The power of commitment under Section 437 of the Code of Criminal Procedure can be exercised even in the absence of an express order of discharge by a Magistrate, provided that the Magistrate has impliedly discharged the accused by refusing to commit him for trial by a Court of Session and proceeding to try the accused for a lesser offence.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 437 - COMMITMENT OF CASE TO COURT OF SESSION - POWER OF SESSIONS JUDGE - SCOPE AND EXTENT - EXPRESS ORDER OF DISCHARGE NOT NECESSARY - IMPLIED DISCHARGE SUFFICIENT - JURISDICTION OF SESSIONS JUDGE TO ORDER COMMITMENT DURING PENDENCY OF TRIAL BEFORE MAGISTRATE - DISCRETION OF REVISING AUTHORITY TO BE EXERCISED JUDICIALLY - FACTORS TO BE CONSIDERED - INTERVENTION OF REVISING AUTHORITY AT BELATED STAGE - PROPRIETY - PRIVATE PARTY HAS NO LOCUS STANDI IN A CASE PROCEEDING ON A POLICE REPORT - CRIMINAL LAW NOT TO BE USED AS AN INSTRUMENT OF PRIVATE VENGEANCE.
Fact of the Case:

Four informations were lodged at the police station Ghora Saha on April 14, 1960 by different persons against the different appellants in these cases and a similar information was lodged against some of the appellants by one Mali Ram. In all these cases the allegations made by the informants were that each set of the accused persons armed with deadly weapons went to the shops of the various informants, demanded from them large sums of money and threatened them with death if they failed to pay the amounts demanded by them. The informations also stated that some of these persons paid part of the money and were given time to pay the balance while some agreed to pay the amounts demanded.
Finding of the Court:

The Sessions Judge had jurisdiction to make an order directing the Magistrate to commit the case for trial by a Court of Session. However, the discretion given to the revising authority under Section 437 of the Code of Criminal Procedure should be exercised judicially. In the present case, the intervention of the revising authority was sought by the prosecution at a belated stage, after the defence had been closed and arguments heard. Moreover, it was not the prosecution but a private party who invoked the jurisdiction of the Sessions Judge. Considering these factors, the Court held that it was injudicious for the Sessions Judge to order the commitment of the appellants.
Issues: 1. Whether an express order of discharge by a Magistrate is necessary for the exercise of the power of commitment under Section 437 of the Code of Criminal Procedure? 2. Whether a Sessions Judge can order commitment during the pendency of a trial before a Magistrate? 3. What factors should be considered by the revising authority in exercising its discretion under Section 437 of the Code of Criminal Procedure? 4. Whether a private party has locus standi in a case proceeding on a police report?
Ratio Decidendi: 1. An express order of discharge by a Magistrate is not necessary for the exercise of the power of commitment under Section 437 of the Code of Criminal Procedure. An implied discharge, such as when a Magistrate refuses to commit an accused person for trial by a Court of Session and proceeds to try the accused for a lesser offence, is sufficient. 2. A Sessions Judge can order commitment during the pendency of a trial before a Magistrate, provided that the power is exercised judicially and before the Magistrate has signed the judgment. 3. Factors to be considered by the revising authority in exercising its discretion under Section 437 of the Code of Criminal Procedure include the stage of the trial, the reasons for the Magistrate's refusal to commit, and the interests of justice. 4. A private party has no locus standi in a case proceeding on a police report.
Final Decision: The appeals were allowed, the orders of the Sessions Judge as affirmed by the High Court were quashed, and the trials of each of the appellants were directed to proceed before the Magistrate according to law from the stages at which they were on the date on which the stay order became operative.

Judgement

MUDHOLKAR, J. : This judgment will also govern Crl. As. No. 166 of 1962, 167 of 1962 and 168 of 1962. A common question arises in these appeals from a judgment of the Patna High Court dismissing four revision applications preferred before it by four revision applications preferred before it by four sets of appellants in the appeals before us. Counsel on both the sides agree that since the relevant facts of all the proceedings are similar and the question of law arising from them is the same it will be sufficient to refer to the facts of Case No. TR 320/60.

2. Four informations were lodged at the police station Ghora Saha on April 14, 1960 by different persons against the different appellants in these cases and a similar information was lodged against some of the appellants by one Mali Ram. In all these cases the allegations made by the informants were that each set of the accused persons armed with deadly weapons went to the shops of the various informants, demanded from them large sums of money and threatened them with death if they failed to pay the amounts demanded by them. The informations also stated that some of these persons paid part of the money and were given time to pay the balance while some agreed to pay the amounts demanded. Upon informations given by these persons offences under S. 392, Indian Penal Code, were registered by the station officer and after investigation five challans were lodged by him in the Court of Magistrate, First Class at Motihari. One of the cases ended in an acquittal but we have not been informed of the date of the judgment in that case. In the other four cases trial had come to a close in that all the prosecution witnesses and the defence witnesses had been examined and the cases had been closed for judgment.

3. In the case against the appellants in Crl. A. No. 165 of 1962 the challan was presented on October 27, 1960. The order sheet of that date reads as follows :

S. No. "Date of order or proceeding Order with the signature of the Court Office action taken with date

1. 27-10-1960 All the 4 accused are present. Heard both sides. It is argued on behalf of the prosecution that it is fit case for adopting procedure under Chapter XVIII, Cr. P. C. and also that the entire occurrence relates to offences committed on 4 dates so that all of them cannot be dealt with in a single case. Discussed law point.

Charge u/s 302, I. P. C. framed against accused Thakur Ram and Jagarnath Pd. And explained to them. They plead not guilty This case will constitute an independent case. As for the other parts of the alleged occurrence accused Jagarnath, Kamal Ram and Bansi Ram are charged separately u/s. 384 I. P. C. and further accused Thakur Ram u/s 384/109. I. P. C. and explained to the respective accused. They plead not guilty. These charges relating to three incidents on 3 dates will constitute a separate single case.

Start separate order sheet for both. Summons P. W. for 26-10-60 and 27-11-60.

Accused as before.

(Sd.)/- O. NATH".

4. The trial dragged on for nearly 15 months and then the prosecution made an application to the Court for framing a charge under S. 386 or S. 387, Indian Penal Code and for committing the case to a Court of Sessions. This was disposed of by the learned Magistrate on January 25, 1962. The relevant portion of his order sheet of that date reads thus :

"Accused absent. A petition for their representation u/s 540-A, Cr. P. C. is filed. Allowed. No reference book is produced. Perused the record. The prosecution has pressed to refer the case to the Court of Sessions u/s 386 or 387, I. P. C. On close scrutiny. I find that the robbery defined inside 390, I. P. C. fully cover the ingredients pointed out and asked by the prosecution side. The case has entered in the defence stage. This point was not introduced ever before. The charge was framed u/s 392, I. P. C. after hearing the parties. Although it may be referred to the superior Court at any stage, I find no reason to do so.

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1965 Supreme(SC) 322

Cases Referred (1)