1. This is a reference by the Assistant Sessions Judge of Etawah recommending that this Court do set aside under Section 215 an order made by a Magistrate committing a case to the Court of Session for trial. Put shortly, what happened was that there were cross cases, and in one case a charge was framed under Section 307, Penal Code and, therefore, the case had to be committed for trial to the Sessions Court. In the cross case the offences in respect of which the learned Magistrate thought it desirable to frame charges appeared to him to fall under Sections 147 and 323/149, Penal Code and Section 22, Cattle Trespass Act. All of these were offences triable by a Magistrate of the first class, but nonetheless the learned Magistrate committed the accused for trial to the Sessions Court on the ground that as he had committed the cross case to the Sessions Court, the interests of justice demanded that this case should also be committed to the said Court. The learned Assistant Sessions Judge relying upon the decision in King-Emperor v. Dharam Singh ('06) 3 A.L.J. 14 expressed the opinion that the question of adequate punishment (vide Section 254, Criminal P.C.) arises only in cases where the offences are triable by the Magistrate and also by the Court of Session and not where the offences are triable exclusively by the Magistrate. He remarked that the maximum sentence of imprisonment which could be given was only two years and, therefore, there could be no question that the learned Magistrate could give an adequate punishment. The learned Assistant Sessions Judge failed to note that under Section 147 the amount of fine which may be inflicted is unlimited and therefore, it might conceivably be the case that the Magistrate might think himself unable to inflict an adequate sentence, whereas an adequate sentence could be inflicted by the Sessions Court. That point has been noted in a Calcutta case to which I shall refer later. The learned Assistant Sessions Judge referred to some other cases and being of opinion that the commitment was illegal, he made a reference to this Court.
2. On the matter coming up, the attention of one of us was drawn to a recent decision of my brother Mulla in an unreported case, Ramlal Singh v. Emperor Criminal Appeal No. 398 of 1942 in which he held that having regard to the provisions of Section 28, Criminal P.C., a Magistrate properly empowered is competent to commit any case for trial to the sessions. We have now had the advantage of making a regular survey of the cases on this point so far as we could trace them. As my learned brother noted in referring this matter to a Bench, the attention of Mulla J. in the case above-mentioned does not appear to have been drawn to the provisions of Section 254, Criminal P.C. He discussed the matter with refer-once only to the provisions of Sections 28, 206 and 207 of the Code. With all respect I am of opinion that in the light of the provisions of Section 254 of the Code and the previous decisions of this Court the view expressed by Muila J. in the unreported case ought not to be followed. An interesting point about that case is that the point was not taken in a reference or application for the setting aside of a commitment but in appeal against the conviction. It was urged that as the appellants in this Court had been charged under1 Sections 147, 352 and 323, there was no case triable by the Court of Session and hence the-commitment to that Court by the learned Magistrate was illegal. Mulla J., after a consideration of Sections 28, 206 and 207, held that. Magistrates had a wide discretion and that a case involving an offence not exclusively triable by the Court of Session might yet be committed for trial if the Magistrate was of opinion that it ought to be tried by the Court of Session. Hence he held that the commitment could not be said to be invalid or illegal and the conviction could not be set aside on that ground.
3. Exactly the same point came before another learned Judge of this Court in an un-reported case, Basdeo v. Emperor : AIR1945All340 decided by my brother Braund, on 31st January 1945 when it was held that even assuming that the trial was one which should properly, according to Section 254, Criminal P.O., have taken place before the learned Magistrate, the matter was at its highest an irregularity to which Section 537 of the Code was applicable. In the course of his judgment, Braund J. referred to the earlier authorities bearing on this matter in this Court in which it was held that a commitment to the Sessions Court in a case triable by the Magistrate otherwise than on the ground that the Magistrate was of opinion that he was unable to inflict an adequate sentence was illegal and liable to be set aside under Section 215 of the Code, and he remarked that had the present case before him involved that question, then no question would have arisen. My object in referring to this decision is only to bring out the point that there is adequate room for doubt as to whether the opinion expressed by Mulla J. in the case before him was necessary for the disposal of the appeal which was before him for decision. The case which we have before us, however, raises directly the question of the illegality of committing a person to Sessions for trial for an offence which the Magistrate is competent to try and for which he can give an adequate punishment.
4. The cases of this Court to which we have been referred begin as far back as 1886 with Empress v. Behari, decided by Edge C.J. and reported in ('86) 1886 A.W.N. 256. This was a case apparently of cross complaints and the Magistrate sent up one party for trial on charges under Sections 147 and 304 and the other on a charge under Section 143. Cases under Section 143 are, of course, triable by any Magistrate, the maximum sentence of imprisonment being 6 months. There is, however, no limit to the amount of fine which may be imposed. On an objection by the learned Sessions Judge, the Magistrate apparently referred to Section 207, Criminal P.C., and expressed the opinion that the case ought to be tried by the Court of Session, presumably on the ground that the cross ease had been committed for trial to that Court. The learned Chief Justice was of opinion that no point of law was raised on which he would be justified in quashing the commitment. This is the only case of this Court in which, that opinion has prevailed.
5. On the other hand, in King-Emperor v. Dharam Singh ('06) 3 A.L.J. 14, in which in argument a reference was made to ('86) 1886 A.W.N. 256 and the Magistrate committed a man for trial, in what was again more or less a cross case, on charges under Sections 352 and 447, Knox J. remarked that the offences for which the accused had been committed for trial were what were known technically as summons cases the procedure for the trial of which was contained in Ch. 20, Criminal P.C. He went on to remark:
Even in warrant cases Section 254 lays down that when a Magistrate is of opinion that there is ground for presuming that an accused has committed an offence, which would or should ordinarily be tried by a Magistrate, such Magistrate, when he is of opinion that he can adequately punish an accused person, shall frame in writing a charge against the accused. The law therefore requires that cases of this kind be tried by a Magistrate and not be committed to a Court of Session.
He accordingly held that the commitment of Dharam Singh was wrong on a point of law, firstly, because there was no warrant for the commitment of such cases and, secondly because the maximum punishment under each offence was one which the Magistrate could inflict. The commitment was accordingly quashed. The point was again considered by Banerji J. in Emperor v. Baldeo ('13) 19 I.C. 960 where the reference to set aside the commitment was rejected. That was a case falling under Sections 148 and 325, Penal Code and the learned Magistrate committed the accused to the Sessions Court on the ground that he would not be able to punish the accused adequately in the event of his finding him guilty. The offences charged being under Sections 148 and 325 were under Schedule 2, Criminal P.C., triable by a Court of Session or a Magistrate. Banerji J. observed that the reference had been made because the Sessions Judge himself was of opinion that the Magistrate was competent to award a sufficient punishment. He expressed the opinion that the Magistrate had a discretion in the matter and in effect the commitment was not illegal and it could not be set aside by substituting the opinion of the Sessions Judge for that of the Magistrate whatever the ultimate result might be. No disagreement was, however, expressed with the principle laid down in King-Emperor v. Dharam Singh ('06) 3 A.L.J. 14 that the commitment would only be legal if made on the ground that the Magistrate was unable or rather thought himself unable to inflict an adequate sentence. In Emperor v. Bindsheri Goshain ('19) 6 A.I.R. 1919 All. 366 decided in 1919, Lindsay J. accepted the view that it is not competent to a Magistrate to commit a case which it is within his jurisdiction to try unless he is of opinion that the accused, if guilty, cannot be adequately punished by him. It was remarked in the order of reference, the reasons given in which were accepted by Lindsay J., that
Section 254, Criminal P.C., directs that in a case which he is competent to try, if a Magistrate is capable of passing a sentence which in his opinion is adequate, he shall frame a charge and proceed with the trial. As the present case was triable by the Deputy Magistrate, he should have acted under Section 254, Criminal P.C., and tried the case himself unless he considered that he could not punish the offence adequately.
Reference was made to Emperor v. Jagmohan ('09) 6 A.L.J. 989 for the view
that a commitment is bad in law where the Magistrate does not say, in a case which he is competent to try, that the sentence which he can impose will not be adequate to meet the ends of justice.
Reference was also made to Queen-Emppress v. Kayemullah Mandal ('97) 24 Cal. 429, for the view
that a commitment of an accused person by a Magistrate to the Court of Session, on a charge under Section 147, Penal Code, was bad, unless the Magistrate stated that in his opinion he was unable to pass an adequate sentence.
6. In a somewhat similar case, Emperor v. Ram Jatan ('24) 11 AIR 1924 All. 185, a commitment was set aside by Ryves J. accepting the view expressed in Emperor v. Bindsheri Goshain ('19) 6 A.I.R. 1919 All. 366. As regards other Courts, we have already referred incidentally to Queen-Emppress v. Kayemullah Mandal ('97) 24 Cal. 429, in which a Magistrate made a commitment to the sessions on a charge under Section 147, Penal Code. The Division Bench was of opinion that
in a warrant case a Magistrate is bound by the provisions of Section 254. That section prescribes that, when a Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter (that is Ch. 21, which contains the provisions for the trial of warrant cases) which such Magistrate is competent to try, and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused. This section therefore would seem to leave the Magistrate in these circumstances no option. But if on the other hand the Magistrate finds that the accused has committed an offence which in his opinion cannot be adequately punished by him, there would seem nothing to prevent his committing the case to the Court of Session, notwithstanding the fact that in the schedule appended to the Code the case may be shown as triable by a Magistrate.
It was contended against the commitment that the Magistrate was competent to pass the maximum sentence of two years; but the learned Judges remarked:
But an offence under Section 147, Penal Code, is also punishable with fine of an unlimited amount, while the Magistrate could impose a fine of Rupees 1000 only. The Magistrate might therefore have committed this case to the Court of Session, if he had considered that the fine which he could impose would not be an adequate punishment of the accused's offence.
They held that as the Magistrate did not say that he considered this case to be one in which he was not competent to inflict an adequate punishment, he could not under Section 254, Criminal P.C., commit the case to the Court of Session. In Emperor v. Deo Narain Mullick ('28) 15 A.I.R. 1928 Pat 551 a Single Judge of that Court took the view that where an offence is triable both by the Sessions Court and by a Magistrate, the latter can commit an accused to Sessions only if he is of opinion that the case ought to be tried by the Sessions Court. He must give reasons for entertaining that opinion, for the order of commitment is a judicial order. That was a case in which a Magistrate had been under the misapprehension that one of the offences with which the accused was being charged was exclusively triable by the Court of Session. The learned Judge concluded his judgment by accepting the reference, that is he quashed the commitment and restored the case to the file of the Sub-Divisional Magistrate to dispose of it in accordance with law with the remark that
if he be of opinion that the gravity of the case requires that it should be tried by the Court of Session, he would be, at liberty to commit the accused to the Court of Session giving reasons therefor. If, on the other hand, he is not of such opinion, then he would try the case himself.
I would infer that the learned Judge was of opinion that the only ground on which a commitment would be justified would be that the Magistrate felt himself unable to inflict an adequate sentence, and said so. In the Lahore High Court in Emperor v. Karam Singh ('30) 17 A.I.R. 1930 Lah. 312 the learned Chief Justice accepted the reference and quashed the commitment made on a charge under Section 379, Penal Code, solely on the ground that it arose out of the same transaction in which certain other persons had been committed for trial on a charge under Section 302, Penal Code, against persons who had beaten to death a man concerned in the same theft with which Karam Singh was being charged. The commitment was therefore made solely to avoid a possible conflict of decisions. It was held that that was not a reason for committing the case to Sessions. The case is not particularly helpful. As against this general current of decisions, there are really only two eases cited apart from the one case of 1886 of this Court. In Emperor v. Ali ('17) 4 A.I.R. 1917 Lah. 251, it was held by a single Judge of that Court that a commitment of a case which could adequately be dealt with by the Magistrate himself is, in the total absence of any cause for commitment, illegal, but that where there is any good cause why the ease should be tried by the Court of Session, the commitment should be made and that such cause is not always limited to incompetency of the Magistrate to try the case or to pass an adequate sentence. In that case the reason for commitment was that the case aro3e out of a riot and one party of rioters had been committed to the Sessions Court charged under Sections 304, 325 and 148. Hence the Magistrate considered it necessary to commit for trial to the Sessions Court persons of the opposite party who were charged under Section 147, Penal Code, only. The learned Judge says only that he considered that the words 'ought to be tried' in Sections 207 and 847, Criminal P.C., could not be limited only to the case suggested by Section 254, namely, that the case is one in which the Magistrate is unable to pass an adequate sentence.
7. The matter was considered at some length by a Division Bench of the Madras High Court in Crown Prosecutor v. Bhagavathi ('19) 6 A.I.R. 1919 Mad. 907. That was a case in which the Magistrate had committed for trial to the Court of Session a person charged with an offence under Section 304A, Penal Code, punishable with two years' imprisonment of either description or fine (of unlimited amount) or both and triable by virtue of Schedule 2 of the Code by a Court of Session or a Presidency Magistrate or a Magistrate of the first class. The matter came before the Court on an application by the Crown Prosecutor for quashing the commitment on the ground that under Section 254, Criminal P.C., a Magistrate ought to try a case himself till it ends either in a conviction or acquittal before him unless he thinks that the offence could not be adequately punished by him and that in this case it was impossible for the Magistrate to entertain such an opinion because he had powers under the Code to inflict imprisonment of either description up to two years which is the maximum punishment provided for the offence. Sadasiva Ayyar J. remarked that the argument ignored the fact that the offence was also punishable with fine of unlimited extent, whereas the Presidency Magistrate's powers o fining were limited to the amount of Rs. 1000 and cases were conceivable where a rich man guilty under Section 804A could more appropriately be sentenced to a fine of five thousand rupees by a Sessions Court than by a Presidency Magistrate with imprisonment and a fine of Rs. 1000. He, however, regarded this as a minor point possibly because the person charged was a jutka driver and more or less a man of straw upon whom the Presidency Magistrate could not possibly have inflicted a fine in excess of Rs. 1000. The learned Judges therefore went on to consider the effect of Sections 254 and 347 of the Code. Sadasiva Ayyar J. referred to the cases in Queen-Empress v. Kayemullah Mandal ('97) 24 Cal. 429, King-Emperor v. Dharam Singh ('06) 3 A.L.J. 14 and Emperor v. Jagmohan ('09) 6 A.L.J. 989 referred to earlier. He thought that those cases gave much wider effect to the language of Section 254 than that language could properly support. He relied on an earlier case of the Madras High Court and held that the committal by a competent Magistrate on the ground that in the Magistrate's opinion the case is a fit one to be tried by a Court of Session cannot be interfered with by the High Court. Napier J. arrived at the same conclusion. But I must admit that there is one passage in his judgment which I am quite unable to follow. After making a reference to Section 347 he goe3 on to say:
The Crown Prosecutor has been unable to refer us to any section authorizing a Magistrate to commit for trial where he cannot inflict a proper sentence which according to him is the proper course, whereas there is a distinct provision for submission to a higher class Magistrate in such cases to be found in Section 349.
But that is precisely what Section 347 provides for although it does not contain the grounds on which the Magistrate is to hold that the case is one which should be tried by the Court of Session. It is possible that the learned Judge was somewhat affected by the presence on that date in Section 347 of the words 'stop further proceedings.' Napier J. remarked that it was a frequent practice of Magistrates in this country to commit cases for trial to the Court of Session for reasons other than in ability to pass an adequate sentence, for example convenience, complexity of facts or other matters. Sadasiva Ayyar J. had suggested such considerations as that a complicated question of law arises or that some connected matter was already before the Court of Session or that the facts are such that trial with the aid of a jury or with the aid of assessors, who may be chosen from experts in the particular matters involved in the case, would be a more satisfactory procedure. It may be that this has been the practice in the Madras Presidency, but the question is not one of practice but of law.
8. In my judgment, Section 28, Criminal P.C., does not really affect the matter. That section provides that:
Subject to the other provisions of this Code any offence under the Indian Penal Code may be tried : (a) by the High Court, or (b) by the Court of Session, or (e) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable.
The meaning which was intended to be conveyed by this section may well be inferred from the illustration which runs as follows:
A is committed to the Sessions Court on a charge of culpable homicide. He may be convicted of voluntarily causing hurt, an offence triable by a Magistrate.
The effect of the section is that a Court of Session has jurisdiction once a case has properly come before it, that is on a legal order of commitment, even in matters of offences not ordinarily triable by it. This does not imply that a person charged with a petty offence can at the discretion of a Magistrate be sent for trial to the Court of Session. Chapter 18 of the Code contains the provisions relating to inquiry into cases triable by the Court of Session or High Court. Section 206(1) empowers any Presidency Magistrate or Magistrate of the First Class, etc, to commit any person for trial to the Court of Session...for any offence triable by such Court. As I understand the words 'triable by such Court' refer to the entries in col. 8 of Schedule 2. Schedule 2 of the Code is part of the Code as enacted by the Legislature. Section 207 provides:
The following procedure shall be adopted in inquiries before Magistrates where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the Magistrate ought to be tried by such Court.
These are the only relevant sections in chap. 18. Chapter 21 contains the provisions for the trial of warrant cases by Magistrates. Section 254 provides as follows:
If, when such evidence and examination (of the accused) have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
This section is followed by Section 255 relating to plea, Section 256 relating to defence, Section 257 relating to process for compelling production of evidence at the instance of the accused, Section 258 relating to acquittal and conviction and Section 259 relating to absence of the complainant. As I understand it, the clear implication of the words of Section 254 is that in any case shown in Schedule 2 as triable by a Magis. trate which has been begun as a warrant case the Magistrate is bound by Section 254 to proceed to frame a charge and dispose of the trial himself unless the offence is one which in his opinion could not be adequately punished by him. Section 207, as it seems to me, covers those cases in which ab initio the Magistrate is able by consideration of the complaint or the police charge-sheet to form an opinion that the case though not exclusively triable by the Court of Session is one which ought to be tried by that Court because he will be unable to inflict adequate sentence if the case results in conviction. The only other provision of the Code which it is necessary to consider seriously is Section 347 contained in chap. 24 relating to general provisions as to inquiries and trials. This section provides as follows:
(1) If in any inquiry before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained. (2) If such Magistrate is not empowered to commit for trial, he shall proceed under Section 346.
which empowers the Magistrate in such a case to stay proceedings and submit the case to the Magistrate to whom he is subordinate. By Sub-section (2) of Section 316 the Magistrate who receives the case so submitted may try it himself or refer it to some other Magistrate or commit the accused for trial. These sections have been interpreted by this Court in the past, and as far as I am able to see, the only High Court which holds a different view from that expressed in King-Emperor v. Dharam Singh ('06) 3A.L.J. 14 and the subsequent cases of this Court is the High Court of Madras. The Lahore decision in Emperor v. Ali ('17) 4 A.I.R. 1917 Lah. 251 appears to stand by itself.
9. Schedule 2, Criminal P.C., lists a large number of offences as triable by the Court of Session, Presidency Magistrates or Magistrates of the First Class. The bulk of these are cases in which the maximum sentence of rigorous imprisonment is three years, although the amount of the fine is in many cases unlimited. But there are some offences triable by a Magistrate as well as by the Court of Se3sion in which the maximum sentence is as high as transportation for life. There is a small class of offences in which the maximum sentence of imprisonment is only two years but which are triable not only by a Magistrate but also by the Court of Session. These are offences under Sections 304A, 385, 500, 501 and 502. In all these the amount of fine is unlimited. The argument in the Madras case in Crown Prosecutor v. Bhagavathi ('19) 6 A.I.R. 1919 Mad. 907 was slightly biased by the fact that that was a case under Section 304A and, therefore, specifically triable by a Court of Session. Napier J. remarked that the suggestion of the Crown Prosecutor that the commitment was bad unless the Magistrate certified that he could not adequately punish the accused led to the somewhat extraordinary position that a Court of Session which is specifically empowered under the section cannot try the case because it cannot be committed to it by a First Class Magistrate. The statement is, of course, not strictly accurate, bearing in mind that admittedly vide Queen-Empress v. Kayemullah Mandal ('97) 24 Cal. 429 a case triable only by a Magistrate can be committed to the Court of Session where the Magistrate is of opinion that he is unable to inflict an adequate sentence, as for example in cases where the amount of fine is unlimited and a sentence of fine therefore could be inflicted much in excess of Rs. 1000. It does not seem to me that there is anything very extraordinary in the proposition that although a certain offence is listed as triable by a Court of Session, it is not open to a Magistrate to commit such a case to the Court of Session unless he is able to certify as required. When all is said and done, the Magistrate is bound by the provisions of Section 254, Criminal P.C. Such a case though no doubt expressed as triable by a Court of Session is also triable by him and whether he is acting under Section 207 or Section 251, he must be able to express the opinion that he is unable to pass an adequate sentence before he will be justified in wasting the time of a Sessions Court with what must, if he cannot express that opinion, be a petty case. And that is what appears to me to be the clear intention of the Code.
10. In cases triable exclusively by the Court lot Session a Magistrate has no option. In eases which are not so exclusively triable he Way, as I have suggested earlier, in suitable cases start his proceedings under chap. 18 or he may and more usually will start his proceedings under chap. 21. A Magistrate would not be justified in starting proceedings in a simple case of riot or, indeed, most of the offences punishable with a sentence of three years' rigorous imprisonment other than under Chap. 21. Having done so, he will be bound by the provisions of Section 254 and it will be his duty to frame a charge and to dispose of the case himself except in the circumstance that he is of opinion as provided by Section 254 that he will not be competent to inflict an adequate sentence. Section 347, as it appears to me, does not introduce any new aspect but only keeps open for the Magistrate a loop-hole in those eases in which he comes to a realization of the necessity of commitment at a later stage of the case. In my judgment, neither Section 207 nor Section 347 should be read as giving a Magistrate an absolute discretion in the matter, subject only to his forming the opinion on some ground or other that the case ought to be tried by the Court of Session (Section 207) or it is apparent to him that the case is one which ought to be tried by a Court of Session (Section 347). That is the view which has been generally accepted in this Court and so far as I can see in other Court apart from the Madras High Court and it appears to me that not only is it justified in law but that it is a sound commonsense view which should not be departed from. I would accordingly accept the reference and set aside the commitment by the Magistrate as being illegal. The case shall go back to the learned Magistrate for disposal according to law.
11. I agree.