Decided on February 09,1953

In Re: Nalla Baligadu And Ors. Appellant
STATE Respondents


Balakrishna Ayyar J. - (1.) THE Station House Officer, Pulivendla, filed a charge sheet against seven persons for offences under Sections 147, 148, 324 and 302 I. P. C. and Section 4(1), Madras Prohibition Act. The Stationary Sub -Magistrate, Pulivandla before whom the charge -sheet was laid, held an enquiry under' Chapter 18, Criminal P.C., and, in exercise of the powers conferred on him by Section 209 of that Code, discharged accused 1 to 3 in respect of the offence under Section 302, I. P. C. This is what he said, "............taking any view of the matter it is impossible for any Judge to find that A -1 to A -3 had a common intention to kill the deceased. So under those circumstances I feel compelled to discharge the accused for the offence of murder or culpable homicide not amounting to murder with which they stand charge -sheeted. They shall however be charged for various other offences the evidence disclosed and shall be tried before me. Proceedings shall therefore be converted into one under Chapter 21 of the Criminal Procedure Code." The Assistant Public Prosecutor, Grade II, Cuddappah, moved the District Magistrate in revision and he after hearing the Assistant Public Prosecutor and the advocate for the accused passed the following' order: "In the result the order discharging accused 1 to 3 is reversed and the Sub -Magistrate is directed to commit the accused 1 to 7 to take their trial before the Sessions Court, Cuddappah." The accused thereupon moved this Court to revise the order of the District Magistrate. In view of the conflict of decisions that exist on the question, Chandra Reddy J. before whom the criminal revision petition came on for hearing, referred the matter to a Division Bench. The Division Bench consisting of Govinda Menon and Basheer Ahmed Sayeed JJ. in their turn have, referred the matter to a Full Bench.
(2.) THE question which we have to answer may be thus formulated: Where under Section 209(1) Crl. P. C., a Sub -Magistrate finds that. there are not sufficient grounds for committing the accused for trial and directs such persons to be tried before himself or some other Magistrate, can the revisional powers under Section 437 be exercised before the conclusion of the trial before such Magistrate? Before attempting an answer to this question it is as well to examine the familiar sections once more. Section 437, Crl. P.C., so far as is here material, runs as follows: "When, on examining the record of any case under Section 435 or otherwise, the .........District Magistrate considers that such case is triable exclusively by the Court of Session and that an accused person has been improperly discharged by the inferior Court the ......... District Magistrate may......instead of directing a fresh enquiry order him to be committed for trial 'upon) the matter' of which he has been, in the opinion of the ............ District Magistrate, improperly discharged." Then follow two provisos, the first of which requires the Magistrate to give an opportunity to the accused to show cause why commitment should not be ordered. The second one runs as follows: "If such............Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such ......... Magistrate may direct the inferior court to inquire into such offence." I would draw attention to the words "upon the matter" which occur in the body of the section. The word "matter" it appears to me is elastic enough to comprehend a single charge or a plurality of charges, a single offence or a plurality of the offences, a part of a case or the whole of a case. The word is also appropriate enough to cover casts where the same act is punishable under two or more sections of the Code. Let us suppose that 'X' is charged with having caused the death of 'Y' by stabbing him with a knife. The offence proved may be punishable under Section 324, 326 or 302, I.P.C. though the offences under Sections 324 and 326 would stand merged in the offence under Section 302, I.P.C. Again if 'X' is. charged with having committed robbery on 'Y' and haying caused grievous hurt to him with a knife while committing the robbery the offence would be punishable under Ss 379, 326 and 397 I.P.C. The word "matter" it seems to me is sufficient to comprehend every one of these aspects of the crime. It will be' noticed that under the second proviso to Section 437, Cr. P. C., the word used is "offence",, a term with a more definite connotation.
(3.) THE next section we have to pay attention to is 209 (1) which provides, "When the evidence referred to in Section 208 Sub -sections (1) and (3) has been taken" and. 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 hiss reasons & discharge him unless it appears, to the Magistrate that such person be tried before himself or some other Magistrate, in. which case he shall proceed accordingly."' When a Magistrate has recorded all the evidence for the prosecution and all the evidence for the defence and has also completed the examination of the accused, he will be in possession substantially of all the material facts. At that stage Section 209, Cr. P. C., empowers him to do one of four things. (1) He can commit the accused to the Court of Session where he will be regularly tried. (2) He can say that no offence triable exclusively by a Court at Session has been made out, but that an offence triable by a First Class Magistrate appears to have been committed and may send up the case to the appropriate First Class Magistrate under Section 346, Cr. P. C. For example if a charge sheet is laid against an accused under Section 302, I.P.C., before a Second Class Magistrate, he may say that only an offence under Section 326 or Section 304 -A, I. P. C., has been made out. In that case there will be no justification for committing the case to the court of session. The Magistrate will have no jurisdiction to try these offences himself since he is only a Magistrate, of the Second Class. So he will send the case to a First Class Magistrate. (3) He may take the view that no offence triable exclusively either by the Court of Session or by a First Class Magistrate has been made out, but that only an offence which he himself is competent to try has been committed. Thus even though the prosecution may be for an offence under Section 302, I. P. C., still if he considers that the evidence discloses only an offence under Section 324, I. P.C., he will try it himself. 4. Finally he may take the view that no offence of any kind has been made out, in which case, the accused will be wholly discharged.;

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