IMPORTANT POINTS
The Magistrate before whom a case involving offence exclusively triable by Sessions Court reaches, he has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Though the Counter case cannot be committed in accordance with section 209 of the Code, the Magistrate has, nevertheless, power to commit the case to the Court of Sessions invoking section 323 Cr.P.C. That section incorporated in the Code to meet similar cases. The Magistrate can exercise the special power conferred on him by virtue of section 323 of Code when he commits the cross case also to the court of Sessions. Commitment under sections 209 and 323 might be through two different channels, but once they are committed, their subsequent flow could only be through the stream channelised by the provisions contained in Chapter XVIII. Section 323 of the Code does not make an inroad into section 209 Cr.P.C. because the former is intended to cover cases to which section 209 Cr.P.C. does not apply.

ORDER :

1. Petitioners are the accused in SC No.392/2013 of the Additional Sessions Court, Ernakulam for offences punishable under sections 304(B), 306, 498A read with section 341 IPC.

2. The first petitioner is the son of the second petitioner. The first petitioner had married one Lincy on 31/12/2006. She committed suicide by hanging on 12/5/2009. Crime No. 531/2009 was registered by Kaladi Police under section 174 Cr.P.C. After investigation, final report was laid for offence punishable under section 498A read with section 34 IPC, alleging that the accused had physically and mentally harassed the victim and had treated her with cruelty, which forced her to commit suicide. Cognizance was taken by the Judicial First Class Magistrate Court -I, Perumbavoor. Accused appeared and contested the proceedings. Charge was framed on 22/9/2010 and the case was posted for trial.

3. When the matter was taken up for trial on 27/6/2013, the learned Magistrate, by impugned order held that the records disclosed commission of offences punishable under section 304(B) and section 306 IPC. It was noted that death had occurred within seven years from the date of the marriage. The magistrate also recorded that there was an allegation that she was subjected to cruelty by the accused in connection with the demand for dowry. There was history of continuous harassment, assault and torture by the accused. Learned Magistrate concluded that ill-treatment meted out on her drove her to commit suicide. Consequently, ingredients of sections 304 (B) and 306 were attracted. The court held that offences were exclusively triable by the sessions court and the case was committed to the sessions court invoking section 323 Cr.P.C.

4. The above order is impugned by the accused on several grounds. It was contended that the learned Magistrate, after having taken cognizance under section 498A read with section 34 IPC on a police report and after having formed an opinion under section 240 Cr.P.C., has no jurisdiction to raise any statutory presumption of fact or law to hold that the case was exclusively triable by the sessions court. The court could not have committed the case after framing charge without any new material being brought on record. It was further contended that impugned order amounted to review of the earlier order taking cognizance and of framing charge. Another limb of contention was that the magistrate could not have proceeded on an assumption that section 323 Cr.P.C. can be invoked only if offences are exclusively triable by the court of sessions. Even assuming that the court could do so, it could not have entered into any finding on offences that appeared to be made out against the accused. It was contended that Section 304B would be attracted only if there was a specific demand for dowry. None of the witness has given statement that the accused had made any demand in connection with dowry. Hence, there was absolutely no material to form an opinion that ground under section 323 Cr.P.C was made out, it was argued.

5. Evidently, death took place within seven years of marriage. CW1, the mother of the deceased, had spoken about the continuous physical and mental harassment meted out on her daughter. CW2, the father of the victim, had given statement referring to several instances of physical and mental torture meted out on the victim. He had stated that the victim had once told him that she cannot live with the accused. It was specifically stated by him that the second accused had harassed referring to the monetory aspects. It was also stated that he assumed that the victim might have been tortured due to the less dowry given by CW1 and CW2. CW3 was a relative of the victim. He had also given statement touching on the physical harassment allegedly meted out on the victim. CW4, the uncle of victim, and CW5, CW6 and CW7, the neighbours, have also given statement supporting the above version.

6. To substantiate the rival contentions, the learned counsel for the peti