(1.) This is the second time this case comes up before us in revision. The case arises from a private complaint accusing as many as seventeen persons of the commission of offences punishable under S.380, 341, 395, 451 and 447, I.P.C. It was originally taken cognizance of by the Taluk Second Class Magistrate of Devikulam as P.E. No. 1 of 1124 and at the conclusion of the enquiry he passed orders discharging all the accused persons of having committed any offence in a group or as members of an unlawful assembly, but held that seven among them had to be proceeded against for offences alleged to have been committed by them individually. The complainant took the matter in revision before the District Magistrate, Kottayam, but the learned District Magistrate confirmed the order passed by the subordinate court. In Criminal Revision 97 of 1954 I set aside the two orders and directed the District Magistrate himself to hold further enquiry and dispose of the case according to law. The present revision is directed against the order passed by the District Magistrate (Judicial), Kottayam discharging all the accused persons of the more grave offences for which the complainant sought to make them liable, at the same time holding that the case should be tried by him as a calendar case. The concluding part of his order reads:
I however feel that there is a volume of evidence of the accused, in a body armed with deadly weapons and capable of showing the threatening violence, forcibly entering upon the property in question and snatching possession of it, and effectively, jeceting PW 2 and his sister inlaw from there. I propose, trying the accused for that, renumbering the case as CC 6/55.
This is to my mind is prima facie accepting the truth of the complainants case. As such, since the complaint alleged, inter alia that the accused persons had committed the offence of dacoity, an offence exclusively triable by a Court of Sessions, the obvious duty of the court holding the preliminary enquiry was to commit the accused persons for trial by a competent court and not to arrogate to itself the task of holding the trial, though after recording a finding that the evidence disclosed only commission of offences triable by it.
(2.) In my previous order I had given sufficient indication that the case should go before a Court of Sessions for trial. A few extracts from that order may usefully be quoted here:
The case arose on a complaint by PW 1 that a large body of persons armed with deadly weapons went to his quarters in Upper Surianalle Estate, Devikulam in his absence, forcibly ejected his wife and brother therefrom and removed valuable articles restraint. The case was originally registered under S.380, 341, 395, 453 and 448, I.P.C. corresponding to S.380, 341 395, 451 and 447 I.P.C. The facts alleged have not been found to be false by the learned Taluk Second Class Magistrate, but he took the view that the existence of any unlawful assembly was not made out and that the removal of the articles from the quarters of PW 1 to the courtyard or to the estate factory did not amount to any offence. However, accused Nos. 1, 2, 6, 7, 8, 13 and 17, who were found to removed some of the articles to their own premiss or were in possession thereof were considered to have been prima facie liable for removal or retention. They have accordingly been sought to be proceeded against for committing theft from a building (S.380, I.P.C.), The learned Taluk Magistrate further found that accused 1 and accused 2 were prima facie liable for committing house trespass and accused 1 also of causing wrongful restraint. While discharging all the accused persons of having committed any offence in a group or as members of an unlawful assembly, he has held that the above seven persons have to be proceeded against for offences alleged to have been committed by them individually. I am afraid this is a distortion of the complainants case .........
The order went on to state:
The gravamen of the complaint was the action of the accused persons along with others going to the complainants residence armed with deadly weapons, forcibly ejecting the occupants therefrom and removing the articles kept there. The question as to what the nature of the complainants possession of his residential quarters was, will have an important bearing on the question whether these actions would constitute penal offences. The Taluk Second Class Magistrate and the District Magistrate did not apply their minds to this aspect.
Again in a latter portion of the order it was stated:
.............. but in Para.8 he has said that he is in agreement with the prosecution regarding the liability of the 1st accused for the offence of wrongful restrain and that he did not think that the other accused can be made answerable therefor. Para.8 discusses whether the offence of wrongful restrains has been made out against the accused persons. Whether the restraint was for the purpose of removing articles or not is a nice question with which the enquiry court need not have concerned itself. Para.8 also would show that the conduct of accused 3, 6 and 9 was such as calculated to put PW 2 and the wife of PW 1 in fear of instant hurt.
Speaking of the District Magistrates order, I said:
The revision court would seem to have ignored the fact that the task of evaluation of the evidence did not properly fall within the powers of a court holding an enquiry preliminary to committal.
All that I wished to say then and desire to repeat now is that there was prima facie evidence to justify a committal. The direction in the previous order of this court has practically been thrown to the winds in the present order of the District Magistrate where he went on to discuss and evaluate the evidence in the case and even embarked upon a discussion of abstruse questions of law. Lest any observation from me should prejudice a fair trial of the case before the Court of Session, I refrain from commenting upon the evidence or the points of law discussed by the District Magistrate. However I wish to observe here that it is difficult to reconcile the discussion of the facts and the law of the case with the concluding portion of his order quoted by me earlier.
(3.) In the circumstances the present order of the District Magistrate cannot also be sustained. The question then is, what course I should adopt after vacating it; that is, whether I should direct a committal for trial to a competent court or again order further enquiry so that the lower court may of its own make the committal. Mr. K. T. Thomas, learned counsel for the accused raised a doubt whether it was competent for me under S.439, Criminal Procedure Code, to direct the accused persons to be committed for trial. If I understood him rightly, his contention appeared to be that I can only direct a further enquiry under S.436, Criminal Procedure Code. That was what I myself thought on the former occasion and this time I invited counsel to clear the position. The authorities referred to at the bar clearly hold that it is competent to the High Court to direct a subordinate court to commit for trial persons improperly discharged by that or any other subordinate Court. S.423 and S.439, Criminal Procedure Code clearly confer that power on the High Court. As the authorities on the point are uniform I content myself by quoting an extract from the Full Bench decision of the Madras High Court reported in Public Prosecutor v. Ponnuswami Nayak, AIR 1928 Mad. 1267 . This case refers to the decisions of the Allahabad, Bombay and Calcutta High Courts bearing on the question. The relevant portion of the order of the Madras High Court reads:
As regards the discharged men, Mr. Grant (referring to the leading counsel for the accused person) has expressed a doubt as to our jurisdiction to set aside the discharge and direct their committal for trial. A similar objection was taken before Straight, J., in Empress v. Ram Lall Singh, 1883 (6) Allahabad 40 - (1883) A.W. No. 186 and he negatived it, holding that he had power to set aside an order of discharge and direct a committal. With respect, we think this his decision was right. S.439, Criminal P.C., confers on us the powers granted to a court of appeal by S.423 and one of the powers so granted is that of directing an accused to be committed for trial. The same view was expressed by Wilson, J., in Hari Doss Sanval v. Saritulla, 1888 (15) Cal. 608 (F.B.).
The High Court under S.423 embodied in S.439 can set aside the order of discharge, and direct a charge to be framed and tried by the proper court. It can under S.437, and probably also under S.439, order a further enquiry instead of a committal.
This decision was followed in Emperor v. Varjivandas, 1903 (27) Bom. 84 - 4 Bom. L.R. 779, where it was held that the High Court had jurisdiction under S.423 and 439, Criminal P.C., to set aside an order of discharge and to direct that a person improperly discharged be committed for trial. We set aside the order discharging the three respondents and direct that they be committed for trial on the same charges as the other five accused.
In Nishi Kanta Lahiri v. The Crown, 1918 (XX) Calcutta Weekly Notes 732, the Calcutta High Court exercised this power of directing a subordinate Court for committing the accused person for trial to a court of Session. Mr. Thomas conceded that he had not come across any case holding the contrary view.;