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Criminal Revision No. 796 of 1967, decided on 13th June 1968.

Chapter XVIII and S. 437‑Inquiry Magistrate or Sessions Judge while disposing of application under S. 437‑Not mere automation but must apply their mind for limited purpose of ascertaining prima facie case justifying commitment.

Neither a Magistrate holding an inquiry under Chapter XVIII nor a Sessions Judge, while disposing of an application under section 437, Cr. P. C. is a mere automation. They have to apply their minds to the materials on record, though for the limited pur pose of ascertaining if those make out a prima facie case justifying commitment of the accused to the Court of Session. Their orders must refer to the evidence, and contain an indication of an awareness of the facts and circumstances therein disclosed. Written in this manner their orders will enable superior Courts to be satisfied not only as to the existence or otherwise of evidence justifying commitment but also that they have applied their minds, with a view to ascertaining if the evidence has made out a prima facie case for commitment.

Where a Sessions Judge committed the accused under sec tion 307, P. P. C. and the order‑sheet contained no reference to the evidence on record except that "P. Ws. proved occurrence (firing of gun) and the injury sustained by complainant as grievous":

Held, the intention or knowledge referred to in section 307, P. P. C. can hardly be inferred from a mere recourse to a gun. There was nothing in the order of the Additional Sessions Judge indicating existence of circumstances which, considered along with the fact that a gun was used would prima facie point to an intention or knowledge that might bring the act alleged to have been committed by the petitioner within the mischief of section 307, P. P. C. Not being satisfied that the Additional Sessions Judge applied his mind to the evidence on record, there was no alternative but to set aside his order.

Kamaluddin Hussain with Dr. M. Zahir for Petitioner.

Promode Chandra Bose for the Complainant.

Nemo for the State.

The Rule is at the instance of an accused in a case involving the use of a gun. He was discharged by a Magistrate of the First Class upon completion of an inquiry under Chapter XVIII of the Code of Criminal Procedure. On an application by the complainant under section 437 of that Code, however an Additional Sessions Judge of Dacca committed him to the Court of Session for facing a trial under sections 326 and 307 of the Penal Code.

2. Mr. Kamaluddin Hussain, the learned Advocate for the petitioner, made no attempt to justify the order of discharge passed by the learned Magistrate under section 209, Cr. P. C. The learned Advocate conceded at the outset that the learned Magistrate had exceeded his jurisdiction by assessing the evidence in the manner evidence is assessed by a trial Court. He, however, strenuously contended that the evidence on record, even if wholly believed, would not justify the petitioner's commitment to the Court of Session. He submitted that the injuries sustained by the victim P. W. 1, Ansar Ali, though certified by a doctor to be grievous, could not be designated as grievous, not being covered by any of the clauses of section 320, P. P. C. He further submitted that the facts deposed to by the prosecution witnesses did not constitute an offence of attempt to murder, as defined by section 307. P. P. C. which is undoubtedly triable exclusively by the Court of Session.

3. Mr. Promode Chandra Bose appearing for the complainant frankly conceded that regard being had to the nature of the injuries sustained by the victim there could be no ques tion of a charge being framed against the petitioner under section 326, P. P. C., and that the charge that could be framed for those injuries could only be one under section 324, P. P. C. He, however, contended that the evidence on record clearly made out a prima facie case of an attempt to commit murder.

4. The learned Advocates on both sides felt handicapped in supporting their respective contentions because of a total absence of any reference to the evidence in the order of the learned Additional Sessions Judge, except a bare mention that P. W. 1 Ansar Ali and P. W. 2. Manawar Ali "Proved the occurrence" and that P. W. 12 Dr. Amalendu Bakhsh Das "certified" the injuries of P. W. 1 Ansar Ali to be grievous. The learned Advocates, however, were agreed on two points, namely, that P. W. 1 Ansar Ali sustained gun‑shot injuries below the knee and that the gun was fired but once.

5. I am in agreement with Mr. Kamaluddin Hussain's submission that it was incumbent on the learned Additional Sessions Judge to refer in his order to the evidence which induced him to hold that the case was triable exclusively by the Court of Session, with a view to enabling this Court to be satisfied that the order of commitment was passed on a proper consideration of the materials on record. The order of the learned Additional Sessions Judge discloses no such consideration. This may be the outcome of an anxiety to avoid an impression that he too assessed the evidence, as the learned Magistrate did. There is not even a hint in his order that the gun had been fired only once, or that the victim sustained the injuries below the knee. His order does not also indicate the nature of the injuries sustained by the victim. Even if it be that the learned Additional Sessions Judge did in fact consider the evidence notwithstanding that there is no reference to the evidence in his order, that would only indicate an over‑cautiousness which it is impossible to approve, far less to commend.

6. Neither a Magistrate holding an inquiry under Chap ter XVIII nor a Sessions Judge, while disposing of an application, under section 437, is a mere automation. They have to apply their minds to the materials on record, though for the limited purpose of ascertaining if those make out a prima facie case justify ing commitment of the accused to the Court of Session. Their orders must refer to the evidence, and contain an indication of an awareness of the facts and circumstances therein disclosed. Written in this manner their orders will enable superior Courts to be satisfied not only as to the existence or otherwise of evidence justifying commitment but also that they have applied their minds, with a view to ascertaining if the evidence has made out a prima facie case for commitment.

7. The intention or knowledge referred to in section 307, P. P. C. can hardly be inferred from a mere recourse to a gun. There is nothing in the order of the learned Additional Sessions Judge indicating existence of circumstances which, considered along with the fact that a gun was used would prima facie point to an intention or knowledge that might bring the act alleged to have been committed by the petitioner within the mischief of section 307, P. P. C.

8. Not being satisfied that the learned Additional Sessions Judge applied his mind to the evidence on record, I have no alter native but to set aside his order.

9. The Rule is accordingly made absolute, and the impugned order passed by learned Additional Sessions Judge is hereby set aside. The position that emerges is that the complainant's application under section 437, Cr. P. C. remains pending before the learned Additional Sessions Judge. He will now dispose of it afresh according to law, and in the light of the observations made above.

Rule made absolute.

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