " offences triable by a Magistrate." It is however quite clear, nor is the point contested before me, that the section cannot be applied in cases triable by a Court of Session. What has been argued before me is that the present case was not really a case under Section 307, I. P.C., but one under Section 323 or Section 147, and was triable by a Magistrate and was in fact tried by the Magistrate, and that the proceedings were not merely an enquiry under Chap. 18, Criminal P.C. It will be helpful to set forth exactly what happened. The complaint was made and the complainant's statement was recorded on 4 January 1930. The sections mentioned in it are Section 307 as well as Secs.147 and 323. The Magistrate ordered a copy of the statement to be sent to the police for an enquiry and report before 14 January and on 10 January the report was returned to the effect that the case was one under Section 147, i. e., riot, that the injuries were simple, that no investigation was considered necessary, but that if further time was given a full investigation would be made. On 16 January the Magistrate caused notices to be issued to the accused and to the witnesses for the prosecution without mentioning any section. The complainant made an application for the summoning of witnesses, and again made mention of Secs.307 and 147, and summonses were issued under those sections. Whether the procedure from that stage was under Chap. 18 or Chap. 21, it is really impossible to decide, because there does not appear to be any essential difference in the manner in which the witnesses for the prosecution are to be examined and other proceedings are to be conducted prior to the framing of the charge. No charge was drawn Up, and the order to which exception is now taken was passed when the accused were discharged. It is argued on the one hand that the Magistrate must have been proceeding under Chap. 18 because he issued summonses under Section 307. It is argued on the other hand that ha had accepted the police report, showing that the offence was a trivial one and the injuries simple. He did not issue a nonbailable warrant as he would have done if he had believed that there was a case under Section 307, I. P.C.

(2.) In fact although the summonses were issued as a matter of routine under Section 307, because that section had been made by the complainant, the Magistrate himself never had any idea that it would be necessary to frame a charge under that section, or to commit the case to the Court of Session. He did in fact believe that he was conducting a trial and not an enquiry, and that as a matter of fact what took place was a trial and not an enquiry.

(3.) The Sessions Judge in allowing the appeal against the Magistrate's order has referred to a recent decision of this Court in Hari Har Dat V/s. Maqsud Ali , where Sulaiman, J., held that when a complaint is made to a Magistrate relating to several offences, some of which are exclusively triable by a Court of Session and the Magistrate discharges the accused under Section 209, Criminal P.C., he is not empowered to pass an order for compensation under Section 250 of the Code. In an earlier judgment of this Court in Het Ram V/s. Ganga Sahai [1918] 40 All. 615, Knox, J., held that Section 250, Criminal P. C, is not applicable where the charge which is being enquired into by a Magistrate is one which is exclusively triable by a Court of Session. It will be seen that in one of these cases the Complaint of the complainant has been made the criterion, and in the other the nature of the enquiry. In a later judgment of this Court Pullan, J., declined to set aside an order under Section 250, Criminal P.C., in a case which was nominally one under Secs.463 and 323, I. P.C.; but in which the Sessions Judge held that there might have been a charge under Section 467, I. P.C. Mr. Saila Nath Mukerji for the applicant in the present case has relied especially on the following passage: It was not in my opinion incumbent on the Magistrate to go out of his way to find that a case exclusively triable by a Court of Session might arise from the facts before him if they were proved. He was trying a case apparently within his jurisdiction. He found that there was no case and that it had been brought frivolously and vexatiously. He was therefore entitled to act under Section 250, Criminal P.C.