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Aswathappa and ors. Vs. Ramchandrappa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1972CriLJ1654
AppellantAswathappa and ors.
RespondentRamchandrappa and anr.
Excerpt:
.....no application to a case of this kind, and the prejudice is obviously not curable under section 537. 6. it is therefore clear from the above decision of the supreme court that the procedure followed by the learned magistrate in the present case without complying with the provisions of sections 208. 210. 211 and 212. cr......offences under sections 143. 147. 148 and 324 read with section 149 of the indian penal code. the learned magistrate took cognizance of the case and examined six witnesses on behalf of the complainant. then he recorded the statements of the petitioners-accused and heard arguments, and framed charges against them under sections, 143. 147. 148 and 324 read with 149 of the i. p.c. thereafter on the ground that there is a counter-case filed against the complainant's party the learned magistrate committed the petitioners to the sessions court for trial so that the case may be tried along with the counter-case that was pending against the complainant's party relying on a decision of the madras high court in 1929-2 madras cr. c. 238 (zl). while so committing the petitioners accused for trial,.....
Judgment:

M. Santhosh, J.

1. The seventeen petitioners before this Court have been committed to the court of Session at Kolar to take their trial by the learned Special first Class Magistrate. Chickballapur in C. C. No. 852 of 1970.

2. On a complaint filed by one Ramachandrappa against these petitioners alleging that they had committed offences under Sections 143. 147. 148 and 324 read with Section 149 of the Indian Penal Code. The learned Magistrate took cognizance of the case and examined six witnesses on behalf of the complainant. Then he recorded the statements of the petitioners-accused and heard arguments, and framed charges against them under Sections, 143. 147. 148 and 324 read with 149 of the I. P.C. Thereafter on the ground that there is a counter-case filed against the complainant's party the learned Magistrate committed the petitioners to the Sessions Court for trial so that the case may be tried along with the counter-case that was pending against the complainant's Party relying on a decision of the Madras High Court in 1929-2 Madras Cr. C. 238 (ZL). While so committing the petitioners accused for trial, the learned Magistrate stated that in view of the peculiar circumstances of the case he dispensed with the procedure prescribed by Sections 208 210, 211 and 212 Cr. P.C. before committing the petitioners for trial. In this petition, the said order of committal passed by the learned Magistrate is challenged.

3. The learned Counsel appearing on behalf of the petitioners contended that the learned Magistrate had no Power to dispense with the procedure prescribed by Sections 208, 210. 211 and 212 Cr. P.C. and that these provisions are mandatory, and that the Court is bound to follow them before committing the accused for trial before the Court of Session.

4. There is force in the contention urged on behalf of the petitioners. In a proceeding instituted otherwise than on a police, report, Section 208 Cr. P.C. lays down that before a charge is framed the accused has got a right to examine witnesses on his behalf. In the instant case the learned Magistrate has not followed the procedure prescribed under Section 208 before framing the charge against the petitioners. It is also apparent that after framing a charge and before committing the accused to the Sessions Court for trial the learned Magistrate should follow the provisions laid down under Sections 210, 211 and 212 Cr. P.C. There cannot be any doubt that these provisions are mandatory and the court is bound to follow the same.

5. In Chhadamilal Jain v State of Uttar Pradesh 38 Mys LJ 6 : (1960 Cri LJ 145 (SO). Their Lordships of the Supreme Court have laid down that where a case begins before a Magistrate as a warrant or a summons case and the Magistrate decides that the case should be committed to the Court of Session he must inform the accused and see that the provisions of Ch. 18 of the Code are complied with so far as they have not been complied with upto the stage at which he decides that there ought to be a commitment. Their Lordships have further observed that in a case where the Magistrate has taken all the prosecution evidence and then decides to commit the accused, he should refrain from framing a charge inform the accused that he had decided to commit them for trial call upon the accused to produce defence evidence if any. under Section 208 and then proceed further under Ch. 18; where the Magistrate decided to act under Section 247 (1) but did not intimate that decision to the accused and proceeded forthwith to commit them for trial, the result is that the accused are deprived of the right to produce defence evidence if any under Section 208 and the denial of such right is sufficient to cause prejudice to the accused and the commitment is bad and Section 537 would have no application to a case of this kind, and the prejudice is obviously not curable under Section 537.

6. It is therefore clear from the above decision of the Supreme Court that the procedure followed by the learned Magistrate in the present case without complying with the provisions of Sections 208. 210. 211 and 212. Cr. P.C. is illegal and the charges framed by him against the petitioners and the order of commitment for that to the Sessions Court have to be set aside.

7. For the reasons mentioned above we allow this petition and quash the charges framed against the petitioners and also the order of their commitment. We remand the case back to the learned Magistrate to proceed afresh and in accordance with law.


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