The Magistrate's power under Section 209, Cr.P.C. is limited to determining whether the offence is exclusively triable by the Sessions Court. The Magistrate cannot assess the merits of the case or apply his judicial mind to the materials on record before committing the case.

This is a petition filed under Sections 482 and 483 Cr. P.C. by the first accused as the petitioner to call for the records in C.C. No. 4064 of 1994 on the file of XVIII Metropolitan Magistrate, Saidapet, Madras and to give a direction to the case does not warrant such a recourse mechanically

2. The material averments in the petition are as follows :- Petitioner has ben ranked as the first accused in Crime No. 2690 of 1993 for offences under Sections 147, 148, 120B and 302 read with 140, I.P.C. for the alleged occurrence that took place on 1-2-1993. Altogether 11 persons including the petitioner have been charged with reference to the death of one Abdul Rahman. After investigation, a police report for the above said offences was filed in C.C. No. 4064/94 on the file of XVIII Metropolitan Magistrate saidapet, Madras. Copies were served upon the petitioner/Ist accused and others on 1-3-1996. While furnishing copies under Section 208, Cr. P.C., the learned Committal Magistrate directed the petitioner and others to come prepared for the committal proceedings on 15-4-1996 with proper sureties. The directions given by the Magistrate to come prepared for the committal proceedings on 15-4-1996 is without application of judicial mind. The word "appears" employed in Section 209(1), Cr. P.C. conveys the meaning that the learned Magistrate has to apply his judicial mind while committing the accused to the Court of Sessions without automatically or mechanically committing the accused to take up the trial before the Court of Sessions. The Magistrate is not bound by the police report or by the charge-sheet. The facts of the present case would be that only on the basis of the confession of a co-accused in this case that the petitioner, who is the first accused is being implicated in the case on hand. That material is not sufficient to commit the case to the Court of Sessions, as the confession given to the police officer is totally barred under Section 25 of the Indian Evidence Act and the same is admissible to a limited extent, leading to the recovery of a distinct fact under Section 27 of the India Evidence Act. The confession of the co-accused is less in evidenciary value. Viewed from the above angle of the confession of a Co-accused, it cannot be treated as evidence as defined under Section 3 of the Indian Evidence Act. Therefore the Magistrate had to indicate in his committal order that he has applied his mind to the materials on record and then only he can commit the case for trial to the Court of Sessions. In other words it is only on the satisfaction of the evidence that the case has to be committed to the Court of Sessions by the Magistrate. The petitioner has been implicated in this case only on the basis of the confession of the co-accused. If the petitioner is committed to the Court of Sessions to take up the trial, it will cause serious irregularities and it would also occasion a miscarriage of justice, besides taking, away the valuable judicial time of the Court of Sessions. Therefore the High Court may be pleased to give suitable direction to the learned Magistrate viz., XVIII Metropoliten Magistrate, Saidapet, Madras not to commit the case as the case does not warrant such a recourse mechanically

3. It is resisted by the respondent-complainant by filing a counter as well as additional Counter-statement raising the following contentions :- The petitioner is A1 concerned in Teynampet Police Station in Crime No. 2690/93 for offences under Sections 147, 148, 120B and 302 read with 149, I.P.C. The case has been charge-sheeted on 13-9-1994. There are enough materials to commit the case to the Court of Sessions

If at all the petitioner wants to dispute, he can file a petition under Section 207, Cr. P.C. before the Court of Sessions before framing charges and seek for discharge. At the time of committing the case of the Court of Sessions, the learned Magistrate need not go into the probative value of the materials on record.