IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15739 of 2010 MD.SHAHABUDDIN Versus THE STATE OF BIHAR ----------- For the Petitioner: Sarvashri Shakeel Ahmad Khan, Senior Advocate C.M. Jha & Zeyaul Hoda, Advocates. For the State : Shri R.B. Mahto, Advocate --------- 3/ 9.08.2010 The present petition has been filed by the petitioner seeking quashing of orders dated 4.2.2010 passed by the learned Sessions Judge, Siwan in Cr. Revision No. 187 of 2009 by which an order dated 18.8.2009 passed by the Judicial Magistrate Ist Class, Siwan in Tr. No. 1836 of 2009 was upheld. The learned Judicial Magistrate had committed the case vide Tr. No. 1836 of 2009 arising out of Hussainganj P.S. Case no. 42 of 2005 dated 24.4.2005 for trial to the court of Sessions. The facts of the case may be stated in brief. A raid was conducted by S.I. Ranvijay Singh, the Officer Incharge of Hussainganj Police station in company of other police officers including the Deputy Superintendent of Police, Headquarters, Siwan and an Executive Magistrate, namely, Shri B.K. Jha, after breaking open the locks of the guest house of the petitioner situated at village Pratappur. During - 2 - the search of the guest house, the informant S.I. Ranvijay Singh, recovered one bullet proof jacket, telescopic rifle sight device two in number, telescopic sight device made by Bushnell Company one in number, one telescopic device of Bosma company, one night vision device, walky-talky two pieces, rifle cleaner two pieces, cartridges of rifle of 12 bores besides cartridges of 30.06 bores in different numbers and of different colours, totaling 46 in number with some notes of foreign currencies, like, 76 notes of 100 dollar each and six notes of 1000 dirham each, eight notes of 50 dirham each and one note of 200 dirham besides notes of dirham in denominations of 100, 10, 50 and 5 were also found. Riayal notes in the denominations of 50, 200 and 100 were also recovered. The police made the seizure of the above noted articles in presence of Shri B.K. Jha, Executive Magistrate, Siwan, Shri Arif Raja, District Transport Officer, Siwan and two others who were the residents of the village Pratappur and after investigation of the case, sent up the petitioner for trial before a magistrate by submitting charge sheet disclosing commission of offences under section 414 of the IPC, sections 25 and 26 of the Arms Act and section13(1) - 3 - of the Foreign Exchange Management Act besides sections 20 and 21 of the Indian Telegraph Act. The trial proceeded but the learned magistrate framed charge against the petitioner only under section 26 of the Arms Act. Subsequently, during the course of the trial, a petition was filed by the petitioner pointing out to the court that no offence under section 26 of the Arms Act was made out against him and, as such, necessary orders on amendment of the charges be passed. The issue was joined by the prosecution and order was passed on 18.8.2009 by which the learned Judicial Magistrate, First Class, presiding over the Special Court constituted for the trial of the petitioner, came to a conclusion that the cartridges of 30.06 bore fell within the category of prohibited arms and as such, it could be a case which could be committed to the court of Sessions and, accordingly, he committed the case to the court of Sessions for trial. The above order dated 18.8.2009 passed by the learned Judicial Magistrate was challenged by the petitioner before the learned Sessions Judge, Siwan in Cr. Revision No. 187 of 2009 and the learned Sessions Judge by a long order, upheld the order of the magistrate but on different - 4 - reasons. The learned Sessions judge was of the view that the arms recovered during search of the guest house of the petitioner may not be prohibited arms but, because the raid was covered by section 22 of the Arms Act, the recoveries were punishable under section 26(3) of the Arms Act and as such, the order committing the case to the court of Sessions, which was passed by the learned magistrate on 18.8.2009, was not fit to be disturbed. The petitioner challenges the two orders by preferring the present petition. Shri Shakeel Ahmad Khan, learned senior counsel appearing for the petitioner, was mainly contending that the recovery of the arms may not be falling within the categtory of prohibited arms and the learned Sessions judge‟s order that it could be a case which may be covered by section 26(3) read with section 22 of the Arms Act was also not sustainable in law. It was contended that during the course of trial, a similar petition had been filed by the prosecution requesting the learned judicial magistrate to commit the case to the court of Sessions but the learned magistrate had expressed his opinion that, because the arms which were - 5 - recovered were not covered by definition of prohibited arms, the case could not be committed to the court of Sessions for trial. It was contended that by passing the order dated 18.8.2009, the learned magistrate was virtually reviewing his own earlier order and that order was being upheld by the learned Sessions judge illegally. It was contended that no offence triable by the court of Sessions was made out under the facts of the case and, as such, the case ought not have been committed to the court of Sessions. The learned Additional Advocate General appearing in this case on behalf of the State, submitted by drawing the attention of the court to the seizure memo that the recovery was of cartridges of 30.06 bore and that was covered by the definition of prohibited arms and as such, was to be punished under the appropriate provision of section 26(2) of the Arms Act. A notification was also produced before me during the course of hearing which bears G.S.R. 375(E) dated 21st June, 1980, which indicates that any multiple projectile ammunition in which any projectile has a dimension of 5 mm or more, was notified to be prohibited - 6 - ammunitions within the meaning of Clause (h) of sub- section (1) of Section 2 of the Arms Act. It was contended that the seized ammunitions were fully covered by the said notification. While hearing the present petition, what was mainly urged by learned counsel for the petitioner was that the magistrate had no reason, as there was no case, which ought to have been committed to the court of Sessions that he should have passed the impugned order. It was further contended that once the learned magistrate had formed an opinion while passing an order on 4.3.2008 that the recovered articles including the ammunitions were not covered by the definition of prohibited arms as contained in section 2(1)(h) of the Arms Act, the later order passed on 18.8.2009 was, as a matter of fact, an order reviewing his order dated 4.3.2008 and that was not permissible even if it was in the garb of passing an order section 323 of the Code of Criminal Procedure. It was contended that, in any view of the matter, the magistrate had no reason to commit the case to the court of Sessions specially because the case had reached the stage of delivering judgment as the parties had closed their arguments and the case was to be fixed for - 7 - delivering the judgment. It is true that in a given fact situation, if an opinion was formed and expressed by a criminal court on a particular issue, then under the same fact and for same reasons, the court is precluded to pass a different order. That order could be tantamount to revising the earlier order by that court and there being no inherent power in any criminal court as is vested in Civil Court under section 151 of the Code of Civil Procedure, the criminal courts are legally fettered in passing such orders. But, when a court is considering an order of the nature as was passed by the learned magistrate on 4.3.2008 and again on 18.8.2009, specially, under the facts of the case, then one has to judge the submissions under the facts of the case and in the light of the provisions which have been adopted by the court for passing that particular order. There are two provisions in the Code of Criminal Procedure (hereinafter referred to as the Code) empowering a magistrate to commit a case to the court of Sessions. The provisions are contained in sections 209 and 323 of the Code. It is beneficial to have a glance of the two provisions. Section 209 of the Code reads thus: - 8 - “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 the provisions of section 207 or section 208, 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.” On perusal of the above provision, what appears is that the sole consideration for the magistrate who was to act under the above provision was that the facts presented to him through the police report appears constituting an offence which was triable exclusively by the court of Sessions. Under that particular provision, the magistrate has - 9 - to consider nothing but the constitution of offence by facts of the case and the forum of its trial. In one of their decisions, the Supreme Court was pointing out that the jurisdiction of the magistrate under section 209 of the Code was very narrow as it was simply to correct any error which might have crept in. Say, for the sake of illustration, the police had inserted section 323 IPC in place of section 302 of the IPC in its report, then the magistrate while acting under section 209 of the Code could make the necessary correction, he could not go beyond that. What was pointed out by the Supreme court in that case, i.e. Sanjay Gandhi Vs. Union of India AIR 1978 SC 961 was that the magistrate has a narrow inspection hole to look through it and has never to consider the facts of the case so that he could say that no offence other than one which could be exclusively tried by a court of Sessions was made out. The magistrate had no powers to launch on a process of satisfying himself that a prima facie case was made out on merits so that he could discharge the accused. It was noted that the power to discharge was vested in the Court of Sessions u/s 227 Cr. P.C. The observations of the Supreme Court may indicate as if the duty of a magistrate under - 10 - section 209 of Cr. P.C. was only to send the case to the Court of Sessions without applying his mind to the facts of the case. However, in another decision, the view of the Supreme Court appears changed. In R.K. Jain Vs. State through Spl. Police Establishment and ors reported in AIR 1980 Supreme Court 1510 the Supreme Court was pointing out that the words „it appears to the magistrate‟ clearly gave so much latitude to him as to apply his judicial mind to the facts of the case and to record a finding as to what offence appeared made out from the facts of the case. It was further pointed out that if on such application of judicial mind, which was the duty of the magistrate, a conclusion was reached by him that no offence exclusively triable by the court of Sessions was made out, then he was at liberty not to commit the case to the court of Sessions and to proceed with case himself by adopting other procedure contained in the Code. Thus, what appears from the above two decisions is that the Supreme court was also taking two contrary views on the jurisdiction of the magistrate. However, in spite of the conflict between the two decisions as to what could be the duty of a magistrate, it appears a reasonable - 11 - view which one should take that the words „it appears to the magistrate‟ put ample play in the jurisdictional joints of the magistrate so as to applying his jurisdiction properly to consider the facts contained in the police report and to form his own opinion after due application of his judicial mind as to what offence appears constituted from the facts of the case. The provision of section 209 of the Code relates to commitment of a case only when, in the opinion of the magistrate, which has to be formed on due application of his judicial mind, an offence exclusively triable by the court of Sessions appeared committed by the accused that the magistrate could direct the commitment of the case for trial to that court. When we consider the provision of section 323 of the Code, it could be found that the jurisdiction of the magistrate under that provision is quite different from one which is vested in him by the provisions of section 209 of the Code. Section 323 of the Code reads as under: “ 323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed. ---- If , in any injury into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment - 12 - 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 provision of Chapter XVIII shall apply to the commitment so made].” On perusal of the above provision, what could be found is that the jurisdiction, created by section 323 of the Code as regards the committal of a case, could be exercised by a magistrate at any stage of the proceeding before signing of the judgment. The consideration under which the powers under section 323 of the Code could be exercised by a magistrate is that the „case‟ should appear to him to be one which ought to be tried by the court of Sessions. Here, again, the word „appears‟ has been used by the legislature and that amply indicates that it could not be permissible for the magistrate to commit each and every case to the court of Sessions unless he has applied his judicial mind to the facts which might be in the form of the evidence which could have been received by him during the course of the trial that he had formed an opinion that the case required to be committed to the court of Sessions. Difference in the provision of sections 209 and 323 of the Code appears very clear. As we have just - 13 - noticed, for exercising the powers to commit the case to the court of Sessions, the consideration for a magistrate under section 209 of the Code is the nature of offence and its trial forum. The forum of trial of different offences have been prescribed by the legislature in the first schedule of the Code which classifies the offences under the Penal Code in various ways and also indicates as to by which court a particular offence could be triable. For reaching the conclusion that the offence is exclusively triable by the court of Sessions the magistrate has to go to the first schedule of the Code but, before that, he has to read and consider the facts of the case for finding out as to whether ingredients of an offence were constituted by facts presented by the police so that he could record a finding that an offence exclusively triable by the court of Sessions was made out on facts. If he could not record a finding of the above nature, then the magistrate does not have the jurisdiction under section 209 of the Code to commit the case to the court of Sessions. This view of mine gets support from the above noted decision of the Supreme Court rendered in the case of R.K. Jain (supra) as also by a Full Bench decision of this court in the case of Tuneshwar - 14 - Prasad Singh Vs. State of Bihar reported in 1977 BBCJ 111 (FB). So far as the jurisdiction of a magistrate under section 323 of the Code is concerned, the very provision does not indicate that the consideration for the magistrate so as to acting under the above provision, could be as to what offence was really constituted by the facts of a case. He has simply to consider the nature of the case. It is plain from the above discussion that a magistrate can never try an offence which could not be triable by him or which he thinks be tried by other courts. There are provisions in the Code requiring the magistrate to part with the trial of a case if he finds that he has no jurisdiction to try a case or he does not have the jurisdiction either to commit it for trial and further if he finds that the case was one which should be tried or committed for trial by some other magistrate in the district. The magistrate may also find that the case could be tried by the Chief Judicial Magistrate. What action the magistrate has thereafter to take is provided by section 322 of the Code. Likewise, on conclusion of the trial, if the magistrate finds that he cannot pass sufficient sentence, then there is a provision under section 325 of the Code under which he has - 15 - to part with the case and refer the matter back to the Chief Judicial Magistrate who could act as per the provision of that particular section. But, when the magistrate comes to a conclusion that the case was one which ought to be tried by the court of Sessions, then he has never to consider the nature of offence. In my considered view, a magistrate could record a finding to the effect that the case was one which ought to be tried by the court of Sessions if he considers not only the evidence led in proof of the commission of the offence, but also the attending circumstances under which the offence was committed, the ultimate impact of the act which the same ultimately as an offence shall have on the society and the functioning of the state and its various limbs, the antecedent of the accused as also the requirement to ensure that an appropriate sentence which cannot be passed by any other court than the court of Sessions is inflicted upon the accused. One may argue that an accused has a right to plead leniency in the sentencing but, in my considered view, that could be taken care of by the court of Sessions while hearing the accused under section 235 of the Code. On consideration of the attending circumstances of a case, stature and antecedents of the - 16 - accused and the act which was allegedly done by him if the magistrate comes to a conclusion that it could be a case which ought to be tried by the court of Sessions, then it cannot be said that it was not within the powers of the magistrate not to do it. In my considered view, if the magistrate has read the circumstances and facts correctly and has reached a conclusion in the above behalf, then no revisional court should interfere with such orders of the magistrate. The contention was that once the magistrate had dismissed such a prayer by the order passed on 4.3.2008, the subsequent order dated 18.8.2009 was by way of revising the order dated 4.3.2008. I have perused the order dated 4.3.2008 and I find that by the above order, a petition filed by the Special Prosecutor was dismissed by which the prosecutor had required that an additional accused, who was the father of the accused, ought to have been summoned and charge under section 122 of the IPC ought to have been framed. It was not an order by which the magistrate was refusing to commit the case to the court of Sessions, as such, it could not be said that the learned magistrate while passing order dated 18.8.2009 was reviewing his earlier - 17 - order dated 4.3.2008. The learned Sessions Judge has referred to the provision of section 22 of the Arms Act and he has reached a conclusion that as per that particular provision, it appeared an offence which could be covered by section 26(3) of the Arms Act and, as such, the committal order was justified. I do not want to express any opinion on it because, in my considered opinion, the facts and circumstances of the case required that the case ought to have been tried by the court of Sessions. Besides, the issue as to which offence was committed by the petitioner is to be tried by receiving evidence. Any observation in that respect may not be prudent and in the interest of a fair trial. In my considered view the order directing the commitment of the case to the court of Sessions which was passed by the learned magistrate, was fully justified. Accordingly, the petition appears of no merit and the same is dismissed. Anil/ AFR (Dharnidhar Jha, J.)