IMPORTANT POINT
If on a plain reading of materials on record it appears to the judicial mind of the Magistrate that there exist an offence triable exclusively by a Court of Session then he has no option but to commit the case to the Court of Session. It is not open to him to satisfy himself that a prima facie case has been made out on merit.

Headnote:(i) Criminal Procedure Code, 1973 - Section 209 - Procedure for committing the case to the Court of Session - It is not open to the Magistrate to satisfy himself that a prima facie case has been made out on merit - If on a plain reading of materials on record it appears to the judicial mind of the Magistrate that there exist an offence triable exclusively by a Court of Session then he has no option but to commit the case to the Court of Session - There is no scope for a formal enquiry. Further Held: Furnishing copies of document under Section 207 or 208, as the case may be and passing the order of committal under Section 209 are all judicial functions and not administrative. So the proceeding before the Magistrate from the time the accused is produced or appeared before him, furnishing copies to the accused under Sections 207 or 208, and till the commitment order is passed, is an enquiry as contemplated by Section 2(g) of the code. But the scope of this enquiry is very limited confining only to the matters in the sections. Enquiry under Section 209 shall confine only with regard to production or appearance of the accused furnishing documents to the accused and committing the case to the Court of Session. The Magistrate shall have no option nor discretion to assess the merit as to the availability of materials for a prima fade case or offence for commitment. (Para 9)
       (ii) Words and phrases - Criminal Procedure Code, 1973 - Section 209 - The expression 'it appears to the Magistrate - Connotation of;
       Held: The expression ‘it appears to the Magistrate' does not connote satisfaction of the Magistrate. The normal connotation of the word appear 'is seem' or 'to be in one's opinion'. Mere opinion of the Magistrate must prevail. It does not depend upon the fact of sufficiency or insufficiency of the material. There is no scope for a formal inquiry except to comply the formalities of Section 207 or 208, as the case may be and shall formally commit the case to the Court of Session. (Para 8)
       (iii) Criminal Procedure Code, 1973 - Section 209 - Procedure of commital inquiry - Apparent distinction with regard to the commitment under the old Code and the new Code. (Para 5)
       (iv) Criminal Procedure Code, 1973 - Section 209 - Indian Penal Code, 1860 Sections 376/312 - Investigating agency submitting charge-sheet for offence under Magistrate discharging the accused by adopting a procedure contrary to the provisions of law Revision - Held: The Magistrate acted beyond his jurisdiction - The order was illeged and is liable to be set aside.
       Further Held: The Procedure followed by the Magistrate Shri G.K. Sangmai on 3-6-1988 was not in accordance with law. He was an experienced Magistrate and was reminded by the Assistant Public Prosecutor to follow the provisions and procedure of the prevalent code, 1973 relating to commitment of the case involving offences exclusively triable by the Court of Session. But the Magistrate was determined to follow the procedure of the repealed Code 1898. The Magistrate in his order referred A.I.R. 1958 S.C. 57 quoting that: It is the duty of the committing Court to weigh all evidence on record to arrive at a conclusion that there is a fit case for committal or not. No such decision was rendered and published in A.I.R. 1958 S.C. 57. Either the defence Counsel made wrong reference or the Magistrate quoted imaginarily without caring to look into the case reported in A.I.R. 1958 S.C. 56/57. Either the Magistrate was callous or intentionally acted in order to arrive at the premeditated conclusion to discharge the accused. The case reported in A.I.R. 1958 S.C. 56/57 was on different point not concerning to commitment. Any decision that might be in the year 1958 regarding commitment was under the old Code 1898 which was repealed from the date of enforcement of the Code 1973. The Magistrate committed illegality in discharging the accused Hit Ram Deka by adopting a procedure contrary to the provisions of law. The Magistrate acted deliberately in adopting a procedure so as to achieve his premeditated plan to discharge the accused having ulterior motive. He did not even care to be cautious inspite of reminding him the correct procedure by the Assistant Public Prosecutor. The Magistrate acted beyond his jurisdiction. (Para 10)
       Result: Revision Allowed.

JUDGMENT

S. Haque, J. - This Criminal Revision has been initiated suo moto by this Court on perusal of the record of G.R. Case No 3559 of 1986 and the order dated 8-6-1988 passed in the case by the Judicial Magistrate Shri G.K. Sangmai, Gauhati.

2. Initially case No 486 was registered at Dispur Police Station on 28-10-1986 under Section 366/312/113 of the Indian Penal Code on the basis of the First Information Report lodged by Srimati Sabita Bala Das. Shri Hit Ram Deka was the named accused. Thereupon, the G.R. Case No 3559 of 1986 had been registered in the court of Chief Judicial Magistrate, Gauhati. On completion of investigation, charge-sheet had been submitted against the accused to face the trial for commission of offences under Section 376/312/313 of the Indian Penal Code. Relevant documents with copy of police report had been furnished to the accused as required under the law. The case came to the file of shri C.K. Sandmai Judicial Magistrate First Class Gauhati.

3. The Magistrate took up the case on 3-6-88 and passed the order after hearing counsel of both sides and considering all facts and materials on record It is revealed from the order that the Assistant Public Prosecutor had submitted that the case should to committed to the Court of Session directly as the investigating agency submitted charge-sheet for offence under Sections 376/312 of the Indian Penal Code against the accused and the offences were exclusively triable by the Court of Session. Whereas the counsel for the defence had submitted that the Magistrate should not commit the case to the Court of Session on as there was no material particulars in the record referring to some decision including one reported in A.I.R. 1958 S.C. 571 (as disclosed in the order) that there was no element on record for charging the accused under Section 376 of the Indian Penal Code because the victim girl was above 19 years of age and had sexual intercourse with consent that the accused also could not be charged under Section 493 of the Indian Penal Code for absence of deceitful act on the part of the accused to believe the victim girl that she was lawfully married to him and both did never live together for some period as husband and wife that the accused had sexual intercourse with the girl Occasionally availing the chances and that too with her consent and that the accused could not be found to have committed offences under Section 312 as miscarriage was done by Medical Surgeon who was exempted from this offence as per provision of law. On hearing these, submission of the counsel the Magistrate gave concluding decision in his order dated 3-6-1988 as follows:

"So considering all relevant facts and after perusal of relevant papers under Section 173 of the Criminal Procedure Code I find no element on record to charge the accused Hit Ram Deka with the offence under Section 376/312 of the Indian Penal Code and accordingly, I discharge him from the said charge and set him at liberty forthwith."

4. Had the Magistrate committed illegality? Learned Counsel Mr. P.C. Gayan for the accused opposite party submits that no error was made by the Magistrate in discharging the accused by adopting the procedure in his order dated 3-6-1988. In view of the provisions under the Code of Criminal Procedure 1973 we find no substance in the submission of Mr. Gayan. Learned Public Prosecutor Mr. C.R. De has referred to the relevant provision of the Code 1973 and submits that the Magistrate committed grave illegality and did it knowingly having fully conversant with the provisions of the law in such cases due to his long experience as Magistrate. Admittedly, the offences in the charge-sheet are triable exclusively by the Court of Session.

5. Section 209 of the Code of Criminal Procedure reads as:

"When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Ses

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GAUHATI HIGH COURTS. Haque, J.State of Assam - PetitionerversusHit Ram Deka - RespondentCrl. Revision No 35-1989Decided on 28-6-1989Counsel for the parties:Mr. C.R. De, Public Prosecutor - For the Petitioner.Mr. P .C. Gayan, A. Hai Advocate - For, the Respondent.

GAUHATI HIGH COURT
S. Haque, J.
State of Assam - Petitioner
versus
Hit Ram Deka - Respondent
Crl. Revision No 35-1989
Decided on 28-6-1989
Counsel for the parties:
Mr. C.R. De, Public Prosecutor - For the Petitioner.
Mr. P .C. Gayan, A. Hai Advocate - For, the Respondent.