IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29208 of 2007 1. RAJENDRA YADAV son of Ishar Yadav. 2. Sohindra Yadav son of Bhuneshwar Yadav 3. Anil Yadav son of Fazzo Yadav 4. Aneel Yadav son of Inshar Yadav 5. Banddo Yadav son of Ishar Yadav 6. Ishar Yadav son of late Dukhan Yadav 7. Jyotish Yadav son of Ishar Yadav All are residents of village- Makhanpur, P. S. Barahat, District- Banka. … Petitioners. Versus 1. STATE OF BIHAR 2. Radhik Yadav @ Adhik Yadav, son of Sitabi Yadav resident of village- Makhanpur, P. S. Barahat, District- Banka. … Opposite parties ----------- 4. 10.08.2009. Heard learned counsel for the petitioners and counsel for the State as also counsel for the opposite party no.2. The petitioners are aggrieved by an order dated 26.5.2007/31.5.2007 passed by the S.D.J.M., Banka in Banka (Barahat) P.S. Case No. 458 of 1993 whereby and whereunder in exercise of power under Section 323 of the Code of Criminal Procedure (Cr.P.C.), the learned Magistrate has committed the case to the court of sessions as in his opinion, the offence appears to him to be triable by court of sessions. The accused petitioners, who are facing prosecution for an occurrence dated 25.12.1993 - 2 - have come out with a case that the said police case was instituted initially under Section 341, 323, 324, 307, 379/34 of the Indian Penal Code (I.P.C.) but the police after investigation of the case had submitted the charge-sheet disbelieving the allegations under Section 307 of the I.P.C. and in the said charge-sheet submitted on 30.6.1994, the accused persons were sent up for trial for an offence under Section 341, 323, 324, 379/34 of the I.P.C. whereafter the S.D.J.M., Banka by an order dated 30.6.1994 had also taken cognizance for the aforesaid offence. In course of time, after lapse of more than seven years, charges were framed against the petitioners on 14.12.2001 only under Section 323, 341, 324 and 379 of the I.P.C. and subsequently after four years of the framing of charge, ten witnesses were also examined in between 29.7.2004 to 11.3.2005 and after recording statement under Section 313 Cr.P.C., the case was ultimately fixed for judgment but on the date of judgment, learned Magistrate instead of delivering the judgment i.e. 26.5.2007/31.5.2007 had passed the impugned - 3 - order which reads as follows:- ^^LFkkuh; fudk; pquko ds dkj.k vodk'k ?kksf"kr gksus ij vfHkys[k vkt fu.kZ; gsrq is'k fd;k x;kA vfHkys[k voyksdu ls /kkjk 395@397@323@324 Hkk-n-fo- dk ekeyk izrhr gksrk gS ftldk fopkj.k l= U;k;ky; }kjk djus ;ksX; gSA lHkh lkr vfHk;qDr mifLFkr gSA vr% ekeyk /kkjk 323 n0iz0la0 ds vUrxZr l= U;k;ky; dks lqiqnZ fd;k tkrk gSA vfHk;qDrx.k tekur ij gSa os iwoZ ds ?kVuk ij jgsA lqiqnZxh dh lwpuk yksd vfHk;kstd dks nh tk;A miLFkkid lqiqnZxh vf/klwfpr djsa rFkk vfHkys[k vfoyEc l= U;k;ky; esa HkstsaA vfHk;qDrx.k fn0 10-7-2007 dks U;k;ky; esa mifLFkr gksaA** Learned counsel for the petitioners submit that the impugned order is a classic case of abuse of power and the petitioners who had been made to run to the court for long fourteen years from the date of institution of the First Information Report find themselves in a helpless situation, inasmuch as, on account of the impugned order, they will now have to undergo the further rigors of protracted sessions trial even when there is no material which could have led to the prima-facie satisfaction and no reason in fact has been assigned by the learned Magistrate for constituting the offence under Section 395/397 of the I.P.C. so as to its being committed to the court of sessions. - 4 - Commenting further, learned counsel for the petitioners would submit that the impugned order is a cryptic order and does not reflect any application of mind save and except using section of offence under Sections 395/397 I.P.C. to be made out from the evidence adduced before the learned Magistrate. Reliance is placed by him on a judgment of this Court in the case of Emperor Vs. Deo Narain Mullick reported in 1928 Patna 551. Learned counsel for the State and the opposite party no.2 on the other hand would submit that there is no fretters on the power of the Magistrate in exercise of power under Section 323 of the Cr.P.C., inasmuch as, whenever it would appear to the Magistrate that the case before him is triable by the court of sessions, he can exercise such power under Section 323 of the Cr.P.C. Having given anxious consideration to the aforementioned submissions, this Court would find that commitment of the accused to the court of sessions in terms of Section 323 Cr.P.C., therefore, has to be backed by reasons. Section 323 Cr.P.C. reads as follows:- 323. Procedure when, after commencement of - 5 - inquiry of trial, Magistrate finds case should be committed. – If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Sessions, he shall commit it to that Court under the provisions hereinbefore contained [and thereupon the provisions of Chapter XVIII shall apply to the commitment so made].” There can be also no dispute that scope of commitment under Section 323 Cr.P.C. is quite distinct with exercise of such power by the Magistrate under Section 209 Cr.P.C. which in fact contemplates automatic commitment to the court of sessions but the moment he would find that the offence is triable exclusively by the court of sessions. For appreciation of this very aspect it would be also useful to quote the provisions of Section 209 Cr.P.C. which reads as follows:- 209. Commitment of case to Court of Session when offence is triable exclusively by it. – 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 Sessions, he shall – [(a) commit, after complying with - 6 - 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;] (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Sessions.” Thus from the wordings of Section 209 Cr.P.C., it would appear that commitment has to be made to the court of sessions merely on perusal of the case record be it police report or the complaint petition and the Magistrate is forbidden to apply his mind to the merit of the matter and in fact, he has no option but to commit the case to the court of sessions once he finds even prima materials from the police report and connected papers the offence being triable by the court of sessions. That is how the principle of narrow hole inspection was laid down by the Apex Court in the case of - 7 - Madhu Limaye Vs. State of Maharashtra reported in AIR 1978 SC 47 and was reiterated by this court in the case of Saleha Khatoon vs. State of Bihar reported in 1989 Cr.L.J. 202. No such restriction or compulsion is on the Magistrate while exercising power under Section 323 Cr.P.C. where such power has to be exercised only on the basis of the materials collected in course of enquiry or trial. In this category of cases, the case need not be exclusively triable by the court of sessions rather if the material in the case discloses an offence which is triable by the Magistrate himself even then he has a discretion either to try it himself or commit to the court of sessions. What is thus essential for commitment of the case to the court of sessions under Section 323 Cr.P.C. is formation of opinion of the Magistrate that the case is one which ought to be tried by the court of sessions. If the Magistrate upon such consideration of the materials on record is of the opinion that the case is one which ought to be tried by the court of sessions, he can commit the case to that court. Obviously, such opinion has been framed on the basis of records - 8 - showing the nature and gravity of the offence and the punishment to be inflicted as also such other connected materials. It is this formation of opinion which has to be reduced by way of reasons in support of the order of commitment under Section 323 Cr.P.C as was held by this Court in the case of Deo Narain Mullick (supra) in the following words:- “--------Therefore the Magistrate could only commit the accused to the Court of Sessions if he had been of opinion that the case ought to be tried by that Court. He must give reasons for his entertaining that opinion, for the order of commitment is judicial order. It was held to be so in the case of Emperor v. Mahammad Khan Rajakhan Pathan reported in 1 I.C. 104 vide also Queen Empress v. Kayemullah Mandal reported in 1 C.W.N 414.------“ It has to be noted that initially when the case was tried by learned Magistrate for an offence under Section 341, 323, 324 & 379/34 I.P.C. all of them were exclusively triable by Magistrate and therefore, if any such material had come only in course of examination of the witnesses which made him to form his opinion that the case was to be tried also for an - 9 - offence under Section 395/397 I.P.C. by the court of sessions he had to give reasons even though briefly. The reasons are the soul of any judicial order and in absence whereof exercise of such power can at times become whimsical, if not wholly arbitrary. This Court in this regard can also not ignore that the charges were framed by that very court before commencement of the trial on the same materials and therefore, if there was any evidence which had come in course of trial leading to form his opinion that the offence alleged was one triable also under Section 395/397 I.P.C., those materials had to be incorporated by way of his reasons for committing the case to the court of sessions. It is thus lack of any reason which has made this Court to interfere with the impugned order. In the result, this application is allowed. The impugned order is set aside and the matter is remitted back to the trial court to dispose of the trial of the petitioner in accordance with law. It is, however, made clear that if the Magistrate is still of the opinion - 10 - that the gravity of the case requires that it should be tried by the court of sessions, he would be at liberty to commit the case to the court of sessions but only after giving reasons in support of his such order. If on the other hand he is not of such an opinion, then he should try the case himself and dispose of the pending trial of the petitioners expeditiously, preferably within a period of three months from the date of receipt/production of a copy of this order. kanchan (Mihir Kumar Jha, J.)