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Surinder Kumar and ors. Vs. the State of Punjab - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1977CriLJ1728
AppellantSurinder Kumar and ors.
RespondentThe State of Punjab
Cases ReferredPatananchala China Lingaiah v. The State
Excerpt:
.....taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide..........part of section 209 of the code of criminal procedure reads: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) commit the case to the court of session.4. in the scheme set out above, the magistrate required to commit those accused persons who have been forwarded by the police to him for that purpose. as already pointed out, the petitioners are not persons charge- sheeted by the police for committing the crime alleged against them. existence of their names in column no. 2 of the report above said and the request of the police for their discharge make it abundantly clear that the petitioners were not.....
Judgment:
ORDER

S.C. Mital, J.

1. A case Under Section 308 (abetment of suicide) read with Section 34, Indian Penal Code, was registered at Police Station Sangrur. After completing the investigation, the police, in their report (charge-sheet) Under Section 173 of the Code of Criminal Procedure, accused Rajinder Kumar, Smt. Parkash, Smt. Laj Gupta and Smt. Gauran of committing the crime. Column No. 2 of the report prescribed by the Punjab Police Rules, Vol, III, reads:

Names and addresses of accused persons not sent up for trial, whether arrested or not arrested, including absconders, (show absconders in red ink).

Surinder Kumar, Ram Lal and Smt. Daya Devi, the petitioners, were mentioned in column No. 2 of the report. The police request for their discharge was rejected by the Chief Judicial Magistrate, Sangrur. In the impugned order the Magistrate expressed the view that the offence Under Section 306, Indian Penal Code, being triable exclusively by the Court of Session, he, Under Section 209 of the Code of Criminal Procedure, had no option but to commit the petitioners. In this petition Under Section 482 of the Code of Criminal Procedure, the authority of the Magistrate to commit the petitioners to the Court of Session has been challenged.

2. Sub-section (1) of Section 170 of the Code of Criminal Procedure provides that if upon an investigation, it appears to the officer incharge of the police station that there is sufficient : evidence or reasonable ground to justify the forwarding of an accused to Magistrate, empowered to take cognisance of the offence, such officer shall do so and the Magistrate will try the accused or commit him for trial. Sub-section (2) of Section 173 of the Code provides that in the report, the above said officer shall inter alia state the names of the persons who appear to be acquainted with the circumstances of the case and the particulars of the persons, who appear to have committed the offence. Sub-section (5) of Section 173 of the Code lays down:

(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report:

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation ;

(b) the statements recorded Under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

3. The relevant part of Section 209 of the Code of Criminal Procedure reads:

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) commit the case to the Court of Session.

4. In the scheme set out above, the Magistrate required to commit those accused persons who have been forwarded by the police to him for that purpose. As already pointed out, the petitioners are not persons charge- sheeted by the police for committing the crime alleged against them. Existence of their names in column No. 2 of the report above said and the request of the police for their discharge make it abundantly clear that the petitioners were not forwarded to the Magistrate for committing them for trial. In this situation, how can the question of their commitment to the Court of Session arise.

5. At the same learned Assistant Advocate-General urged that the Magistrate is not bound by the report of the police submitted Under Section 173 of the Code of Criminal Procedure. Reliance was placed on Ajit Singh v. The State 1961-63 Pun LR 571, laying down that if on the evidence actually recorded by the Court the guilt of an accused person is substantiated, the Court cannot be called upon to acquit the accused, merely because an investigating officer has for certain reasons considered the accused to be innocent. At the present stage of the case in hand this ruling is distinguishable. After the amendment of the commitment proceedings, the Magistrate, now acting Under Section 209 of the Code, is not required to record evidence. On the other hand, once the offence is found triable exclusively by the Court of Session, the Magistrate has to commit an accused person.

Whether the Court of Session, in the absence of commitment, would be in a position to proceed against the petitioners is a question which needs no decision at present. However, it may be mentioned that, in all fairness, learned Counsel for the petitioners invited my attention to a decision of the Andhra Pradesh High Court in Patananchala China Lingaiah v. The State 1977 Cri LJ 415, (AP). answering the question in the affirmative. For me, it being premature to express an opinion on this matter, I leave it open.

6. In the result, I find that the Chief Judicial Magistrate has no jurisdiction to commit the petitioners-Surinder Kumar, Ram Lal and Smt. Daya Devi to the Court of Session for trial. I accordingly allow the petition and quash the impugned order.


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