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Nohar Chand Vs. Ishwar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1981CriLJ1906
AppellantNohar Chand
Respondentishwar Singh and ors.
Excerpt:
.....of passing of the said order. - the complainant has approached this court claiming that the court could not discharge the accused as charge had been framed by the court of session, and it could at best acquit the accused after following proper procedure of trial. the order of the chief judicial magistrate is well reasoned. that evidence, for good re- asons given, was considered by the magistrate not sufficient to warrant a conviction, if unrebutted......instituted on a police report; xx xx xx xx 323. procedure when, after commencement of inquiry or trial, magistrate finds case should be committed.if, in any inquiry into an offence or a trial before a magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is toe which ought to be tried by the court of session, he shall commit it to that court under the provisions hereinbefore contained.' (emphasis supplied)3. a comparative reading of section 209 and section 323 of the said code makes dt clear that those cover up two different [situations. under section 209, when at she stage of the appearance of the ac-kused, in a case instituted on a police report or otherwise, it becomes apparent to a magistrate that the offence is triable exclusively by.....
Judgment:
ORDER

M.M. Punchhi, J.

1. The revision-petitioner filed a criminal complaint against the accused-respondents for offences disclosed therein. Preliminary evidence was recorded on different dates by the learned Judicial Magistrate 1st Class, Dabwali, vide his order dated 5-3-1976, he ordered summoning of the accused. The occurrence involved therein had connection with a police challan which was in the nature of a cross case. The police had submitted a police report before the said Judicial Magistrate. On 20-11-1976 the complainant orally requested the Court, which he reiterated by a written application on the same day, that the coin plaint be committed to the Court of Session in the view that the cross case on the basis of the police report had bean committed to the Court. The learned Magistrate, vide his order dated 7-2-1977, committed the complaint case to the Court of Session agreeing with the complainant so as to avoid conflicting decisions in the cases. However, the learned Additional Sessions Judge, Sirsa came to the opinion in the challan case that there was ground for presuming that the offence committed by the accused in that case was not exclusively triable by the Court of Session. Consequently, he framed charges against those accused and by order transferred the case far trial to the Chief Judicial Magistrate under Section 228 of the Code of Criminal Procedure. Similarly vide his order dated 19-8-1978 he framed charges in the complaint case also against the aaccused purporting to exercise powers under Section 228 of the Code of Criminal Procedure and sent that case also to the Chief Judicial Magistrate for trial. He did so unifor-mally because the complaint case had been committed to the Court of Session since the cross case had been so committed there. The learned Chief Judicial Magistrate examined evidence of the complainant on different dates. Thereafter the complainant closed his evidence for purposes of charge on 12-10-1979. The case was adjourned to 17-10-79 for arguments on the point of charge and then again to different dates for purpose when on 27-10-1979, the complaint was dismissed and the accused were discharged. The complainant has approached this Court claiming that the Court could not discharge the accused as charge had been framed by the Court of Session, and it could at best acquit the accused after following proper procedure of trial.

2. Before appreciating the contention rated by the learned Counsel for the petitioners, let Sees. 209, 228 (relevant portion only) and 323 of the Code of Criminal Procedure be noted side by side:

209. Commitment of case to Court of Session when offence is triable exclusively by it.

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;

(b) subject to the provisions of the Code relating to bail, remand the accused to custody during, and until the conclusion of the trial;

(c) send to 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.'

228. Framing of charge. i (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which,

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with procedure for the trial of warrant cases instituted on a police report;

XX XX XX XX 323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.

If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is toe which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained.' (Emphasis supplied)

3. A comparative reading of Section 209 and Section 323 of the said Code makes dt clear that those cover up two different [situations. Under Section 209, when at She stage of the appearance of the ac-kused, in a case instituted on a police report or otherwise, it becomes apparent to a Magistrate that the offence is triable exclusively by the Court of Session, he is required to commit the case to that Court. On the other hand, under Section 323 of the Code while enquiring into an offence or conducting a trial, it appears to a Magistrate at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained. So the order of committal again has to carry along therewith particulars and processes'of the kind contemplated in Section 209. Yet, the two instances of committal remain distinct. Whereas under Section 209, of the Code, a case disclosing an offence exclusively triable by a Court of Session is to be committed to that Court, under Section 323 if the inquiry being conducted or the trial being held, by a Magistrate discloses an offence not exclusively triable by a Court of Session but which ought otherwise in his opinion to be tried by that Court for reasons recorded by him, he can commit the case to that Court. In the instant case, the reason assigned by the Magistrate to send the complaint case to the Court of Session was that the cross case on the basis of the police report had been committed to the Court' of Session. (That case had been committed in exercise of the powers contained in Section 209, Criminal Procedure Code). Since an inquiry was being conducted in the complaint or trial, held, as the case may be, exercising powers under Section 323, Criminal Procedure Code, he committed the complaint case to the Court of Session.

4. After the commencement of the trial before a Court of Session, the Court at one stage has to consider the framing of charge and this situation has been taken care of in Section 228. If in the opinion of the Court, at that stage, the offence is not exclusively triable by the Court of Session, it may frame a charge against the accused and transfer the case for trial to the Chief Judicial Magistrate who is then required to proceed in the case as if trying a warrant case instituted on a police report. It is significant that the power texereisable under Section 228(1)(a) carries the words 'not exclusively triable by the Court of Session' which are' converse to the similar words used in Section 209 'the offence is triable exclusively by the Court of Session' whereunder cases are committed to the Court of Session. So two uses of similar words, used in opposition, make me to take the view that in a case where the Magistrate is of the opinion that the offence is exclusively triable by the Court of Session and commits it but on the other hand, the Court of Session differs from the opinion and holds that the offence is not exclusively triable by it, a charge can be framed against the accused by it and the matter remitted to the Chief Judicial Magistrate for trial, It is immaterial whether such case was instituted in the first instance on a police report or a complaint, but on the remittal of the case by the Court of Session, it has to be tried as a warrant case as if instituted on t police report. But in committals ordered under Section 323, Criminal Procedure Code, in which an opinion is expressed by the Magistrate that the offence ought to be tried by a Court of Session but to which that Court differs, the said Court cannot, while remitting the case back to the Court of the Magistrate, frame a charge. The purported exercise of such power under Section 228, Criminal Procedure Code, in my view, and the framing of the charge against the accused, in the circumstances, would neither be legal nor appropriate.

5. The learned Counsel for the petitioner stressed that the respondents never challenged the framing of the charges against them under Sees. 148, 452/149, 325/149, 323/149 and 379, Indian Penal Code, by the Court of Session, before this Court by a regular revision. That no doubt is true. The interim orders recorded in the complaint case after remand leave an impression that both parties were unaware of the framing of the charges. What use the framed charges were made of is not very clear weather, the complainant was required to examine his oral evidence in the presence of the accused who could cross-examine the witnesses. The pre-charge evidence was closed and the case was fixed for arguments for the framing of the charge. Those interim orders were passed in the presence of the complainant or his counsel or both. Thus the parties were, proceeding with th case as if dealing with a complaint case] and not as a police case. The learned Chief Judicial Magistrate kept also trying it as a complaint and not as if it was a warrant case instituted on a police report as contemplated under Section 228 of the Code of Criminal Procedure. Thus the framing of the charges, despite their being not regularly challenged in this Court earlier, remains illegal and improper and in any case a dead letter having not been acted upon. On the recorded preliminary evidence, the Magistrate in exercise of his powers under Section 204, Criminal Procedure Code, issued process to the accused. On their appearing before him, he committed the case to the Court of Session. On the case being remitted back, he had to start from that stage alone and not to jump a step to the detriment of the accused. Had it remained a warrant case in normalcy, instituted otherwise than on a police report, the Magistrate was required to adopt procedure of Chapter XIX-B. Section 244, Criminal Procedure Code, envisages that on the appearance of the accused, the Magistrate is required to hear the prosecution and take all such evidence as may be produced in support of the prosecution. After taking all such evidence, he can either discharge the accused under Section 245, if for reasons to be recorded, he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the accused's conviction. But if he holds a contrary opinion, he is to proceed to frame a charge under Section 246, Criminal Procedure Code, and put the same to the accused to record his plea. By the committal of the complaint and its remittal back, the procedure envisaged under Sections 244 and 245 could not be overlooked and by-passed as if the stage of Section 246, Criminal Procedure Code, had automatically been reached by the adventurous course adopted by the complaint.

6. A feeble attempt was made by the learned Counsel to challenge the discharge of the accused on merits. Nothing substantial could be pointed out by him. The order of the Chief Judicial Magistrate is well reasoned. Now the law requires him to examine all such evidence as may be produced in support of the prosecution. He recorded' such evidence. That evidence, for good re- asons given, was considered by the Magistrate not sufficient to warrant a conviction, if unrebutted. The view being sound on facts requires no interference at this stage at revision.

7. Resultantly, for the view expressed heretofore, this petition fails and is hereby dismissed.


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