R.N. Aggarwal, J.
(1) This is a reference by a Metropolitan Magistrate under sub-section (2) of section 395 of the Code of Criminal Procedure (hereinafter called the Code), The point of law referred for the decision, of this Court is whether in a challan submitted under Section 307/34 Indian Penal Code a Magistrate under Section 209 of the Code in deciding whether the offence alleged is exclusively triable by a court of Session is bound to hear the accused.
(2) Section 209 of the Code which finds place in Chapter Xvi of the Code and under the heading 'commencement of proceedings before the Magistrate' is in the following terms :- '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 this 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.
(3) Chapter xviii deals with trial before a Court of Session. Section 226 provides that when an accused appears or is brought before the court in pursuance of a commitment of the case under Section 209 the prosecutor shall open his case by describing the charge brought against the accused and state by what evidence he proposes to prove the guilt of the accused. Section 227 provides that if on consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing. Section 228 which is relevant for the decision of the point before us provides that 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 Metropolitan Magistrate and thereupon the Chief Metropolitan Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; and (b) is exclusively triable by the Court of Session shall frame in writing a charge against the accused.
(4) On a study of the various relevant provisions my view is that under Section 209 of the Code the Magistrate is only to examine the police report and other documents mentioned in Section 207 and find out whether the facts stated in the report make out an offence triable exclusively by the Court of Session. Once he reaches the conclusion that the facts alledged in the report make out an offence triable exclusively by a Court of Session he is to do no more and commit the case to the Court of Session. In forming the above opinion the Magistrate is not to weigh s he evidence and the probabilities in the case. He is not required to hear the accused. In other words he is not to hold an enquiry.
(5) The provisions of Sections 227 and 228 clear the doubts, if any. Upon the case being committed to the Court of Session the trial judge is required to consider the record of the case and examine the documents and hear the parties and if on such consideration he finds that no sufficient ground is made out for proceeding against the accused he is to discharge the accused and if he comes to the conclusion that there is ground for presuming that the accused has committed an offence not exclusively triable by a Court of Session he can after framing charge transfer the case for trial to the Chief Metropolitan Magistrate and if he finds that the offence is triable by him, proceed to try the case.
(6) An examination of the provisions of Sections 227 and 228 brings out that a Magistrate under Section 209 is only to examine the record with a view to find out if the facts alleged in the challan make out an offence triable by a court of Sessions but he cannot weigh the evidence and the probabilities in the case. This was left to the Sessions Judge who on commitment was required to examine the record and hear the parties and then form an opinion whether there was any sufficient ground for proceeding against the accused and also to decide whether the accused had committed an offence triable by a Court of Sessions or not.
(7) An examination of the corresponding provisions of the old Code also lends support to the above view (Chapter xviii). Prior to the introduction of the new Code, a Magistrate held an inquiry into the cases triable by the Court of Session. Under Section 207A of the old Code and which found place in Chapter xviii, a committing court was to record evidence that may be produced by the prosecution and thereafter if upon consideration of the evidence and of the documents referred to in Section 173 and after examination, if any, of the accused and after affording opportunity to the accused of hearing he was of the view that no ground for commitment was made out, discharge the accused unless it appeared to him that he should be tried before himself or some other Magistrate and in that event proceed accordingly, and if upon consideration of the evidence and the documents referred to above was of the view that he should be committed for trial frame a charge declaring with what offence the accused is charged and commit him to Sessions (sub-sections (6) and (7) of Section 207A). The new Code has brought about drastic changes in the procedure to be followed for commitment. Under Section 209 a committing court is not to record any evidence, examine the accused or hear him. He is merely to examine the record and if upon examination of the record it appears to him that the offence is triable by the Court of session he is simply to commit the accused to Sessions, The powers exercised by a Magistrate formerly under Section 207A(6) and (7), with the exception of recording of evidence prior to the framing of the charge and of examination of the accused, are now exercised by the Sessions Judge (Sections 227 and 228). The taking of evidence before framing of the charge has now been done away with altogether. The purpose of bringing about changes in the commitment procedure was to speed up the committal proceedings and to avoid a duplication of the taking of evidence by the committing Magistrate and then by the Court of Session.
(8) The Law Commission in its Forty-first Report on the Code of Criminal Procedure, 1898, on the basis of which changes in the commitment procedure were brought about had made the following recommendations (Para 18-19): - 'After a careful consideration we are of the unanimous opinion that committal proceedings are largely a waste of time and effort and do not contribute appreciably to the efficiency of the trial before the Court of Session. While they are obviously time-consuming, they do not serve any essential purpose- There can be no doubt or dispute as to the desirability of every trial, and more particulary of the trial for a grave offence, beginning as soon as practicable after the completion of investigation. Committal proceedings which only serve to delay this step, do not advance the cause of justice. The primary object of protecting the innocent accused from the ordeal of a sessions trial has not been achieved in practice ; and the other main object of apprising the accused in sufficient detail of the case be has to meet at the trial could be achieved by other methods without going through a very partial and ineffective trial rehearsal before a Magistrate. We recommend that committal proceedings should be abolished,'
(9) For the reasons stated, my opinion on the reference is that under Section 209 the Magistrate is to examine the record only to find out whether the offence is triable exclusively by the Court of Session. In forming the above opinion he is not required to bear the accused. I may add that the Magistrate in forming the opinion that the offence is triable exclusively by a Court of Sessions is not to weigh the evidence and the probabilities in the case, In other words. Section 209 does not contemplate any judicaial enquiry with the accused present. The Magistrate is to commit the case to the Court of Session whenever it appears that it is exclusively triable by that Court.
(10) The office will inform the Magistrate of the decision on the reference. this judgment may also be brought to the notice of the other Magistrates.