- (1.) Heard Syed Faiz Hasnain, learned counsel for the applicants and Sri I.B. Yadav, learned A.G.A. for the State. This 482 Cr.P.C. application has been filed with a prayer to quash the impugned order dated 30.7.2014 passed by A.C.J.M, IInd, District Bareilly in case No. 3749 of 206, State v. Beni Ram and another, arising out of case crime No. 7 of 2006, under Sections 307, 504 I.P.C., Police Station Shahi, District Bareilly and remand back the matter to the Court of learned concerned Magistrate to hear and decide the same as a fresh.
(2.) The point which has cropped up in the prosecution is whether the Committing Magistrate can entertain and pass order on the application under Section 321 Cr.P.C. even if the case is triable by the Court of Sessions.
(3.) It has been contended by learned counsel for the applicant that though the charge-sheet has been submitted against the applicant for the offence under Sections 307, 504 I.P.C., P.S. Shahi, District Bareilly, arising out of case crime No. 7 of 2006 but the case has not been committed to the Court of Sessions and in the meanwhile an application was moved under Section 321 Cr.P.C. by the A.D.G.C. (Criminal) on 15.9.2010 for withdrawing of the case in view of letter/order of the State Government dated 16.8.2010. When the said application was moved before the learned Magistrate, he rejected the same on the ground that as the offence under Section 307 I.P.C. is exclusively triable by the Court of Sessions, he has no jurisdiction except to ensure the presence of the accused and comply with the provision under Section 207 Cr.P.C. and commit the case to the Court of Sessions. He further submits that the learned Magistrate was under an obligation to pass an order on the application under Section 321 Cr.P.C. irrespective of the fact that the offence in question was triable by the Court of Sessions. In support of his contention, the learned counsel for the applicant has placed reliance of the judgment of Apex Court in the case of Rajendra Kumar Jain v. State, 1980 AIR(SC) 1510, in which the Court considered the specific question whether the Committing Magistrate is competent to give consent and considering the scope of the provisions in Section 209 and 321 Cr.P.C. made the following observations in paragraph No. 7 of the judgment: ".....................The submission was that the Court contemplated by Section 494 was the Court capable of pronouncing a judgment, ending the proceeding by an order of acquittal or discharge and, since the Court of the Committing Magistrate under the new Code was not invested with the power of acquitting or discharging the accused it was not the Court which could grant its consent to withdraw from the prosecution. In the first place there is no warrant for thinking that only the Court competent to discharge or acquit the accused under some other provision of the Code can exercise the power Under Section 321 Criminal Procedure Code. The power conferred by Section 321 is itself a special power conferred on the Court, before whom a prosecution is pending and the exercise of the power is not made dependent upon the power of the Court to acquit or discharge the accused under some other provision of the Code. The power to discharge or acquit the accused under Section 321 is a special power founded on Section 321 itself, to be exercised by the Court independently of its power of enquiry into the offence or try the accused............... That was the view expressed in the State of Bihar v. Ram Naresh Pandey where the Court observed: In the second place it may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 CrPC. Section 209 of the Criminal Procedure Code 1973 obliges the Magistrate to commit the case to the Court of Session when it appears to the Magistrate that the offence is triable exclusively by the Court of Session. Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Session. If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Session he- may proceed to deal with it under the other provisions of the Code. To that extent the Court of the Committing Magistrate does discharge a judicial function. We therefore, Overrule the first submission of Shri Ram Panjwani. We do not agree with the view taken by the High Court of Andhra Pradesh in A. Venkataramana v. Mudem Sanjeeva Ragudu and others,1976 LTR 317, that the Court of the Committing Magistrate is not competent to give consent to the Public Prosecutor to withdraw from the prosecution.";