The main legal point established in the judgment is that the learned CJM had no jurisdiction to dilute the charge under Section 304(Part-II) IPC and that the case should have been committed to the Court of Sessions as per the provisions of Section 209 CrPC.

B.K. Sharma, J.

1. This criminal petition has arisen out of two orders passed by the learned CJM, Kamrup in respect of committal of a case under Section 209 CrPC. While, by the first order, the learned CJM, Kamrup was of the opinion that the case is not one to be tried under Section 304 (Part-II) IPC, by the second order the case has been committed to the learned Sessions Court, Kamrup, Guwahati holding that the earlier order was an inadvertent mistake. It is the second order, aggrieved by which, the petitioners who are the accused have invoked the jurisdiction of this court under Section 482 CrPC seeking quashing of the said order.

2. Adverting to the facts of the case, the informant, represented by his learned Counsel in this proceeding had lodged an FIR with the Panbazar Police Station on 25.10.2004 alleging that his wife Smt. Monorama Kakati Bhuyan died in the operation theatre on 24.10.2004 due to the criminal negligence on the part of the Doctors involved in the operation. The FIR was registered as Paltan Bazar R.S. case No. 347/2004 under Section 304(A)/34 IPC corresponding to G.R. Case No. 4308/2004.

3. The police took up the investigation of the case and in due course submitted the charge sheet No. 125/05 dated 24.10.2005 recording that a prima facie case under Section 304(II)/34 IPC has been established against the accused/petitioners, and accordingly, they were sent for trial in the court of law under the aforesaid provisions of IPC.

4. The learned CJM, Kamrup by his first order dated 16.2.2006 held that the relevant materials on record established a case under Section 304(A)/34 IPC and that mentioning of Section 304(II) in the charge sheet was an inadvertent mistake on the part of the IO. Accordingly, the charge under Section 304(A)/34 was read over and explained to the accused petitioners to which they pleaded not guilty and claimed for trial. It appears that the informant through his engaged counsel objected to this order and made there submissions opposing the same on the ground that the learned CJM had no option than to commit the case to the Court of Sessions in view of the provisions of Section 209CrPC. The learned CJM fixed the matter on 9.5.2006 for further consideration.

5. The matter was again taken up for hearing on 9.5.2006 and the learned CJM by his order passed has held that the earlier order dated 16.2.2006 was passed inadvertently inasmuch as the charge sheet having been submitted under Section 304(Part-II), the case should be committed to the Court of Session. Accordingly, he has committed the case to the learned Sessions Judge, Kamrup, Guwahati fixing the matter on 16.6.2006. It is this order, which is under challenge on the following grounds:

(i) The learned CJM could not have reviewed his order dated 16.2.2006 contrary to the provisions of CrPC.

(ii) The first order dated 16.2.2006 being the correct order, there was no occasion for the learned CJM to pass the impugned order dated 9.5.2006.

(iii) The materials on record not having disclosed any offence under Section304(Part-II), the learned CJM rightly held so by his order dated 16.2.2006 and accordingly he was right in holding the case to be one under Section304(A)/34 IPC.

(iv) As per the provisions of Section 209 CrPC, the learned CJM is to exercise his judicial function towards recording prima facie satisfaction as to the offence disclosed by the materials on record and not to act mechanically.

6. Elaborating the above grounds of attack to the impugned order dated 9.5.2006, Mr. N. Choudhury, learned Counsel representing the accused petitioners, in his persuasive pursuits submitted that while the learned CJM rightly passed the earlier order dated 16.2.2006, committed a manifest error of law in passing the impugned order dated 9.5.2006. He attacked the order both on technical ground as well as on the ground of merit. Placing reliance on the following decisions, he submitted that the learned CJM could not have reviewed the order, as such review is