SK. KHAIRATI AND ORS. Vs. SK. RASHID MAHAMMAD
LAWS(ORI)-1978-11-7
HIGH COURT OF ORISSA
Decided on November 02,1978

Sk. Khairati And Ors. Appellant
VERSUS
Sk. Rashid Mahammad Respondents

JUDGEMENT

P.K.Mohanti, J. - (1.) THE only point for consideration in this criminal revision is whether the accused has the right of being heard in a proceeding under Section 209, Criminal Procedure Code.
(2.) THE opposite party filed a complaint petition against the Petitioners alleging commission of offences under Sections 307, 325 and 504, Indian Penal Code. The learned Sub -divisional Judicial Magistrate took cognizance of the offences and held an enquiry under Section 202, Criminal Procedure Code. After enquiry, he directed issue of processes against the Petitioners for the offences under Sections 307, 325 and 504, Indian Penal Code vide order dated 17 -11 -1977. Thereafter the dispute between the parties was amicably settled. On 8 -2 -1978 both the parties sought for permission to compound the offence under Sections 325 and 504, Indian Penal Code. The offence under Section 307, Indian Penal Code is non -compoundable and triable exclusively by a Court of Session. On 2 -3 -1978 the Petitioners filed an application stating therein that the materials on record did not make out a prima facie case for an offence under Section 307, Indian Penal Code and that it was not a fit case to be committed to the Court of Session. They prayed for an opportunity of being heard in the proceeding under Section 209, Criminal Procedure Code. The learned Magistrate, by his order dated 13 -3 -1978, rejected the petition, holding that be had no jurisdiction to reconsider the finding already given by him after an enquiry under Section 202, Criminal Procedure Code, that an offence under Section 307, Indian Penal Code had been made out. Aggrieved by this order the Petitioners have come up in revision. It will be worthwhile to read the provisions of Section 209, Code of Criminal Procedure before I embark upon a decision of the precise point involved: Section 209. Commitment of case to Court of Session when offence is triable exclusively by it When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session be than (a) commit the case to the Court of Session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (r) send to tint Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
(3.) IT is necessary to consider the significance of the expression "it appears to the Magistrate'" occurring in the first paragraph of Section 209, Criminal Procedure Code. The normal connotation of the word "appear" is 'to seem,' 'to come into view: 'to become visible' or 'to be in one's opinion'. So the expression means the formation of an opinion by the Magistrate on the materials on record. He is not required to weigh the evidence and the probability of the case. Once he forms the opinion after looking into the materials on record that an offence enable exclusively by a Court of Session has been made out, he is to do no more than to commit the case to the Court of Session. The expression "it appears to the Magistrate" does not contemplate that the Magistrate should hear the accused as to whether the case is exclusively triable by the Court of Session. The formal committal enquiry under the old Code has been abolished under the scheme of the new Code. Expedition in disposal of cases was intended by this change. If the accused is to be given an opportunity to argue that no prima facie case has been made out there will be delay in disposal of the proceeding under Section 209, Criminal Procedure Code.;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.