Rampini and Stevens, JJ.
1. This is a reference by the Officiating Sessions Judge of Rungpur inviting us to quash the commitment of Kayemullah Mandal and others committed to his Court by the Sub-Divisional Officer of Gaibanda for trial of an offence under Section 147 of the Penal Code.
2. The Sessions Judge considers that the commitment of the accused in this case is illegal, inasmuch as the offence with which the accused are charged is one 'exclusively triable by Magistrates.' But this is not the case. The Sessions Judge has looked only at the schedule appended to the Criminal Procedure Code, but this schedule must be read along with the Code itself. Now one of the sections of the Code is Section 28, under which the Court of Sessions has 'subject to the other provisions of the Code' power to try an accused person for any offence. Then under Section 207 a Magistrate, who is competent to commit to the Court of Sessions, can commit to that Court both cases triable exclusively by that Court, and cases which in his opinion ought to be tried by that Court. The commitment of a case under Section 147 to the Court of Sessions therefore is not necessarily illegal. On the other hand, there are sections which limit a Magistrate's power of commitment. In a summons case he is bound to proceed under Section 245 of the Criminal Procedure Code. In a warrant case, he is bound by the provisions of Section 254.
3. This section prescribes that, when a Magistrate is of opinion that there is ground for presuming that an accused has committed an offence triable under Chapter XXI, which such Magistrate is competent to try, and which in his opinion can be adequately punished by him, he shall frame in writing a charge against him. This section therefore would seem to leave the Magistrate in these circumstances no option. But if, on the other hand, the Magistrate finds that the accused has committed an offence which in his opinion cannot be adequately punished by him, there would seem to be nothing to prevent his committing the case to the Court of Sessions, notwithstanding the fact that in the schedule appended to the Code the case may be shown as triable by a Magistrate.
4. The learned pleader, who appears in support of this reference, however, argues (1) that the Magistrate was not of this opinion in this case; and (2) that he could not be of this opinion, as the maximum punishment for an offence under Section 147 of the Penal Code is two years, and the Magistrate was himself competent to pass such a sentence. But an offence under Section 147 of the Penal Code is also punishable with fine of an unlimited amount, while the Magistrate could impose a fine of Rs. 1,000 only. The Magistrate might therefore have committed this case to the Court of Sessions, if he had considered that the fine which he could impose would not be an adequate punishment of the accused's offence.
5. It is, however, true that in this case the Magistrate did not commit the accused to the Court of Sessions for this reason. His proceedings were peculiar. He first drew up a charge against the accused under Section 147 of the Penal Code for trial before himself. This was on the 9th January last. Then, on the 13th March, he drew up another charge against the accused for the same offence and committed them for trial to the Court of Sessions, his reason for doing so being that a man was said to have been killed in the rioting, and he thought that in consequence of the instructions of this Court, conveyed in its Circular No. 9 of 6th September 1869, he could not try the case himself. He, of course, misapprehended the meaning of this Court's Circular, which was never intended to direct Mgistrates to commit cases to the Sessions Court otherwise than in accordance with the provisions of the law. And we think that as he does not say that he considered this case to be one in which he was not competent to inflict an adequate punishment, he could not under Section 254* of the Criminal Procedure Code commit the case to the Court of Sessions.
6. We accordingly quash the commitment of the accused in this case, and direct that the Sub-Divisional Magistrate of Gaibanda do proceed with the trial of the accused without delay and complete it accordingly to law.