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Criminal Revision No. 377 of 1967, decided on 13th November 1967.
S. 437‑Expression "that an accused person has been improperly discharged" Word "discharged" includes an implied discharge arising merely from non framing of charge under one section although charge under another section had been framed‑Person challaned by Police under S. 302, P. P. C. but Magistrate framing charge under S. 304, Part II, P. P. C.--District Magistrate under S. 437, Cr. P. C. competent to set aside order of Magistrate and direct that accused be committed for trial to Sessions Court under S. 302, P. P. C,
Two accused were challaned by the Police in the Court of a Section 30 Magistrate under section 302/34, P. P. C. but the Magistrate framed charge under section 304, Part II, P. P. C. Against this order of the Magistrate the complainant filed a revision and the District Magistrate in exercise of his powers under section 437, Cr. P. C. set aside the order of the Magistrate and directed the accused to be committed for trial to the Court of Sessions under S. 302/34, P. P. C. Against the order of the District Magistrate the accused came up in revision before the High Court and it was argued before that Court that the framing of the charge by the Court of inquiry under section 304, Part II, P. P. C. against the accused in case of alleged murder did not amount to his "improper discharge" as envisaged by section 437, Cr. P. C. and as such the District Magistrate was not competent to interfere and pass the impugned order:
Held, the only reasonable interpretation that can be put on the two provisions contained in sections 435 and 437, Cr. P. C. read together is that the Sessions Judge and the District Magistrate, would be competent to interfere both in case of express as well as implied discharge. No doubt, the discharge referred to in section 209, Cr. P. Code is obviously the one marking termination of proceedings, nevertheless, the absence of any specific reasons for not framing charge under a graver offence and for framing one for a lesser offence could not be so construed as to militate against inference of an implied discharge, or to take it out of the ambit of section 437, Cr. P. C. provided there are reasons to believe that the Magistrate had applied his mind. It does not stand to reason that in such an event, the Sessions Judge or the District Magistrate would be clearly helpless to undo a wrong or to rectify an error committed by the Inquiry Magistrate and prevent its perpetuation, being otherwise competent, "to call for and examine the record . . . . . for the purposes of satisfying himself as to the correctness, legality or propriety of a finding, sentence or an order" in exercise of the vast revisional powers enjoyed under section 435, Cr. P. C. The mere fact that section 347, Cr. P. C. which contains a general provision applicable both to inquiries as well as trials empowering the Magistrate to commit an accused for trial even at a subsequent stage, which provision would be invoked in very rare cases, would not per se be a sufficient ground to warrant the inference that an implied discharge is not covered by section 437, Cr. P. Code. In such circumstances, therefore, the framing of charge against the petitioners under section 304, Part II, P. P. C. amounted to their discharge of an offence under section 302, P. P. C. for which they were sent up and as such the learned District Magistrate was competent to invoke his powers under section 437, P. P. C, on consideration of the case to be one of improper discharge.
Muhammad Ishaque and others v. Muhammad Anu Mia P L D 1962 Dacca 301 approved.
Abdur Rahim and others v. State P L D 1967 Dacca 459 not fol.
Nahar Singh v. The State A I R 1952 All. 231; In re: Nulla Baligadu and others A I R 1953 Mad. 801; Abdul Halim Khan v. Buzruk Ali Khan A I R 1918 Cal. 943; Sheo Narain Singh and another v. B. Radha Mohan A I R 1919 All. 66; Sukhala and another v. Emperor A I R 1934 All. 141; Kathari Lakshamyya and others A I R 1945 Mad. 459; Ajab Lal Khirher v. Emperor I L R 32 Cal. 783; In re: K. V. M. Parameswarray A I R 1949 Mad. 430 and Kishan Singh v. Emperor A I R 1928 P C 254 ref.
S. 206‑Commit ment to Sessions Court‑Determining question whether there are sufficient grounds for committing accused for trial‑No hard and fast rule can be laid down regarding distinction between duty of committing Magistrate and that of Sessions Court‑Accused challaned under S. 302, P. P. C. Generally to be committed to Court of Sessions for trial.
S. 300, Exception 4‑--Sudden fight‑Case brought within purview of Exception 4‑Duty of Court to see that offender did not take undue advantages or acted in cruel or unusual manner‑Point, however, requires weighing of pro babilities and thus beyond functions of committing Court.
Ch. Nazir Ahmad assisted by Ch. Eitizaz Husain for Petitioners.
Major Waheed‑ud‑Din for A.‑G. for the State.
Date of hearing : 27th September 1967
This Criminal Revision is directed against the order of the District Magistrate, Multan, dated the 28th of February 1967, passed under section 437, Cr. P. Code, setting aside the order of Mr. M. R. Khalid, Magistrate with Section 30 powers, dated the 14th December 1966, by which charge was framed against the petitioners under section 304, Part II, P. P. C. instead of section 302, P. P. C. It was directed by the learned District Magistrate vide the impugned order that the petitioners be committed for trial to the Court of Sessions under section 302 read with section 34, Cr. P. Code.
2. The back ground of the case briefly is that on 9th July 1966, at about 12‑45 in the night one Lal Gujjar of Chak 96A/I5L, P. S. Mian Channun, District Multan, lodged a report with the Station House Officer, Police Station Mian Channun in village 59/15‑L, that he along with two other persons, Saghir Husain and Rooldoo Khan was proceeding from the village towards his square in the South at degerwela. As they passed near the cattle‑shed of Mehdi Khan Patwari, he (Lal complainant) heard an alarm by his cousin Muhammad Ali deceased, at which all the three rushed inside the haveli and saw that Lal Hussain petitioner was holding the deceased in his grip, exhorting his brother Liaquat Hussain who held a Chhurri in his hand, to teach a lesson to the deceased for playing foul in the game of cards Within their sight, Liaquat Hussain gave two blows to Muhammad Ali deceased, one on the backside of the chest above the waist while the other on the left thigh, near the buttock. Having received the injuries, the deceased fell on the ground and the petitioners fled away along with the Chhurri. The deceased succumbed to the injuries in a short while. They also, saw the cards scattered on the ground. After the completion of the investigation the petitioners were challaned under section 302/34, P. P. C. and the case was entrusted for inquiry to Mr. M. R. Khalid, Magistrate Section 30, Khanewal. As stated earlier, the learned Magistrate framed charge under section 304, Part II read with section 34, P. P. C. which being successfully challenged by Lal complainant before the District Magistrate, has given rise to the present Criminal Revision.
3. Chaudhury Nazir Ahmad Khan, the learned counsel for the petitioners raised the following contentions before me:
(1) That the framing of the charge by the Court of Enquiry under section 304, Part II, P. P. C., against the accused in a case of alleged murder did not amount to his "improper discharge" as envisaged by section 437, Cr. P. C. and as such the District Magistrate was not competent to interfere and pass the impugned order; and
(2) that the Inquiry Magistrate was well within his rights, after having recorded the entire evidence to frame the charge for a lesser offence, in view of the provisions contained in section 209, Cr. P. C., and as such, the order passed by the learned Magistrate being a proper and legal order should be (sic) not have been set aside.
4. The first contention raised by the learned counsel obviously proceeds on the assumption that framing of charge for a lesser offence does not necessarily imply a discharge from the graver offence, so as to confer jurisdiction on the Sessions Judge or the District Magistrate under section 437, Cr. P. C. It was argued that in the instant case, the framing of charge under section 304‑II, P. P. C. in a case in which the petitioners had been challaned by the police under section 302, P. P. C. did not amount to their discharge from the latter offence and as such, the District Magistrate was not competent to assume jurisdiction under section 437, Cr. P. Code. The question is not quite free from difficulty and there has been a longstanding conflict of views on the point, which was fully traced in Muhammad Ishaque and others v. Muhammad Anu Mia (P L D 1962 Dacca 301) a single Bench authority by A. S. Chowdhury, J. and Abdur Rahim and others v. State (P L D 1967 Dacca 459) a Division Bench authority in which the judgment was delivered by Baquer, J. In both these authorities voluminous case‑law was discussed by the learned Judges proceeding on the basis of two conflicting Full Bench decisions Nahar Singh v. The State (A I R 1952 All. 231) and In re: Nulla Baligadu and others (A I R 1953 Mad. 801). In Muhammad Ishaque and others v. Muhammad Anu Mia A. S. Chowdhury, J. after having reviewed most of the authorities observed as follows :‑--
"The preponderance of the authorities on the point clearly indicates that an omission to frame a charge under a certain section may amount to a discharge when the Magistrate has applied his mind and has consciously refrained from framing a charge under that section."
Although numerous authorities were also available on the point that non‑framing of charge under a serious offence amounted to the discharge of the accused of that offence, yet the learned Judge adopting the view expressed by Richardson, J. in Abdul Halim Khan v. Buzruk Ali Khan (A I R 1918 Cal. 943) modified that position by using the qualifying expression, "when the Magistrate has applied his mind and has consciously refrained from framing charge under that section." Richardson, J. in the aforesaid authority had observed as follows:‑
"Clearly the mere fact that an accused has not been charged with an offence is in itself insufficient. At least the Magistrate must consciously do something or make some order which shows that in his opinion on the materials before him, the accused should not be charged with, or tried for that offence."
This view also finds support from Sheo Narain Singh and another v. B. Radha Mohan (A I R 1919 All. 66); Sukhala and another v. Emperor (A I R 1934 All. 141); Kathari Lakshamayya and others (A I R 1945 Mad. 459); Ajab Lal Khirher v. Emperor (I L R 32 Cal. 783) and In re: K. V. M. Parameswarray (A I R 1949 Mad. 430). On the contrary, the second Dacca authority disagreeing with what is known as the Madras view relied upon by A. S. Chowdhury, J. held that the only discharge recognised by section 437 of the Criminal Procedure Code was an express discharge and though the non‑framing of charges under certain sections of Penal Code may indicate discharge on this account, yet the charge contem plated by section 437, Cr. P. C. was the very opposite of an implied discharge and did not include a discharge arising merely from non‑framing of a charge under one section, when a charge under another section was framed. This view was based on Nahar Singh v. The State which was a Full Bench decision. For their preference for the Allahabad view, the learned Judges were mostly influenced by the following three considerations:‑
(i) Firstly, that since section 209 required the Magistrate to record reasons for discharge it clearly showed that the discharge must be an express discharge and not one by implication;
(ii) Secondly, the expression "the Sessions Judge or the District Magistrate may cause him to be arrested" as occurring in section 437, Cr. P. C. would also indicate the examination of proceedings resulting in the release of the accused person, which situation might not arise in a case where charges were framed for a lesser offence; and
(iii) Thirdly, that framing of charge for a minor offence did not imply a discharge from a major offence, there being no termination of the proceedings, for the reason that the Magistrate was not prevented from changing his mind and Committing the accused even at a late stage under section 347, Cr. P. C.
5. Having carefully considered the authorities relied upon in the two aforesaid Dacca judgments, with the utmost respect I venture to express my agreement with the Single Bench authority inasmuch as, both views proceed on conflicting Full Bench decisions. In the first instance, it is only in the event of discharge that the Magistrate is under a statutory obligation to record reasons and in no other case. No doubt, the discharge referred to in section 209, Cr. P. Code is obviously the one marking termination of proceedings, nevertheless, the absence of any specific reasons for not framing charge under a graver offence and for framing one for a lesser offence could not be so construed as to militate against inference of an implied A discharge, or to take it out of the ambit of section 437, Cr. P. C. Provided there are reasons to believe that the Magistrate had applied his mind, which in this case he has obviously done. It does not stand to reason that in such an event, the Sessions Judge or the District Magistrate would be clearly helpless to undo a wrong or to rectify an error committed by the Inequity Magistrate and prevent its perpetuation, being otherwise competent, "to call for and examine the record . . . . . for the purposes of satisfying himself as to the correctness, legality or propriety of a finding, sentence or an order", in exercise off the vast revisional powers enjoyed under section 435, Cr. P. C. The only reasonable interpretation that can be put on the two provisions contained in sections 435 and 437 read together is that the Sessions Judge and the District Magistrate, would be competent to interfere both in case of express as well as implied discharge. Secondly, the mere fact that section 347, Cr. P. C. which contains a general provision applicable both to inquiries as well as trials empowering the Magistrate to commit an accused for trial even at a subsequent stage, which provision would be invoked in very rare cases, would not per se be a sufficient ground to warrant the inference that an implied discharge is not covered by sections 437, Cr. P. Code. One such occasion for the exceptional invocation of section 347, Cr. P. Code may be the consciousness on the part of the committing Magistrate of his inability to adequately punish an accused person in view of the limitations imposed by section 34, Cr. P. Code, whom otherwise, he could competently try, being invested with enhanced powers under section 30, Cr. P. C. Obviously such an inference would not require the amendment of charge. In my preference for P L D 1962 Dacca 301, I am also influenced by the Privy Council authority in Kishan Singh v. Emperor (AIR 1928 P C 254) in which a con viction under section 301, I. P. C. in a case where the accused was originally sent up under section 302, I. P. C. was held by their Lordships of the Privy Council to be tantamount to acquittal of the latter charge. In consequence, I hold that the framing of charge against the petitioners under section 304, Part II, P. P. C. amounted to their discharge of an offence under section 302, P. P. C. for which they were sent up and as such B the learned District Magistrate was competent to invoke his powers under section 437, P. P. C, on consideration of the case to be one of improper discharge.
6. This brings me to the second contention, namely, that if in view of the earlier finding the impugned order of the learned District Magistrate directing the commitment of the petitioners for trial to the Court of Sessions, under section 302, P. P. C. was not without jurisdiction, whether there are sufficient grounds justifying the inference of this Court in exercise of revisional powers to set aside the impugned order, thus allowing the committing Court to proceed with the trial of the petitioners under section 301, Part I, P. P. C. The point though of con siderable nicety is not devoid of authorities. The position was considered in Hari ballav: Shaha Roy v. Gopi Ballav Shaha and Government of East Pakistan (P L D 1959 S C 347). It was held by their Lordships that no hard and fast rules could be laid down regarding the distinction to be made between the duty of the committing Magistrate and that of the Sessions Court; and the determination of the question whether there are sufficient grounds for commit ting the accused for trial or not was entirely dependent on the facts of each case, and as such, it was neither useful nor desirable c to attempt at a precise definition of the limits of the Magistrate's discretion in the matter. Their Lordships however appreciated the difficulty presented by some boarder line cases. After reviewing several authorities, their Lordships reproduced with approval the following observation made by Sulaiman, J. in Akbar All v. Raj Bahadur and others (A I R 1925 All. 670):
"This, however, does not mean that the Magistrate is to arrogate to himself the functions of the Sessions Court and try the case as if he were that Court himself. The policy of the Legislature seems to be that serious offences should be tried by Sessions Judges, who are ordinarily more experienced. They are the proper Courts for pronouncing an opinion as to the guilt or innocence of the accused in cases triable exclusively by the Sessions Court. Where, however, the evidence is wholly untrustworthy and the Magistrate is satisfied that it cannot lead to a conviction, he would be perfectly justified in discharging the accused, even though he has already framed the charge. The Magistrate has to see whether there are sufficient grounds of commitment or not. If he is satisfied that the evidence is altogether untrustworthy and not fit to be acted upon, he may discharge the accused. He should not, however, try to weigh the probabilities of the case and then after balancing the evidence on both sides decide whether the guilt of the accused has or has not been con clusively proved."
Disapproving the view in National Bank of India v. Kothandarama Chetti (21 I C 129) it was observed by their Lordships:
"There are observations in the judgment of Sundara Iyer, J. to the effect that where more than one inference is possible the Magistrate may draw one rather than the other if neither can be said to be of a higher degree of probability. This virtually gives the Magistrate power to weigh probabilities which is the function of the trial Court and consequently it conflicts with the view with which we have expressed our agreement above."
After discussing several authorities their Lordships summed up the position as below:
"From the above discussion it follows that a Magistrate holding the preliminary enquiry has power to sift and weigh evidence only for the purpose of determining whether or not it is a fit case for committal and not for deciding about the guilt of the accused, that no hard and fast rule can be laid down regarding the distinction to be made between the duty of a committing Magistrate and that of the Sessions Court, but the test indicated above is a safe guide viz., that if there is on the evidence even a possibility of conviction the accused should be committed for trial though the Magistrate thinks that a conviction is not probable or the matter is not free from doubt, but that he should discharge the accused if on the evidence he comes to the conclusion that no Court or Jury could reasonably be expected to convict the accused."
The same question was next examined by their Lordships of the Supreme Court in Mazharul Haq v. Ishaque Sardar (P L D 1962 S C 480). Of course, this was a case in which the committing Magistrate had discharged the accused persons sent up for the offence of murder. The order of discharge was upheld by the learned Sessions Judge as also by the learned Single Judge of the High Court of East Pakistan. Nevertheless, the following observations of their Lordships are helpful in the appreciation of the correct legal position:
"It is essential for the proper maintenance of the criminal jurisdiction that a serious crime involving death should be brought to trial before a competent Court and that questions of fact arising therein should not be allowed to be decided by a Court of enquiry whose only function is to satisfy itself that there is a prima facie case against the accused persons and to set out the case so found in a committing order, supported by a formal charge, upon which the trial can proceed.
The existence of two opposing versions, on any point of fact arising in such an enquiry, or of opposing view‑points on any question of law, is by itself a sufficient ground for the Magistrate to commit the case for decision to a competent Court.
The correct position is that the matter is placed in issue between the parties, and becomes fit matter for trial by a competent Court, which alone can allow the benefit of reasonable doubt' and then only after having heard the case in full."
7. Yet another Supreme Court authority which may be relevantly referred to in this regard is Ahmad Khan v. State (PLD 1963 SC 45). In this case the challan had been originally put under section 304, P. P. C. and the learned Single Judge had directed a retrial of the case after framing a charge under section 302, P. P. C. which order was challenged in appeal before their Lordships of the Supreme Court. The Magistrate wrongly discharged the accused under section 253, Cr. P. Code, although he was obviously dealing with an inquiry preliminary to commitment to Session. It appears that the unusual nature of injuries on the person of the deceased did not tally with the prosecution version. It was in this background of the case that their Lordships observed as follows:----
"According to the procedure laid down, it is for the Magistrate dealing with such an enquiry to decide in the first instance of what offence the accused person can, on the evidence, be charged and thereafter to decide whether he will commit the accused person to Session for trial, or will try him under his own powers, if they be sufficient to cover the charge."
With these observations their Lordships directed that the case be returned to the committing Court for proceeding with according to law in the light of the above observations.
8. It was strenuously contended by the learned counsel for the petitioners that from the circumstances of the case it was abundantly clear that prior to the occurrence, the petitioner and the deceased were on friendly terms and were playing cards when the unfortunate occurrence took place. It was argued that this was at best the prosecution's own case, the alleged motive of attack on the deceased mentioned by Lal complainant was that the former had played foul in the game of cards, and had to be taught a lesson for that, and as such, there was hardly any question of the offence falling under section 302, P. P. C. being fully covered by Exception 4 to section 300, P. P. C., as it was a case of an unpremeditated fight arising out of a sudden quarrel. It was urged that in view of the above background of the case, the learned committing Magistrate was fully justified in framing charge under section 304, Part II, P. P. C. and being invested with powers under section 30 of the Code of Criminal Procedure, was himself competent to try the offence which was not punishable with death.
9. Having carefully considered the arguments raised by the learned counsel in the light of the relevant authorities discussed earlier, I am clearly of the view that the impugned order passed by the learned District Magistrate is unexception able. In the course of his arguments the learned counsel relying; on the evidence on the record also tried to show that the petitioners also relied on the plea of self‑defence. No doubt that from the prosecution version itself the case appears to be one of a sudden and unmeditated fight, but that is not all. In order to bring the case within the purview of Exception 4, the Court has also to see that the offender had not taken undue advantage or acted in a cruel or unusual manner. This is obviously a point of considerable nicety requiring a weighing of probabilities, which in the light of the Supreme Court authorities is beyond the functions of the Court of committal. Again, the question is not free from difficulty whether in case the offence under section 302, P. P. C. is not made out against the petitioners, the case would fall within the mischief of Part I of section 304, P. P. C. or Part II of that section. Likewise, the important question of the acceptance or rejection of the plea of self‑defence sought to be raised by the petitioners is one which should normally be left to be determined by the Sessions Judge. Lastly, there is also the question of sentence. Notwithstanding the competency of the committing Magistrate to try the case id view of the enhanced powers vesting in him under section 30, Cr. P. Code, be cannot award a sentence exceeding a term of seven years, because of the restrictions placed on his furnishing powers under section 34, Cr. P. Code. For all these reasons, I am firmly of the view that the case is one which should be tried by the Sessions Judge and was rightly directed to be committed to that Court by the learned District Magistrate. This view finds full support from Ghulam Ahmad v. The State (P L D 1958 Pesh. 20) which was relied upon by the learned counsel for the petitioners himself. It was observed by Abdul Hamid, J. and I am in respectful agreement with his Lordship that:
"It is true that if in a case put before a Magistrate under section 302, P. P. C. the accused wants to bring his conduct within any of the exceptions to section 300, P. P. C., in order to claim the benefit of that exception and have the mitigated to section 304, P. P. C. he has to prove to satisfaction of the Court that his conduct is within one of the exceptions mentioned in section 300, P. P. C. In such cases it is more proper to commit the accused to the Court of Session. But if from the evidence adduced before the police it appears that the case made is one under section 304," P. P. C., and the accused is sent to Court straightway for trial‑on a charge under section 304, P. P. C. and a Magistrate in whose Court the case has been put is invested with powers under section 30, Criminal P. C., he need not commit the case to the Court of Session if he finds that the accused in his opinion should be convicted of that offence."
10. In consequence, the petition fails and is hereby dismissed.
K.B.A. Petition dismissed,
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