1. Sometime in the year 1972, a complaint was filed by the applicant against opposite parties 1 to 7 in the Court of Additional District Magistrate (Judicial), Kanpur. After holding preliminary inquiry in the usual manner the learned Magistrate found that there was a prima facie case and issued process for compelling the attendance of the opposite parties 1 to 7 to answer the charges under Sections 342, 385 and 395. I.P.C. Thereafter the case was transferred to the Court of Judicial Magistrate. Kotwali, Kanpur. During the pendency of the committal proceedings, the new Code of Criminal Procedure of 1973 came into force with effect from 1-4-1974. On 2-12-1974, the learned Magistrate passed the following order:
Sardar Mahesh Singh has filed this complaint against the accused persons, S. I. Jagdish Singh, S. I. Pravin Singh, Head Constable Jagat Singh, Constable Ajai Singh. Constable Gaya Prasad, Raj Kumar and Shiv Nath. The allegations are that on 28-7-1972 at about 4 P. M. the accused persons reached at his house, arrested his father and some tenants and took some articles in their possession : It included one car.
The father of the complainant could be relieved on the next date. The car was produced before A, D. M. (J); Varanasi.
After the preliminary enquiry the accused persons were ordered to be summoned. The controversy arose if it was a dacoity case and the accused persons should be committed to the court of session.
By now, no evidence after summoning the accused persons is adduced : The contention on behalf of the accused persons is that they took search in a case of Varanasi and the memo was prepared. The complaint itself does not speak that any dacoity took place. Thus, it does not appear to be a case of dacoity. The case shall be tried here as warrant case.' By means of this application under Section 482, Cr. P.C. (new) the applicant has prayed that the order may be quashed.
2. For the applicant it has been conceded that, in view of Section 484, the new Code applied to the committal proceedings in the present case, but it was contended that even so the order dated 2-12-1974 was illegal and without jurisdiction. Section 209 of the new Code deals with commitment of cases to the court of session. That section, as in force in the State of U. P., reads:
209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) as soon as may be after complying with the provisions of Section 207, commit the case to the court of session;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody until commitment of the case under Clause (a) and thereafter during and until the conclusion of the trial; ,
(c) send that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
3. The contention of the learned Counsel for the applicant is that the Additional District Magistrate (J) had already found that there was a prima facie case under Section 395. I.P.C., which is exclusively triable by a court of session. Therefore the Judicial Magistrate. Kanpur. in whose court the case was transferred subsequently, was bound to commit the case to the court of session. He could not sit in judgment on the matter over again and hold that the offence under Section 395, I.P.C., was not disclosed by the complaint, particularly, when no fresh material had come on record meanwhile. At this stage it may be pointed out that the order passed by the Additional District Magistrate (Judicial), Kanpur, is relatable to Section 204 of the old Code which is practically the same as Section 204 of the new Code. I will. therefore, assume that the order passed by the Additional District Magistrate (Judicial) Kanpur was one under Section 204 of the new Code. That section, so far as relevant, says:
204 (1) if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be:
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit. a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
Thus, the argument of the learned Counsel is that a Magistrate is bound by his order under Section 204, Cr. P.C. and if he has summoned the accused for an offence exclusively triable by the court of session, then, under Section 209 he must commit the case to the court of session. He cannot act otherwise. If he does, his action would be in excess of his powers under Section 209, Cr. P.C., and. therefore, illegal and without jurisdiction.
4. Although seemingly specious, the argument is far away from reality. Section 209, Cr. P.C., invests the Magistrate with power to decide that the offence disclosed by the complaint is exclusively triable by the court of session. The discretion given to the Magistrate by this section is not taken away, because he has issued process to the accused in regard to an offence exclusively triable by the court of session. Section 209 is not controlled by Section 204. They occupy separate fields, each independent of the other. It is true that, under Section 204 when the Magistrate decides that there is sufficient ground for proceeding he has also to decide whether it is a summons case or a warrant case, which comes to the same thing as saying that he has also to decide what are the offence or offences for which the accused is to be prosecuted. But that is only an ex parte view. Section 209 requires the Magistrate to reconsider that view after hearing the accused. The section lays down that when the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of session, he shall commit the case to the court of session. When it says so. it means that the Magistrate shall hear the accused and then decide whether the offence disclosed is really one triable by the court of session. The discretion given to the Magistrate by this section being a judicial discretion, it should be exercised with care and on proper grounds.
5. In the view expressed above, it was open to the Judicial Magistrate to reconsider the matter in the present case under Section 209, Cr, P, C. and decide whether the offence disclosed by the complaint was really one exclusively triable by the court of session. The argument to the contrary of the learned Counsel for the applicant is repelled. Coming then to the merits of the order, it, may be stated that there is nothing on the record to show that, on the available material, the learned Magistrate was not justified in coming to the conclusion that he reached. Accordingly, the impugned order is not vitiated by any error justifying interference under Section 482. Cr. P.C. There is no merit in this petition. It must fail.
In the result the application is dismissed. The stay order dated 29-1-1975 vacated.