The Magistrate, while acting under Section 209 of the Code of Criminal Procedure 1973, must examine the allegations against the accused to determine if the offense is prima facie exclusively triable by the Court of Session. If it appears to be so, the case should be committed to the Court of Session. However, if the offense is not exclusively triable by the Court of Session, the Magistrate should proceed with the trial.

1. On the basis of the police report, the Acting Chief Judicial Magistrate, Samastipur, took cognizance against the petitioners under Sections 147, 148, 149, 307, 224 and 332 of the Indian Penal Code. Before an order of commitment was made under Sec.209 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code), the petitioners filed an application before the learned Magistrate wherein it was, inter alia, stated that the facts alleged against the petitioners did not constitute an offence under Sec.307 of the Indian Penal Code and so far as the offences under Sections 147, 148, 149, 224, 225 and 332 are concerned, they were not exclusively triable by the court of Session. A prayer, therefore, was made that they may not be committed to the court of Session as the offence alleged against them was not exclusively triable by the Court of Session. The learned Magistrate was of the opinion that a re-consideration regarding the sections applicable to the case could not be made at the time of passing the orders under Sec.209 of the Code. He was of the opinion that since cognizance had been taken under Sec.307 of the Indian Penal Code also the petitioners had to be committed to the Court of Session. Petitioners challenge this order.

2. Learned counsel for the petitioners in support of the application has submitted that Sec.209 of the Code is in Chapter XVI of the Code which relates to commencement of proceedings before the Magistrate. He says that when a proceedings is initiated before the Magistrate, then under Sec.209 of the Code he has to examine the allegations against the accused persons. If he is of the opinion that the offence alleged against the petitioners is one which is exclusively triable by the Court of Session, then he has to commit the accused to the court of session. This, according to the learned counsel, is the limitation on the Magistrate to proceed with the trial. Learned counsel for the opposite party, on the other hand, submits that the order of commitment under Sec.209 of the Code is more or less an automatic order. The Magistrate cannot go beyond the order by which cognizance was taken under different sections. According to him, therefore, since cognizance was taken under Sec.307 of the Indian Penal Code also, the offence became exclusively triable by the court of Session and, as such, tha learned Magistrate was bound to commit the petitioners to the Court of Session.

3. I think, the argument advanced on behalf of the petitioners has to be accepted. Under Sec.190 of the Code, cognizance is taken of an offence. The fact as to whether a particular section is mentioned while taking cognizance of the offence is immaterial. Applicability of the different sections of the Indian Penal Code always depends on the facts alleged against the accused persons. Therefore, the mere fact that while taking cognizance, Sec.307 of the Indian Penal Code was also mentioned by the Acting Chief Judicial Magistrate, will not necessarily bring the case under Sec.307 of the Indian Penal Code. The learned Magistrate while acting under Sec.209 of the Code has to consider the allegations made against the petitioners and if on consideration of the materials, it appears to him that the offence is triable exclusively by the court of Session, then alone he can commit the accused to the court of Session, but in case if it appears to him that the offence alleged against the accused is not one which is exclusively triable by the court of Session, then in that case, he has to proceed with the trial of the case. I may, however, mention it here that the consideration by the Magistrate at this stage should be confined only to find out it prima facie, the offence alleged, is exclusively triable by the court of Session. It will be worthwhile to mention here that the policy of the legislature seems to be that the court of Session should not be burdened with the trial of offences which are not exclusively triable by it. Therefore,