The Magistrate is not bound to treat a case as one exclusively triable by the Court of Session merely because the allegations in the complaint disclose an offence under S. 395 I.P.C. The Magistrate is also not required to hold an enquiry under Sec. 202, Cr.P.C. as a matter of course in cases where the complaint discloses offences exclusively triable by the Court of Session.

This is a petition under Sec. 482 Cri.P.C., for directing the Judicial Second Class Magistrate, Porto Novo to treat the case C.C. No. 2421 of 1976 as a Preliminary Register Case.

2. The petitioner filed a criminal complaint before the learned Judicial Second Class Magistrate of Porto Novo against the respondents in which complaint he has alleged as follows :- On 26-7-1976 at about 7-15 a.m. the complainant and his brother Vadivelu was attacked by the third accused and his men with koduwal and with sticks etc. and injuries were caused to the complainant and his brother; whereupon the complainant went and reported the matter to the police who thereupon sent him and his brother to the hospital where they were treated till 6-8-1976 and on 8-8-1976 when the complainant was going to his doctor as he was having headache and was passing by the house of the third accused all the accused were standing in the front of the house and on seeing him accused 3, 5 and 6 dragged him into the house of the third accused and the other accused followed them into the house and there they wrongfully confined him and the accused 4 and 9 stood at the entrance of the house in order to prevent the complainant from going out and then the third accused told the others that a pronote for Rs. 2, 000/- should be obtained from the complainant since on account of the complainant they have been put to expenses. Whereupon the first accused wrote out a pronote in favour of the fifteenth accused for Rs. 2, 000/- and affixed a stamp to it and asked the complainant to affix his signature to it; but the complainant refused; whereupon the first accused brought a koduwal and handed it over to the third accused who thereupon threatened to cut the complainant down if he had not affixed his signature to the document and hence out of fear the complainant affixed his signature to that document which was then attested by accused 12 to 14, and the pronote was then signed by the first accused and handed over to the fifteenth accused and the third accused after threatening to kill the complainant if he gave information to the police let him go and thereby the accused have committed an offence punishable under Sec. 395, I.P.C.

3. It might be noted that such a complaint was presented on 9-8-1976 but the Magistrate sent it to the police for enquiry, apparently under S. 156 Cr.P.C. but the police however have referred that case and hence the petitioner-complainant filed the complaint on the same facts, on 15-11-1976. The Magistrate recorded the sworn statement of the complainant and took the case on file. The complainant then examined himself and another witness on his side; and eventually the learned Magistrate framed a charge against the accused only for an offence under Sec. 384 I.P.C., to which the accused pleaded not guilty.

4. The petitioner's grievance is, first of all, that even though the allegations in the complaint, the sworn statement and the evidence of P.Ws. 1 and 2 clearly disclosed an offence under S. 395, I.P.C. which is triable exclusively by a court of Session, the Magistrate erred in framing a charge only for an offence under S. 384 I.P.C. and secondly the learned Magistrate has not correctly followed the procedure laid down by the Code and had not held an enquiry under Section 202 Cr.P.C. as he was bound to do; and under these circumstances a direction should be given to the Magistrate to treat the case as a preliminary register case.

5. No doubt the allegations in the complaint do disclose an offence under S. 395 I.P.C. triable exclusively by a court of session. But then merely because of those allegations, the Magistrate is not bound to treat the case as one exclusively triable by the Court of Session. Section 208, Cr.P.C. states that where in a case instituted otherwise than on a police report it appears to the Magistrate issuing process under Sec. 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay