LexTHAKUR RAM versus THE STATE OF BIHAR
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THAKUR RAM v. THE STATE OF BIBAR November 26, 1965 [J. R. MUDHOLKAR, R. S. BACHAWAT AND P. SATYANARAYANA RAJU, JJ.] Code of Criminal Procedure 1898 (Act 5 of 1898), s. 437-Powers of Sessions Judge to order committal in the absence of express order of discharge by Magistrate. The accused were charged under s. 392, Indian Penal Code in the Coun of a Magistrate. The prosecution failed in its attempt to have the procedure under Ch. XVIII, Code of Criminal Procedure adopted. After 15 months, the prosecution made an application to the Magistrate to frame a charge under s. 386 or s. 387, Indian Penal Code (which are exclusively triable by a Court of Sessions) and to commit the accused to the Court of Sessions, which was refused. Thereafter a second application was made for committing the case to the Court of Sessions. This, too, was rejected by the Magistrate. Immediately there- after, one of the informants, filed a revision which the Sessions Judge allowed being of the view that the framing of charges under s. 386 or 387, I.P.C. could not be ruled out altogether and directed the Magistrate to commit the accused to the Court of Sessions. The appellants preferred a revision to the High Court, contending that the Sessions Judge had no jurisdiction to pass an order for commitment as there was no order of discharge by the Magistrate. The High Court rejected the revision appli- cation. In appeal to. this Court : HELD : There is nothing in the language of s. 437 of the Code of Criminal Procedure from which it could be said that this power is not exercisable during the pendency of a trial before a Magistrate or that this power can be exercised only .where Magistrate had made an express order of discharge. The provisions of the Code indicate that an express order of discharge is contemplated only in a case where a Magistrate comes to the conclusion tha• the act alleged against the accuse~ does not amount to any offence at all and, therefore, no question of trying him either himself or by another court arises. Where on a certain set of facts the accused is alleged by the prosecution to have committed an offence exclusively triable by a Court of Sessions but the M•gistrate is of the opinion that th>e offence disclosed is only an offence which he is himself competent to try and either acquits or convicts him there is an end of the matter in so far as the very set of acts are concerned. The facts· may disclose really a very grave off<i:ce such as, say, one unde.r s. 302 J.P.(;. but the Magistrate thinks that the offence falls under s. 304A which he can try and after trying the accused either convicts or acquits him. In either case the, result would be that the appropriate court will be prevented from trying the accused for the grave offence which those very facts disclose. It is to obviate such a consequence and to prevent inferior oourts from clutching at jurisdiction that the provisions of s. 437, Crimi· nal Procedure Code have been enacted. [747 C, F; 748 G] Nahar Singh v. State, I.L.R. ( 1952) 2 All. 152, Sri Dulap Singh cl On. v. State through Sri Harnandan Singh A.LR. 1954 All. 163 and Sambhu Charan Mandol v. The State 60 C.W.N. 708, disapproved. A B .. c D E - F G - H .- - ____ ,, THAKUR RAM v. STATE (Mudholkar, !.) 741 A In re : Nal/a Ba/igad11, A.LR. 1953 Mad. 801, Rambalam Pd. Singh B c D E v. State of Bihar, A.l.R. 1960 Patna 507, Krishnareddi v. Subbamma, I.L.R. 24 Mad. 136 Shambhooram v. Emperor, A.LR. 1935 Sind 221, Sultan Ali v. Emperor, A.LR. 1934 Lahore 164 and In re Val/uru Naruyan Reddy & Ors. A.LR. 1955 Andhra 48., approved. Yunus Shaikh v. The State, A.LR. 1953 Cal. 567 distinguished. The provisions of s. 437, howe¥er, do not make it obligatory upon a Sessions Judge or a District Magistrate to order commitment in every case where an offence is exclusively triable by a Court of Sessions. The Jaw gives a discretion to the revising authority and that discretion has to be exercised judicially. [750 Bl Considering the delay in moving the Sessions Judge, the terrible harass- ment that the accused would be called upon to face if the Magistrate were to commit them for trial by a Court of Sessions now, and further that it was a private party who had no locus standi that went up in revision before the Sessions Judge after the last attempt by the prosecution had failed, it was injudicious for the Sessions Judge to order the commit- m
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