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Emperor Vs. Venkatesh Sadashiv Nargund - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Application for Revision No. 111 of 1910
Judge
Reported in(1910)12BOMLR521
AppellantEmperor
RespondentVenkatesh Sadashiv Nargund
Excerpt:
.....code (act v of 1898), sections 208, 209, 211, 213-framing of a charge-order of commitment-procedure-magistrate's order-power to change the order.;the applicant was being tried before a magistrate. after the witnesses for the prosecution had been examined, and the magistrate was about to frame charges' against the applicant, his pleader pointed out to the magistrate the propriety of committing the case for trial to the court of session. yielding to that suggestion, the magistrate framed certain charges, one of which was under section 467 of the indian penal code, and directed that the case should be tried by the court of session. the applicant then raised the objection that the charge under section 467 of the indian penal code could not proceed for want of sanction under section..........j.9. i should like to say that my opinion, after carefully reading chapter xviii of the criminal procedure code, is that the only order of committal which takes away the magistrate's power of proceeding further with the case, is an order made under either section 213 or section 214. that is clear from the terms of section 215. in this case, there is no such order of the court. mr. cowan, the magistrate, cancelled the charge under section 467, and proceeded with the trial in his own court. it does not seem to me that the law prohibits such a proceeding, for the case was still in the magistrate's hands. he had not parted with jurisdiction over it. regarding the application for transfer, nothing whatever has been brought to our notice which to my mind necessitates the transfer. the.....
Judgment:

N.G. Chandavarkar, Kt., J.

1. This is an application to quash a certain order passed by Mr. Cowan, First Class Magistrate, Belgaum, with reference to the trial of the petitioner pending before the said Magistrate on certain charges under the Indian Penal Code. This Court is also asked by the application either to order the committal of the petitioner for trial to some Court of Session other than that at Belgaum or to transfer the case against the petitioner from the Court of Mr. Cowan to the Court of some other Magistrate outside the district of Belgaum.

2. The circumstances under which the application is made are briefly these.

3. The petitioner, who is a pleader of the District Court at Belgaum, is being tried, jointly with others, before Mr. Cowan, on certain charges, on the strength of a sanction, granted by the District Magistrate at Belgaum, and confirmed by this Court. When, after the witnesses for the prosecution had been examined, Mr. Cowan was about to frame charges against the petitioner, the latter's pleader pointed out to the Magistrate the propriety of committing the case for trial to the Court of Sessions, because the facts and inferences to be drawn from the evidence for the prosecution made out an offence exclusively triable by that Court. Yielding to that suggestion, the Magistrate framed, on the 24th of March, certain charges, one of which was under Section 467 of the Indian Penal Code, and the Magistrate directed that the case should be tried by the Court of Sessions. When that order was read out, the petitioner and his pleader raised the point that the charge under Section 467 could not proceed for want of sanction under Section 195 of the Code of Criminal Procedure. Regarding this procedure on the part of the petitioner as 'cynical insincerity,' the Magistrate then and there amended the charges and intimated his intention to try the case himself instead of committing it to the Court of Session. The petitioner's pleader thereupon objected that the Magistrate, having once framed charges and directed the case to be tried by the Court of Session, could not thereafter amend the charges and proceed with the case. That objection was overruled by the Magistrate upon the ground that the mere framing of charges with a direction that the case be tried by the Court of Session did not amount to an order of committal such as the Code of Criminal Procedure contemplates.

4. This view of the Magistrate, which is assailed before us as erroneous in law, is, in our opinion, warranted by the provisions of the Code of Criminal Procedure. It is true that a criminal Court has no power given to it by the Code to review and modify an order which it has once passed; but then it must be an order such as is contemplated by the Code. The question in the present case is, was there 'an order of commitment' within the meaning of Section 213 of the Code That section relates to the procedure laid down in the Code for the trial of cases triable by the Court of Session. According to that procedure, after the evidence referred to in Section 208 has been taken and the accused has been examined under Section 209, the Magistrate may either discharge the accused, or, if he finds there are sufficient grounds for commitment, 'he shall frame a charge', read and explain it to the accused. After that the Magistrate has to require at once the accused to give in, orally or in writing, a list of his witnesses (Section 211). When the list has been given, the Magistrate may, in his discretion, summon and examine any witness named in it. It is only after all this procedure has been followed that the Magistrate can make an ' order of commitment, ' recording briefly his reasons for it (Section 213).

5. It is obvious from this arrangement of the provisions in the Code that the mere framing of a charge against the accused, as required by Section 210, is distinct from, and does not amount to, an order of commitment, which has to be made under Section 213. In the present case the Magistrate had merely framed the charge and arrived at the procedure so far only as Section 210 laid it down. That did not divest him of his jurisdiction to proceed with the case. He had further procedure to adopt before passing his order of commitment; and after that procedure had been followed, it was open to him to consider whether he ought to commit the case to the Court of Session or to try it himself. This discretionary power is given to the Magistrate by the provisions of Section 213 itself. That section does not say that the Magistrate ' shall make an order' of commitment, it says he ' may' make such an order. Had the Legislature intended the framing of a charge, as required by Section 210, to be final for the purposes of an order of commitment and the requirements of Section 213 to be mere formality, inevitably following from the charge framed according to Section 210, we should have found Section 213 worded so as to compel the Magistrate to make the order of commitment as a matter of course.

6. But then it is argued that, in any case, the Magistrate had no power to amend the charge after he had framed it under Section so as to bring the case back and make it triable by himself. Having regard to what occurred in this case, we cannot hold that there was the framing of a charge according to law which could not be subsequently altered. The petitioner at first invited the Magistrate to commit the case. As soon as the Magistrate yielded to that invitation, the petitioner turned round and said that the charge which made the case triable exclusively by the Court of Session could not lie for want of sanction. If that was so, the Magistrate had no jurisdiction to frame the charge so far as it was under Section 467; the framing of the charge was ultra vires; and the Magistrate had nothing to alter, but was bound to proceed with the trial according to law.

7. Next we are asked to transfer the case to some other Magistrate. No ground of bias has been made out for transfer and we decline to accede to the prayer.

8. The rule is discharged.

Heaton, J.

9. I should like to say that my opinion, after carefully reading Chapter XVIII of the Criminal Procedure Code, is that the only order of committal which takes away the Magistrate's power of proceeding further with the case, is an order made under either Section 213 or Section 214. That is clear from the terms of Section 215. In this case, there is no such order of the Court. Mr. Cowan, the Magistrate, cancelled the charge under Section 467, and proceeded with the trial in his own Court. It does not seem to me that the law prohibits such a proceeding, for the case was still in the Magistrate's hands. He had not parted with jurisdiction over it. Regarding the application for transfer, nothing whatever has been brought to our notice which to my mind necessitates the transfer. The allegation made by the petitioner that he thinks that he will not be given a fair trial, if true, discloses a frame of mind which does not appear to me to be reasonable.

10. For these reasons I would discharge the rule.


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