- (1.) THIS is a reference by the Addl. Sessions Judge of Banaras at Jaunpur recommending that an order passed by Shri N. K. Roy, Magistrate, First Class committing the accused to Sessions be set aside and that this Court should order that the commitment proceedings be started afresh.
(2.) THE case originally started on the complaint, of one Sub Karan filed against the accused and some others under Section 498/109, I. P. C. The case came up for hearing before Shri Jagdeo prasad, Magistrate, Second Class Jaunpur, who recorded some evidence in the case. The learned magistrate came to the conclusion that the girl Sm. Phula was only 14 years old and that in his opinion an offence under Section 366, Penal Code, was made out. He, therefore, stayed the proceedings and submitted the case to the District Magistrate with a report that the case being triable by the Court of Session and not by him should be transferred to some other Magistrate for proceeding under Chapter 18, Criminal P. C. The learned District magistrate by his order dated 8-5-1951, transferred the case to Shri N. K. Roy, Judicial Officer, jaunpur, who is a Magistrate of the 1st Class. Shri N. K. Roy passed an order on 1-6-1951 as follows: "let the whole case be started 'de novo' as the learned Special Magistrate was not competent to hold an enquiry as he himself arrived at the conclusion that the case was one under Section 366, i. P. C. which was beyond his jurisdiction. " it appears that Shri N. K. Roy changed his mind afterwards and on 9-6-1951, passed the following order; "in view of Section 350 (2), Criminal P. C. I think question of 'de novo' trial does not arise in this case. I proceed to hear argument whether the case is fit to be committed to the Court of Session, jaunpur under Section 366, I. P. C. or not. " Thereafter Shri N. K. Roy did not take any evidence but heard arguments and weighing the evidence already recorded by Shri Jagdeo Prasad, II Class Magistrate, passed an order committing the accused to stand their trial in the Court of Session at Jaunpur under Section 366, i. P. C. Before the Sessions Judge the accused challenged the validity of this order of commitment inasmuch as, Shri N. K. Roy was not justified in basing his order on evidence recorded by a magistrate who had no jurisdiction to try the case or to hold that enquiry. This contention found favour with the learned Addl. Sessions Judge and he has recommended that the order of commitment should be set aside as mentioned above.
(3.) THIS reference came up before a learned Judge of this Court, who considered the point raised to be of some importance and as no reported decision of this Court was placed before him and there appeared to be some conflict of opinion among the other High Courts, he ordered the case to be placed before a Division Bench.;