Monoj Kumar Mukherjee, J.
1. In this Rule the only question that falls for determination is whether the Court of the Committing Magistrate is competent to give consent to the withdrawal, in respect of cases in which the offences are exclusively triable by the Court of Session, under Section 321 of the Cr. P.C. 1973 (hereinafter referred to as the Code). The question arises in this way.
2. A complaint was filed by the petitioner before the learned Sub-Divisional Judicial Magistrate, Basirhat against the accused-opposite parties alleging offences punishable under Sections 147, 447, 427, 379, 323, 354, 325 and 504 of the I.P.C. The learned Magistrate directed the officer-in-Charge, Basirhat Police Station to treat the complaint as First Information Report and to investigate into the same under Section 156(3) of the Code. The Police after investigation submitted charge-sheet under Section 307 of the I.P.C., besides other sections and cognisance was taken thereupon. When the case was awaiting commitment, an application was filed by the learned Assistant Public Prosecutor before the learned Magistrate praying for withdrawal of the case, which was opposed by the petitioner, as the de facto complainant After hearing the parties, the learned Magistrate, by his order dated Aug. 1, 1978, gave consent to the withdrawal and discharged the accused persons. Aggrieved by the said order the petitioner moved this Court and obtained the present Rule.
3. Mr. Mukherjee, the learned Advocate appearing for the petitioner contended that in a case triable by the Court of Session an application under Section 321 of the Code does not lie before a Magistrate nor can the Magistrate act upon such application. He laid emphasis on the words 'in respect of any one or more of the offences for which he is tried' appearing therein. Relying upon the word tried Mr. Mukherjee submitted that it can only mean that such an application can be filed at the stage of trial and not before that. Mr. Mitter, the learned Public Prosecutor appearing for the State, on the other hand contended that such a narrow construction cannot be given to the word tried as the words tried and trial have been used in varidus context in different sections of the Code and it has been used in the wider context in Section 321 of the Code. In support of his contention Mr. Mitter has referred to the decision of the Supreme Court in the case of State of Bihar v. Ramnaresh Pandey reported in : 1957CriLJ567 .
4. To give an answer to the above question it will be profitable to refer to some of the relevant provisions of the Code dealing with cases relating to offences triable exclusively by the Court of Session. Section 207 provides that in any case where the proceeding has been instituted on a police report It is obligatory on the part of the Magistrate to furnish to the accused free of costs the documents referred to therein. Under Section 209 of the Code, the learned Magistrate has then to ascertain whether in such a case the offence is triable exclusively by the Court of Session and if it appears to him to be so he has to commit the case to the Court of Session and to comply with the other requirements of the said section. The powers and duties of the Magistrate in such a case therefore, are to furnish the documents referred to in Section 207 and if the offence is triable exclusively by the Court of Session to commit the case to that Court. There is therefore no scope of any committal enquiry, unlike the Cr. P.C. 1898 (hereinafter referred to as the old Code).
5. Relying upon the provisions of Section 321 of the Code Mr. Mitter contended that notwithstanding the fact that there is no committal enquiry under the Code, the learned Magistrate having taken cognisance of the offence, is competent to give consent and there is nothing in Section 321 which prohibits the Magistrate from exercising such power more particularly because the word 'tried' is used therein in wider context. In fact Mr. Mitter went to the extent of suggesting that trial includes investigation also. This contentidn of Mr. Mitter has to be stated only for its rejection. By no stretch of imagination an investigation conducted by the police can be said to be a part of the trial and as the proposition is as old as the hill, I do not think it necessary to cite any authority to rebut this extreme proposition of Mr. Mitter. The case of Ramnaresh Pandey (supra) referred to by Mr. Mitter, relates to the provisions of Section 494 of the old Code, which corresponds to the provisions of Section 321 of the Code, and the principle that has been laid down therein is that the words tried and trial have no fixed or universal meaning and that Section 494 of the old Code is wide enough to cover every kind of enquiry and trial. As there is no committal enquiry under the Code it has to be now seen whether any other enquiry is held by a Magistrate under the Code so as to give jurisdiction to the Magistrate to act under Section 321 under the authority of the above judgment of the Supreme Court,
6. 'Inquiry' was defined under Section 4(k) of the old Code to include every inquiry other than a trial conducted under the old Code by a Magistrate or Court, while 'inquiry' has been defined under Section 2(g) of the Code to mean every enquiry, other than a trial, conducted under the Code by a Magistrate or Court. While the definition under the old Code was an inclusive one and was wide enough to include every form of inquiry, the definition of enquiry in the Code with its punctuation marks, is restricted to an inquiry conducted under the Code by a Magistrate or Court.
7. It may however be argued that to ascertain whether the offences are triable exclusively by the Court of Session the Magistrate has to hold some sort of enquiry, though not a committal enquiry, and as such it comes within the meaning of the word 'inquiry'. But then the Supreme Court observed, while interpreting Section 209 of the Code, in the case of Sanjay Gandhi v. Union of India : 1978CriLJ642 :
In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears td the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the police report, if the offence is plainly one under Section 201, I.P.C. the Magistrate has simply td commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. Shri Mulla submits if the Magistrate's jurisdiction were to be severely truncated like this the prosecution may stick a label mentioning a sessions offence (if we may use that expression for brevity's sake) and the accused will be denied a valuable opportunity to prove his ex facie inndcence. There is no merit in this contention. If made-up facts unsupported by any material are reported by the police and a Sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227, Cr. P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused.
8. An inquiry means some sort of judicial probe but Section 209, as the above decision lays down, does not permit the Magistrate to hold any inquiry. It must therefore be held that there is no 'inquiry' whatsoever by the Magistrate in such cases, within the meaning of Section 2(g) of the Code.
9. In view of the above discussions the above judgment of the Supreme Court does not come in aid of Mr. Mitter, on the contrary, in view of the above judgment it must be held that notwithstanding the fact that the word tried appearing in Section 321 has been used in the wider context to include every kind of enquiry and trial, the Committing Magistrate has no power to consent to withdrawal, as there is no inquiry under the Code before the Magistrate.
10. On the conclusions as above, I must hold that the order of the learned Magistrate granting consent to the withdrawal of the case is without jurisdiction.
11. The application accordingly succeeds and the Rule is made absolute. The impugned order is hereby set aside and the learned Magistrate is directed to proceed with the case in accordance with law.