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T.J. Kurian Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 436 of 1967
Judge
Reported inAIR1969Ker68; 1969CriLJ393
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 209(1)
AppellantT.J. Kurian
RespondentThe State of Kerala and ors.
Appellant Advocate S. Narayanan Potti, Adv.
Respondent AdvocateState Prosecutor
DispositionPetition dismissed
Cases ReferredThakur Earn v. State of Bihar
Excerpt:
- - and he also felt that the offences mentioned in sections 409, 477a, 419, 420 and 109 of the penal code and clause 14 of the kerala foodgrains distribution control order read with sections 3 and 7 of the essential commodities act were not triable by him and that the case should be recommended for transfer to a court of competent jurisdiction for trial......the opinion that there was nothing on record to show that the petitioner or any of the other accused persons committed offences falling under sections 468, 467 and 471 of the penal code. he observed further that on perusal of the records the offences disclosed fell only under sections 409, 477a, 419, 420 and 109 of the penal code and under clause 14 of the kerala foodgrains distribution control order read with sections 3 and 7 of the essential commodities act. consequently, he did not commit the accused persons for trial before the court of session. and he also felt that the offences mentioned in sections 409, 477a, 419, 420 and 109 of the penal code and clause 14 of the kerala foodgrains distribution control order read with sections 3 and 7 of the essential commodities act were.....
Judgment:
ORDER

T.C. Raghavan, J.

1. The petitioner and some others were charged under Sections 409, 477A, 419, 420, 467, 468, 471 and 109 of the Penal Code and also under cl. 14 of the Kerala Foodgrains Distribution Control Order read with Sections 3 and 7 of the Essential Commodities Act. The Sub-Magistrate enquired into the case as P. E. C. No. 11 of 1967 and expressed the opinion that there was nothing on record to show that the petitioner or any of the other accused persons committed offences falling under Sections 468, 467 and 471 of the Penal Code. He observed further that on perusal of the records the offences disclosed fell only under Sections 409, 477A, 419, 420 and 109 of the Penal Code and under clause 14 of the Kerala Foodgrains Distribution Control Order read with Sections 3 and 7 of the Essential Commodities Act. Consequently, he did not commit the accused persons for trial before the Court of Session. And he also felt that the offences mentioned in Sections 409, 477A, 419, 420 and 109 of the Penal Code and clause 14 of the Kerala Foodgrains Distribution Control Order read with Sections 3 and 7 of the Essential Commodities Act were not triable by him and that the case should be recommended for transfer to a Court of competent jurisdiction for trial. The case therefore came before the Additional First Class Magistrate by transfer; and the Additional First Class Magistrate has decided to treat the case as a Preliminary Enquiry Case as he was of opinion that it was too early to say that there was no evidence that none of the accused persons committed offences under Sections 468, 467 and 471. The revision petition is directed against that order of the Additional First Class Magistrate.

2. The counsel of the petitioner argues that regarding the offences under Sections 468, 467 and 471 of the Penal Code there was an implied discharge by the Sub-Magistrate and therefore, the Additional First Class Magistrate could not have treated the entire case on all the sections as a Preliminary Enquiry Case with a view to see whether the case was to be committed to the Sessions Court, The counsel also brings to my notice the decision of the Supreme Court in Thakur Earn v. State of Bihar, AIR 1966 SC 911.

3. Section 209(1) of the Code of Criminal Procedure lays down what a Magistrate should do in a preliminary enquiry. The sub-section says that if the Magistrate finds that there are not sufficient grounds for committing the accused person for trial, he shall record his reasons and discharge the accused person, unless it appears to him that such person should be tried before himself or before some other magistrate, in which case he shall proceed accordingly. This provision is clear that the magistrate may either discharge the accused person ortry him or send him for trial before another magistrate of competent jurisdiction. The sub-section does not provide that the magistrate may discharge the accused person regarding some of the offences and then try him for the other offences or send him for trial for the other offences before a competent magistrate. This also appears to be the reasoning adopted by the Supreme Court in the decision already cited. The Supreme Court observes:

'These provisions would thus indicate that an express order of discharge is contemplated only in a case where a Magistrate comes to the conclusion that the act alleged against the accused does not amount to any offence at all and, therefore, no question of trying him either himself or by any other Court arises.'

Evidently, the discharge under Section 209 is an express discharge, recording the magistrate's reasons for the discharge, and there is no question of an implied discharge or a partial discharge: either the magistrate discharges, or he tries, or he sends the case to another magistrate. The discharge can arise only if the magistrate cornea to the conclusion that the acts alleged against the accused person do not amount to any offence at all. If, on the other hand, his conclusion is that the acts alleged amount to some offence, then the course open to him is to try the accused person himself if the acts amount to offences triable by himself or send him before another competent magistrate if the acts alleged against the accused person amount to offences triable by such competent magistrate, The question of dropping some of the offences or deciding what are the offences committed can arise only when the trial starts: and in a case which goes to another competent magistrate, that question can arise only before him.

4. Thus, the order of the AdditionalFirst Class Magistrate is right. The saidorder is confirmed; and the revision petition is dismissed.


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