Nanak Chand And Ors. vs Vinod Kumar Jain And Anr.
1999 Latest Caselaw 259 Del

JUDGMENT

J.B. Goel, J.

1. This criminal revision is directed against order dated 5.10.1996 passed by the learned Addl. Session Judge (ASJ) whereby charges against all the petitioners under Section 147/149/323 IPC, under Section 452 against accused No. l to 4 and under Section 356 IPC against accused Davender have been framed in a complaint case.

2. The learned MM vide his order dated 16.5.1994 had committed the complaint case to the learned Session Judge under Section 323 of the Code as a cross case arising out of Police case in FIR No. 121/92 of P.S. Mansarover Park, Delhi involving inter alia offence under Section 308/34 IPC had already been committed to that Court.

3. Briefly, the facts are that one Vinod Kumar Jain had filed a complaint before the learned Magistrate for proceeding under Sections 308/452/323/147/148/149/506 IPC against six accused/petitioners in connection with an occurrence which had taken place at about 10.15 P.M. on 9.7.1992 at the house of the complainant at 2892 Ram Nagar, Shahdara, Delhi. The learned MM recorded statements of some witnesses under Section 202 of the Code of Criminal Procedure (for short the 'Code'), took cognizance of the complaint case and summoned all the six accused persons under Sections 323/147/149 IPC, accused No. l to 4 under Section 452 and accused Davender under Section 379 IPC: The accused appeared before the learned MM. In connection with the same occurrence a Police case (FIR No. 121/92) was also registered at P.S. Mansarover Park; after investigation a report under Section 173 of the Code was submitted by the Police and that case had already been committed to the Court of Sessions. On an application filed by the complainant the learned M.M. in exercise of power under Section 323 of the Code vide his order dated 16.5.1994 committed the complaint case also to the Court of Ld. A.S.J. to be tried along with police case. The accused-petitioners did not challenge that order.

4. Thereafter, the learned A.S.J. after hearing the parties and on the basis of material available before him on committal of the complaint case vide detailed order dated 5.10.1996 held that offences as aforesaid are made out and ordered accordingly. The petitioners have filed this revision against that order.

5. Learned counsel for the petitioners has contended that the complaint case was triable by the MM as a warrant case Chapter XIX of the Code and before any charge could be framed an inquiry as contemplated under Section 244 should have been held by the learned A.S.J.; and without holding such inquiry no charge could be framed; and as there is no materia1/evidence to proceed against the petitioners, they are entitled to be discharged under Section 245(2) of the Code. He has relied on certain case law. This is disputed by the learned counsel for the respondent State on the ground that the A.S.J. while taking cognizance of the offence on the committal of the complaint case to him under Section 323 of the Code is not required to hold an inquiry, like a committal under Section 209. He has to act and follow the procedure prescribed by Chapter XVIII of the Code and in that case he is not acting as a Magistrate; as such provisions of Section 244 of the Code are not attracted; the learned A.SJ. has rightly framed the charges on the basis of material available on record as committed by the M.M. There is no illegality or infirmity in his order and the material is available on record to frame the charges.

6. I have considered the contentions, circumstances and the material. It is not disputed that police case arising out of FIR No. 121/92 under Sections 147/148/149/323/308 IPC registered at the instance of petitioner No. 4 against the complainant

party had already been committed to the court of learned ASJ. It is also not disputed that the police case and complaint case are cross-cases arising out of the same occurrence. Section 323 of the Code reads as under:_ "Procedure when, after commencement of inquiry or 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.]

7. The Ld. M.M. has committed the complaint case vide his order dated 16.5.1994. That order was not challenged and so is not in dispute.

8. Trial of the two cross cases arising out of the same incident by the same court is a matter of expediency, inter alia to obviate the risk of two courts coming to conflicting findings.

9. In Kewal Krishan v. Suraj Bhan and Anr. 1981 SCC (Cri) 438 it was held that where two cases exclusively triable by the court of Sessions, one instituted on the basis of the police report under Section 173 and the other initiated on a criminal complaint arising out of the same transaction, to obviate the risk of two courts coming to conflicting findings, it is ordinarily desirable that the two cases should be tried separately but by the same court.

10. Obviously the learned MM had exercised the jurisdiction under Section 323 of the Code to avoid two conflicting judgements by two different courts.

11. Now the question is how the learned A.S.J. should proceed with the complaint case which is not triable by the Court of Sessions but by a Magistrate, after its committal to him ?. In a warrant case triable by the Magistrate the procedure is provided under Chapter XIX of the Code, the A.S.J. while trying such case will not be trying the case as a Magistrate but as a Court of Sessions and for that purpose he has to act under the procedure prescribed under Chapter XVIII of the Code. And this is also so explicitly provided under Section 323 of the Code. Provisions of Chapter XIX of the Code in themselves are not applicable for trial before the Court of Sessions.

12. Section 209 of the Code provides for commitment of a Police case to the Court of Sessions when the offence is triable exclusively by it. In such case the Magistrate is not required to hold inquiry as contemplated under Section 244 of the Code. After a case is committed the Court of Sessions has to proceed in accordance with the procedure prescribed under Chapter XVIII and while taking cognizance the Court of Sessions has not to record any evidence. It has to follow the procedure prescribed under Sections 226, 227 and 228 of the Code on the basis of report of the police and the documents submitted therewith and after hearing the parties. Section 323 of the Code gives power to a Magistrate in given circumstances to commit a case, not necessarily based on police report or triable by the Court of Sessions to be tried together with another counter case arising out of the same occurrence already committed to him. The Magistrate necessarily has to be satisfied before taking cognizance of the case and

before committing the case that there is sufficient material to proceed against the accused.

13. In the case of Kewal Krishan v. Suraj Bhan and Anr. 1981SCC (Cri) 438, it was held that

"At the stage of Sections 203 and 204, Cr.P.C. in a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 Cr.P.C., there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is 'sufficient ground for proceeding' against the accused. At this stage the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate is scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in State of Bihar v. Ramesh Singh that even at the stage of framing charges the truth, veracity and effect of the evidence which the complainant produces or proposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session.

The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. Section 209 Says : "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 Session, he shall commit the case to the Court of Session." If the Committing Magistrate thinks that it is not necessary to commit the accused who may be on bail to custody, he may not cancel the bail. This has been made clear by the words "subject to the provisions of this Code relating to bail" occurring in Clause (b) of Section 209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled. Section 227 of the Code of 1973 has made another beneficent provision to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial. This section provides that if upon considering the record of the case, the documents submitted with it and the submissions of the accused and the prosecution, the judge is not convinced that there is sufficient ground for proceeding against the accused, he has to discharge the accused under this section and record his reasons for so doing."

14. Thus the material which is before the Magistrate disclosing sufficient ground for issuing process to the accused and also for committing the case for trial to the Court of Sessions, will be the material available to the Court of Session to proceed further under Sections 227/228 of the Code. The question of his holding an inquiry like a Magistrate under Section 244 does not arise.

15. As noticed earlier, after the complaint was filed in the present case, the complainant examined himself and his witnesses by way of pre-summoning evidence and on the basis of such evidence, the learned MM found sufficient ground to take cognizance and summoned the accused. That order was not challenged by the accused petitioners either before the same Magistrate or in revision either before the Court of Session or before the High Court. Obviously, the learned Magistrate had taken into consideration the same material for committing the case to the Court of Session under Section 323 of the Code. That latter order has also not been challenged in appropriate forum.

16. The petitioners have not taken the plea that there was no sufficient material before the Magistrate for exercising the power first under Section 204 and then under Section 323 of the Code. And that will be the material to be considered by the Learned A.S.J.

to proceed further under Section 227 or 228 of the Code. The Learned A.S.J. thus was entitled to and justified in proceeding further on the basis of such material.

17. In the circumstances, I do not find any error, illegality, infirmity or impropriety in the impugned order. This revision petition has no merit and the same is hereby dismissed.

18. Interim order stands vacated.

19. The learned Trial Court shall proceed further with the trial expeditiously in accordance with law.