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HIGH COURT OF CALCUTTA
Amitabha Datta, J.
Purna Chandra Jana & Ors.
Vs.
The State & anr.
Criminal Revision No. 28 of 1981
Decided on : June 2, 1982
CRIMINAL PROCEDURE CODE, 1973 - SECTION 323 - COMMITMENT OF CASES TO SESSIONS COURT - CROSS CASES ARISING OUT OF SINGLE INCIDENT - POWER OF MAGISTRATE TO COMMIT CASE TO SESSIONS COURT - PROCEDURE TO BE FOLLOWED - SECTION 209 OF THE CODE - POWER OF SESSIONS JUDGE TO DIRECT MAGISTRATE TO COMMIT CASE TO SESSIONS COURT.
Fact of the Case:
Two cross cases were registered at Panskura P.S. on 16.8.79 over cultivation of land. The police investigated and submitted charge-sheet in both the cases. The Magistrate committed the case under S. 147/148/447/324/304 of the Indian Penal Code against the opposite party No.2 and others in March 1980 to the Court of Session for trial. The Magistrate framed charge under S. 147/447/324 of the Indian Penal Code in the other case against the petitioners on 12.7.80 and fixed the case for evidence. The opposite party No.2 filed a petition on 1.10.80 for committing the G. R. Case No. 934 of 1979 to the Court of Session for trial for just decision thereof as both the cross cases should be heard by the same Judge contemporaneously to avoid material prejudice to the defence in the case committed to the Court of Session. The Magistrate rejected the prayer by an order dated 5.11 80 on the ground that there is no provision for commitment of a case under Ss. 147/447/324 IPC to the Court of Session for trial.
Finding of the Court:
The court held that a Magistrate may commit a case when it appears to him at any stage of the proceeding that it is one which ought to be tried by the Court of Session either because (a) he finds on taking evidence that the evidence disclosed on offence exclusively triable by the Court of Session or (b) the offence is so grave that the adequate punishment for it is a sentence of imprisonment exceeding seven years or (c) where the cognizance is taken by a Chief Judicial Magistrate and he ha, tendered pardon and examined the approver under S. 306(4) of the Code or (d) where it is a cross case and the facts are such that it should be tried by the Court of Session to which the other cross case has been comitted for ensuring fair trial and avoiding conflict of decisions.
Issues: 1. Whether a Magistrate can commit a case which is not exclusively triable by the Court of Session? 2. Whether the expression "at any stage of the proceeding" in S. 323 of the Code signifies that the learned Magistrate has to decide whether the case before him ought to be tried by the Court of Session only in course of taking evidence during trial and not before evidence is taken? 3. Whether the learned Sessions Judge has power to direct the learned Magistrate to commit a case trieble by the learned Magistrate to the Court of Session?
Ratio Decidendi: 1. Section 323 of the Code provides an exception to the rule that a Magistrate is to try a case involving offences triable by him. A Magistrate may commit a Case when it appears to him at any stage of the proceeding that it is one which ought to be tried by the Court of Session. 2. The expression "at any stage of the proceeding" in S. 323 of the Code is of widest amplitude to enable the learned Magistrate to take a decision at any stage of the trial which begins after the plea of the accused on the charge is taken, whether the case ought to be tried by a Court of Session. 3. There is no provision in the Code enabling the Sessions Judge to direct the Magistrate to commit a case to the Court of Session.
Final Decision: The court modified the impugned order passed by the learned Session Judge to the extent that the learned Magistrate shall re-hear the matter arising out of the petition filed by the opposite party No. 2 Prakash Chandra Jana on 1.10.80 before him, in the light of the foregoing observations and decide after considering the police report in the cross case committed to the Court of Session (a certified copy of which may be produced, if necesary by the petitioner before him) whether the G.R. Case No 934 of 1979 ought to be tried by the Court of Session and if be decides in the affairmative to commit the said case to the Court of Session observing the procedure in S. 209 of the Code (as if the offences were exclusively triable by the Court of Session). If commitment of the said case is made, the Court of Session shall follow the procedure laid down in Chapter XVIII of the Code as far as applicable and the learned Public Prosecutor will conduct the prosecution.
This Revisional Application is directed against an order dated 7.1.81 passed by the learned Sessions Judge, midnapur in Criminal Motion No. 112 of 1980 setting aside the order dated 5.11.80 of the learned Judicial Magistrate, Second Court, Tumluk in G.R. Case No. 934 of 1979.
2. In the wake of an incident of fight between two groups over cultivation of land on 16.8.79 two cross casses were registered at Panskura P.S. on the same date, at the instance of the petitioner No. 1- Purna Cnandra Jana and the opposite party No.2 Prakash Chandra Jana respectively as informants. The police investigated and submitted charge-sheet in both the cases. The learned Magistrate committed the case under S. 147/148/447/324/304 of the Indian Penal Code against the opposite party No.2 and others in March 1980 to the Court of Session for trial. The learned Magistrate framed charge under S. 147/447/324 of the Indian Penal Code in the other case being G. R. Case No. 934 of 1979 against the petitioners on 12.7.80 and fixed the case for evidence. At that stage the opposite party No.2 filed a petition on 1.10.80 for committing the G. R. Case No. 934 of 1979 to the Court of Session for trial for just decision thereof as both the cross cases should be heard by the same Judge contemporaneously to avoid material prejudice to the defence in the case committed to the Court of Session. The learned Magistrate rejected the prayer by an order dated 5.11 80 on the ground that there is no provision for commitment of a case under Ss. 147/447/324 IPC to the Court of Session for trial. Against the said order of the learned Magistrate the opposite party No. 2 moved the learned Sessions Judge Midnapur in Criminal Motion No. 112 of 1980. The learned Sessions Judge by his impugned order set aside the order of the learned Magistrate and in effect directed the learned Magistrate to commit the G. R. Case No. 934 of 1979 to the Court of Session to enable that Court to hear both the cases in quick succession for avoiding conflicting decisions in them.
3. Before this Court the learned advocate for the petitioners has raised three points. Firstly it is contended that in view of S. 209 of the Code of Criminal Procedure 1973 the learned Magistrate is not competent to commit a case which is not exclusively triable by the Court of Session and in this connection reference is made to the Supreme Court's decision in the case of Sanjay Gandhi v. Union of India AIR 1978 SC 514 laying down the limited power of the committing Magistrate who cannot probe beyond the face of the police report in decision whether or not to commie a case to the Court of Session. Secondly it is argued that the expression "at any stage of the proceeding" in S. 323 of the Code Signifies that the learned Magistrate has to decide whether the case before him ought to be tried by the Court of Session only in course of taking evidence during trial and not before evidence is taken. The third submission on behalf of the petitioners is that the learned Sessions Judge has no power to direct the learned Magistrate to commit a case trieble by the learned Magistrate to the Court of Session.
4. It appears that in coming to a finding the learned Session Judge has relied on the decision reported in 1978 Criminal Law Journal 209, 1978 Criminal Law Journal 259 and 1979 (I) Calcutta Law Journal 416. In the case of V.V. Raghavaloo v. State 1978 Criminal Law Journal 209 the learned Single Judge of the Andra Pradesh High Court has held that a learned Magistrate can commit a case triable by him to the court of Session if he is of the opinion that it ought to be tried by a Court of Session on the basis of the nature and gravity of the offence, the punishment to be awarded and such other matter of aggravation. But in the said reported case there was no question of trial of cross cases. In Girija Nanda v. State of Assam 1978 Criminal Law Journal 259 the question was whether the High Court can transfer a case triable by the Magistrat
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