IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13004 of 2008 ACHHELAL SAH Versus STATE OF BIHAR & ANR ----------- 2/ 14.5.2010 Heard Shri Sanjay Kumar No. 1, learned counsel for the petitioner and Shri Dashrath Mehta, learned APP for the state. This petition seeks quashing of order dated 11.2.2007 passed under section 323 of the Code of Criminal Procedure (hereinafter referred to as the Code) which was passed by the S.D.J.M., Bettiah, West Champaran in Trial No. 971 of 2007. The learned magistrate had earlier put the accused persons on trial only under section 354 of the IPC but, after examination of four witnesses during the course of trial, he came to the finding that they had given evidence which could constitute offence under section 376 of the IPC and, as such, held that the case was such which was triable by the court of Sessions and directed that the case be committed to that court for trial. The language of section 323 of the Code indicates that while holding an enquiry or trial into an offence, if it appears to a magistrate at any stage of the proceeding before signing of judgment, that the case was one which ought to be tried by the court of Sessions, then he may commit the case to that court under the provision hereinbefore contained, i.e., under the provisions of Chapter XVIII of the Code. Section 208 appears in Chapter XVIII of the Code and that indicates that if it appears to the magistrate issuing process 2 under section 204 that the offence is triable exclusively by the Court of Session, he shall commit the case without delay after furnishing the free copy of the documents which are enumerated under that particular section of the Code. Thus, what is found is that the consideration at the stage of section 208 of the Code and at the stage of section 323 thereof has to be the same and similar because the legislature has employed the same term in both the provisions on which the order of commitment has to be passed or made by a magistrate. The term ‘it appears to the magistrate’ has been considered in two of the decisions of the Supreme Court, one, in Sanjay Gandhi Vs. Union of India and others reported in (1978) 2 Supreme Court Cases 39 and Rajender Kumar Jain Vs. State through Special Police Establishment and ors. reported in AIR 1980 Supreme Court 1510. It was held in Sanjay Gandhi (supra) that the magistrate has nothing to do on submission of a report by police while proceeding under section 209 of the Code than to merely look to the sections of the offence and if he found that the offence was exclusively triable by the Court of Sessions, then he has to commit the case to that court. Delivering the judgment in Sanjay Gandhi (supra), Hon’ble Shri Justice V.R. Kishna Iyer was prescribing ‘a narrow inspection hole’ for looking at the facts of the case and was limiting the jurisdiction of the magistrate not beyond correcting a wrong section. In order to elucidate, it was pointed out that in a case of murder if the police had put down 323 3 in place of 302, that correction could only be made by the magistrate and he could do nothing more and no further. But, the Supreme Court in the case of Rajender Kumar Jain (supra) to which Hon’ble Shri Justice V.R. Krishna Iyer was also a party, was going beyond the ambit and scope as was pointed out in Sanjay Gandhi. It was explaining as regards the provision of section 209 of the Code and was holding that the term ‘it appears to the magistrate’ means that the magistrate has to apply his judicial mind to the facts of the case because it was his judicial duty and after application of such mind of his he could give a finding as to what offence or offences were made out on the facts of the case. Thus, what is found by the two decisions is that while in Sanjay Gandhi (supra), the Supreme court was restricting the scope of section 209 of the Code and thereby the jurisdiction of a judicial magistrate, in Rajendra Kumar Jain (supra) it was enlarging the jurisdiction of a magistrate by explaining the meaning of the term ‘it appears to the magistrate’ to a reasonable extent, which view was taken by this court in Tuneshwar Singh Vs. State of Bihar reported in 1978 BBCJ 111. Passing the judgment in Tuneshwar Singh (supra), Hon’ble Shir Justice S.K. Jha, as his lordship then was, was pointing out that the term ‘it appears to the magistrate’ means that it was a judicial act of the magistrate and it has to be discharged only after due application of mind and then only the Court could commit the case to the court 4 of Sessions. In Tuneshwar Singh (supra), the case was under section 307 IPC and the allegation was that the accused was giving blow with lathi on head or any other part of the injured. Injury in that case was simple and taking that into account, the Full Bench of this court went on to illustrate the scope of section 209 of the Code and held that even in such case where injury was simple resulting from a lathi blow, if the magistrate commits the case to the court of Sessions, it would be an abuse of the process of the court. Here, in the present case, witnesses whose evidences were perused by the magistrate were numbering four and they were presenting themselves as eye witnesses. An attempt was made by learned counsel for the petitioner to impress upon me that the same court in its earlier order had branded these witnesses as not eye witnesses and now the same court was relying upon the evidence of four witnesses and was branding them acceptable eye witnesses and as such, the conflicting finding on the merits of the witnesses could be going to the root of the order and as such, this court should quash it. It may be pointed out that it is not the provision of sections 208 and 209 or 323 of the Code only containing the term ‘it appears to the magistrate’, the term appears somewhere else also in the Code and the meaning as such, has to be uniformly deduced as and where it appeared in the provision of Code. When it come to appreciating the meaning of the term ‘it appears to the 5 magistrate’, it is always to be assumed that the meaning of the term could be that prima facie the magistrate finds a case made out exclusively triable by the court of Sessions. It never means or indicates that a stricter application by reading the evidence as is required to be read in a trial has to be applied so that a case could be committed. If that could be the approach of applying the provision strictly, then the very purpose of formulating the provisions of sections 208, 209 and 323 of the Code will be defeated. The facts of the case and the evidence on record were considered by the magistrate as has been discussed by him in the impugned order. When the magistrate has reached a conclusion that it was a case which ought to have been tried by the court of Sessions, then, in my considered view, his satisfaction may not be displaced by any superior court. In the result, the petition fails. It is dismissed. Anil/ A.F.R. ( Dharnidhar Jha, J.)