IMPORTANT POINT
It is for the Sessions Judge to consider after hearing the public prosecutor, as contemplated in Section 226 of the Code, whether or not there is sufficient ground for proceeding against the accused and then pass order under Section 227 discharging the accused or framing the charge against the accused as envisaged in Section 228 of the Code. The Sessions Judge, while considering the question of framing the charge against or discharging the accused under Section 227, has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused.

JUDGMENT

J.D. jain, J.-The facts giving rise to the above mentioned revision petitions succinctly are that four persons Maj. Gen. (Retd.) F .D. Larkins (petitioner in Cr. R. 78/84), his brother Air Vice-Marshal (Retd.) K. H. Larkins, Lt. Col. (Retd.) Jasbir Singh (petitioner in Cr. Revision No. 90/84) and Jaspal Singh Gill alias Jassi Gill have been committed by additional Chief Metropolitan Magistrate, New Delhi, vide order dated 16th April, 1984 to stand trial on charges under Sections 3, 5, 6 and 9 of the Official Secrets Act, 1923 (for short the Act) read with Section 120-B of the Indian Penal Code, on the ground that the offences are exclusively triable by the Court of Session. Earlier cognizance was taken by the learned Additional Chief Metropolitan Magistrate on 4th February 1984 on a charge-sheet being presented by the police who had investigated into the case and the complaint instituted by the Deputy Commissioner of Police. Special Branch, Delhi, which was attached to the police report. The petitioners have called in question the legality and validity of the cognizance of the offences taken by the learned Additional Chief Metropolitan Magistrate as also the order of commitment, mentioned above, on various grounds.

2. On the basis of a complaint lodged by Air Vice Marshal S Raghavendran, Air Headquarters, New Delhi, on 9th November 1983 alleging that Air Vice Marshal (Retd.) K. H. Larkins had committed an offence of espionage during the period 21st March 1983 to 5th April 1983, a case under Sections 3, 5 and 9 of the Act was registered at Police Station Tughlak Road on 10th November 1983. The investigation of the case was conducted by Shri R. S. Khurana, Inspector, Special Staff, under the supervision of the Deputy Commissioner of Police Special Branch-II, New Delhi. On completion of Investigation, a police report under Section 173 of the Code of Criminal Procedure (for short the Code) which was accompanied by a complaint signed by the Deputy Commissioner of Police, Special Branch, Delhi, was filed in court and cognizance of the offence was taken by the learned Additional Chief Metropolitan Magistrate who made the following order:

"This challan under Sections 3, 5, 6 and 8 of the O.S. Act and Section 120-B Indian Penal Code has been presented today. Heard, Perused the record. Take cognizance of the offence. The case be registered.

The accused are stated to be in judicial custody upto 6th February 1984. Put `up on 6th February 1984 for appearance of the accused and for supplying copies to them."

3. Consequently, as stated above, the accused were committed to the Court of Session for trial vide order dated 16th April, 1984.

4. The learned counsel for the petitioners have assailed both the aforesaid orders on the following grounds:

(1) The case is not exclusively triable by the Court of Session in view of the provisions contained in sub-sections (1) and (2) of Section 13 of the Act.

(2) The court could not take cognizance of the offences under the Act except on complaint made by the appropriate Govt. or under the authority from the appropriate Govt. as envisaged in subsection (3) of Section 13. So, the filing of the police report and the cognizance taken on its basis is bad in law.

(3) Cognizance ought to have been taken on the complaint, if any, made by the Deputy Commissioner of Police in accordance with the provisions contained in Section 200 of the Code, but that has not been done.

(4) The court ought to have examined all the prosecution witnesses if the Court had found the case to be exclusively triable by the Court of Session, as contemplated by the proviso to sub-section (2) of Section 202 of the Code but commitment was made without complying with the said provision of law and as such it is liable to be quashed.

GROUND NO. 1:

`5. Sub. sections (0 and (2) of Section 13 of the Act on which reliance is placed read as under:

(1) No Court other than that of a Magistrate of the first class specially empowered