Decided on September 29,1970

Kothavaranga Alias Goviada Pariayacal And Others Appellant
STATE Respondents


- (1.) The Petitioners herein, who are eight in number were committed for trial to the Court of Sessions at Cuddalore by the Sub-Magistrate. Kaliakurichi for offences under Section 147, 148, 323, 324 and 304 read with Section 149, I.P.C. There is a specific charge against the third Petitioner under Section 304 I.P.C. with a charge of constructive liability under Section 149, I.P.C. against the sent. On revision, the learned Sessions Judge has directed the committal of the third Petitioner for an offence under Section 302 and the other Petitioners under Section 302 read with Section 149, I.P.C.
(2.) The Petitioners Contend that this direction to the Sub-Magistrate to commit the. Petitioners for an offences under Section 302 read with Section 149, I.P.C. is erroneous .
(3.) Section 437 of the Code of Criminal Procedure under which the learned Sessions Judge has acted is as below: When, on examining the record of any case under Section 435 or otherwise, the Sessions Judge or District Magistrate considers that such case is tribal exclusively by the court of Session and that an accused person has been improperly discharged by the Inferior court, the Sessions Judge or District Magistrate may cause him to be arrested, and may thereupon, instead of directing a fresh. inquiry, order him to be committed for trial upon the matter of which he has been in the opinion of the Sessions Judge or District Magistrate, improperly discharged; Provided as follows: (a) that the accused has had as opportunity of showing cause to such Judge or Magistrate why the commitments should not be made; (b) that if such Judge or Magistrate thinks that the evidence shows that some ether offence has been committed by the causal, such Judge or Magistrate may direct the inferior count to enquire into such offence. On behalf of the Petitioner, it is urged that the learned Sessions Judge if he considered that the discharge was improper, should have himself committed the accused by framing the necessary charge for the proper offence instead of giving a direction to the trial court to frama such a charge and then commit. In Sessions Judge, Mangalore v. Malinga alias Savappa 31 Mad. 40 it has been held that the words "order him to be committed " scan more than " pass an order for his committal" and enable the authority exercising the powers of revision, himself to make a committal, or to direct a subordinate Magistrate ;to make a committal. In Mukat Beharilal v. Emperor, 1948 AIR(All) 298the complainant had filed complaint under Section 466I.P.C. The trial court proceeded with this case as a warrant case and framed a charge against the accused under Section 466. The Session Judge, acting under Section 437 of the Code of Criminal Procedure directed the accused to be committed to the Court of Season for trial under Section 466 of the Penal Code; the trial court refused the permission to cross-examine the witnesses or to examine witnesses in defense. This was challenged in revision by the accused. It was held that when an order that an accused be committed to the Court of Session after framing a charge against, him has been passed by the Sessions Judge, the Magistrate had so power to proceed in accordance with the provisions of Chapter XVIII of the Code. The power given to the Sessions Judge is independent of the provisions of Chapter XVIII The learned Counsel appearing for the Petitioner relies on the decision in Karuppiah Ambalam v. Andiappa Serrai, 1950 M.W.N. Cri. 61, and, contends that the direction made by the Sessions Judge is not correct. This case was a case which was started on a private complaint, and Govinda Menon J. said that when dealing with a preliminary enquiry in a case initiated by a private complaint, the Magistrate has the power to examine the witnesses and discharge the accused even after the framing of the charge, that a direction by the Sessions Court to him to frame a particular charge will be a bar to such a procedure and that as such the direction was wrong. Now, under Section 207-A. (9) and (10) of the Code of Criminal Procedure as amended, the accused person is to give a list, either orally or in writing, of the persons whom be wishes to be summoned to give evidence his trial, and after receiving such a list the Magistrate has to make as order committing him for trial by the Court of Session after briefly recording the reasons for such commitment. Under Sub-Section 11, the Magistrate has to issue summons to the person mentioned for the appearance before the court to which he has committed the accused for trial. thus no question of the Magistrate examining any witnesses after the framing of the charge new arises in proceed-in which are committed on a police report. What the learned Session Judge has done is in order.;

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