Back
1993 Supreme(J&K) 39
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
M.L. Koul,R.P. Sethi, JJ.
State - Appellant
Versus
Suresh Kohli & Ors. - Respondent
Cr. Reference No. 49/1985
Decided On : 20 May, 1993
Advocate For Appellant:Advocate General
Advocate For Respondent: J.P. Singh
Sections 205(d) and 337 of the Cr.P.C. are not in conflict, but are supplementary and complimentary to each other. In cases where the offence is exclusively triable by the Court of Sessions and the case is dependent on the evidence of an accomplice, the Magistrate cannot commit the accused for trial unless the statement of the accomplice is recorded and the Magistrate is satisfied that there are reasonable grounds to believe that the accused is guilty.
Headnote:
CRIMINAL PROCEDURE CODE - ADDITIONAL SESSIONS JUDGE - POWER TO MAKE REFERENCE - COMMITMENT OF CASE - STATEMENT OF APPROVER - INTERPRETATION OF SECTIONS 205(D) AND 337 - HARMONIOUS INTERPRETATION.
Fact of the Case:
An Additional Sessions Judge made a reference to the High Court for quashing a committal order passed by a Chief Judicial Magistrate, holding that it was violative of sub-sections (2) and (2-a) of Section 337 of the Criminal Procedure Code. The reference raised two questions: (1) whether an Additional Sessions Judge is competent to make a reference suo motu under Section 438, Cr.P.C. for setting aside an order of commitment passed by a Judicial Magistrate; and (2) whether there is any conflict between Sections 205(b) and 337 of the Cr.P.C., and if so, what should be their harmonious interpretation to enable the committing Magistrate or the trial court to record the statement of an Approver.
Finding of the Court:
1. An Additional Sessions Judge is competent to make a reference suo motu under Section 438, Cr.P.C. for setting aside an order of commitment passed by a Judicial Magistrate. 2. There is no conflict between Sections 205(d) and 337 of the Cr.P.C. They are supplementary and complimentary to each other so far as the commitment of an accused for trial to a Court of Session is concerned.
Issues: 1. Whether an Additional Sessions Judge is competent to make a reference suo motu under Section 438, Cr.P.C. for setting aside an order of commitment passed by a Judicial Magistrate? 2. Whether there is any conflict between Sections 205(d) and 337 of the Cr.P.C., and if so, what should be their harmonious interpretation to enable the committing Magistrate or the trial court to record the statement of an Approver?
Ratio Decidendi: 1. Section 435, Cr.P.C. read with clause (2) of Section 438, Cr.P.C. empowers an Additional Sessions Judge to exercise all the powers of a Sessions Judge under Chapter XXXII in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge. 2. Section 205(d) of the Cr.P.C. provides that when an offence is triable exclusively by the Court of Sessions, the Magistrate shall commit the case to the Court of Sessions. Section 337(1) of the Cr.P.C. empowers a Magistrate to tender a pardon to an accomplice in certain cases, on condition of his making a full and true disclosure of the circumstances relating to the offence. The two provisions are not in conflict, but are supplementary and complimentary to each other. In cases where the offence is exclusively triable by the Court of Sessions and the case is dependent on the evidence of an accomplice, the Magistrate cannot commit the accused for trial unless the statement of the accomplice is recorded and the Magistrate is satisfied that there are reasonable grounds to believe that the accused is guilty.
Final Decision: The reference made by the Additional Sessions Judge was upheld. The committal order passed by the Chief Judicial Magistrate was quashed, and the case was sent back to the Chief Judicial Magistrate for holding an enquiry afresh by examining the approver as a witness before committing the case to the Court of Session.
2. One of the learned single Judges of this Court while admitting the reference to hearing observed that the reference raised two important questions to be determined which reads as under :-
1. Whether an Additional Sessions Judge is competent to make a reference suo motu under S. 438, Cr.P.C. for setting aside an order of commitment passed by the Judicial Magistrate;
2. Whether there is any conflict between S. 205(b) and S. 337 of the Criminal Procedure Code, if so what should be their harmonious interpretation so as to enable the committing Magistrate or the trial court to record the statement of the Approver.
He, therefore, referred the matter to a larger Bench for an authoritative pronouncement and the case came up before us for hearing on the aforementioned points.
3. A charge-sheet was presented in the Court of Chief Judicial Magistrate Jammu on 21-7-1984 against the accused who were alleged to have committed the offence under sections 120-B RPC with Sections 420, 419, 467, 468/471, RPC by the CIB Jammu. Undoubtedly the offences under sections 120-B, RPC, 467 and 471 RPC were exclusively triable by the Court of Sessions Judge, Jammu. The Magistrate in that case had to ordinarily commit the accused to the Sessions for standing a trial before the learned Sessions Judge in accordance with law.
4. The first question in this regard which is to be determined by us is as to whether an Additional Sessions Judge is competent to make a reference suo motu under S. 438, Cr.P.C. for setting aside an order of commitment passed by the Judicial Magistrate, which in nutshell means whether an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under Chapter XXXII of the Code of Criminal Procedure in respect of any case which may be referred to him by or under any general or special order of the Sessions Judge.
5. According to clause (1) of S. 9 of the Code of Criminal Procedure it is imperative upon the Government to establish a court of Sessions for every Sessions Division and (in consultation with the High Court) appoint a Judge of such Court under clause (3) of the said Section. The Government is also entitled to appoint in consultation with the High Court, the Additional Sessions Judges and the Assistant Sessions Judge to exercise jurisdiction in one or more such Courts. It is thus clear that the government in consultation with the High Court is at liberty to appoint as many Addl. Sessions Judges in every Sessions Division as per requirement to exercise jurisdiction in one or more such courts. Every Additional Sessions Judge is entitled to hear all the cases which are referred to him by the Sessions Judge for disposal by any general or special order. Such exercise of jurisdiction by the Additional Sessions Judge is justified under sub-section (2) of S. 438 of the Cr.P.C. as well which envisaged that an Additional Sessions Judge shall have and may exercise all powers of Sessions Judge, which may be transferred to him by or under any general or special order of the Sessions Judge that it emerges that an Additional Sessions Judge is empowered to exercise all the power of a Sessions Judge within a particular district with regard to the criminal case or cases which are referred to him
