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State of Himachal Pradesh Vs. Sita Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1982CriLJ1696
AppellantState of Himachal Pradesh
RespondentSita Ram and ors.
Cases ReferredState of Karnataka v. Shakthi Velu.
Excerpt:
- .....of the criminal p.c. the relevant part of this section reads:209. 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, after complying with the provisions of section 207 or section 208, as the case may be, the case to the court of sessions and subject to the provisions of this code relating to bail, remand the accused to custody until such commitment has been made, xx xx xx xx x 5. it is obvious that the only duty of the committing court is to ensure the compliance of section 207 or section 208, as the case may be, and thereafter if it 'appears' to him that the offence is triable exclusively by the court of.....
Judgment:
ORDER

Vyas Dev Misra, C.J.

1. This is a reference made by Sessions Judge, Nahan. The point referred for decision is:

Whether a Sessions Judge is debarred from trying a case which has been previously committed by him under Section 209 Cr. P.C. in his capacity as a. Chief Judicial Magistrate?

2. The relevant facts are these. Shri A.L. Vaidya was working as Chief Judicial Magistrate, Nahan, in 1978. The accused-respondents were produced before him by the police with a report that the accused have committed offences under Sections 302/307/447/427/147/148/149 of the Penal Code, The Magistrate, after ensuring that copies of the statements of the witnesses and of all other documents on which the prosecution relied were given to the accused, committed them to face a trial before the Court of Session. The then learned Sessions Judge framed a charge against the accused under Sections 304(Part-I) 325/148/149 of the Penal Code. However, when the case came up for trial, Shri A.L. Vaidya came to be the Sessions Judge. An application was made on behalf of the accused that they be tried by some other court since the case stood committed by Shri A.L. Vaidya acting as Chief Judicial Magistrate.

3. Mr. Arun Kumar Goel, learned Counsel for the accused, contends that since Shri Vaidya had applied his mind to find out whether there was a prima facie case against the accused at the time of committing them to the Court of Session, he should not try the accused. In other words, since Shri Vaidya has already given a finding adverse to the accused, it will not be in the interest of justice that he should try them.

4. I do not find any force in this contention. The functions of the committing Court have been laid down under Section 209 of the Criminal P.C. The relevant part of this section reads:

209. 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, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Sessions and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made, xx xx xx xx x

5. It is obvious that the only duty of the committing Court is to ensure the compliance of Section 207 or Section 208, as the case may be, and thereafter if it 'appears' to him that the offence is triable exclusively by the Court of Session, he is duty bound to commit the accused. Now Section 207 enjoins upon the Magistrate in cases instituted on a police report, that he would, furnish to the accused free of cost a copy of the police report first information report; statements of the witnesses recorded under Section 161(3); confession statements, if any, recorded under Section 164; and any other document or relevant extract thereof forwarded to the Magistrate with the police report. Having ensured supply of all these documents to the accused, it is not the duty of the Magistrate even to find out whether a 'prima facie' case has been made out. As long as the police report shows that an offence is made out which is exclusively triable by the Court of Session, the Magistrate is duty bound to commit the accused,

6. The Supreme Court in Sanj ay Gandhi v. Union of India : 1978CriLJ642 had the occasion to consider the amplitude of Section 209. It ruled..it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to, frustrate the Parliament's purpose in remoulding Section 207-A (bid Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully, if interpretatively we: hold that a dress rehearsal of a trial before the Magistrate is in order. 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 to 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, in the offence is plainly one under Section 201 I.P.C. the Magistrate has simply to 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.... 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.

7. Mr. Goel relies upon the judgment of a learned single Judge of the Karna-taka High Court reported in 1978 Cri LJ 1238, State of Karnataka v. Shakthi Velu. I am afraid, he cannot draw any help from this judgment which was delivered before the aforementioned judgment of the Supreme Court came to be reported. Moreover I do not find that the Karnataka judgment is in any way contrary to the judgment of the Supreme Court.

8. As the functions of a committing Magistrate and of a Sessions Judge, who is the trial Judge, are poles apart, there is no force in the contention of the accused that Shri Vaidya is debarred from trying the accused since they were committed by him. I would, therefore, answer the reference by holding that a Sessions Judge is not debarred from trying a case which has been previously committed by him under Section 209 of the Cr. P.C. in his capacity as Chief Judicial Magistrate.


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