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Appavu Velar and ors. Vs. Murugam - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1964)1MLJ101
AppellantAppavu Velar and ors.
RespondentMurugam
Cases ReferredPalaniappa Thevan v. Kdruppa Goundan
Excerpt:
- - i am satisfied that the order directing further enquiry in the circumstances of this case is unsustainable......for committing them to the sessions. he therefore, discharged the petitioners under section 209, criminal procedure code. in revision the learned district magistrate set aside this order and directed the records to be forwarded to the sub-magistrate, thanjavur, for enquiry and disposal according to law.2. the point urged by sri gopalaswami for the petitioners is that the learned district magistrate misconceived his powers under section 437, criminal procedure code, and that on the findings come to in the preliminary enquiry the order directing further enquiry was improper and untenable.3. the preliminary enquiry in this case was held on complaint made by p.w. 1. the procedure to be followed in such a complaint is laid down in sections 208 and 209, criminal procedure code. under these.....
Judgment:
ORDER

P. Kunhamed Kutti, J.

1. The Petitioners herein were the accused in Preliminary Enquiry Case No. 9 of 1961, the charge against them being one under Section 395, Indian Penal Code. The Second Class Magistrate, Mannargudi, who held the enquiry examined six witnesses on the side of the prosecution and two, on the side of the petitioners. On a consideration of their evidence against certain background, facts of long-standing dispute and animosity between the parties, he found that no prima facie case had been made out against the petitioners and that there were no sufficient grounds for committing them to the Sessions. He therefore, discharged the petitioners under Section 209, Criminal Procedure Code. In Revision the learned District Magistrate set aside this order and directed the records to be forwarded to the Sub-Magistrate, Thanjavur, for enquiry and disposal according to law.

2. The point urged by Sri Gopalaswami for the petitioners is that the learned District Magistrate misconceived his powers under Section 437, Criminal Procedure Code, and that on the findings come to in the preliminary enquiry the order directing further enquiry was improper and untenable.

3. The preliminary enquiry in this case was held on complaint made by P.W. 1. The procedure to be followed in such a complaint is laid down in Sections 208 and 209, Criminal Procedure Code. Under these sections in any proceedings instituted otherwise than on a police report, the Magistrate shall proceed to hear the complaint, take all such evidence as may be produced in support of the prosecution or on ' behalf of the accused, or as may be called for by the Magistrate, and when such evidence has been taken and the Magistrate has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, he shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reason and discharge him unless it appears to him that such person should be tried before himself or some other Magistrate in which case he shall proceed accordingly. Section 209(2) further lays down that nothing in the aforesaid section shall be deemed to prevent a Magistrate from dicharging the accused at any previous stage of the case if for reasons to be recorded, he considers the charge to be groundless.

4. There is some distinction between the procedure to-be adopted at the preliminary enquiry on a private complaint and in proceedings instituted on police reports. The procedure in the latter proceedings is laid down in Section 207-A, Criminal Procedure Code. In such cases, the Magistrate shall proceed to take evidence of witnesses produced by the prosecution and such other witnesses as deemed by him to be necessary in the interests of justice and after giving the accused an opportunity of being heard, either discharge the accused if in his opinion the evidence and the documents considered by him do not disclose grounds for committing the accused person for trial or commit him for trial when the evidence taken by him and the documents considered by him, warranted such committal for trial. In the latter case, he shall frame a charge under his hand, declaring with what offence the accused is charged.

5. Therefore, the scope of considering the evidence under Section 207-A is more restricted then in the case of an enquiry under Sections 208 and 209, Criminal Procedure Code, for the obvious reason that in the former case unlike in the latter, the evidence would have already been probed and sifted in the course of investigation by the officers concerned.

6. The distinction between the relevant words used in Section 207-A(6); namely, ' disclose no grounds for committing ' and the words in Section 209 namely ' there are not sufficient grounds for committing ' have been pointed out in State of Bihar v. Bipat Gaps : AIR1961Pat247 . The expression 'sufficient grounds ' conveys a different and wider meaning than the expression ' no grounds '. In the former case, there will be grounds for committing the accused, but it has to be seen when there they are sufficient or not ; in the order of discharge under Section 207-A(6), however, it is only when there is no ground at all that the Magistrate is entitled to pass the order of discharge. If there is evidence which discloses grounds for commitment, the jurisdiction of the Magistrate ceases, and he has no option but to pass an order committing the accused to stand his trial before the Court of Session.

7. In Venkataswami v. The King (1950) 1 M.L.J. 36 : I.L.R. (1950) Mad. 1113 Panchapakesa Ayyar. J., had to consider the scope of the powers of the Committing Magistrate under Section 209, Criminal Procedure Code, the learned Judge, summed up the law thus:

The Magistrate conducting the enquiry is not a machine or a mere post-office to see whether there is any evidence against the accused or any of them. He is not bound to commit all those against whom any prosecution witness speaks regarding the offence, whether he is believed or not ; he has to satisfy himself that there are sufficient grounds for committing the accused for trial by a Court of Session, and it is his right and duty to weigh the evidence from that point of view.

He can for that purpose look not only into the depositions of the prosecution witnesses but also the depositions of the defence witnesses examined on behalf of the accused.

Section 209, Criminal Procedure Code, does not bar a Magistrate from using his own knowledge and experience of men and affairs in judging and in weighing the evidence before him. But if he comes to the conclusion that the evidence is such as a Judge or Jury could reasonably be asked to make it the basis of conviction, it is his duty to commit. But if he comes to the conclusion that the evidence before him is such that no Judge or Jury can possibly believe it, he has got the power, and indeed it is his duty to discharge the accused. But if, upon any reasonable view of the evidence, a conviction is possible the case must be committed, and a Magistrate is not empowered to give the benefit of the doubt to an accused person in committal proceedings.

8. In case where the Sub-Magistrate discharged the accused on the evidence before him and it was not possible to say that the Magistrate acted improperly in assessing the evidence though the Sessions Judge might have come to a different opinion on the evidence, Pandrang Row, J., held that

the Sessions Judge acted improperly in ordering the Sub-Magistrate to commit the accused for trial in a Court of-Sessions on the ground-that his opinion was different on the evidence and specially so when he has not specifically found that there is a prima facie case on the evidence of the commission of an offence exclusively triable by a Court of Sessions' vide Palaniappa Thevan v. Kdruppa Goundan (1938) M.W.N. 243.

9. In this case, the learned Judge deprecated cases in which as a result of a civil dispute one party or the other makes a criminal case by trumping up charges of theft or dacoity etc.

10. In directing further enquiry, the learned District Magistrate has not kept in view the distinction between Section 207-A and Sections 208 and 209, Criminal Procedure Code. If he had done so, it would have been found that the consideration of the evidence by the Magistrate in the light of the procedure to be followed having regard to the provisions of Section 209, Criminal Procedure Code, was not unjustified. I am Satisfied that the order directing further enquiry in the circumstances of this case is unsustainable.

11. This petition is, therefore, allowed and the order passed by the District Magistrate directing further enquiry is set aside.


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