The court affirmed that offenses exclusively triable by the Sessions Court must follow proper trial procedures under Chapter XVIII of the Criminal Procedure Code, excluding pre-charge evidence.

JUDGMENT

1. The present proceedings are directed against an order dated 18.05.2018 passed by Addl. Sessions Judge in SC No.1642/16 whereby the application filed by the complainant (petitioner herein) under Section 464 Cr.P.C. was dismissed.

2. Briefly, the facts of the present case, as recorded in the impugned order, are that on 18.07.2008, the complainant filed a complaint under Sections 384 /420/468/471/406/376/506 IPC against accused/respondent No.2 before the concerned M.M.

3. Learned M.M. vide order dated 29.07.2008 listed the complaint for pre-summoning evidence. On 18.09.2008, the pre-summoning evidence of the complainant was recorded under Section 200 Cr.P.C. and the matter was listed for arguments on the point of summoning of the accused. On 13.07.2009, learned M.M. took cognizance under Sections 384 /376/506 IPC and summoned the accused/respondent no.2.

4. The aforesaid order of summoning was challenged by respondent no.2 before the Sessions Court however, the challenge stood dismissed vide order dated 17.05.2010.

5. In the meantime, the accused/respondent no.2 appeared through his counsel before the learned M.M. on 25.11.2009 and after supply of copies of the documents, the case was listed for recording of pre-charge evidence. Subsequently, on 05.06.2013, learned M.M. after observing that the accused had been summoned for the offence under Sections 384 /376/506 IPC which were exclusively triable by the Court of Sessions, committed the case to the Court of Sessions.

6. The Sessions Court listed the matter for pre-charge evidence and for consideration of charge. Subsequently, on 10.11.2014 and 25.05.2017, the pre-charge evidence was partly recorded by examining the complainant as CW-1.

7. While the matter was pending before the Sessions Court, on 25.04.2018, the complainant filed an application under Section 464 Cr.P.C. for rectification of the proceedings. It was contended that the proceedings ought to have been conducted in line with the procedure for trial before the Sessions Court and not as trial of warrant case by the Magistrate by recording pre-charge evidence. The case remained pending before the Sessions Court. At the time of hearing arguments on charge, it was observed by the Sessions Court that the correct procedure was not followed as per the Code of Criminal Procedure, 1973 as pre-charge evidence was recorded before the Sessions Court. The case was directed to be listed for arguments on the above issue.

8. Vide impugned order dated 18.05.2018, the Sessions Court while relying on the decision of a Co-ordinate Bench of this Court in Smt. Dhano v. State and Anr., reported as 2008 SCC OnLine Del 677, directed that file of the complaint case be sent to the concerned C.M.M. with a further direction to proceed in accordance with law. The application filed by the complainant under Section 464 Cr.P.C was dismissed.

9. The present petition impugns the aforesaid order. Learned counsel for the petitioner contended that the present complaint case ought to have been tried as a Sessions trial case and not as a Warrant case before the Magistrate. He placed reliance on the decision in Shivjee Singh v. Nagendra Tiwary & Ors., reported as AIR 2010 SC 2261. It was also contended that the procedure adopted by the learned Sessions Court in recording the pre-charge evidence was irregular. Further, the direction given to the learned M.M. to proceed with the complaint case is also assailed in the present petition.

10. Per Contra, learned counsel for the accused/respondent no. 2 has supported the impugned order and has relied on the decision