- (1.) THIS is a reference made by the learned Sessions Judge of Bara Banki for quashing the order of commitment made by the Judicial Officer of Fatehpur against twenty-two, accused. This reference has been made under the following circumstances :
(2.) THE twenty-two accused committed to the court of session were initially tried by the committing Magistrate who started proceedings in the case against them not as a court of enquiry but as a trial court. He treated the case as a warrant case. Accordingly he framed a charge on 9th january 1951 under Section 254. After the proceedings had been gone through up to a certain stage it was pointed out to him that one of the offences for which the accused were being tried was that under Section 330 which was exclusively triable by the court of session. Thereupon the court proceeded under Section 347, Criminal P. C. but failed to observe the provisions of Ch. XVIII in so far as he omitted to frame a charge under Section 210, Criminal P. C. He, however, proceeded to pass an order of commitment.
(3.) THE result of this irregularity of proceeding in the committing Magistrate's court was that the case reached the court of session without a charge. Under Section 210, Criminal P. C. it is laid down that "when upon such evidence being taken and such examination (if any) being made the magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged. " section 226 provides that "when any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or in the case of a High Court, the Clerk of the Crown, may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this Code as to the form of charges. " The learned Sessions Judge was of opinion that Section 226 would apply to a case where some charge had been framed by the committing Magistrate's court but not to the case where no charge had been framed at all. This view is not borne out by the plain reading of the section itself. Section 226 deals not only with the cases of commitment without a charge but also with the cases of commitment with an imperfect or erroneous charge. The last two contingencies cover cases where a charge already exists but is imperfect or erroneous on some ground. The first contingency would cover a case where no charge has been framed at all.;