IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1964 of 2011 Md. Shamimuddin And Ors. Versus The State Of Bihar & Anrs. ----------- 04. 29.06.2011. Heard Sri Anil Kumar Mishra, learned counsel appearing for the petitioners and Smt. (Dr.)Indiwar Kumari, learned counsel appearing for the State. In spite of notice having been served upon the Opposite Party no.2 and a counsel appearing through power on his behalf, as may appear from the present record, none appears to resist the prayer made by the petitioners through the present petition. The petitioners are accused in Complaint Case No.48(C) of 2008 in which order of cognizance was passed on 5.9.2008 and the petitioners were summoned to stand their trial for offences under Section 323, 379, 406 IPC. Subsequently, a petition was filed on 1.8.2009 praying their discharge from the case as they thought that the case had been brought on false and fabricated allegations. That petition was heard on 3.8.2010 by the learned Sub Divisional Judicial Magistrate, Danapur and by a 2 speaking order passed on that day, i.e., 3.8.2010, the learned Sub Divisional Judicial Magistrate directed that the evidence of five witnesses examined under Section 244 Cr.P.C. indicated that there were sufficient grounds to proceed against the accused persons by framing charges against them under Sections 323, 379 and 406 IPC and Section 4 of the Dowry Prohibition Act. Subsequently, the learned Magistrate was passing an order on 28.9.2010 by which he was stating that on account of inadvertent clerical mistake, Section 376 IPC was omitted to be mentioned in the order dated 3.8.2010 and that order should be read to contain, inter-alia, Section 379 IPC and, accordingly, the charges be framed. The contentions are two fold. It was contended, firstly, that the Magistrate was probably acting, as may appear from the tone and tenor of order dated 28.09.2010 to make the correction as is permitted under Section 362 Cr.P.C. but in effect, he was passing a new order and the order which he passed on 28.9.2010 in the garb of exercising his jurisdiction under Section 362 Cr.P.C., he 3 was in fact usurping the jurisdiction of the court of Sessions by directing the framing of charges also under Section 376 IPC which offence was exclusively triable by the court of Sessions. It was next contended that once the learned Magistrate had finally decided an issue, as regards the framing of charges by his order dated 3.8.2010, he was virtually deciding the case and, as such, he was further precluded to go beyond the scope of Section 362 Cr.P.C. I take up the second argument which very much touches upon the jurisdiction of the Magistrate or jurisdiction of a court to try an offence under Section 376 IPC. Offences which have been made punishable under the IPC or any other Act than the IPC have been classified in various categories by the legislature which is exhibited by Schedule-A appended to the Cr.P.C. One may find that the offence under Section 376 Cr.P.C. is triable exclusively by the Court of Sessions and not by a Magistrate of any class and, as such, when the S.D.J.M., Danapur was directing the addition of Section 376 IPC into the array of charges as 4 indicated in his earlier order dated 3.8.2010, by his order which is impugned herein and which is dated 28.09.2010 he was simply usurping a jurisdiction to try an offence which was at all not triable by him. Besides, the first Schedule appended to the Cr.P.C., if the learned Magistrate could have roved through the provisions of the Cr.P.C., specially, those of Sections 227 and 228, then he could have found that when an offence is exclusively triable by a court of Sessions, then it is triable by that particular court and not otherwise. At the same time, if the court of Sessions after hearing the prosecution and the accused and also after having perused the police report and documents attached thereto, finds that the accused appeared committing an offence which was not triable by that court, then there is no jurisdiction vested in the court of Sessions to further proceed in the matter and he is simply to part with the case, by sending the case either to the C.J.M. or to any competent Magistrate. Above all the learned Magistrate who was fairly senior in the rank of Magistracy, ought to be supposed 5 acquainted with the provisions of Section 208 and 209 of the Cr.P.C. which indicate that if the offences could be exclusively tried by the court of Sessions, the Magistrate has to follow the procedure of commitment of the case to the court of Sessions. Both the provisions of Sections 208 and 209 indicate that if the offence was exclusively triable by a court of Sessions, then the Magistrate has no further jurisdiction to proceed in the matter and he has simply to commit the case to the court of Sessions. It is simply unimaginable to learn as to how a Magistrate, so senior in rank, could be missing such important provisions as noted above and was usurping the jurisdiction which was never created in him and was passing such an illegal order which was without jurisdiction. Section 362 Cr.P.C. empowers a court to make necessary corrections in his judgment or final order, if it has crept into it on account of inadvertence or clerical mistake. The term which has been used by Section 362 Cr.P.C. is ‘judgment or final order disposing of a case.” What is a ‘judgment’ has been indicated by the Cr.P.C. itself by 6 virtue of Sections 353, 354 and 355, ‘Final order disposing of a case’ has not been defined nor explained by any provision of the Cr.P.C. and it remains to be appreciated in terms of many actions of a court. In Madhu Limay Vrs. State of Maharashtra AIR 1978 SC 47, the Supreme Court were considering as to what could be a ‘case decided’. In that course, many illustrative instances were given by the Hon’ble Judge who was writing the judgment of the Supreme Court and if one considers those illustrative observations of the Apex Court, then one could find that if a court was finally deciding a point which could be deciding the rights of the two parties or could be affecting the right of one of the parties, then it could be said to be ‘a case decided’. There might be so many controversial issues in a case between the parties and a decision on any of the issues could be deciding the rights of other parties or that particular order may be affecting the rights of both the parties. If it has crucial and final impact in terms of the rights of a party to get a hearing in the case further or an order or an issue, then it could be 7 said that it was finally deciding a case. When an order to the extent of a nature, as could be passed under Section 246 Cr.P.C. directing the framing of charge or under Section 245 Cr.P.C. directing the discharge of an accused is passed, then undoubtedly, those orders could be said to be deciding a case finally because the order decides one of the most important point and issue besides the rights or claim of the parties. When the case was finally decided, then of course, the Magistrate was competent to make certain correction which was permitted to be done by Section 362 Cr.P.C. But, it was never permitting any court to usurp a jurisdiction which was never vested into or created for it. This was yet another fallacy, the S.D.J.M. was falling into. When I was perusing the impugned order dated 28.9.2010, I was very much clear in my mind that the learned Magistrate was referring to Section 362 Cr.P.C. for directing the insertion of Section 376 IPC into his earlier order dated 3.8.2010 by which he had directed the framing of charges but, unfortunately, he was resorting to a 8 right provision for taking a wrong decision and was thereby usurping a complete non- existence jurisdiction. These are some of the reasons which I have found to hold that the order dated 28.09.2010, suffers from the very lack of jurisdiction for passing an order of such impact. In the result, the petition succeeds. The order dated 28.09.2010, as noted above, is hereby quashed. The Magistrate is directed to proceed further in the matter. B.Kr. ( Dharnidhar Jha,J.)