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Bijoy Gopal Ghosh Vs. Iswar Chandra Kumar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in97Ind.Cas.659
AppellantBijoy Gopal Ghosh
Respondentiswar Chandra Kumar
Cases ReferredGendlal Chimanbhai v. Emperor
Excerpt:
cr.p.c. (act v of 1898), section 137 - sessions judge, power to order trial for offence not exclusively triable by him--offences not intimately connected--order for trial, legality of--penal code (act xlv of 1860), sections 380, 427, 436. - .....the 11th november, 1924, they committed offences under sections 427, 380 and 436 of the indian penal code. on the 19th december, 1924, the magistrate directed that a summons should issue on them calling upon them to answer a charge under section 438 of the indian penal code. thereafter the magistrate held an enquiry under on. xviii of the cr. p.c. and eventually discharged the petitioners, on the 31st march, 1925, under section 209 of the cr.p.c. against the said order of discharge the complainant moved the learned sessions judge of 24-pargannas, and on the 10th july, 1925, the petitioners were directed by the fifth additional sessions judge to be committed to the court of session on the following charges, i.e., the petitioner, ghulam mustaia, under sections 427, 380 and 436 of the.....
Judgment:

1. The petitioners before us are two in number, and the allegation against them is that, on or about the 11th November, 1924, they committed offences under Sections 427, 380 and 436 of the Indian Penal Code. On the 19th December, 1924, the Magistrate directed that a summons should issue on them calling upon them to answer a charge under Section 438 of the Indian Penal Code. Thereafter the Magistrate held an enquiry under On. XVIII of the Cr. P.C. and eventually discharged the petitioners, on the 31st March, 1925, under Section 209 of the Cr.P.C. Against the said order of discharge the complainant moved the learned Sessions Judge of 24-Pargannas, and on the 10th July, 1925, the petitioners were directed by the Fifth Additional Sessions Judge to be committed to the Court of Session on the following charges, i.e., the petitioner, Ghulam Mustaia, under Sections 427, 380 and 436 of the Indian Penal Code and the petitioner, Bijoy Gopal Ghosh, under Section 427, 380 and 436 of the Indian Penal Code, each being read with s. 114 of the Indian Penal Code.

2. Before dealing with the subject-matter of the petition before us, we desire to point out a serious mistake in the certified copy of the judgment of the learned Additional Sessions Judge dated the 10th July 1925. Both the accused have been ordered to be committed for trial in the Sessions Court under Sections 427, 380 and 436 of the Indian Penal Code and it is not the case, as would appear from the copy, that the accused Bijoy Gopal Ghosh has been committed to the Sessions Court under Sections 427 and 380 only. The attention of the learned Judge is drawn to this mistake in the copy referred to above with a view to his taking steps to prevent such mistakes in future.

3. As regards the petition on behalf of the petitioners, it is pointed out that under Section 437 of the Cr.P.C. the Sessions Judge has jurisdiction to commit an accused for trial in the Sessions Court if he is of opinion that the case against the accused is triable exclusively by the Court of Session, and that the accused has been improperly discharged by an inferior Court. It is further pointed out that, although thecharge under Section 436 of the Indian Penal Code is exclusively triable by the Court of Session, the charges under Sections 427 and 380 of the Indian Penal Code are not exclusively triable by the Sessions Court, but triable by a Magistrate, and that there should not have been an order for trial of offences under Sections 427 and 380 of the Indian Penal Code, being offences not exclusively triable by the Court of Session, along with a charge under Section 436 of the Indian Penal Oode.

4. No doubt it is competent to the Sessions Judge to commit a person on a charge not exclusively triable by a Sessions Court, e.g , under Section 427 of the Indian Penal Code if it is intimately connected with a charge exclusively triable by the Sessions Court, e.g., a charge under Section 436 of the Indian Penal Code and if it forms part of the same transaction [see in this connection Gendlal Chimanbhai v. Emperor 23 Ind. Cas. 500 : 16 Bom. L.R. 80 : 15 Cr. L.J. 292], but it is clear that the above requirements are not satisfied in a direction for commitment to the Sessions Court for trial on a charge under Section 380 of the Indian Penal Coda, the offence thereunder being totally different from the category of offences under which are included charges under Sections 427 and 436 of the Indian Penal Code. We think, therefore, that the learned Additional Sessions Judge had no jurisdiction to make the order complained of. We, therefore, set aside his order dated the 10th July, 1925, and remand the matter to him to take such steps as he may be advised.


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