Mahesh Narain Shukla, J. - (1.) This Criminal Revision at the instance of the complainant has arisen in the following circumstances: - - The applicant lodged a report with the Police against opposite parties Nos. 2 to 6, alleging that they had committed a (sic). The police investigated the case and submitted a charge -sheet u/Ss. 147, 148, 323 and 324, IPC read with S. 149, IPC before the Magistrate concerned. It appears that from the very commencement of the proceedings, the complainant and the prosecuting agency represented to the Magistrate that this was a case in which the procedure for enquiry u/S. 207 -A, CrPC should be adopted and the case be committed to the Court of Sessions for trial. An application was made by the complainant on 18 -9 -1967, making the same allegation, which was followed by another, application dt. 4 -10 -1967 by the APP. It appears that no orders were passed on those applications, but the Magistrate proceeded on the footing that after the evidence in the case, he would be in a position to decide as to whether the case was a fit one for committal. A charge was framed on 13 -4 -1967 against the accused persons u/Ss. 147, 148, 323 and 325, IPC read with S. 149, IPC and S. 379, IPC simpliciter: (sic) to the framing of the charge yet another application dt. 6 -8 -1968 was made by the complainant before Sri K.N. Dixit. Magistrate First Class. Sri Dixit passed an order on the said application saying that after recording the evidence of the prosecution, and the defence; he would consider whether the case was a fit one for committal to the court of session. Thereafter, a transfer application was moved to the complainant and the case was transferred to the court of Sri J.R. Sharma, Magistrate First Class who passed the impugned order. It may be noted that an application u/S. 561 -A, CrPC was also moved on behalf of the complainant in the High Court, in which the learned counsel, appearing for the applicant, eventually confined his argument to the request the case be transferred from the court of the Judicial Magistrate, Sri J.R. Sharma. This application was dismissed by the High Court by the order dt. 14 -4 -1970. It was observed by Hon'ble C.D. Parekh, J., as follow: - - I am not inclined to transfer the case from the court of Sri J.R. Sharma to any other Magistrate, but I may observe that Sri J.R. Sharma should decide, after recording the prosecution as well as the defence evidence, whether the case should be submitted in the court of sessions or not, and after he has decided the same, he should afford a reasonable, opportunity to both the parties to challenge the order before the higher courts.
(2.) Pursuant to the above order, the learned Judicial Magistrate, Sri J.R. Sharma, proceeded to record that prosecution as well as the defence evidence. After doing the same, he rejected the complainant's application dt. 6 -8 -1968 and granted the parties fifteen days time to pursue the matter in the higher courts, if they so chose. Aggrieved by the above order, the complainant went up in revision before the learned Sessions Judge who dismissed the same by his order dt. 10 -8 -1970. The present revision arises out of that order.
(3.) The contention of the applicant in brief was that the learned Magistrate adopted a wrong and illegal procedure in evaluating the entire evidence of the parties finally on merits and lost sight of the principle which applies to an enquiry court for considering the evidence led before it. It was around that in the instant case the learned Magistrate should have acted in accordance with the procedure, prescribed by S. 207 -A, CrPC and hence his entire approach to the case was vitiated. On the other hand, the learned State Counsel submitted that the Magistrate took cognizance of the case on the basis of the charge -sheet filed before him and rightly proceeded to try the case as a warrant case u/S. 251 -A, CrPC. Having once embarked upon such trial, the only provision under the Code, which enabled him to switch over from that procedure to one of enquiry u/Ch. XVIII, was S. 347, CrPC, which runs as follows: - - S. 347(1) If in any enquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the court of session or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained. (2) If such Magistrate is not empowered to commit for trial, he shall proceed u/S. 346.;