In proceedings under Section 209 of the Code of Criminal Procedure, the magistrate has to apply his judicial mind and find whether the case is a fit one for committal. He cannot make a mechanical approach to the case and pass an order of commitment with eyes closed.

( 1 ) THIS revision is directed against an order of the VIII Additional Munsif Magistrate, Saharanpur, Dated 28. 5. 1983.

( 2 ) IT appears that a complaint was filed by Shobha Nath, the applicant against Achchhu Ram, opposite party No. 1 and several others for the offence under Sections 395/397 Indian Penal Code on 5/12/1981, the Station Officer submitted a final report which was accepted by the Munsifmagistrate, Hardwar on 15/12/1981. On 11/1/1982, Shobha Nath filed a Protest Petition which was treated as a complaint on 16. 1. 1982 by the magistrate and statements were recorded by him of the complainant and his witnesses under Sections 200 and 202 of the Code of Criminal Procedure.

( 3 ) ON 10. 1. 1983, the Chief Judicial Magistrate summoned Achchhu Ram, the opposite party No. 1, for the offence under Sections 395/397 Indian Penal Code. The case was, thereafter, received on the file of VIII Additional Munsif-Magistrate for commitment under Section 209 of. the Code of Criminal Procedure to the Sessions Judge. At that stage, an application was made by the opposite party No. 1, Achchhu Ram, for discharge on the ground that an offence under Sections 395/397 Indian Penal Code could not, in law, be committed by a single individual, hence, on the finding of the Chief Judicial Magistrate given on 10/1/1983, the opposite party No. 1 Achchhu Ram was entitled to be discharged.

( 4 ) OPPOSING the application for discharge made by Achchhu Ram, the applicant contended that in the proceedings under Section 209 of the Code of Criminal Procedure, the Court had no jurisdiction to go into the validity or legality of the order made by the Chief Judicial Magistrate summoning the opposite party under Sections 395/397 Indian Penal Code. Accordingly, the application was liable to be rejected. On 28/5/1983 the Munsif-Magistrate held that summoning of Achchhu Ram under Sections 395/317 Indian Penal Code was illegal as no offence under these sections could be committed by a single individual. He repelled the argument of the applicant that in the proceedings under Section 209 of the Code of. Criminal Procedure, the Munsif-Magistrate had no jurisdiction to consider the legality of commitment and has to pass the order blindly without applying his mind. At this stage, I may. point out that by the impugned order the Munsif. Magistrate had hot discharged the accused Achchhu Ram and had ordered the case to be put up before him on 30. 5. 1982. The Munsif-Magistrate did not either commit or refuse to commit Achchhu Ram -under Section 209 of the Code of Criminal Procedure and sent the case back to the Chief Judicial Magistrate who had passed the order dated 10. 1. 1983 for passing appropriate orders. In these circumstances, no final order had since been passed refusing to commit Achchhu Ram (if that could be done under the law), no cause of action had accrued to the applicant to file present revision. In any view of the matter, it will not be appropriate at his stage for to High Court to interfere.

( 5 ) THE learned counsel for opposite party Achchhu Ram submitted that the expression used if it appears to the magistrate- requires him to apply his judicial mind and find whether the case is a fit one for committal. He cannot, according to the learned counsel for opposite party No. 1, make a mechanical approachs to the case and pass an order of commitment with eyes closed. The scope of Section 209 of the Code of Criminal Procedure was considered by the Supreme Court in Sanjay Gandhi v. Union of India, wherein the Supreme Court held that it is not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on merits. In this regard the observations made further were:in our view, the narrow inspection hole through which the committing magistrate has to look at the case, limits him merely to ascertain whether the case, as disclosed by the police report, appears to the magistrate to show an offenc