MUKAT BEHARI LAL Vs. EMPEROR

JUDGEMENT

(1.) A complaint wag lodged against the applicant by Gaya Prasad under Section 466, Indian Penal Code alleging that the applicant who is a patwari had committed a forgery in his roznamcha on 19 September 1942. The com-plaint was lodged on 13 December 1948. The trial Court proceeded with the trial of the case as a warrant case and examined the prosecution witnesses and then framed a charge against the applicant under Section 465, Indian Penal Code on the 27 September 1946. He fixed a date for the further cross-examination of the prosecution witnesses on behalf of the defence. In the mean-while an application was made to the Sessions Judge in revision on behalf of the complainant and on 18 March 1947, the learned Sessions Judge acting under Section 437, Criminal P.C. directed that the case be committed to the Court of Session for trial under Section 466, Indian Penal Code. The applicant came up to the High Court in revision against this order of the learned Sessions Judge and the application was rejected by the High Court on 16th April 1947. After that an application was made on behalf of the applicant before the learned Magistrate for permission to cross-examine the prosecution witnesses and to summon defence witnesses. This application was rejected by the learned Magistrate on 12 May 1947, on the ground that in view of the order of the learned Sessions Judge directing him to frame a charge, against the applicant under Section 466, Indian Penal Code and to commit him to I the Court of Session, he had no option but to I frame a charge against him and to commit him to the Court of Session without taking any further proceedings. He accordingly refused to permit the applicant to cross-examine the prosecution witnesses or to produce his defence in his Court. The applicant went up in revision to the learned Sessions Judge from this order of the learned Magistrate and the learned Sessions Judge, on 4 August, 1947, rejected that application. He has now come up to this Court in revision.

(2.) The contention of learned Counsel for the applicant is that in view of the provisions contained in Chapter 18, Criminal P.C. particularly those contained in Section 208 of the Code, it is incumbent upon the Magistrate before committing the applicant for trial to the Court of Session to a flow him to cross-examine the prosecution witnesses and to produce evidence in his defence.

(3.) The power given to the Sessions Judge or the District Magistrate under Section 437 of the Code to direct that an accused person who has been improperly discharged by an inferior Court be committed to the Court of Session for trial is, in our opinion, independent of the provisions of Chapter 18, of the Code. Section 437, gives power to the Sessions Judge or the District Magistrate acting under that section to direct that an accused person who has been improperly discharged be committed to the Court of Session without a fresh inquiry into the matter. When an order that the applicant be committed to the Court of Session after framing a charge against him under Section 466, Indian Penal Code has been passed by this Sessions Judge the learned Magistrate had no power to proceed in accordance with the provisions of Chapter 18, of the Code. Our attention has been drawn to the case in Nasimullah V/s. Emperor 28 A.I.R. 1941 Oudh. 409 in which it was said that Section 437 of the Code did not justify an order directing the commitment of an accused person in a case which was in the middle of its hearing, but in the present case we are not concerned with the propriety or otherwise of the order passed by the learned Sessions Judge directing the commitment of the applicant to the Court of Session under Section 466, Indian Penal Code. The order passed by the learned Sessions Judge has become final, the application in revision which was presented to the High Court against that order having been rejected on 16 April 1947. There is no force in this application which is accordingly dismissed.