EMPEROR Vs. RAMCHANDRA BABAJI GORE

JUDGEMENT

(1.) This is an application in revision which comes before the Court in the following circumstances. The present applicant was charged jointly with accused No. 2, who was his first wife and who has recently died, with the murder of a woman called Tulsa, who was the second wife of the applicant, accused No. 1, so that the charge was under, Section 302 of the Indian Penal Code. The matter was inquired into by the City Magistrate, First Class, Ahmednagar, who discharged the accused. Against that order of discharge, the complainant, who was the uncle of the deceased woman, applied in revision to the Sessions Judge of Ahmednagar, and the Sessions Judge set aside the order of discharge and directed the accused to be tried in the Sessions Court. From that order this application is made.

(2.) On the application for a rule, it appeared to the bench which heard the application that, whether or not the order of the Sessions Judge was right on the merits, the order was contrary to the ruling of this Court in Parasharam Bhika V/s. Emperor (1932) I.L.R. 57 Bom. 430 and as the bench felt some doubt as to whether the ruling in that case was correct, the rule was made returnable before a full bench.

(3.) This being a charge under Section 302 of the Indian Penal Code, the case is one exclusively triable by a Court of Session, and therefore the inquiry before the Magistrate had to be conducted under Section 206 and the sections following in Chapter XVIII of the Criminal Procedure Code. Section 208 provides that in such a case the Magistrate shall hear the complainant and take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate. Then Section 209 provides that when the evidence referred to in Section 208 has been taken and he has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, the Magistrate shall, if he finds that there are not sufficient grounds for committing the accused for trial, record his reasons and discharge him. That was the section under which the Magistrate discharged the accused in this case. Then Section 436 enables the Sessions Judge to direct further inquiry to be made in a complaint which has been dismissed under Section 203 or Section 204, or in the case of any person accused of an offence who has been discharged. So that that section covers the discharge of an accused person in respect of an offence not exclusively triable by a Court of Session. Then Section 437 deals with the discharge of an accused exclusively triable by the Court of Session, and under that section the Sessions Judge or District Magistrate, if he considers that an accused person has been improperly discharged by the inquiring Court, may cause him to be arrested, and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial upon the matter of which he has been in the opinion of the Sessions Judge improperly discharged.