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Shiv Dutt Salwan Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 181 of 1983
Judge
Reported in1984(1)Crimes470; 25(1984)DLT266; 1984(6)DRJ184; 1984RLR90
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 323
AppellantShiv Dutt Salwan
RespondentThe State
Advocates: B.B. Lal,; K.P. Kapoor and; D.R. Sethi, Advs
Cases ReferredAsha Bhathi (supra). In Krishnaji Prabhakar Khadilkar v. Emperor Air
Excerpt:
.....school resulting in bad blood between the management and the delinquent employees. (3) the learned magistrate was of the view that there were no good reasons for committing the case to the court of session because the offence in the subsequent case was not related with the earlier one. nathu and others air 1932 lah 168. unless the connection between cases in such as a trial by the mistreat would embarrass or prejudice the accused, order of commitment would not be a good order ;vide asha bhathi (supra). in krishnaji prabhakar khadilkar v. but the words 'ought to be tried' occurring in the section suggest that such discretion can be exercised only if the magistrate is satisfied that there are compelling reasons for committing the case to the court of session......heard arguments. section 323 is as follows : procedure where, after commencement of enquiry or trial magistrate finds case should be committed. if, in any enquiry 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 one which ought to be tried by the court of session, he shall commit it to that court under the provisions hereinbefore contained and thereupon, the provisions of chapter xviii shall apply to the commitment so made.'this section gives a wide discretion to the magistrate which should be exercised judiciously and not upon a mere request of a party. he should have adequate reasons for sending a person to stand trial before a court of session for an offence which he could himself try : rex.....
Judgment:

M.L. Jain, J.

(1) The Petitioner Shiv Dutt Salwan is the Chairman of the Salwan Education Trust. The trust runs the Salwan Public School. The management of the said Trust decided to institute disciplinary school resulting in bad blood between the management and the delinquent employees. The employees lodged an Fir No. 598 on 31-12-1980 under Sections 147/ 148/149/307/506 Indian Penal Code against the petitioner and few others. That case being exclusively triable by the court of section of session has already been committed on 10-5-1983.

(2) Another Fir No. 17/81 Ps Rajinder Nagar was lodged on 8-1-1981, this time against the petitioner alone that he threatened the wife of one of the witnesses in the earlier case that in case the statements given by the witnesses are not changed they would face dire consequences. This case is pending before the Metropolitan Magistrate. On 16-4-1983 and application was made by the petitioner under Section 323 Criminal Procedure Code . for committal of the second case, i.e. Fir 17/81, to the court of sessions for trial. The learned Metropolitan Magistrate by his order dated 11-5-1983 rejected the application. Hence, the present petition for directing the Metropolitan Magistrate to commit the case to the court of session.

(3) The learned Magistrate was of the view that there were no good reasons for committing the case to the court of session because the offence in the subsequent case was not related with the earlier one. Although the motive force of the second offence was the withdrawal of the earlier case, the second offence was committed at a different place and time and by different persons, the petitioner being one of them.

(4) I have heard arguments. Section 323 is as follows :

PROCEDURE where, after commencement of enquiry or trial Magistrate finds case should be committed. If, in any enquiry 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 one which ought to be tried by the court of session, he shall commit it to that court under the provisions hereinbefore contained and thereupon, the provisions of Chapter xviii shall apply to the commitment so made.'

This section gives a wide discretion to the Magistrate which should be exercised judiciously and not upon a mere request of a party. He should have adequate reasons for sending a person to stand trial before a court of session for an offence which he could himself try : Rex v. Matoley and others Air 1949 All. 1. In Emperor v. Asha Bhathi and others (1913) Cri. L.J. 657, it was observed that it is for many reasons undesirable in practice that the already overburdened courts of session should be still further burdened with the weight of cases committed to them by the Magistrates where such Magistrates are themselves competent to decide the cases and no over riding reasons exist for committal to the higher court. In Crown Prosecutor v. Bhagavathi (1918) 42 Mad. 83, it was held that if the Magistrate considers for instance that a complicated question of law arises, or that some connected matter is already before the court of session, there is nothing in the Code to prevent a Magistrate from committing the case to a court of session. But an apparent connection of a case with another is no ground for committing it to the court or session : Emperor v. Nathu and others Air 1932 Lah 168. Unless the connection between cases in such as a trial by the Mistreat would embarrass or prejudice the accused, order of commitment would not be a good order ; vide Asha Bhathi (supra). In Krishnaji Prabhakar Khadilkar v. Emperor Air 1929 Bom 313, having regard to seriousness of the offence and public importance of the case, committal to court of session was directed. So, In Re Sant Prakash Sahni , it was held that either because of the gravity of the matter or for any other sufficient reason if the Magistrate is of the opinion that the court of session was the proper tribunal for disposal of the case, he can commit the case. In Sawan Rai and others v. The State 1980 Cri. L.J. 156, it was held that if there are two cases by way of a case and a counter case, and, one is exclusively triable by a Court of Session that in itself cannot be a ground for committing the other, to the court of session. It will thus be seen that Section 323 Criminal Procedure Code . gives a wide discretion to the Magistrate. But the words 'ought to be tried' occurring in the section suggest that such discretion can be exercised only if the Magistrate is satisfied that there are compelling reasons for committing the case to the Court of Session.

(5) It is submitted on behalf of the accused that commitment is sought because witnesses in both the cases will be common, two cases are inextricably interwoven and above all the accused himself wants to be tried in the court of session. The prosecution in this case has no particular objection if the case is committed, but they urge that it is not a case of such a nature on account of which the court of session should be called upon to decide it. It appears to me that though the events are different, there is some connection between the two cases and the accused himself wants to stand trial before the court of session, but these do not seem to be reasons on which it could be said that the case ought to be tried in the court of session and the learned Magistrate ought to have committed the case for that purpose. In refusing the request of the accused, the Magistrate has not exercised his jurisdiction improperly.

(6) The petition is, thereforee, rejected.


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