Legality of the order of committal passed by the Magistrate.

This revision is filed against the order D/- 24-1-1980 on the file of the Court of the Sub-Divisional Judicial Magistrate, Pollachi in converting C.C. No. 336 of 1978 into P.R.C. No. 1 of 1980 for an offence under Section 307 I.P.C. and committing the petitioners to the Sessions Court to take their trial.

2. The facts of the case are as follows :- The petitioners were charge-sheeted under Sections 148, 448, 342, 426 and 506 (Part II) I.P.C. and under Section 7(1)(c) of the Civil Rights Act. According to the prosecution, the petitioners belong to Gounder community and the prosecution witnesses belong to Madari (Harijans) community. On 13-5-1978, the eleventh petitioner's uncle died at Udayakulam village. Due to misunderstandings, the Madaris (Harijans) refused to come to beat drums in connection with the death ceremony. Since the Madaris refused to beat the drums during the death ceremony, the petitioners, forming themselves into an unlawful assembly and armed with sticks and carrying petromax lights, marched at 8-45 p.m. on 13-5-1978, to the residential area of Madaris, and to the house of P.W. 1 and caused injuries to the persons and committed mischief. It is on these allegations, the Sub-Inspector of Police charge-sheeted the petitioners under the aforesaid sections, before the Sub-Divisional Judicial Magistrate at Pollachi. The case against the petitioners was taken on file as C.C. No. 336 of 1978. On 30th November, 1979, P.W. 1 was examined before the Magistrate but his cross-examination was deferred to. Thereafter, P.W. 2 was examined. P.W. 2 while deposing the facts of the case before the Magistrate has stated.

On the basis of this evidence, the Assistant Public Prosecutor filed a memo before the Magistrate contending that from deposition of P.W. 2, an offence coming within the purview under Section 307 I.P.C. is spoken to. The Magistrate, having recorded the chief-examination and also considering the relevant portion of the evidence recorded above converted the case before him into P.R.C. No. 1 of 1980 and all the petitioners were committed to take their trial before the Sessions Court. It is, this order of the Magistrate, that is questioned in the above criminal revision case.

3. The learned counsel appearing for the petitioners contends that the evidence of P.W. 2 was not recorded in full by the Magistrate and on the deposition of P.W. 2 with reference to the offence alleged to have been committed by the fourth petitioner, the Magistrate has erred in committing the petitioners to take their trial before the Sessions Judge under S. 323. Cr.P.C. The question that has to be considered is, whether the Magistrate, who has been trying for the offences stated above, can commit the petitioners under Section 323, Cr.P.C. to the Sessions Court on the evidence of P.W. 2.

4. Section 323, Cr.P.C. contemplates the procedure as to when the Magistrate should commit the case before the Sessions Court.

"If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon, the provisions of Chapter XVIII shall apply to the commitment so made." *

In this case, it is clear, from the deposition of P.W. 2, that a prima facie case under Section 307, I.P.C. has been made out. The learned counsel for the petitioners contends, that taking cognizance of an offence is a judicial act and the Magistrate, on the lone evidence of P.W. 2 with reference to the allegation of an offence under Section 307. I.P.C. cannot commit the petitioners to Sessions Court when the prosecution itself has charge-sheeted petitioners 1 to 3, 5, 6, 8, 10 to 14 under Sections 148, 448(2) 426(3) and 324(3), I.P.C. read with S. 7(1)(c) of the Civil Rights Act, petitioner No. 4 under Ss. 148, 448(2) 426(3), 324(3) and 506(2), I.P.C. read w