G. Mehrotra, J.
1. This is an application in revision against an order of the Additional Sessions Judge, Lower Assam Division at Now gone by which he directed the Magistrate to make further enquiry,
2. In order to appreciate the points raised, it will be necessary to give briefly the facts out of which this case has arisen. An application was filed before the Sessions Judge under Section 436 Criminal Procedure Code on behalf of the complainant. The complainant on 6th of July 1958 Iodged a first information report before the Police alleging that the opposite parties (before the Magistrate) trespassed into the land belonging to him and that they also assaulted him.
According to his allegation, about 20 or 25 persons took part in the occurrence, out of whom he could identify ten persons. The investigation was taken up by the Police and after completion of the investigation chargesheet was submitted against twelve persons including the Opposite Parties Nos. 1 to 7 as absconders before the Sessions Judge. Haji Samjid Ali was not sent up for trial for want of sufficient evidence against him. As the abscenders could not be produced, a proclamation was issued by the Magistrate against them and the Magistrate proceeded with recording the evidence under Section 512 Criminal Procedure Code against those absconders. The matter, however, came up for consideration before the Magistrate under Section 251-A Criminal Procedure Code.
The Magistrate after perusal of the papers submitted before him framed charge under Section 324 Indian Penal Code against accused Faijul Bari and the rest of the accused were discharged by him as in his opinion on the perusal of the record there was no prima facie case against them made out, and, he further observed that the investigation according to him was not Proper. Against this order of the Magistrate a revision was filed before the Sessions Judge under Section 436 Criminal Procedure Code. The point taken by the persons, who were discharged and against whom charge was not framed, was that the Sessions Judge has no power under Section 436 Criminal Procedure Code to order further enquiry as the trial had already commenced.
The Sessions Judge after examination of the authorities cited by the Counsel for the accused came to the conclusion that the trial in cases under Section 251-A Criminal Procedure Code does not commence when the accused is produced but it only commences after the accused has claimed a trial, and after the charge has been framed, and, therefore, in the Present case, there was no pending trial and the Sessions Judge has powers under Section 436 Criminal Procedure Code to direct further enquiry. After having held that, the Sessions Judge looked into the Police papers and was of the opinion that there were sufficient materials before the Police from which a prima facie case had been made out against the Other accused. He therefore, directed a further enquiry by the Magistiate.
3. Mr. Lahiri who appears for the accused-petitioners has contended that the trial commences from the time when the accused is produced under Section 251-A Criminal Procedure Code and the Sessions Judge was not right in holding that there was no trial and that the trial would only commence after the accused claimed a right to the trial. Reliance is placed in this connection on the case of R. Govindaswamy v. The State reported in AID 1960 Andh Pra 391. Before referring to the facts of that case it will be necessary to examine the provisions of the Code. Section 436 Criminal Procedure Code provides as follows:
On examining any record under Section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under Section 203 or Sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged:
Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made.
This section is, in our opinion, very widely worded. It says that on examination of the record under Section 436 Criminal Procedure Code the Sessions Judge can direct further inquiry in cases where a complaint has been dismissed under Section 203 or Sub-section (3) of Section 204, pr into the case of any Person accused of an offence who has been discharged. It does not debar the jurisdiction of the Sessions Judge to interfere with the order of discharge and to direct further inquiry after the trial has commenced.
In cases where the trial is going on and the trial has commence a further inquiry has no meaning, and, therefore, in cases where the trial is going on, there is no question of directing any further inquiry. If the Sessions Judge thinks that the order refusing to frame charge is illegal or not justified on the materials on the record, then lie proper order to be passed is to act under Section 435 Criminal Procedure Code and refer the case to the High Court for decision. But, the Sessions Judge in that view of the matter cannot act under Section 438 Criminal Procedure Code.
If the Sessions Judge acts under Section 436 he can only direct the inquiry if there are circumstances which justify a direction to hold further inquiry. In cases where the trial is going on, the question of directing further inquiry may not arise and in that view of the matter it may be legitimately argued that in cases where the trial has commenced and is pending, the Sessions Judge cannot exercise his jurisdiction under Section 436 Criminal Procedure Code. In the case referred to above the facts were that the accused was charged by a Magistrate under one section, and the Public Prosecutor made an application that certain other charges should be added. The Magistrate refused to add those charges.
The Public Prosecutor contended that it amounted to an order of discharge and he made an application in revision against that order to the Sessions Judge. The trial in that case in respect of the charge which had already been framed was going on, and, under those circumstances it was held by their Lordships of the Andhra Pradesh High Court that there was no question of directing any further inquiry and thus the Sessions Judge was not entitled to exercise his powers under Section 436 of the Code of Criminal Procedure, and the proper order which the Sessions Judge should have passed was to refer the matter to the High Court under Section 439 of the Code of Criminal Procedure.
The facts of that case are no doubt distinguishable but the principle underlying that case can be applied to the facts of the present case. What this case lays down is that the Sessions Judge will not exercise his powers under Sec- tion 436 Criminal Procedure Code in cases where there is no question of directing any further inquiry. Examining the facts of the present Case we think that any direction as to further inquiry is nothing but directing the Magistrate to frame charge as the Sessions Judge himself has come to the conclusion after examination of the Police records that a prima facie case has been made out. In view of the order passed by the Sessions Judge, the further inquiry has no meaning. The Magistrate will only carry out the orders of the Sessions Judge and will frame charge against the other accused as the Sessions Judge has come to a definite conclusion that a prima facie case has been made out against them. If this is the import of the order passed by the Sessions Judge, he should have exercised his Powers under Section 435 Criminal Procedure Code and refer the matter to this Court and in that case this Court might have been in a position to examine or decide whether the powers were properly exercised by the Sessions Judge under Section 435 Criminal Procedure Code.
In this connection it should also be pointed out that the power exercised by the Sessions Judge under Section 436 is wider than the one exercised under Section 435 Criminal Procedure Code and in any event of the matter if the Sessions Judge intends or intended to exercise his powers under Section 435, he should have referred the matter to this Court and this Court could have examined the matter from a different standpoint, namely, whether the Sessions Judge could take a different view from the Magistrate on the materials before him. But, the Sessions Judge in the present case, in our opinion, was not right in holding that in the circumstances of the present case he should direct a further inquiry. As we have already pointed out, it amounts to giving a direction to the Magistrate to frame a charge.
4. It is then contended by Mr. Sharma, who appears for the complainant, that it was obligatory on the part of the Magistrate to give reasons and that in the present case there are no reasons given by the Magistrate and, therefore, the order is examinable by this Court in exercise of its re-visional powers. There are two answers to this contention. Firstly, if the contention of Mr. Sharma is accepted then it will be examining the order passed by the Sessions Judge in the light that he has exercised his powers under Section 435, which in the present case he has not done.
In that case if the Sessions Judge thought that the order of the Magistrate was defective or illegal because it did not contain any reason, he should have referred the matter to this Court under Section 439 Criminal Procedure Code, The second answer to his contention is that though it may be desirable that the Magistrate should give his reasons because the matter is examinable in revision by the superior courts and the superior courts will be in a better position to examine the validity or propriety of the order Passed by the Magistrate, if the reasons are given it cannot be said that failure to give reasons makes the order a nullity or without jurisdiction so that it can be set aside by this Court.
5. In the result, therefore, the revision is allowed and the order of the learned Sessions Judge is set aside. The rule is made absolute.
S.K. Dutta, J.
6. I agree.