1. All the three accused were committed to stand their trial in the High Court by the learned Presidency Magistrate, Third Additional Court, on January 10, 1942. The learned Magistrate held one enquiry against all the accused and framed charges against accused Nos. 1 and 2 in respect of 17 counterfeit coins under Section 232 read with Section 114 of the Indian Penal Code and Section 243 read with Section 114, and also in respect of 584 counterfeit coins under the same sections, and also a charge under Section 235 read with Section 114 ; and he framed a charge against accused No. 3 in respect of only 584 counterfeit coins under Section 243 of the Indian Penal Code.
2. The learned Clerk of the Crown has altered and amended the charges framed by the learned Presidency Magistrate, and he is further of opinion that the three accused cannot be jointly tried. He has, therefore, suggested that accused Nos. 1 and 2 should be tried jointly in respect of the offence in connection with 17 counterfeit coins and accused No. 3 in respect of the offence in connection with 584 counterfeit coins. In framing the charges against accused Nos. 1 and 2 the learned Clerk of the Crown has dropped the charges against them in respect of 584 counterfeit coins framed by the learned Presidency Magistrate.
3. Before I pass my final orders counsel for the defence applied that they were anxious that they should be heard, and I therefore gave them an opportunity to make their submissions.
4. Mr. Coyajee for accused No. 2 has contended that the order of commitment made by the learned Presidency Magistrate on January 10, 1942, is illegal and that I should quash it under Section 215 of the Criminal Procedure Code.
5. It is conceded both by the prosecution and by the defence that a joint trial of all the three accused would offend against the provisions of Section 239 of the Criminal Procedure Code, and Mr. Coyajee contends that the learned Presidency Magistrate having held one enquiry under Chapter XVIII of the Code and having framed charges against all the accused in that enquiry, the learned Magistrate has contravened the provisions of Section 239 and, therefore, the order of commitment is illegal.
6. The first question that arises is, whether I presiding over the Sessions have jurisdiction to quash the order of commitment under Section 215 of the Criminal Procedure Code. In Phanindra Nath Mitra v. Emperor (1908) I.L.R. 36 Cal. 48 an application was made to quash an order of commitment to the High Court in the exercise of its ordinary appellate jurisdiction. The Court expressed doubt whether it had jurisdiction to do so and opined that the practice in similar cases had been to apply to the Judge exercising the original criminal jurisdiction of the Court. It, however, did not decide the question observing that although the question of jurisdiction was one of considerable importance, but as the application before it was urgent, it did not propose to deal with it. In The Crown Prosecutor v. Bhagavathi (1918) I.L.R. 42 Mad. 83 the Crown Prosecutor moved Mr. Justice Spencer, who was presiding at the Sessions to which the accused had been committed, to quash the order of commitment. His Lordship held that the application to quash the commitment should be made on the appellate side of the High Court. Accordingly an application was made on the appellate side. In Emperor v. Mackay (1326) I.L.R. 53 Cal. 350 a full bench of the Calcutta High Court heard a reference on a certificate from the Advocate General. The accused who was committed to the High Court Sessions took an objection that the order of commitment by the Chief Presidency Magistrate was illegal. The learned Judge presiding over the Sessions overruled the objection and proceeded with the trial. Mr. Justice Walmsley, one of the Judges who constituted the full bench, stated (p. 355) :-
I am disposed to think that the petitioner's remedy was to move this Court in its revisional capacity to quash the commitment.
7. Mr. Justice B.B. Ghose also expressed as his opinion (p. 369):-
A commitment may be quashed by the High! Court under Section 215, but this refers to its appellate or revisional jurisdiction, and I do not think that a Judge exercising Original Criminal Jurisdiction can quash a commitment on the ground that it was illegal,
8. Our own High Court in Emperor v. Nona Amrita : AIR1935Bom70 entertained an application for quashing an order of commitment on its appellate side, although the question of jurisdiction was neither raised nor considered. Mr. Justice Murphy and Mr. Justice Sen assumed that the power of the High Court to quash an order of commitment was exercisable in its revisional jurisdiction.
9. The original criminal jurisdiction of the High Court is conferred upon it by Clause 22 and 23 of the Letters Patent, and the Judge presiding over the Sessions exercises that jurisdiction in accordance with Chapter XXIII of the Criminal Procedure Code. When the High Court is called upon to quash a commitment on the ground of an illegality under Section 215, it clearly does not do so in the exercise of its original criminal jurisdiction. It is a power that it exercises either in its appellate or revisional jurisdiction. I, therefore, hold that I have no jurisdiction to consider the legality of the order of commitment.
10. As I have held that I have no jurisdiction to consider the legality of the order of commitment, it is unnecessary for me to consider whether in fact the order of commitment is illegal. But in case I am wrong in the view I have taken and especially as the matter has been argued at some length, I should also like to decide the other question.
11. It is clear that Section 239, which provides for joint trials, does not apply to enquiries held by the Magistrates in cases triable by the Court of Session. In Emperor v. Sita (1905) 7 Bom. L.R. 457 the accused Sita was committed by the First Class Magistrate of Nasik to the Sessions Court of Nasik to be tried under Section 412 of the Indian Penal Code. She was committed jointly with five other accused The magisterial enquiry against all the six accused was conducted as one proceeding. The Sessions Court tried the other five accused and convicted them. With regard to the accused Sita, the Sessions Judge of Nasik made a reference to the High Court. In the reference he expressed his opinion that Sita could not be tried jointly with the other accused, that the order of commitment was illegal and that the High Court should quash it. Mr. Justice Russell and Mr. Justice Batty heard the reference. In their judgment they stated that there was no provision requiring a separate enquiry in respect of each accused person and that the provision contained in Section 233 related to separate trials only. In the matter of Govindu (1902) I.L.R. 26 Mad. 592 Mr. Justice Bhashyam Ayyangar expressed as his opinion that the sections of the Criminal Procedure Code relating to joinder of charges, viz. Section 233, etc., and including Section 239, referred to the trial of the accused. In a later decision of the same Court in In re T.S. Krisknamurthi Ayyer (1916) 17 Cr. L.J. 369 the Magistrate ordered that the accused do stand his trial before the Sessions Court on three distinct charges of breach of trust and of falsification of accounts in respect of each breach of trust. The accused moved the High Court in revision to quash the commitment on the ground that he could not be tried at one and the same trial for six charges. The Court was of opinion that the Sessions Judge had the discretion to try the accused separately on each of the three charges and that it would be premature at this stage to interfere with the order of commitment. On these authorities it is clear that there is nothing to prevent the committing Magistrate from holding one enquiry against several accused although they could not be tried jointly consistently with the provisions of Section 239, and although one order of commitment might be made in respect of all the accused, it is competent to the trial Court to order separate trials in order to give effect to the provisions of the Code.
12. I therefore, hold that the order of commitment is not tainted with any illegality and should not be quashed. I also direct that accused Nos. 1 and 2 and accused No. 3 should be tried separately.
13. It is finally urged that the Clerk of the Crown has no jurisdiction to withdraw the charges framed by the learned Magistrate against accused Nos. 1 and 2 in respect of 584 counterfeit coins. It is urged that under Section 226 his powers are restricted to framing a proper charge when there is an imperfect or erroneous charge framed by the Magistrate and do not extend to withdrawing a charge altogether against an accused person. To my mind it is clear that if on the evidence recorded by the committing Magistrate it is found that no offence has been committed, the proper procedure is for the Court to make an entry under Section 273 that the charge is unsustainable. It is only when some offence is disclosed on the evidence recorded and the charge framed by the committing Magistrate is either imperfect or erroneous that it is competent to the Clerk of the Crown under Section 226 to frame a proper charge. In doing so the Clerk of the Crown may add or otherwise alter the charge framed by the committing Magistrate. In this case the learned Clerk of the Crown has proceeded on the assumption that the evidence recorded will not sustain a charge against accused Nos. 1 and 2 in respect of 584 counterfeit coins. He does not think that the charge is either imperfect or erroneous but that it is unsustainable, and he has proceeded to omit framing any charge against the accused in respect of an offence in connection with those coins. I do not think he is competent to do so.
14. I wish to make it clear that Section 226 gives the widest possible powers to the Clerk of the Crown to revise and re-draft charges with reference to any offence in respect of which the committing Magistrate has framed a charge. But when the Magistrate comes to the conclusion that an offence has been committed and frames a charge accordingly, it is not open to the Clerk of the Crown to withdraw that charge on the ground that there is no evidence to go to the jury and therefore the charge would fail. That is a judicial act which can only be performed by the Court.
15. I would, therefore, direct that an entry be made against the charges framed by the committing Magistrate against accused Nos. 1 and 2 in respect of 584 counterfeit coins that those charges are unsustainable.
16. With regard to the rest of the charges framed by the Clerk of the Crown against accused Nos. 1 and 2 and against accused No. 3, two separate trials will proceed. on the charges as re-drafted by the Clerk of the Crown.