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Criminal Revision Case No. 848 of 1956, decided on 31st January 1956, Case reported by Muhammad Rafiq, Sessions Judge Montgomery under section 438, Cr. P. C.
, Ss. 215 and 439‑Special provision of S. 215 controls general powers under S. 439.
The special and mandatory provision of section 215 Cr. P. C. controls the general powers of the High Court under section 439.
According to section 215, therefore, a commitment once made can be set aside only and only on a point of law.
, Ss. 209, 210, 215, 346 and 347‑Case concurrently triable by Court of Session and a Magistrate‑Magistrate's discretion to commit ‑Magistrate not bound to try it himself.
It is nowhere laid down in the Code that where a case can be tried concurrently by a higher and a lower Court the latter must try it.
Where a case is concurrently triable both by the Court of Session and a Magistrate, the Code gives the latter the power to decide whether the case should (sections 210 and 347) or should not (sections 209 and 346) be committed to a Court of Session for trial and he is not bound by any provisions in the Code to act in one way or the other without exercising his own judgment and discretion after considering all the relevant facts and circumstances. There is no warrant in the Code for the proposition that whenever a Magistrate has the power to try, and adequately punish an offence, the committal to the Sessions Court must not be made.
It is equally clear, however, that where a Magistrate trying a person under Chapter XXI possesses the power to adequately punish him the intention of the Code appears to be that he should try the case himself and that he should commit it to the Court of Session only when he is satisfied that there are other reasons to the contrary which outweigh that consideration. < [if supportLineBreakNewLine]>
When a committal is made without recording any reasons, or on grounds which cannot at all justify the exercise of the discretion. the committal is illegal within the meaning of section 215.
In this case three accused were sent up before a Magistrate under sections 302 and 201 P. P. C. and the Magistrate after holding an enquiry under Chapter XVIII Cr. P. C. discharged two of them and committed the third under section 201 P. P. C, only without recording reasons for the commitment.
The Sessions judge under section 438 Cr. P. C. made a recommendation to the High Court that the commitment be quashed and the Magistrate ordered to transfer the case to a section 30 Magistrate for disposal in accordance with the procedure laid down in section 346 Cr. P. C. inasmuch as, offence under section 201 being punishable with not more than seven years' rigorous imprisonment could be adequately dealt with by a Magistrate.
Held, that the commitment without recording reasons being illegal within meaning of section 215 Cr. P. C, must be quashed and the case should go back to the Magistrate for being proceeded with in accordance with section 209 and 210 Cr. P. C.
The recommendation to transfer the case to a section 30 Magistrate was not accepted.
Rex v. Matoley and others A I R 1949 All. 1, Emperor v. Ali and others A I R 1917 Lah. 251, Empress v. Behari 1886 A W N 256, Emperor v. Ghulam Hussain A I R 1943 Sind 112, The Crown v. Bhaga Vathi I L R 42 Mad. 83, Emperor v. Manug Chit Sein A I R 1932 Rang. 193, Emperor v. Bhimaji Venkaji Nadir A I R 1917 Bom. 33, Hari Moreshvar Joshi v. Emperor A I R 1932 Bom. 63, The Empress v. Kudrutollah and others I L R 3 Cal. 495, In the matter of Chinnimarigad I L R 1 Mad. 289 and Emperor v. Bhimaji hankaji Nadir A I R 1917 Bo m. 33=19 Cr. L J 342 ref.
Emperor v. Dharam Singh 3 Cr. L J 94 and Emperor v. Subedar Singh and others A I R 1946 All. 365 commented.
Muhammad lqbal Hussain for Petitioner.
Naseem Hassan for Advocate‑General for Respondent,
The accused was committed by Mr. Manzoor Ahmad Siddiqi, exercising the powers of a Magistrate of the 1st Class in the Montgomery District, by Order, dated the 17th August 1955 to the Court of Sessions under section 201, P. P. C.
The facts of this case are as follows:‑
This is a case under section 201, P. P. C., committed to this Court by Mr. Manzoor Ahmad Siddiqi, Magistrate 1st Class, Montgomery. The commitment, in my opinion is illegal and must be quashed. The learned Public Prosecutor also agrees.
The proceedings are forwarded for revision on the following grounds:‑
Three persons, namely, Muhammad Hanif, Lal and Ali Muhammad were sent up by the police under sections 302/201, P. P. C., on the allegations that Hanif murdered one Khushi Muhammad and then with the help of the other two accused buried the dead body and also burnt the clothes of the deceased. The learned Committing Magistrate discharged Lai and Ali Muhammad and committed Hanif under section 201, P. P. C. An offence under section 201, P. P. C., is punishable with not more than seven years rigorous imprisonment and it is not understood why at all Hanif was committed. The learned Committing Magistrate has also not given any reasons for his doing so. He simply says in his order of commit ment: "I commit Hanif accused to the Court of Session under section 201, P. P. C., to stand his trial there". It appears that the learned Committing Magistrate was under the impression that since a murder had taken place he was bound to commit Muhammad Hanif even though the offence prima facie established against him was one falling under section 201, P. P. C. Provisions of section 346, Code of Criminal Procedure, have been clearly overlooked. This section lays down‑
"If, in the course of an enquiry or a trial before a Magistrate in any district outside the presidency‑towns, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate, having jurisdiction, as the District Magistrate directs".
The commitment in this case was unnecessary and thus an error of law which would justify the quashing of the commitment. I may state here that in two other cases which were under section 304, P. P. C., committed to this Court in 1951 on recommendations that the commitments were unnecessary, etc., the High Court quashed both the commitments. Reference in this connection, if necessary be made to Criminal Revisions No. 510 and 512 of 1951, the first having been decided by the Honourable Mr. Justice M. A. Soofi and the other by the Honourable Mr. Justice S. A. Rahman, now the Honourable the Chief Justice.
Muhammad Hanif, Lai and Ali Muhammad were challaned for offences under sections 302 and 201 P. P. C. Mr. M. A. Siddiqi, Magistrate 1st Class, Montgomery, after making an inquiry under Chapter XVIII of the Code of Criminal Procedure (hereinafter referred to as the Code) discharged Lai and Ali Muhammad, but framed a charge against Muhammad Hanif under section 201 P. P. C. and committed him for trial in the Court of Session. The learned Sessions Judge, Montgomery, has referred the ease to this Court with the recommendation that the order of commitment, being unnecessary and illegal, be quashed. Although the order of reference does not expressly say so, but its trend clearly indicates that, in the opinion of the learned Sessions Judge, the learned Magistrate ought to have sent the case to a Magistrate exercising powers under section 30 of the Code, instead of committing it to the Sessions Court.
It may be pointed out at the very outset that in view of the provisions of section 215 of the Code, the High Court can quash a commitment only‑and only‑on a point of law and not on any other ground, for example that it is unnecessary or inexpedient. This section runs as follows:‑‑
"A commitment once made under section 213 by a competent Magistrate or by a Civil or Revenue Court under section 478, can be quashed by the High Court only, and only on a point of law".
It is true that when exercising its revisional powers under section 439 of the Code, the High Court's jurisdiction is not confined only to questions of law; but the special‑-and mandatory‑provisions contained in section 215 must, be held to control the general powers conferred by section 439.
In support of his opinion the learned judge has given the following reasons: "An offence under section 201 of the P. P. C. is punishable with not more than seven years' rigorous imprisonment and it is not understood why at all Hanif was committed . . . The provisions of section 346 of the Code of Criminal Procedure have been clearly overlooked". Section 346 lays down:‑
"(1) If, in the course of an inquiry or a trial before a Magistrate in any District the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any Magistrate to whom he is subordinate or to such other Magistrate having jurisdiction, as the District Magistrate directs".
The learned Judge seems to have been under the impression that simply because the case could have also been tried by a Magistrate exercising powers under section 30 of the Code, it was legally incumbent upon the Magistrate not to commit the accused for trial in the Court of Session, but to transfer the case to a Magistrate having concurrent jurisdiction with that Court to try it. There is no such provision in the. Code. On the contrary, the inquiring Magistrate has been given wide discretion to commit or not to commit any such case. By section 28 of the Code, the jurisdiction to try any offence has been concurrently conferred upon the High Court, the Court of Session and ant other Court which has been given the power by the Second Schedule to the Code; and the trial may be held by any of the three. Under section 30 the Provincial Government may, in certain areas, invest the District Magistrate or any Magistrate of the 1st Class with power to try as a Magistrate all offences not punishable with death. This section, however, does not make all offences not punishable with death triable exclusively, or even in the first instance, by Magistrates who have been invested with the power to try them. It has only the effect of enhancing the power of some of the Courts mentioned in clause (c) of section 28. It is nowhere laid down in the Code that where a case can be tried concurrently by a higher and a lower Court the latter must try it. Section 207 in Chapter XVIII of the Code, which relates to inquiries into the cases triable by the Court of Session or the High Court, lays down:‑
"The following procedure shall be adopted in inquiries before Magistrates where the case is triable exclusively by a Court of Session or High Court, or in the opinion of the Magistrate, ought to be tried by such Court.
It will be observed that this section relates to a stage prior to the commencement of the inquiry, the Magistrate has to decide before adopting the procedure laid down in Chapter XVIII whether the case is triable by a Court of Session, or, in his opinion, ought to be tried by that Court. There is no question of the applicability of the section to the present case, for it is not, and cannot, be alleged that the learned Magistrate was wrong in embarking upon an inquiry under Chapter XVIII of the Code. At the start the case was manifestly triable exclusively by a Court of Session, because the main offence alleged to have been committed fell under section 302 P. P. C. There was thus no occasion for the Magistrate, at that stage, to think that the case ought not to be tried by the Sessions Court. It should, however, be noted that this section gives a discretion to the Magistrate, but does not lay dawn any rule or rules to regulate that discretion. It is open to the Magistrate to exercise his discretion on any judicial grounds.
Sections 346 and 347 appearing in Chapter XXIV of the Code, which lays down general provisions as to inquiries and trials, again make the Magistrate the sole Judge of the question whether a case should be tried or committed for trial by some other Magistrate or it ought to be tried by the Court of Session or the High Court. No standard or criterion is laid down by which these matters are to be decided. Since according to section 4 (k) of the Code "Inquiry" includes every inquiry, section 346 is applicable, inter alia to a case where during an inquiry under Chapter XVIII the evidence gives rise to a warrantable "presumption that the case is one which should (instead of being committed to the Court of Session) be tried by some other Magistrate ". The Code does not lay down any rule on the basis of which alone such a presumption can be warranted, e.g., that a case cannot be committed when some other Magistrate is competent to try it. It may be warranted by any considerations of propriety and convenience arising from the facts of the case. Can it, therefore, be said that by not exercising the discretionary power under this section, the learned Magistrate has committed an error of law
Section 347 provides for cases which, in the opinion of the Magistrate, ought to be tried, instead of by himself, by the Sessions Court. It does not lay down the circumstances in which a case ought not to be committed to the Court of Session. Moreover, its language and the fact that it is placed in Chapter XXIV of the Code as a general provision make it obvious that it is intended to cover a case where the Magistrate has not started an inquiry under section 207 and at some later stage it appears to him that the case ought to be tried by the Court of Session. Where an inquiry has already been started under section 207, as in this case the committal is to be made in accordance with the specific provisions of section 210 (1), which is as follows:‑
"When, upon such evidence being taken and such examination (if any) being made, the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial he shall frame a charge under his hand declaring with what offence the accused is charged"
If the inquiring Magistrate is of the opinion that the accused ought not to be committed, he is required to proceed in accordance with the following provisions of section 209 (1):‑
"When the evidence referred to in section 208, sub‑sections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly .
In one respect sections 346 and 209 seem to overlap each other; it is open to the Magistrate under either section to refuse to commit a case to the Court of Session on the ground that in his opinion the accused should be tried by some other Magistrate. Section 346 already noticed, certains a general provision but sections 209 and 210 contain particular provisions relating to the stage where an inquiry under Chapter XVIII has been concluded. Therefore, in this case, the Magistrate was required to follow the procedure laid down in section 209 or section 210; and he decided to act under the latter. The Code itself does not lay down any rule or criterion, other than the satisfaction of the Magistrate himself, according to which the Court is bound to make an order under one section or the other.
It will be seen from the above analysis of the various relevant sections of the Code that where a case is concurrently triable both by the Court of Session and a Magistrate, the Code gives the latter the power to decide whether the case should (sections 210 and 347) or should not (sections 209 and 346) be committed to a Court of Session for trial and that he is not bound by any provisions in the Code to act) in one way or the other without exercising his own judgment C and discretion after considering all the relevant facts and circumstances. There is no warrant in the Code for the proposition that whenever a Magistrate has the power to try, and adequately punish an offence, the committal to the Sessions Court must not be made. I am fortified in my conclusion by a recent Full Bench decision of the Allahabad High Court in Rex v, Matoley and others (A I R 1949 All. 1) in which inter alia, the ruling of the late Punjab Chief Court in Emperor v. Ali and others (A I R 1917 Lah. 251) was relied on. The two unreported Single Bench decisions of this Court, referred to by the learned Sessions Judge, do not contain any discussion of this point. A Magistrate may commit a case to the Court of Session on the ground that a cross case arising out of the some occurrence has already been committed or has to be committed vide, Empress v. Bahar (1886 A W N 256), Emperor v. Ali and others: Emperor v. Ghulam Hussain (A I R 1943 Sind. 112) or that the offence is of a complicated, grave or serious nature, The Crown v. Bhaga hathi (I L R 42 Mad. 83). Emperor v. Manug Chit Sean (A I R 1932 Rang. 193) Emperor v. Bhimaji 1Jenkaji Nadir (A I R 1917 Bom. 33) or that the importance of the case requires it Hari Moreshvar Joshi v. Emperor (A I R 1932 Bom. 63) or that it is a fit case to be tried by that Court: the Empress v. Kudrutollah and others (I L R 3 Cal. 495) In the matter of Chinrimarigad (I L R 1 Mad. 289) or that the case is of some peculiar public importance, Emperor v. Bhimaji Venkaji Nadir (A I R 1917 Born. 33=19 Cr. L J 342).
I am not unaware of the fact that in certain cases, e.g., Emperor v. Dharam Singh (3 Cr. L J 94); Emperor v. Subedar Singh and others (13); section 254 has been relied on for the proposition adequately punish any offence he cannot commit it to the Court of Session. The Allahabad Full Bench in Matoley's case made the following observations regarding this section:‑
"As mentioned above section 254 occurs in the Chapter relating to the trial of warrant cases by Magistrates. It only deals with the question as to when a charge' is to be framed by the Magistrate. It indicates the conditions under which a Magistrate should frame a charge and thereafter hold a trial. The conditions mentioned are: (i) that the accused appears to have committed an offence which the Magistrate is competent to try and (ii) that the offence is one which in the opinion of the Magistrate can be adequately punished by him. When the stage contemplated by section 254 is reached in the course of a trial of a warrant case and the two conditions mentioned above are satisfied, the Magistrate is bound to frame in writing a charge against the accused. Section 254 goes no further than this. It does not profess to deal with the jurisdiction of the Magistrate to hold an enquiry prior to commitment. Indeed in view of the position which section 254 occupies in the scheme of procedure prescribed by Chapter XXI, it would be wholly out of place if it did deal with the jurisdiction of a Magistrate to hold an enquiry prior to commitment. Such a provision must be looked for elsewhere and not in chapter which deals with the 'trial' of warrant cases".
The question whether an accused who is being tried by a Magistrate should or should not be committed to the Court of Session is not at all dealt with in Chapter XXI of the Code in which section 254 occurs. Under that chapter the Magistrate has only two alternatives; either to discharge the accused under section 253 or to frame a charge under section 254 and to proceed with the trial. The third contingency, namely, that instead of being tried by the Magistrate, the accused should be committed to the Court of Session, is clearly and specifically covered by section 347. Read together these three sections mean that when trying a person in Chapter XXI of the Code, a Magis trate may either discharge him "if he finds that no case against the accused has been made out" or frame a charge if he "is of the opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him" or to commit the accused to the Court of Session "if it appears to him at any stage of the proceedings that the case is one which ought to be tried" by that Court. While it is obvious that a Magistrate ought not to frame a charge unless he is of opinion that he can adequately punish the accused it is not logically possible to deduce from these sections the converse proposition that a Magistrate is bound to try an accused himself and must not commit him to the Court of Session if he can adequately punish him himself; for this would result in an unwarrantable curtailment of the wide discretion conferred upon the Magistrate by section 347, which does not say that committal can never be made in such a case.
It is, however, equally clear from these sections that where a Magistrate trying a person under Chapter XXl possesses the power to adequately punish him the intention of the Code appears to be that he should try the case himself and that he should commit it to the Court of Session only when he is satisfied that there are other reasons to the contrary which outweigh that consideration. In such a case, therefore, when a committal is made to the Court of Session without recording any reasons, or on grounds which cannot at all justify the exercise of the discretion, it would be illegal within the meaning of section 215 of the Code. But since in this case the Magistrate was not holding a trial under this chapter, but only making an inquiry under Chapter XVIII, section 254 is inapplicable and, therefore, the committal cannot be held illegal on the grounds stated in this paragraph. In the present case the Magistrate, having concluded an inquiry under Chapter XVIII of the Code could have either committed the case under section 210 or tried it himself or have it tried by any other Magistrate under section 209. It was not open to him to act under any other section of the Code. Section 346 really supplements section 209 to the extent that it lays down the procedure to be adopted when the Magistrate decides under the latter section that the case should be tried by some other Magis trate. It is, however, noteworthy that the discretion has been given to the Magistrate in almost precisely the same language, namely, it "appears" to him that the case "should be tried" by any other Magistrate.
The Magistrate made the commitment under section 210; and he could also have either discharged the accused or tried him himself or decided to have him tried by any other Magistrate under section 209. These sections give the Magistrate a discretion to chose any one of the four alternatives and his judgment is not controlled by, or limited to, any specified consideration or considerations. In adopting any one of the four possible courses he is to act according to his own opinion and satisfaction. It is thus incumbent upon him to say in his final order that in his judgment a particular course is the most appropriate‑and, in order to enable the High Court to judge whether his judgment or discretion has been judicially exercised, to indicate the reasons for his choice. This becomes clearer still by a comparison of the provisions and the language of sections 209 and 210 with those of sections 253 and 254. By the two latter sections he is given only two alternatives; to discharge or to frame a charge and try the case himself. He "shall" either discharge under section 253 or "shall" frame a charge under section 254. While in a warrant case the Magistrate need only state the reasons for discharging the accused and none for framing a charge; he has, in an inquiry under Chapter XVIII, to give reasons for the particular course which he adopts. Section 213, under which a committal is ultimately made, provides that the Magistrate "shall also record briefly the reasons for such commitment". As already pointed out, section 210 does not lay down that the fact that the accused appears to have committed the alleged offence is per se a sufficient ground, or the only ground, for committing an accused for trial. The word "reasons" therefore, in section 213 includes any other judicial reasons which may have persuaded the Magistrate to make the commitment.
In this case it was open to the learned Magistrate to commit the case to the Court of Session if in his opinion it was, in view of the various considerations arising from the record, proper to do so. But he has given no reasons whatsoever for the course adopted by him and, therefore, it is impossible to say that he applied his mind at all to the provisions of sections 209 and 210 before making his final order. The commitment must, therefore, be held to be illegal within the meaning of section 215 of the Code, and I quash it accordingly. I, however, cannot accept the recommendation of the learned Sessions Judge that the learned Magistrate be ordered to transfer the case to a section 30 Magistrate in accordance with the procedure laid down in section 346 of the Code. That will be tantamount to usurpation of the discretion which the law has given to the Magistrate. The learned Magistrate will now proceed in accordance with the provisions of sections 209 and 210 of the Code as explained at some length in this order.
A. H. Commitment quashed, case remanded.
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