V.P. Tyagi, Ag. C.J.
1. Learned Single Judge has referred these three cases to this Bench for authoritative pro-nountement of a Division Bench on a question whether proceedings taken under Section 209 of the Code of Criminal Procedure, 1973, fall within the ambit of the definition of the term 'inquiry' as used in Section 309 of the Code. All these references involve a common question of law and therefore they are being disposed of by this single order.
2. The police put up a challan before the committing court under Section 302/ 149, I.P.C. The learned Magistrate instead of committing the accused persons to the Court of Session adjourned the proceedings under Section 209 and remanded the accused persons to custody. In an application for granting of bail the learned Counsel for the petitioner has raised this question whether the Magistrate before whom the challan has been put up has jurisdiction to adjourn the proceedings under Section 209, Cr. P.C. and if he does so then can he remand the accused persons to custody under Section 309, Cr. P.C. According to Mr. Bhimraj, proceedings taken under Section 209 cannot come within the term 'inquiry' as used in Section 309, Cr. P.C.
3. In order to decide this controversy, it will be relevant to refer to Sections 209 and 309. These sections read as follows:
Section 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 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.
Section 309. Power to postpone or adjourn proceedings, (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody;
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.
Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation 2.- The terms in which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
4. The main argument of Mr. Bhimraj is that while proceeding under the provisions of Section 209 a Magistrate, before whom a case was instituted on a police report, has no jurisdiction either to adjourn the proceedings or to pass any other order except to commit the accused person to the Court of Session for trial subject of course to the provisions of the Code relating to bail, remand the accused to custody during the trial. In the present case it is argued that the accused persons were remanded to custody without committing them to the Court of Session for trial, it could not be ordered as the Code does not empower a Magistrate who takes proceedings under Section 209.
5. Learned Public Prosecutor on the other hand relies on the provisions of Section 309 of the Code and urges that in a matter of inquiry a Magistrate has a power to remand the accused to custody if cognizance of an offence has been taken by him and thereafter if he finds it- necessary or advisable to postpone the commencement or adjourn the inquiry from time to time for reasons to be recorded by him then he can do so on such terms as he thinks fit and may by a warrant remand the accused if he is already in custody.
6. These rival contentions give rise to a very crucial question whether proceedings taken under Section 209 do fall within the ambit of the term 'inquiry' used in the Code.
7. A similar question arose before a Single Bench of this Court in Ramjidas v. State of Rajasthan Criminal Misc. Bail Appln. No. 73 of 1976 (Raj). The learned Judge after taking into consideration the two decided cases Lakshmi Brahman v. State 1976 Cri LJ 118 (All) and State v. Jai Ram 1976 Cri LJ 42 (Delhi) observed as follows:
It will be found by the observations of the Delhi and Allahabad High Courts quoted above that before committing the case to the Court of Session, the Magistrate is required to look into and examine the police report and other papers obviously to find out whether facts stated therein make out an offence triable exclusively by a Court of Session or not and in doing so, even though the Magistrate does not (under the new Code) record any evidence, yet the very act of examining the papers produced before him puts him to undertake some kind of inquiry necessitating ascertainment or verification of the fact whether the record makes out a case triable by the Court of Session. The words 'it appears' occurring in Section 209 do not indicate a mere mechanical act but that section makes it obligatory upon the Magistrate to commit a case only if he finds that it is such a case. Conversely, if he finds it otherwise, he can refuse to commit and try the case himself or in case of no evidence just drop the proceedings. The words 'it appears to the Magistrate' shall therefore mean that the Magistrate may embark upon an inquiry short of receiving any kind of evidence.
The argument of Mr. Bhimraj is that this view as expressed by the learned Single Judge is erroneous and does not find support from the Delhi and Allahabad cases, referred to above, in this connection he also cited a recent ruling of the Karna-taka High Court, State of Karnataka v. S.Y. Kattimani 1976 Cri LJ 576 (Mys) wherein the learned Judge has held that If cognizance of an offence has been taken by a Magistrate then he has no option but to commit the case to the Court of Session. The Magistrate has no power to pass an order of discharge and that power was vested in the Sessions Judge under Section 327.
8. In Jai Bain's case (1976 Cri LJ 42) (Delhi) (supra) the learned Judge held that under Section 209 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 alleged in the report make out an offence triable exclusively by a Court of Session then he has to do no more than to commit the case to the Court of Session. The learned Judge further observed that for the formation of opinion the Magistrate is not to weigh the evidence and the probabilities in the case and he is also not required to hear the accused. While summing up, the learned Judge said that in other words the Magistrate is not to hold a judicial inquiry.
9. We regret we cannot agree entirely with the observations made by the learned Judge in the Delhi case. Section 209 enjoins a duty on a Magistrate before the accused is committed to the Court of Session that he must satisfy himself whether the case was exclusively triable by the Sessions Court. It is true that in order to satisfy himself the Magistrate has not to record any evidence or to hear the accused but he is to study the papers that have been placed before the Magistrate by the police and in that process of study the Magistrate may take time and may be required to adjourn the case to future date. That process of study which makes the Magistrate appear that the case was triable exclusively by the Court of Session, in our opinion, does fall within the expression 'inquiry' as denned in Section 2(g) of the Code of Criminal Procedure. Section 2(g) reads as follows:
Section 2(g) 'inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.
The definition no doubt is not very happily worded but any proceedings taken or initiated by a Magistrate in order to arrive at a conclusion which he has to draw under the provisions of the law, that process or proceeding shall fall within the purview of the term 'inquiry' as denned by the Code. The definition is quite comprehensive and covers the proceedings taken by the Magistrate under Section 209 of the Code of Criminal Procedure. In order to arrive at a conclusion whether the case was exclusively triable by a Court of Session, the Magistrate may not embark upon the recording of evidence or hearing the accused but he shall be required to scrutinise all the relevant papers produced before him by the police from the judicial (sic) (point of view?) and then to arrive at a conclusion whether the case was exclusively triable by a Court of Session or not. These proceedings, therefore, which are not casual shall squarely fall within the purview of the expression 'inquiry' as used in Section 309 of the Code.
10. In Lakshmi Brahman's case (1976 Cri LJ 118) (All) (supra) this question was not directly in issue before the Judges and therefore the observations of the learned Judges while dealing with the scope of Section 309(2) of the Code can hardly be of any assistance to Mr. Bhimraj.
11. In the case of Gangappa (1976 Cri LJ 575) (Kant) the learned Judge of the Karnataka High Court examined the provisions of Section 209 in a different context whether the Magistrate taking proceedings under that section has a power to discharge the accused and it was in that connection that the word 'appear' has been examined by him. In our opinion the observations of the learned Judge in that case are hardly of any relevance for the determination of the question that has been posed before us.
12. The arguments advanced by Mr. Bhimraj if accepted can create situations which may result in absurdity. Suppose for one reason or the other which are beyond the control of the presiding officer if the Magistrate cannot complete his study of papers produced before him under Section 207 of the Code then according to Mr. Bhimraj he cannot postpone the case even for the next date without releasing the accused, howsoever dangerous to the society he may be, because according to him a Magistrate has no power to remand the accused to custody unless commitment order has been passed. This argument is based on an erroneous construction of the provisions of Section 309(2) of the Code and this anomaly can be solved only by holding that the proceedings taken by a Magistrate under Section 209 is nothing but an 'inquiry' as envisaged by the Code for committing the accused to the Court of Session to stand his trial in Sessions cases.
13. We respectfully agree with the view expressed by Mr. Justice M. L. Jain in S. B. Criminal Misc. Bail Application No. 73 of 1976 (Raj) and hold that the proceedings taken under Section 209 by the Magistrate would squarely fall within the ambit of the term 'inquiry' end the Magistrate has a power under Section 309(2) of the Code to remand the accused to custody if enquiry under Section 209 is adjourned or postponed by him.
14. All the three references are accordingly answered.
15. The bail applications in all these matters shall be decided by the learned Single Judge in the light of the answer to the references.