IMPORTANT POINT
In a complain for the offence under section 307 Indian Penal Code, Magistrate cannot go deep into the materials/evidence to ascertain or satisfy as to existence of prima facie case for framing charge for that offence. The power is vested in the Sessions Judge.

JUDGMENT

S. Haque, J.- The petitioner was accused of Complaint Case No. 1144 of 1987 under sections 307/324/506 of the Indian Penal Code pending in the Court of the Chief Judicial Magistrate, Imphal. He impugns the order dated 10-12-1987 of the Chief Judicial Magistrate dropping the charge under section 307 and deciding to proceed with the trial for offences under sections 324/506 T.P.C.

2. Heard learned counsel Mr. Kh. Chonjon Singh on behalf of the petitioner. Also heard learned counsel Mr. N.G. Kumar on behalf of the Complainant-Respondent No.1 learned Public Prosecutor Mr. Promode Singh for the State of Manipur.

3. The Chief Judicial Magistrate took cognizance of the offences including one under section 307 of the I.P.C. by his order dated 7-7-1987 on examining the Complainant under section 200 Cr. P.C. and issued the process. On appearance of the accused, the Magistrate released him on bail and proceeded to record evidence for trial. The accused demanded for commitment of the case to the Court of Sessions by application dated 21-11-1987. The Magistrate passed the impugned order as follows:

"Heard the counsels of both sides and they too admit that there is no prima facie evidence against the accused under section 307 I.P.C. Hence charge under section 307 I.P.C. against the accused is dropped. I too have perused the evidence given by two P.Ws. and I am satisfied that there is no prima facie evidence to charge the accused under section 307 I.P.C. Charge under sections' 324 and 506 I.P.C. will be heard on 30-12-87.

4. It was mandatory on the part of the Magistrate to follow the procedure of proviso to Sub-section (2) of Section 202 of the Cr. P.C. read with section 208 Cr. P.C. and then commit the case in conformity with section 202, because the offence under section 307 was exclusively triable by the Court of Sessions. The Magistrate had applied his mind of having a prima facie case under sections 307/324/506 I.P.C. on examining the complainant under section 200, took cognizance and issued process. His order dated 7-7-1987 in short was 'complainant examined, ground for proceeding exists, cognizance taken under sections 307/324/506 I.P.C. issue non-bailable W/A. Issuance of the process and appearance of the accused do not confer power to a Magistrate to proceed with the trial ignoring the mandatory provisions of sections 202(2) and 208. The process of weighing and scrutinizing evidence after examining two witnesses, for ascertaining prima facie case under section 307 I.P.C. and dropping that offence by forming opinion as to the absence of prima facie evidence for charge, and deciding to try the other offences, were all erroneous. A concession by the counsel agreeing with the opinion of the Magistrate, as evident from the impugned order, does not empower the Court to follow a procedure ignoring mandatory provisions. Magistrate had no power to screen evidence for satisfying himself whether a prima facie case has been made out on merit. The Magistrate should confine only to find out if prima facie the offence alleged is exclusively liable by the Court of Sessions. Magistrate has no power to drop the offence alleged, as done in the instant case, because it would amount discharge of accused of that offence, which power is vested only in the Sessions Judge under section 227.

5. The meaning of the words it appears to the Magistrate' in section 309 do not empower a Magistrate for weighing evidence and sorting out probabilities in the case, to form opinion as to a prima facie case for framing charge. He should confine only to examine if the offence alleged appears to be one exclusively triable by the Court of Sessions. Magistrate's scope is very limited and he cannot go deep into the materials/evidence to ascertain or satisfy as to existence of prima facie case for framing charge for that offence. This power is vested in the Sessions Judge under section 228.

6. In the instant case, the Magistrate had once applied his mind on the state