Skip to content


Nagorao Vishwanath Inge Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 1125 of 1977
Judge
Reported in(1978)80BOMLR156; 1978MhLJ152
AppellantNagorao Vishwanath Inge
RespondentThe State
DispositionAppeal allowed
Excerpt:
.....by order, transfer the case for trial to the chief judicial magistrate. the discretion left to the sessions judge relates only to the framing of the charge and not the subsequent step of transferring the case to the judicial magistrate. the moment the sessions judge forms the opinion that there is ground to presume that the offence committed is not exclusively triable by the court of session, he is obliged to pass an order of transferring the case for trial to the chief judicial magistrate. - - this part of the order, in our view, is clearly erroneous and cannot be accepted. in this sentence the learned assistant sessions judge seems to think that the words 'he may' control both the subsequent steps of framing the charge as well as transferring the case. that would be a perfectly legal..........read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. this is the procedure laid down by sub-section (2) of section 228.9. in the above procedure laid down by section 228 what we find is that the framing of the charge is not mandatory when the court forms the opinion that the offence presumed to have been committed is not exclusively triable by the court of session. he can frame a charge if he wants. however, it is not absolutely necessary to frame a charge before passing an order of transfer to the chief judicial magistrate in the case of offences not exclusively triable by the court of session. in the case of an offence exclusively triable by the court of session, the provision relating to the framing.....
Judgment:

Deshmukh, J.

1. This is an application by an accused person who was committed for trial to the Court of session and Against whom a charge has been framed by the learned Additional Sessions Judge, Aurangabad, under Sections 409, 465 and 477A of the Indian Penal Code.

2. When such charges were framed, the accused applied to the learned Assistant Sessions Judge stating that the alleged offences are not exclusively triable by the Court of Session and the learned Assistant Sessions Judge should not try him, on the contrary, he should pass an order transferring the case to the tile of the Chief Judicial Magistrate. After hearing the accused, this application was rejected by the learned Assistant Sessions Judge. Against that order the accused has filed the present petition.

3. A charge-sheet was filed against the present accused-petitioner on January 15, 1975 by the Paithan Taluka Police Station under Sections 409, 420, 464, 465 and 477A of the Indian Penal Code. After examining the record, the Judicial Magistrate, First Class, by his order dated June 23, 1975 committed the accused to the Court of Session for trial. After his case was called out and a charge was framed, as mentioned above, he applied for transfer of the case which application had been rejected.

4. While rejecting the application, the learned Assistant Sessions Judge found that the only point that arose for his consideration was whether he should try the case or transfer it to the file of the Chief Judicial Magistrate, as required by Section 228 of the Criminal Procedure Code, 1973. In his view, the provisions of Section 228 give him a discretion and they are not mandatory though he could transfer the case to the Judicial Magistrate, and it is equally permissible for him to try it himself. There is no prohibition in law and hence he decided to proceed with the trial. And hence the only point that arises for our consideration is as to what is the correct meaning and interpretation of Section 228 of the Code of Criminal Procedure, 1973.

Section 228 of the Code is as follows:

228. (1) If, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

5. Before we point out the real meaning and interpretation of the above section, it may be remembered that the accused person was produced before the Court of Session only after the Magistrate before whom the charge-sheet was filed by the police had taken appropriate steps under Section 209 of the Code. Under that section the Magistrate has to apply his mind to the record of the case and prima facie examine all the documents produced and the evidence led in relation to the offences that have been alleged by the police in the report submitted. If the Magistrate comes to conclusion that the offence is triable exclusively by the Court of Session, then he shall have to commit the case to the Court of Session as required by Section 209 of the Code. If, however the offence is not exclusively triable by the Court of Session, the Magistrate has to follow the procedure laid down by chap. XIX for the trial of warrant-cases.

6. It is obvious that after following the procedure of Section 209 of the Code, the Magistrate concerned had committed the case of the accused to the Court of Session.

7. When the accused is thus brought before him, the learned Sessions Judge has to follow the provisions of chap. XVIII of the Code. Under Section 226, when the accused is brought before the Court of Session in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. The Judge then applies his mind to the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf, if the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for the same. This is laid down by Section 227 of the Code. Where, however, that opinion is not formed by the Sessions Judge, but after consideration and hearing mentioned in Section 227, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, he has to follow the procedure laid down in either of the two Sub-clauses (a) and (b) of Sub-section (1) of Section 228. The opinion which the Sessions Judge forms about the offence can lead to two different conclusions. The Judge may think that the offence presumed to have been committed is not exclusively triable by him. Then he has to follow the procedure of Clause (a) of Sub-section (1) of Section 228. If, however, he thinks that the offence is exclusively triable by that Court, he has to observe the provisions of Clause (b) of Sub-section (1) of Section 228.

8. Having come to this conclusion, we have now to examine the provisions of the two clauses more closely. Where the offence which appears to be committed is not exclusively triable by the Court of Session, the Court may frame a charge against the accused and thereafter by an order transfer the case for trial to the Chief Judicial Magistrate. When such a transfer is made, the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report. If the offence presumed to have been committed is exclusively triable by the Court of Session, then the Court shall frame a charge in writing against the accused. Having so framed the charge, it shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. This is the procedure laid down by Sub-section (2) of Section 228.

9. In the above procedure laid down by Section 228 what we find is that the framing of the charge is not mandatory when the Court forms the opinion that the offence presumed to have been committed is not exclusively triable by the Court of Session. He can frame a charge if he wants. However, it is not absolutely necessary to frame a charge before passing an order of transfer to the Chief Judicial Magistrate in the case of offences not exclusively triable by the Court of Session. In the case of an offence exclusively triable by the Court of Session, the provision relating to the framing of the charge is mandatory and after once me charge is framed the Sessions Judge will have to proceed with the trial after reading and explaining the charge to the accused etc. The learned Assistant Judge whose order is challenged before us has written a very cryptic order regarding the true meaning and interpretation of Section 228. He has stated in a vague manner that he has certain discretion under Section 228 and in pursuance of that discretion, even though the offence is not exclusively triable by the Court of Session, he could proceed to try the case since there does not appear to be any prohibition as such against the Court from trying the case. This part of the order, in our view, is clearly erroneous and cannot be accepted.

10. The learned public prosecutor Mr. Hudlikar appearing before us for the State frankly stated that he is unable to support the order but would support the submissions made by the learned Counsel for the petitioner that this order be set aside and the case should be transferred to the file of the Chief Judicial Magistrate for further trial and disposal according to law.

11. The confusion that has been caused in the Court below seems to be based upon the language of the first sentence in Sub-clause (a) of Sub-section (1) of Section 228. That sentence says that where the offence is not exclusively triable by the Court of Session 'he may frame a charge' against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate. In this sentence the learned Assistant Sessions Judge seems to think that the words 'he may' control both the subsequent steps of framing the charge as well as transferring the case. However, that is not so. The discretion left to the Sessions Judge relates only to the framing of the charge. In other words, if the opinion formed by the Sessions Judge is that there is ground to presume that the offence committed is not exclusively triable by the Court of Session, he may or may not frame a charge. However, the moment he forms that opinion, he is obliged to pass an order of transferring the case for trial to the Chief Judicial Magistrate. In other words, the Sessions Judge may write in the form of a running paragraph that in his opinion the following offences seem to have been committed and these offences are not exclusively triable by the Court of Session and after expressing his opinion in this manner he may add a sentence that he is transferring the case to the Chief Judicial Magistrate. That would be a perfectly legal order. Moreover, the Sessions Judge might frame a charge and give precise expression to that opinion which he has formed about the presumed offences seem to have been committed by the accused. If the charge so framed obviously appears to relate to offences, not exclusively triable by the Court of Session, the Sessions Judge may add one line order below such charge that the case is being transferred to the Chief Judicial Magistrate for trial, in view of Section 228(1)(a) of the Code. That may also be an equally legal order. However, the learned Assistant Sessions Judge whose order is challenged before us has assumed that he has a discretion not only in the matter of framing of the charge but also in the matter of transferring the case to the Chief Judicial Magistrate. That being his view, having framed charges under Sections 409, 465 and 477A of the Indian Penal Code, which are offences not exclusively triable by the Court of Sessions, he had proceeded to reject the application of the accused and directed that the trial will proceed before him. He has thus fallen into an error in assuming jurisdiction to try the case which the procedure under the Code does not permit.

12. In our view, therefore, not only application ought to be allowed but we would direct the case to be transferred to the file of the appropriate Judicial Magistrate who shall try the offence in accordance with the procedure for warrant-cases instituted on a police report. This is a direction which has been incorporated in Clause (a) of Sub-section (1) of Section 228. The warrant trial procedure has been laid down in chap. XIX of the Code commencing from Section 238.

13. The learned public prosecutor while supporting the application raised a further argument that the Magistrate on receipt of papers of this case may misunderstand his role and may exercise all or any power given to him under chap. XIX. It would be proper for this Court to lay down as to what is the duty of the Magistrate on receipt of papers in terms of this Court's orders. It is true that Clause (a) of Sub-section (1) of Section 228 requires the Chief Judicial Magistrate to try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report. However, when this clause so directs the Magistrate to try the accused, he has to only try him and not discharge him. It is only the trial that is contemplated, because a superior Court on examination of the papers has already formed an opinion that certain offences appear to have been committed. When that opinion is formed, what is now required to be done is the framing of a formal charge and the trial. If the Sessions Judge framed a charge under the discretionary power vested in him under Section 228, the Magistrate has a ready made charge to proceed ahead with the trial of the accused. Of course, if the police papers and the evidence led before him disclose more offences, he has undoubtedly the power to amend the charge and add those offences. However, if no charge is framed by the Court of Session but only an opinion is expressed regarding the offences that appear to have been committed, the Magistrate may frame such charge and also add some more if he thinks that the record so discloses. Consistent with the directions above, the Magistrate has to proceed with the trial of the case and follow the procedure laid down in chap. XIX.

14. This being our view, the petition is allowed, rule is made absolute and it is directed that the papers of the criminal case shall stand transferred to the file of the Chief Judicial Magistrate, Aurangabad, for further trial and disposal according to law in the light of the observations made above.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //