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Budhiram Khatua Vs. Anima Bose and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 407 of 1966
Judge
Reported inAIR1968Ori165; 33(1967)CLT1001; 1968CriLJ1188
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 207A, 207A(1), 209 and 209(1)
AppellantBudhiram Khatua
RespondentAnima Bose and anr.
Appellant AdvocateRanjit Mohanty, ;B.C. Panda, ;R.K. Kar and ;A. Dutta Roy, Advs.
Respondent AdvocateH. Kanongo, ;R.N. Mohanty, ;G.R. Rao and ;G. Narasimhan, Advs.
DispositionRevision dismissed
Cases ReferredState v. Sikka Suna
Excerpt:
.....courts below are fairly well discussed on facts. it would be sufficient to say that he reached the correct conclusion on fact that the petitioner failed to make out a prima facie case. holding the preliminary inquiry, was to be satisfied in each case that a prima facie case was made out against the accused by the evidence of the witnesses entitled to a reasonable degree of credit, and unless he was so satisfied he was not to commit (see para 21). this dictum necessarily postulates that the magistrate would scan the evidence of the witnesses and determine if they are entitled to a reasonable degree of credit......d. ws. were examined. after consideration of the evidence, the s. d. m. held that there were not sufficient grounds to commit the accused persons to the court of session and discharged the accused under section 209, cr. p. c. the petitioner filed a revision before the learned sessions judge who dismissed the same observing that the complainant had failed to make out a prima facie case under section 330. i. p. c. against this order the revision has been filed.2. the orders passed by the learned courts below are fairly well discussed on facts. the learned sessions judge referred to ex a a complaint in writing filed by the petitioner before the president. fourth grade government servants association wherein there was no reference to the complainant being induced to make a confession about.....
Judgment:
ORDER

G.K. Misra, J.

1. Opposite Party-1 the Headmistress of the Udala Girls High School where the petitioner was the night watchman. Opposite Party-2 is the A. S. I. Police at Udala. The petitioner filed a complaint on the following allegations. In the morning of 24-2-66 Opp. Party-1 sent him to the police station to lodge an information that a purse containing Rs. 26/- had been stolen from her residential quarters in the previous night

The sub-Inspector of Police deputed Opp. Party-2 for inquiry After some conversation with the Headmistress, the house of the complainant was searched. Thereafter at the instigation of the Headmistress the A S I. assaulted him with shoes and a split bamboo to extrot a confession from him that he committed theft. It was also alleged that the A. S I. pricked a pin into his right finger causing a bleeding injury. He became unconscious and regained his senses at about evening. He was treated in the hospital as an indoor patient for about ten days The complaint petition was filed on 5-3-65 with a delay of nine days before the Sub-divisional Magistrate.

The complaint petition was sent to the S. D. O., Magistrate, First Class, Udala, for inquiry Under Section 202. Cr P. C. He submitted report saying that there was no prima facie case Under Section 330 against Opp. Party-2 and 330/109, I. P. C against Opp. Party-1. The complainant filed a protest petition. The S. D. M. held that there was a prima facie case and issued processes against them. During the commitment inquiry, four P. Ws. and four D. Ws. were examined. After consideration of the evidence, the S. D. M. held that there were not sufficient grounds to commit the accused persons to the Court of Session and discharged the accused Under Section 209, Cr. P. C. The petitioner filed a revision before the learned Sessions Judge who dismissed the same observing that the complainant had failed to make out a prima facie case Under Section 330. I. P. C. Against this order the revision has been filed.

2. The orders passed by the learned Courts below are fairly well discussed on facts. The learned Sessions Judge referred to Ex A a complaint in writing filed by the petitioner before the President. Fourth Grade Government Servants Association wherein there was no reference to the complainant being induced to make a confession about theft. Ex A also does not contain the allegation that a pin was pricked into his right ring finget. It is unnecessary to discuss all the materials referred to in the iudgment of the learned Sessions Judge. It would be sufficient to say that he reached the correct conclusion on fact that the petitioner failed to make out a prima facie case. Mr. Mohanty does not assail this finding. His contention is that the Courts below have no iurisdiction to make an elaborate discussion of the materials on record in discharging the accused.

3. To appreciate Mr. Mohanty's contention, reference to Sections 207A and 209, Cr. P. C. is necessary. Section 207A prescribes the procedure for commitment when the proceeding is instituted on a police report while Section 209 deals with the circumstances under which the accused is to be discharged in a commitment proceeding instituted on a private complaint.

4. Section 207A (6), Cr. P. C. runs thus:

'When the evidence referred to in Subsection (4) has been taken and the Magistrate has considered all the documents referred to in Section 173 and has, if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.'

Section 209 (1). Cr. P. C. says --

'When the evidence referred to in Section 208, Sub-sections (1) and (3), has been taken and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial record his reasons and discharge him. unless i1 appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.

5. It would thus appear that under Section 207A, Sub-section (6), the Magistrate shall discharge the accused if the evidence and documents disclose no grounds for committing the accused person for trial, while under Section 209. Sub-section (1), he would discharge him only if there are not sufficient grounds for committing the accused persor for trial In the first case, a finding is necessary that no grounds for commitment are disclosed It follows that if there are some grounds, though they may not be sufficient the Magistrate is to commit the accused for trial and should not discharge him. On the other hand, under Section 209 Sub-section (1). the order of discharge must show that there are not sufficient ground for commitment. Existence of somp grounds would not be enough. Those grounds must not be sufficient to commit.

6. Section 209, Sub-section (1) came up for consideration in AIR 1958 SC 97, Ramgopal v. State of Bombay After observing that the law in India and the law in England on this question were the same, their Lordships held that the Magistrate. holding the preliminary inquiry, was to be satisfied in each case that a prima facie case was made out against the accused by the evidence of the witnesses entitled to a reasonable degree of credit, and unless he was so satisfied he was not to commit (see Para 21). This dictum necessarily postulates that the Magistrate would scan the evidence of the witnesses and determine if they are entitled to a reasonable degree of credit. The discharge order in this case is one under Section 209, Sub-section (1). The aforesaid decision has full application. The Courts below were iustified in scanning the evidence to reach the conclusion whether the witnesses were entitled to a reasonable degree of credit.

7. AIR 1962 SC 1195, Bipat Gope v. State of Bihar, dealt with an order of discharge under Section 207A, Sub-section (6). Their Lordshios did not finally express their views on the distinction between the meaning of the aforesaid underlined expressions in Sections 207A and 209, Cr. P. C. The tentative view expressed therein however, supports the conclusion that the Magistrate must find out a stronger case for discharging the accused under Section 207A than under Section 209. Their Lordships observed thus --

'The words of the two Sections are not same and it is possible to say that the force of the two Sections is also not the same and that Section 209 gives a power to enter upon the merits of a case in a manner which Section 207A does not warrant. Whether the change of the language is deliberate or due to the fact that different draftsmen drafted the two sections the test for discharging the accused must in a large way be the same undei both the sections, and it is hardly necessarv to deride the full ambit of Section 207A and contrast it with that of Sec-ion 209. If there is any indication in the language, it is altogether on the side that the Magistrate must find a stronger case for discharging the accused under Section 207A than under Section 209.'

The present case is governed by Section 209, Sub-section (1) and the courts below were iustified on scanning the evidence of the witnesses to decide whether they were entitled to a reasonable degree of credit. The principle enunciated in (1966) 32 Cut LT 339. State v. Sikka Suna related to an order of discharge under Section 207A Sub-section (6) and has no application to this case.

8. The revision has no merit and is accordingly dismissed.


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