N. Khatri, J.
1. The D.B. Marg Police presented a charge sheet before the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay, against the present respondents under section 304, Part II r.w. 109 of the I.P.C. on the allegation that on 27th March, 1982, the respondent No. 1 caused the death of one Haribhau Sukale by giving him a hard push as a result of which the deceased who was drunk, lost balance and fell down on the kerb of the footpath. The respondents No. 1 is also alleged to have assaulted the deceased with kicks. The allegations against respondents No. 2 and 3 are that they abetted the respondent No. 1 by hurling abuses at the deceased. The learned Magistrate summoned the Medical Officer who had carried out the autopsy as a witness and in the light of the police papers and the evidence of this witness, came to the conclusion that an offence punishable under section 325, I.P.C. only was prima facie made out that too against respondent No. 1 alone. As regards respondent Nos. 2 and 3, the learned Magistrate felt that there were absolutely no materials to show that they had abetted the offence punishable under section 304, Part II I.P.C. In the result, he proceeded to frame charge against respondent No. 1 alone under section 325 I.P.C. and discharge the other two respondents. The State now challenges this order by this revision.
2. The learned Public Prosecutor who appears for the State, submits that the learned Magistrate has grossly exceeded his legitimate jurisdiction and powers under section 209 Cri.P.C. It is pointed out that there is absolutely no warrant for the Magistrate's recording evidence of the Medical Officer and undertaking appreciation of his evidence and other materials on the record, as if he was trying the case. According to the learned Public Prosecutor, the Magistrate was bound to commit the case to the Sessions Court. As against this, Shri Korde who appears for the three respondents supports the order of the Magistrate and submits that even if the learned Magistrate is presumed to have committed any irregularity, on merits his decision is right and it should not be interfered with by this Court in exercise of its revisional powers.
3. I have been taken through the record of the case and I find that so far as respondent No. 1 is concerned, the learned Magistrate has clearly exceeded the limited jurisdiction vested in him under section 209 Cri.P.C. As stated at the outset, the charge-sheet was presented under section 304, Part II I.P.C. only. This offence is undeniably triable by a Court of Session alone. As to the limits within which a committal Magistrate has to act under section 209 Cri.P.C., I can do no better than reproduce the apt observations of my brother Kotval, J., in 1981 Cri.L.J. 1819 Dr. Dattatraya Samant and etc. v. State of Maharashtra, as under :
'......There should be application of judicial mind for which purpose perusal of the material on record is implied and in that sense, that approach may not be mechanical, but the judicial satisfaction is elevated only to the limited pedestal where it is made to appear to the authority on the face of the record and not further. The employment of the word 'appear' is pregnant with all these inevitable inferences which, in turn, negative a deeper probe or involving the process of appreciation of finer shades. In effect, therefore, on a plain reading of the material on record which impliedly excludes appreciation of finer shades involving a deeper probe as at the full dressed trial, if it appears to the judicial mind of the Magistrate that there exists an offence triable exclusively by Sessions Court, or on such plain reading such an offence is prima facie or on the face of the record is disclosed, then he has no option but to commit the case to the Court of Session.
In a case initiated on a police report, section 209 or any other provisions of Cri.P.C. does not contemplate examination of witnesses by the committing Magistrate. While his job is certainly not circumscribed to acting as a post office only in transmitting the papers from the police to the Sessions Court, there can be also be no doubt that he must exercise his judicial discretion within the strict limits aforementioned. The record discloses enough materials to hold prima facie that the present is a case, where the respondent No. 1 'appears' to have committed an offence under section 304 Part II, if not more. The learned Magistrate was manifestly wrong in calling the Medical Officer as a witness and proceeding to appreciate the overall materials on the record in the light of this evidence.
4. So far as respondent Nos. 2 and 3 are concerned, it is common ground that the investigating machinery have not chargesheeted them for having committed any offence (such as under section 504 I.P.C.) other than the one punishable under section 304, Part II. To this end, the prosecution have alleged that these two respondents had hurled abuses at the deceased, while respondent No. 1 assaulted him on the kerb of the footpath with kicks and otherwise. This allegation by itself cannot even remotely amount to instigation of an offence punishable under section 304, Part II. In the result, the order of the learned Magistrate will have to be upheld so far as respondent Nos. 2 and 3 concerned. However, it will have to be and is hereby set aside as regards respondent No. 1. Respondent No. 1 stands committed to the Court of Session, Greater Bombay under section 209 Cri.P.C. Rule made absolute to the extent indicated above. Respondent No. 1 appear before the Sessions Court, Greater Bombay, on 2nd September, 1985.