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Revision Application No. 454 of 1961, decided on 8th January 1962.

(a) Evidence

‑Standards of weighing‑Different for purpose of "commitment" of accused for trial and for conviction.

(b) Criminal Procedure Code (V of 1898), Ch. XVIII---

Magistrate either to "commit" or "discharge" accused‑Not making an order of "commitment" amounts to "discharging" accused ‑ [Krishna Reddi v. Subbama I L R 24 Mad. 136 agreed].

(c) Charge

‑Omission to frame charge in regard to particular offence may amount to "discharge" of accused of such offence if Magistrate had applied his mind or had consciously refrained from framing a charge‑Acquittal or conviction under one charge does not necessarily mean discharge under another‑Sessions Judge to interfere only when discharge is improper or requires further inquiry ‑Criminal Procedure Code (V of 1898), Ss. 436, 437, 209 & 226 [Baij nath Pandey's case I L R 20 Cal. 633 distinguished].

Hamidul Huq Chowdhury, Abdul Bye Chowdhury and M. M. R. Khan for Petitioners.

Abdus Salam Khan and S. M. Abbas for the Opposite‑Party.

Date of bearing : 8th January 1962,

The petitioners, in this case, obtained a Rule on the Deputy Commissioner, Chittagong and the complainant opposite‑party to show cause why the order of Mr. M. E. Ali, Additional Sessions Judge, Chittagong made on 29‑4‑61 directing commitment of the petitioners to the Court of Sessions after charging them under section 395 of the Pakistan Penal Code in addition to the charges already framed against them should not be set aside.

This application arises in the following circumstances:

The complainant opposite‑party lodged a first information report at the Police Station, Double Mooring, Chittagong, on the. 7th of January 1953, alleging inter alia that the petitioners along with others, raided a tin shed of the opposite‑party situate in plot No. 15150 appertaining to Khatian No. 3921 of Mouza Madhyer Halishahar of the collectorate of Chittagong.

A civil suit regarding the disputed plot was pending in the Court of the 3rd Subordinate Judge, Chittagong, and a question arose as to possession of the disputed plot. As it was asserted by the complainant that he was in possession of the said plot, he was directed by the learned Subordinate Judge to affirm it by an affidavit and he agreed to do. Thereafter, as alleged by the complainant, some of the petitioners left the Court and raided the disputed plot and took away certain articles belonging to the complainant and severely assaulted the two brothers of the complainant, Siddiq Ahmed and Sultan Ahmed and the latter died in the hospital on 11‑2‑59. On February 2, 1959, the police filed a charge‑sheet against the petitioners under sections 148, 325 and 149 of the Penal Code. On 23‑9‑59, the Court Sub -Inspector filed an application for committing the petitioners to the Court of Sessions after charging them under section 304 of the Pakistan Penal Code. 1311 the 7th January 1960, trying Magistrate framed charges under sections 325/34, 323 and 148 of the Pakistan Penal Code.

The complainant prayed for framing charges under section 304/149 of the Penal Code and moved the learned Sessions Judge Mr. A. H. Khan, who by his order dated February 29, 1960, sent the case back to the trying Magistrate directing him to consider the evidence in the case carefully and to decide if the charge under section 395 of the Penal Code should be framed against the petitioners and also to decide if the case should be tried by the Court of Sessions even otherwise. The prosecution gave further evidence in support of its case and the learned trying Magistrate Mr. A. Zafar by his order dated 3‑3‑61 framed the same charges against the petitioners as he previously did by his order of 7‑1‑60. On 13‑3‑61, the petitioners again moved the learned Sessions Judge who admitted tire application and issued notice to show cause why the order made by the Magistrate on 3‑3‑61 should not be set aside.

The matter, however, came for final hearing before Mr. M. E. Ali, Additional Sessions Judge, Chittagong who by his order dated 29‑4‑61 directed that the petitioners should be charged under section 395 of the Penal Code and committed to the Court of Sessions,

Mr. Hamidul Huq Chowdhury, learned Advocate for the petitioners has argued that the learned Additional Sessions Judge in making the aforesaid order of 29‑4‑61 acted without jurisdiction inasmuch as the evidence on record does not disclose an offence under section 395 of the Penal Code. In developing his point, Mr. Chowdhury submits, that the Sessions Judge has no juris diction to interfere unless there is an improper order discharging the accused. According to him, in this case there is no order of discharge at all. He strenuously argues that not framing a charge for an offence under a section of the Cede cannot be construed to mean a discharge under that section. He submits that no person should be placed on the jeopardy of a serious charge unless the materials on record justify the same. In support of his contention he points out that in the first information report in the column meant for the offences either section 395 nor 304 of the Penal Code has been mentioned nor has any of these offences been mentioned in the relevant column in the charge‑sheet and he further submits that the application for the commitment to the Court of Sessions filed by the Court Sub‑Inspector also does not speak of an offence tinder section 395 of the Penal Code.

Mr. Abdus Salam Khan, learned Advocate for the opposite -party has submitted that in this case although the learned Magistrate has not specifically mentioned discharge under section 395 but his not framing a charge amounts to a discharge when material on record discloses an offence under that section. In reply to the contention of Mr. Chowdhury that section 395 was not mentioned in the first information report, Mr. Khan submits that the Magistrate is to frame a charge on the substantive evidence as led before him and not on what is mentioned In a particular column of a report filled up by a police office. He further asserts that Mr. Chowdhury has mentioned about the columns meant for noting sections of the offences without making any reference to the allegations made In the First Information Report on charge‑sheet which disclose an offence under section 395 of the Penal Code.

The learned Sessions Judge can direct framing of a charge under section 395 of the Code only when the accused persons have been improperly discharged'. In this case the Magistrate has not discharged of the accused of an offence under section 395. What he has done is that he has framed charges under sections 325/ 34, 323 and 148 of the Penal Code.

Mr. Chowdhury in support of his contention places his reliance on the case of Barjnarh Pandey v. Gauri Kanta Mandal (I L R 20 Cal. 633). In that case the accused were alleged to have committed the offence of dacoity The Magistrate charged them under sections 380 and 448 of the Penal Code. Thereafter the case ended in acquittal under those charges and the Magistrate gave the accused sanction for institution of a cage for malicious prosecution. The matter was then taken to the Sessions Judge by the complainant for setting aside the said order. The Sessions Judge, however, in consideration of whole case directed further enquiry and left it open to the Magistrate to commit the accused persons to the Court of Sessions or to grant sanction for malicious prosecution. Having been moved against the said order of the Sessions Judge, the High Court has held that the Sessions Judge acquires a jurisdiction to make an order under section 436 of the Code of Criminal Procedure only when there has been improper discharge. The word discharge' occurs in sections 436 as well as 437 of the Code of Criminal Procedure. Section 437 provides for directing framing of a charge: but, under both sections a condition precedent is a discharge and in the latter section improper discharge'. The learned Judges of the Calcutta High Court have observed as follows:‑

" .he was not competent under section 436 to direct a fresh inquiry to be made inasmuch as the accused had not been improperly discharged of an offence triable exclusively by a Court of Sessions but had been acquitted of an offence within the Magistrate's jurisdiction . . . . ."

In the case of Abdul Halim Khan v. Buzruk Ali Khan (A I R 1918 Cal. 943), this question was raised before a Division Bench consisting of Richardson and Teunon, JJ. In that case a person accused of forging a document was charged with an offence under section 465 of the Code and subsequently acquitted. The point raised was whether acquittal under section 465 amounted to a discharge under section 467 of the Penal Code. Richardson, J. held that there must be a discharge to confer a jurisdiction on the Sessions Judge and observed as follows: ‑

"In my opinion the acquittal of the petitioner on the charge actually framed does not necessarily imply that the Magistrate discharged him in respect of any other charge which might have been framed. Nor does the mere omission of the Magistrate to frame a charge under section 467, carry the case further. So far as the record shows, the Magistrate never considered whether the accused had or had not committed an offence under section 467. His mind was never directed to that issue and it was not inquired into. It is not sufficient to say that the result is the same as if the petitioner had been discharged. That argument might be stretched to cover a case in which an accused has never been placed before a Magistrate at all. 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."

Plain reading of the observation is that acquittal or conviction under one charge will not necessarily mean a discharge under another. While saying so Richardson, J., seems to have taken care to indicate that in the case before him Magistrate never directed his mind to the offence under section 467 at all. In order to constitute a discharge, be seems to think, the Magistrate must consciously do something or make some observation indicating that on the materials before him he feels that no charge under that section Is necessary to be framed.

In that case Teunon, J., observed as follows: ‑

"As at present advised, I am inclined to hold that the Magistrate's order acquitting the accused of an offence under section 465, 1. P. C. is tantamount to an order discharging the accused of the graver offence in respect of the same document punishable under section 467. That no charge was framed and that the Magistrate was in fact not moved to frame a charge under the graver section, I am inclined to think is immaterial. I, there fore, reserve to myself the right at a fitting opportunity to refer to a Full Bench the question whether the case of Baijnath Pandey v. Gauri Kanta Mandal I L R 20 Cal. 633, was rightly decided. Meanwhile in the present case I assent to the order proposed by my learned brother . . . ."

Teunon, J agreed with the order made in that case but not with reasons which weighed with Richardson, J. in the case before me, the learned Sessions Judge by his order made on the 29th February 1961, directed the Magistrate to consider the evidence in the case and to come to a decision as to whether a charge under section 395 of the Code could be framed. This order had the effect of directing the mind of the Magistrate to the offence under section 395 and the Magistrate by a conscious act refrained from framing a charge under section 395 of the Penal Code and, therefore, even in the light of the observations of Richardson, J. It can be said, in this particular case, that the act of the Magistrate in not framing a charge amounts to an order of discharge. The judgment of Teunon, J., indicates his not being happy with the Division Bench decision In the case of Baijnath Pandey. The present case is, however, easily distinguishable from the facts of Baijnath's case as in that case there was no conscious withholding of the framing of the charge and there was no such direction as in the present case.

A Division Bench of the Madras High Court in the case of Queen Empress v. Hanumantha Reddi and others (I L R 23 Mad. 225), agreed with the views expressed in Baijnath Pandeys's case. The case of Hanumantha Reddi has since been overruled by a Full Bench decision of that High Court in the case of Krishna Reddi and others v. Subbamma (I L R 24 Mad. 136) and Mr. Khan submits that this case fully supports his contention. In this Full Bench case some persons were charged under section 379 of the Penal Code. The prosecution applied for a further charge to be framed under section 477 of the Penal Code but this was not done by the Magistrate. Eventually, the Magistrate acquitted the accused persons under section 379 of the Penal Code. Against that order of acquittal the Sessions Judge was moved and he ordered further enquiry and directed that the accused should be charged with an offence under section 477 and committed to Court of Sessions for trial. The order of the Sessions Judge was challenged as illegal on the ground that the accused had been acquitted under section 379 of the Penal Code and there was no order of discharge so far as the offence under section 477 of the Penal Code was concerned. It was therefore asserted that the Sessions Judge acted beyond his jurisdiction in making the impugned order. When the case of Krishna Reddi first came before a Division Bench, Benson, J., disagreed with the decisions of Hanumantha Reddy and Baijnath Pandey and referred the matter to the Full Bench. In making the reference to the Full Bench, the and Judge express him in the following terms

"I do not think that the order of the Sessions Judge was one which he had no jurisdiction to make. In my view the decision of the Magistrate must be taken to be not only one of acquittal of an offence punishable under section 379, Indian Penal Mode, but one of discharge so far as the alleged offence under section 477 Indian Penal Code, is concerned. The complaint against the accused was that he committed an offence punishable under section 477, Indian Penal Code. Such offence is triable exclusively by the Court of Sessions. The Magistrate could neither acquit nor convict him of such offence. He was bound either to commit him to the Sessions Court or to discharge him. He did not commit him. The only alternative was to discharge him, and that, I take it, is what the Magistrate really did so. It is not suggested that the charge under section 477 is still pending before the Magistrate. It has been disposed of and the only question is as to what the disposal has been. It seems to me that the accused has been discharged so far as the charge under section 477 is concerned. The Magistrate's order, if stated fully, should have been "I discharge him as regards the offence punishable under section 477 and I acquit him as regards the offence punishable under section 379.

If the order had run in that form I do not see how it could be said that the Sessions Judge would not have had jurisdiction under section 436, Criminal Procedure Code, to order him to be committed for trial upon the matter of which he had been in the opinion of the Sessions Judge, improperly discharged, i.e. as regards the offence under section 477, Indian Penal Code. But the mere omission of the Magistrate to say "I discharge the accused so far as the offence under section 477 Indian Penal Code is concerned", cannot alter the essential character of the Magistrate's proceedings."

The Full Bench agreed with the judgment of Mr. Justice Benson and made the following observations

"Chapter XVIII relates to enquiries into cases triable by the Court of Sessions or High Court. The primary object of section 20 is to make provision for the procedure in such cases: If in the opinion of the Magistrate, there is no evidence to warrant a charge for an offence exclusively triable by a Court of Session, he may "discharge" the accused in respect of the alleged offence and having done so, may proceed as regards the minor offence or offences under Chapter XXI or other appropriate chapter. In fact, a Magistrate cannot proceed to act under the latter part of subsection (1) of subsection 209 until he has discharged' the accused under the former part of the sub section."

This is the course which the Magistrate adopted in the present case.

We think the Sessions Judge had jurisdiction to make the order under section 436. We agree with the judgment of Benson, J. The point came to be considered in the case of Sheo Narain Singh and another v. B. Radha Mohan (A I R 1919 All. 66). In that case the accused was placed before a second class Magistrate for trial on charges under sections 307 and 323 of the Penal Code. The Magistrate framed a charge under section 23 only and directed the accused to enter on his defence. The District Magistrate directed a further inquiry in respect of the charge under section 307. It was held that the order of the Magistrate framing a charge under section 323 amounted to a discharge of the accused under section 307 and that therefore the District Magistrate had power to direct further enquiry in respect of the latter offence.

This view also finds support in the case of Sukhala and another v. Emperor (A I R 1934 All. 141) wherein Kendall, J. observed as follows: ‑

"I have already said that an order either of acquittal or conviction, cannot be held to carry with It the implication that the accused has been discharged of all other conceivable offences, and there is the authority of the Calcutta High Court for holding that where there is nothing in the order of the Magistrate to show that he has considered whether the major offence has been committed or not, it ought not to be held that an order of discharge of the major offence is implied. In the Calcutta case, however, as I have remarked, there was apparently no complaint of the major offence, and that the first occasion on which the question whether the major offence had been committed was considered, was when the matter came before the Sessions Judge. In the present case and in other Allahabad case to which I have referred, there was before the Magistrate a complaint or a report to the effect that the major offence had been committed. It is true that there is very little evidence In the present case to show that the prosecution pressed for a charge under section 307 or section 308, nevertheless the offence was on the charge‑sheet forwarded by the police and it would be impossible to hold that there was no case of attempted murder before the Magistrate for decision or inquiry. When the matter came before him he had to decide whether to frame a charge under that section and to commit him for trial or not, and as he did not frame a charge, there can be no explanation of what happened to the complaint or the report unless there was an implied order of discharge. This appears to be the opinion expressed in the decision of the Full Bench of the Madras High Court to which I have referred and I am prepared to follow that as it is undoubtedly in consonance with the trend of the other decisions that have been referred to in this case, and Is not really inconsistent with the decision of the Calcutta Bench . . . . ."

The matter again came to be considered by the Madras High Court In re: Kathari Lakshmayya and others (A I R 1945 Mad. 459).

In that case also on a charge sheet filed by the police for an offence under section 307 of the Penal Code, the Stationary Sub- Magistrate held an enquiry and decided that no case was made out under section 307 and framed a charge under sections 147, 323 and 325, Penal Code and converted the case into a calendar case. In revision the Additional District Magistrate directed the commitment of the accused to the Court of Sessions. It was held that the Additional District Magistrate was competent to pass the order and direct the commitment of the accused to the Sessions as otherwise the order of the Stationary Sub‑Magistrate amounted to the discharge of the accused of the offend under section 307 and could be, set aside only by the Additional District Magistrate.

In the case of Ajab Lal Khirher v. Emperor (I L R 32 Cal. 783) it was held inter alia that the order of the Magistrate refusing to issue a process on the ground that it was not necessary to take further action amounted to a discharge.

In the case of In re: K. V. M. Parameswarryya (A I R 1949 Mad. 430) it was held that where an accused was charged under section 307 of the Penal Code but the Magistrate framed a charge under section 337, and did not frame one under section 307 Penal Code his action amounted to a discharge of the accused of an offence under the latter section.

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. On 7‑1‑60, the Magistrate framed certain charges other than a charge under section 395. Dis satisfied with that order an application was made before the Sessions Judge who remanded the case in the following terms:

"The Magistrate should consider whether prima facie case under section 395, P. P. C. besides under section 325, P. P. C. has been established against the accused or some of them. He should also consider under section 207, Cr. P. C. whether even though the case may not be one exclusively triable by the Court of Sessions, in his opinion, this is a case which ought to be tried by the Court of Sessions".

After his attention was thus drawn to section 395 specifically the learned Magistrate came to the following conclusion on 6‑3‑61.

"6‑3‑61. Further P. Ws. have been obtained to be examined. I do not find any improvement in the evidence already recorded sufficient material to commit the accused and fresh charge is framed against the accused persons, adopting the same charges. The accused persons pleaded not guilty."

It will therefore appear from the order of 6‑3‑61, that the omission to frame a charge in the present case has been done by the learned Magistrate by a conscious act. Although he did not say in specific terms that he discharged the accused persons under section 395 of the Penal Code, his order amounted to a discharge under that section.

From a reading of the Full Bench decision of the Madras High Court referred to above it appears that the learned Judges have indicated that Chapter XVIII of the Code of Criminal Procedure relates to enquirie3 into the cases triable by the Court of Sessions or the High Court and a Magistrate in dealing with such cases can either discharge or commit and therefore it may be deduced from that decision that he cannot adopt a third course and if he fails to commit an accused person, he discharges him while acting under the said Chapter XVIII. In this observation something more than an implied discharge can be read because the learned Judges appear to think that not making of an order of commitment amounts to making an order of discharge and speaking with respect, I agree with the views as indicated above.

Apart from that, even applying the principles laid down by Richardson, J. there has been a discharge in this case for omission to frame a charge under section 395 of the Penal Code even when the attention of the Magistrate was specifically drawn to it.

The learned Additional Sessions Judge after an elaborate discussion of evidence for the purpose of framing a charge under section 395 of the Pakistan Penal Code, has come to the following finding:

"I have already endeavoured to show that on the very first occasion all the P. Ws. made out a case of dacoity but it is not at all clear or understood why the learned Magistrate failed to frame the charge under section 395, of the Pakistan Penal Code and commit the accused to the Court of Sessions."

It has not been urged before me that this finding of the learned Judge is based on no evidence. Mr. Chowdhury has not shown that there is absence of evidence in support of the finding of the learned Judge. The learned Judge has however observed:

"In my opinion the learned Magistrate ought to have been more careful and go through the evidence recorded by him."

Mr. Khan has drawn my attention to the evidence as recorded in the case in support of the finding of the learned Judge.

Mr. Chowdhury contends that an order of discharge made by a Magistrate should not be lightly interfered with and he places his reliance on a decision of our Supreme Court in the case of Hari Ballav Shahs Roy v. Gopi Ballav Shahs and the Government of East Pakistan. Applying the principles laid down in that case by their Lordships of the Supreme Court, I must say that there is every justification for the learned Judge's interference with the order of the Magistrate.

In delivering the judgment of the Court, his Lordship Shahabuddin, J. observed as follows:

"To discharge this function the Magistrate has necessarily to appreciate evidence but he must hear in mind that the purpose of the enquiry is only to determine if there are sufficient grounds for making the accused to stand a trial and not to decide about his guilt."

It is further observed As follows;

" .he should discharge the accused 9f in the evidence he comes to the conclusion that no Court or jury could reasonably be expected to convict the accused."

It may at once be said that the learned Magistrate has recorded no such conclusion in this case.

In view of the pending trial, I must not be understood to say anything on facts one way or the other, but it is clear that the Magistrate did not apply his mind to the evidence led in the case. It was his duty to do so bearing in mind that the standards of weighing evidence for the purpose of commitment and for that of conviction are entirely different and the observations of our Supreme Court referred to above give a clear guidance in the matter.

In these circumstances, I am of opinion that there has been an improper discharge in this case and the order of the learned Additional Sessions Judge calls for no interference and the Rule is accordingly discharged.

Let the records of the case be sent down without delay for expeditious disposal of the case.

S. B./A.H.

Rule discharged.

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