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R.S. Diwakar Vakil and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 157 of 1957
Judge
Reported inAIR1958All325; 1958CriLJ585
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 206 and 215; Official Secrets Act, 1923 - Sections 13(2)
AppellantR.S. Diwakar Vakil and anr.
RespondentState
Appellant AdvocateD.P. Agarwal, Adv.
Respondent AdvocateA.G.A.
DispositionApplication allowed
Excerpt:
(i) criminal - quashing the commitment - section 215 of criminal procedure code, 1898 - sessions judge considered the commitment was irregular - commitment cannot be quashed by sessions court - the proper procedure is to refer the matter to the high court. (ii) order of commitment without enquiry - section 13(2) of official secrets act, 1923 - case not to be sent to the sessions court - accused not anxious for formal enquiry - no prima facie case - enquiry may be dispensed with and the order of commitment allowed to stand. - orderv.g. oak, j.1. this revision application is directed against an order of the learned sessions judge of rampur interfering with an order of commitment. the matter has arisen under the following circumstances.2. r. s. diwakar and smt. prem kumari diwakar are being prosecuted under the indian official secrets act. the case was before a magistrate. an application for the transfer of the case was moved before the high court. i dismissed the application for transfer, but remarked that the accused might insist on a trial by the sessions court as provided under section 13 of the official secrets act.3. when the case went back to the magistrate after the dismissal of the transfer application, the accused exercised the option given by sub-section (2) of section 13 of the indian official.....
Judgment:
ORDER

V.G. Oak, J.

1. This revision application is directed against an order of the learned Sessions Judge of Rampur interfering with an order of commitment. The matter has arisen under the following circumstances.

2. R. S. Diwakar and Smt. Prem Kumari Diwakar are being prosecuted under the Indian Official Secrets Act. The case was before a Magistrate. An application for the transfer of the case was moved before the High Court. I dismissed the application for transfer, but remarked that the accused might insist on a trial by the Sessions Court as provided under Section 13 of the Official Secrets Act.

3. When the case went back to the Magistrate after the dismissal of the transfer application, the accused exercised the option given by Sub-section (2) of Section 13 of the Indian Official Secrets Act. The Court was informed that the accused would prefer to have the case tried by the Court of Session. On receiving this application the learned Magistrate passed an order on 20-12-1956, committing the two accused to the Court of Session for trial.

4. When the learned Sessions Judge perused the papers, he concluded that the commitment was not in accordance with law. So on 9-1-1957 the learned Sessions Judge passed an order directing the learned Magistrate to follow commitment proceedings as laid down in Sections 206, 207 and 208, Cr. P. C. The two accused persons have filed the present revision application against the order of the learned Sessions Judge dated 9-1-1957.

5. In substance the order dated 9-1-1957 is an order setting aside the commitment. Now, a Sessions Judge is not empowered to pass such an order. Section 215, Cr. P. C. lays down that a commitment once made by a competent Magistrate can be quashed by the High Court only. If the learned Sessions Judge considered that the commitment was irregular, the proper procedure was to refer the matter to the High Court for quashing the commitment. The learned Sessions Judge could not himself quash the commitment. So the order dated 9-1-1957 must be cancelled.

6. Now, we have to consider whether the learned Magistrate's order of commitment dated 20-12-1956, is proper. On this point I agree with the learned Sessions Judge that, the learned Magistrate did not follow the proper procedure. The Magistrate committed the case to Sessions as a matter of course. This is not the intention of Sub-section (2) of Section 13 of the Indian Official Secrets Act Sub-section (2) of Section 13 of that Act states :

'.....the Magistrate shall, if he does notdischarge the accused, commit the case for trial................'

The reference to discharge indicates that the case is not to be sent to the Sessions Court as a matter of course, the Magistrate has to see whether there is a prima facie case before the accused is to be committed to Sessions. If there is no prima facie case, the accused has to be discharged. In the present case the order dated 20-12-1956 does not indicate whether there is any prima facie case against the accused.

7. Mr. D. P. Agarwala, appearing for the accused persons, suggests that it is not necessary to hold a formal enquiry as laid down in Chap. XVIII of the Code of Criminal Procedure. The enquiry is for the benefit of the accused, as there is usually some possibility of a discharge. But since the accused themselves are not anxious for a formal enquiry, and are prepared to stand their trial before the Sessions Court, the enquiry may be dispensed with in the present case.

8. The revision application is allowed. The order of the learned Sessions Judge dated 9-1-1957 is set aside. Although the procedure adopted by the learned Magistrate was defective, the order of commitment dated 20-12-1956 is allowed to stand- The learned Sessions Judge is directed to try the case on the basis of the commitment dated 20-12-1956. Let the record of the case be returned to the learned Sessions Judge for holding the trial as soon as practicable.


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