T J KURIAN Vs. STATE OF KERALA
LAWS(KER)-1968-3-13
HIGH COURT OF KERALA
Decided on March 27,1968

T.J.KURIAN Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) The petitioner and some others were charged under S.409, 477A, 419, 420, 467, 468, 471 and 109 of the Penal Code and also under Clause.14 of the Kerala Food Grains Distribution Control Order read with S.3 and 7 of the Essential Commodities Act. The Sub Magistrate enquired into the case as P. E. C. No. 11 of 1967 and expressed the opinion that there was nothing on record to show that the petitioner or any of the other accused persons committed offences falling under S.468, 467 and 471 of the Penal Code. He observed further that on perusal of the records the offences disclosed fell only under S.409, 477A, 419, 420 and 109 of the Penal Code and under Clause.14 of the Kerala Food Grains Distribution Control Order read with S.3 and 7 of the Essential Commodities Act. Consequently, he did not commit the accused persons for trial before the Court of Session. And he also felt that the offences mentioned in S.409, 477A, 419, 420 and 109 of the Penal Code and Clause.14 of the Kerala Food Grains Distribution Control Order read with S.3 and 7 of the Essential Commodities Act were not triable by him and that the case should be recommended for transfer to a court of competent jurisdiction for trial. The case therefore came before the Additional First Class Magistrate by transfer; and the Additional First Class Magistrate has decided to treat the case as a Preliminary Enquiry Case as he was of opinion that it was too early to say that there was no evidence that none of the accused persons committed offences under S.468, 467 and 471. The revision petition is directed against that order of the Additional First Class Magistrate.
(2.) The counsel of the petitioner argues that regarding the offences under S.468, 467 and 471 of the Penal Code there was an implied discharge by the Sub Magistrate and therefore, the Additional First Class Magistrate could not have treated the entire case on all the sections as a Preliminary Enquiry Case with a view to see whether the case was to be committed to the Sessions Court. The counsel also brings to my notice the decision of the Supreme Court in Thakur Ram v. The State of Bihar ( AIR 1966 SC 911 ).
(3.) S.209(1) of the Code of Criminal Procedure lays down what a magistrate should do in a preliminary enquiry. The sub-section says that if the magistrate finds that there are not sufficient grounds for committing the accused person for trial, he shall record his reasons and discharge the accused person, unless it appears to him that such person should be tried before himself or before some other magistrate, in which case he shall proceed accordingly. This provision is clear that the magistrate may either discharge the accused person or try him or send him for trial before another magistrate of competent jurisdiction. The sub-section does not provide that the magistrate may discharge the accused person regarding some of the offences and then try him for the other offences or send him for trial for the other offences before a competent magistrate. This also appears to be the reasoning adopted by the Supreme Court in the decision already cited. The Supreme Court observes: "These provisions would thus indicate that an express order of discharge is contemplated only in a case where a Magistrate comes to the conclusion that the act alleged against the accused does not amount to any offence at alt and, therefore, no question of trying him either himself or by any other court arises." Evidently, the discharge under S.209 is an express discharge, recording the Magistrate's reasons for the discharge, and there is no question of an implied discharge or a partial discharge: either the magistrate discharges, or he tries, or he sends the case to another magistrate. The discharge can arise only if the magistrate comes to the conclusion that the acts alleged against the accused person do not amount to any offence at all. If, on the other hand, his conclusion is that the acts alleged amount to some offence, then the course open to him is to try the accused person himself if the acts amount to offences triable by himself, or send him before another competent magistrate if the acts alleged against the accused person amount to offences triable by such competent magistrate. The question of dropping some of the offences or deciding what are the offences committed can arise only when the trial starts: and in a case which goes to another competent magistrate, that question can arise only before him. Thus, the order of the Additional First Class Magistrate is right. The said order is confirmed; and the revision petition is dismissed.;


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