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High Court Of Madhya Pradesh
K. L. Srivastava
STATE OF M.P. - Appellant
Versus
RAMPRASAD - Respondents
M. Cr. C. 1943 Of 1987
Decided On : 12/04/1987
Held, that the discretion under section 209 of the Code vested in the Magistrate is a judicial one and the Magistrate thereunder performs a judicial function. He has not to act as an automaton or as a mere post office. Yet as is clear from the weighty pronouncement of the S.C. the judicial discretion under section 209 of the Code has a very limited scope. Thereunder the Magistrate is not entitled to inter into an appreciation of evidence, which the Court of Sessions is empowered to do with the object of discharging the accused or framing a charge against him. He is certainly not entitled to look into the record to find out whether on the material -as it exists it appears that an offence exclusively triable by the Court of Sessions is made out. As pointed out by the Apex Court, the narrow inspection hole through which the Magistrate has to look at the case limits his view to the police report and be cannot view beyond it. Therefore, despite the fact that on the material as it exists, it may appear to him that an offence triable exclusively by the Court of Sessions is not made out he is still bound to commit the case to the Court of Sessions. However, where it appears to the Magistrate from the police report itself that there is no offence triable exclusively by the Court of Sessions, the power to release the accused has to be held as implicit in the words employed in section 209 of the Code. (Para 7)
Held further, The Courts below have not stated that the police report does not disclose an offence under section 364 of the I.P.C. In the circumstances they erred in passing the orders they did in respect of the offence. (Para 9)
Result:
Application dismissed.
( 1 ) THIS is an application under section. 482 of the Code of Criminal Procedure (for short the Code) interfering with the revisional order dated 25. 8-87, dismissing the revision against the magisterial order discharging N As in respect of offence under section 364 of the IPC.
( 2 ) CIRCUMSTANCES giving rise to the application are these: The police, Garoth presented a challan against the NA5 in the Court of judicial Magistrate First Class, Garoth, in respect of offences under sections 148, 323 and 364 of the IPC (vide criminal case No. 714/86 ). By his order dated 23-3-87, the learned Magistrate held that there is no offence under section 364 of the IPC and framed charges only in respect of offences under sections 148 and 323 of the IPC. The State preferred a revision (Criminal Revision No. 107/87) which has been disposed of by the Addi. Sessions Judge, Gareth by the impugned order. Hence this application.
( 3 ) THE contention of the learned counsel for the petitioners is that section 209 of the Code does not empower the Magistrate to pass an order of discharge and in the circumstances he was bound to commit the case to the Court of Sessions with reference to section 227 of the Code, he urges that the Court of Sessions alone has the power to discharge the accused. ( 4 ) THE point for consideration is whether the application deserves to be admitted.
( 5 ) SECTION 209 (a) of the Code On which the learned counsel for the petitioner has based his arguments, provides that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence to triable exclusively by the Court or Sessions, he shall commit the case to the Court of Sessions. It may be noted that from the words employed in the section it is clear that it is not in each and every case where an offence triable exclusively by the Court of Sessions is alleged to have been committed, the Magistrate has no option but to commit the case. The use of the word appears in the section is very significant. It connotes that the Magistrate is thereunder vested with a discretion in the matter and unless on the facts reported it appears to him that an offence triable exclusively by the Court of Sessions is there, he is not bound to be solely guided by the fact that the police has filed a charge-sheet alleging commission of an offence triable exclusively by the Court of Sessions. It may at this very stage be stated that the word appears does not certainly vest the Magistrate with a wide discretion as is vested by section 227 of the Code in the Court of Sessions. Reference in this connection may usefully be made to the decision in Sanjay Gandhi v. Union of India1. Therein it has been observed as under: It is also not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. 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 offence triable solely by the Court of Sessions: If it is so, the Magistrate has simply to commit for trial before the Court of Sessions. If by error, wrong section of the Penal Code is quoted, he may look into that aspect. If made up facts unsupported by any material are reported by the police and a Sessions offence is made to appear, it is perfectly open to the Sessions Court under section 227 Cr. P. C. to discharge the accused.
( 6 ) THE decision in Ram Gulam Chaubey v. State of M. P2 and Ram Sumiran v. State of M. P. 3 may also be usefully perused.
( 7 ) IT has to be conceded that the discretion, under section 209 of the Code vested in the Magistrate is a judicial one and the Magistrate there-under performs a jud
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