P.K. Mohanti, J.
1. This criminal revision arises in the following circumstances:
The petitioner filed a complaint petition against the opposite parties on the following allegations; On 31-3-76 he went to the Patrapur Grama Panchayat Office to file quotation for lease of the Ferry Ghat at Patrapur and the opposite parties also went there for the same purpose. The petitioner took with him a cash of Rs. 2,200/- to deposit the lease money in case his quotation was accepted. The opposite parties after coming to know that the petitioner was ready with cash to deposit the lease money entered into a conspiracy to commit theft of the cash. Opposite party No. 1 directed the other opposite parties to take away the cash from the petitioner by applying force. Then opposite parties 2 to 6 held the petitioner down and opposite party No. 1 took away the cash from the petitioner.
2 The opposite parties were summoned to stand their trial under Section 380/352/149 IPC. After appearance of the opposite parties, since it was a complaint case, the evidence on behalf of the prosecution was recorded. The petitioner and two other witnesses were examined. At the time of consideration of the charge it was contended on behalf of the petitioner that a case Under Section 395 IPC was made out against the opposite parties and hence the case should be committed to the Court of Session for trial. The learned Magistrate negatived this contention and framed charges Under Sections 143 and 380/149 IPC against all the op- opsite parties as per his order dated 8-9-76. Aggrieved by this order the petitioner-complainant has come up in revision. It is urged in this criminal revision that on the evidence on record a case Under Section 395 IPC has been made out against the opposite parties and the case is triable exclusively by a Court of Session.
3. The evidence on record shows that while the complainant was counting the cash inside the Panchayat Office, the opposite parties went outside and talked secretly. Then they came inside the Panchayat Office and opposite party No, 1 handed over the quotation already filed by the petitioner to opposite party No. 2. When the petitioner took exception to such action of the opposite parties, opposite party No. 1 directed the other opposite parties to snatch away the cash from the petitioner by application of force. Then opposite parties 2 to 6 held the petitioner down and opposite party No. 1 took away the cash from the petitioner.
4. 'Dacoity' is denned in Section 391 as follows:
When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit 'dacoity'.
According to Section 390 I.P.C. theft is 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt, or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
Illustration (a) to Section 390 runs as follows:
A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent. Here A has committed theft, and, in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has, therefore, committed robbery.
5. From the definition of 'robbery' and 'dacoity' quoted above, it is quite clear that there should be use of force or attempt to use force for the purpose of committing theft or in carrying away or attempting to carry away property obtained by theft. The word 'conjointly' used in Section 391 manifestly refers to united or concerted action of the persons participating in the transaction. Persons who conjointly commit robbery are said to have committed dacoity.
6. The question here arises whether the opposite parties 2 to 6 when they attacked the petitioner and held him down did so for facilitating the snatching away of the cash from the petitioner. On the materials on the record it would be reasonable to infer that they held the petitioner down for facilitating the commission of theft and not for any other purpose. When the opposite parties 2 to 6 held the petitioner down there was physical obstruction. The obstruction was caused to prevent the petitioner from proceeding in any direction. Thus the action of the opposite parties 2 to 6 prima facie amounted to wrongful restraint within the meaning of Section 339 I.P.C. and the conjoint action of all the opposite parties prima facie amounted to commission of the offence of dacoity. This aspect of the case appears to have escaped the notice of the learned Magistrate. The evidence on record indicates the necessary ingredients for the offence Under Section 395 I.P.C. At any rate, it cannot be said that the evidence, if unrebutted, would not warrant a conviction Under Section 395 I.P.C. At this stage the Magistrate is only required to consider the evidence prima facie to find out whether the evidence, if unrebutted, would result in conviction. He is not required to consider the entire pros and cons of the evidence which is yet to be adduced, inasmuch as the witnesses are to be cross-examined and perhaps defence witnesses might also be examined. The learned Magistrate, it appears, balanced the entire evidence as if he had reached at a final stage in the trial. He was clearly in error in framing charges Under Sections 143 and 380/149 against the opposite parties. It is therefore necessary that a further enquiry should be made into the case.
7. It is urged on behalf of the opposite parties that the framing of a charge is an interlocutory order which cannot be interfered with in revision in view of the bar Under Section 397(2) Cr.PC The learned counsel appearing on behalf of the opposite parties cited some decisions in support of the view that the framing of a charge is an interlocutory order. The cases cited by him are clearly distinguishable. In those cases it was the accused who sought to invoke the revi-sional jurisdiction of the High Court for quashing the charges framed against him and it was held that the order framing a charge being an interlocutory order could not be interfered with by a revi-sional court in view of the bar Under Section 397(2) Cr.PC. In the instant case the opposite parties are accused of a graver offence which is triable exclusively by a Court of Session but the Magistrate proceeded against them for trial in respect of a lesser offence which he is competent to try. By implication the opposite parties have been discharged of the graver offence though the Magistrate has not expressly recorded an order of discharge in respect of the graver offence. Thus the case comes within the purview of the special provisions of revision Under Section 398 of the new Cr.PC
This view is supported by high authorities. In the case of Ramekbal Tiwary v. Madan Mohan Tiwary : AIR1967SC115 the police submitted a charge-sheet against nine accused persons in respect of offence Under Section 307 read with Sections 148 and 149 I.P.C. But the Magistrate decided to try the accused persons for offences Under Sections 326 and 338 I.P.C, because, in his opinion, the evidence did not make out an offence Under Section 307 I.P.C. It was contended before the Supreme Court that if a person is accused of a major offence, e.g. Under Section 307 I.P.C, and the Magistrate frames a charge of a minor offence, e.g. Under Section 326 or 338 I.P.C, the order of the Magistrate is not tantamount to an order of discharge because the criminal case is proceeding against the accused on the same facts, and therefore, the Sessions Judge is not competent Under Section 437 Cr.PC of 1898 (corresponding to Section 398 of the Code of Criminal Procedure, 1973) to direct the commitment of the accused to the Court of Session in respect of the major offence. Repelling the contention the Court held as follows:It is true that in the present case there is no express order of the Magistrate discharging the appellant of the charge Under Section 307, Indian Penal Code, but in his order, dated March 19, i960 the Magistrate has given reasons for holding that no case is made out Under Section 307, Indian Penal Code in order to justify an order of commitment. It is manifest that the order of the Magistrate is tantamount to an implied order of discharge and the Additional Sessions Judge had, therefore, jurisdiction, Under Section 437, Criminal Procedure Code, to set aside the order of the Magistrate and to order that the accused should be committed to trial in the Court of Session on the major charge Under Section 307, Indian Penal Code, There is nothing in the language of Section 437, Criminal P. C. from which it could be said that the power of the Sessions Court under that section can be exercised only when the Magistrate has made an express order of discharge. It is apparent from the language of Section 209(1), Criminal Procedure Code that an express order of discharge is only contemplated in a case where the Magistrate comes to the conclusion that the allegations against the accused do not amount to an offence at all and, therefore, no question arises of trying him either by himself or by any other Court. But the section does not contemplate that an express order of discharge should be made in a case where upon the same facts it is possible to say that though no offence exclusively triable by a Court of Session is made out, an offence triable by a Magistrate is nevertheless made out and the Magistrate thereafter proceeds with the trial of that offence. There is also another consideration to be taken into account. Take, for instance, a case where on a certain state of facts the accused is alleged by the prosecution to have committed a very grave offence, say Under Section 302, Indian Penal Code exclusively triable by the Court of Session, but the Magistrate thinks that the offence falls under Section 304A which he can try and after trying the accused either convicts or acquits him. In either case the result would be that the appropriate Court will be prevented from trying the accused for the graver offence which those very facts disclose. It is to obviate such a consequence and to prevent inferior courts from exercising a jurisdiction which they do not possess that the provisions of Section 437, Criminal Procedure Code have been enacted. To say that these provisions can be availed of only where an express order of discharge is made by a Magistrate would be to render those provisions ineffective and inapplicable to the very class of cases for which they were intended. As we have already pointed out, the language' used in Section 437, Criminal Procedure Code is wide and there is nothing in that section from which it could be gathered that the power can be exercised only when the Magistrate has made an express order of discharge.
8. In the case of Thakur Ram v. State of Bihar : 1966CriLJ700 their Lordships after construing the relevant provisions of the Code of Criminal Procedure laid down as follows:
It would follow from this that where on a certain state of facts the accused is alleged by the prosecution to have committed an offence exclusively triable by a Court of Session but the Magistrate is of the opinion that the offence disclosed is only an offence which he is himself competent to try and either acquits or convicts him there is an end of the matter in so far as the very set of facts are concerned. The facts may disclose really a very grave offence such as, say, one Under Section 302 I.P.C. but the Magistrate thinks that the offences falls Under Section 304A which he can try and after trying the accused either convicts or acquits him. In either case the result would be that the appropriate Court will be prevented from trying the accused for the grave offence which those very facts disclose. It is to obviate such a consequence and to prevent inferior Courts from clutching at jurisdiction that the provisions of Section 437, Cr.PC have been enacted.
The legislature knowing fully well the above judicial interpretation put on the word 'discharge1' occurring in Section 437 of the old Code has, in the new Code, also used the word 'discharge'' in Section 398. The word should be interpreted in the sense which has been judicially put under the old repealed Code. It is well-settled rule of construction that when a statute is repealed and re-enacted and the words in the repealed statute are reproduced in new statutes, they should be interpreted in the sense which had been put on them under the repealed statute because the legislature is presumed to be acquainted with the construction which the courts put upon the words and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the courts correctly reflecting the legislative mind.
9. In the present case the Magistrate has come to the conclusion that the graver offence has not been made out and that he should proceed with the case on the less serious offence. This being a case of implied discharge of the accused will not attract the bar of revision in respect of interlocutory orders. If we accept the contention that the framing of a charge in such a case being an interlocutory order cannot be interfered with in view of the bar Under Section 397 Cr.PC then Section 398 Cr.PC would be rendered prac- tically nugatory. Section 398 Cr.PC confers a special jurisdiction on the Sessions Judge and the High Court to order further enquiry into a case in which the accused has been discharged. Therefore the point of law taken by the learned counsel for the opposite parties falls.
10. The petitioner has sought for a direction to the Court below to commit the accused persons to the Court of Session to stand their trial for an offence Under Section 395 I.P.C. This is not permissible under the new Code, A court of revision cannot under the provisions of Section 398 of the new Code order straight- way committal to the Court of Session but will have to direct further enquiry.
11. In the result, the criminal revision is allowed and the order of the learned Magistrate is set aside. The Chief Judicial Magistrate of Cuttack is directed to make further enquiry into the case. He may in his turn direct any other Magistrate subordinate to him to make the further enquiry.
12. I make it clear that no observation made in this judgment should be construed by the Court, which holds the further enquiry or the trial as any conclusion to be arrived at in the case itself on the disputed questions of fact.