- (1.) C. A. Rahim, J. Three Government Revision Nos. 891 of 1983, 892 of 1983 and 893 of 1983 are taken up together for the sake convenience. These three revisions arise out of the order dated 10-2-1983 passed by the learned III Additional Sessions Judge, Varanasi in ST No. 388 of 1976, 389 of 1976 and 390 of 1976. On that day separate orders were passed in connection with those three sessions trials on the same point in which common question of law is involved.
(2.) THREE separate cases under Sections 409/418/419/467/468/471/ipc etc. along with Section 120-B, I. P. C. were started against the respondents with an allegation of embezzlement, forgery, cheating, conspiracy amongst others. All the three cases were triable by the learned Magistrate 1st Class but all the three cases wete committed to the Court of Sessions under Section 323, Cr. P. C. The learned Additional Sessions Judge by his order dated 18-2-1983 passed orders in all the three cases to the effect that since the learned Chief Judicial Magistrate, Varanasi is competent enough to award sentence upto seven years and that would meet the ends of justice and hence all those cases were sent back to the learned Chief Judicial Magistrate for trial presumably under Section 228, Cr. P. C. This is subject-matter of the grievance and on behalf of the State of U. P. all the three revisions have been f]iled. Learned A. G. A. , Sri Shreeprakash Singh, has referred three decisions and has submitted that when a case is committed under Section 323, Cr. P. C. learned Additional Sessions Judge cannot retransfer the same, as Section 228, Cr. P. C. is not applicable in these circumstances. In the case of Vijendra Vijay v. State of U. P. reported in 1986 U. P. Crl, Rulings, 354 it was held that when two cases were started under Sections 302/394, I. P. C. and Section 3/25 of the Arms Act and both cases were committed to the court of sessions the Sessions Judge should not transfer the case of Arms Act to the Court of learned Magistrate on the ground that it was triable by the learned Magistrate. Since due so the recovery of arms from the possession of the applicant, punishable under the Arms Act, the doctrine of issue estoppel was likely to operate one way or the other if both the cases were not tried by Sessions Court. So accordingly it was held that the commitment of the case under Section 3/25 of the Arms Act to the court of Sessions was fair and proper exercise of his power under Section 323, Cr. P. C. by the learned Magistrate and the order of the learned Addition Sessions Judge transferring the case to the learned Chief Judicial Magistrate for trial was bound to result in prejudice and injustice to either party. Accordingly, the discretion exercised by the learned Additional Sessions Judge, therefore, was not sound and must be remedied by this court. Similar decision was passed in the case of Achchey Lal v. State of U. P. reported in 1993 U. P. Crl. Rulings 11, referred by Sri Singh wherein it was also held by the Division Bench that when commitment has been ordered by the Magistrate under Section 323, Cr. P. C. with a definite finding that because the cross case of the same transaction being exclusively triable by the court of Sessions has been committed to that court and the case pending before the learned Magistrate with respect to the same transaction though triable by the Magistrate has to be tried by the Court of Sessions in order to avoid conflicting finding with respect to the same matter by the two courts of competent jurisdiction, the Sessions Judge cannot proceed under Section 228, Cr. P. C. The facts of these two cases do not find any similarity with the instant one and there is no cross case which has been committed to the Court of Sessions as exclusively triable by the Court C. A. Rahim, J. it of Sessions. In this premises, the Division Bench of Achchey Lai's case has held that when a case has been committed to the Court of Sessions under Section 323, Cr. P. C. Sessions Court has got no power to retransfer the case under Section 228, Cr. P. C. Sri Singh has also referred another decision reported in 1991 (Supp) ACC page 141 -Gopal Das and others v. State of U. P. and another, wherein the power of the learned Magistrate for committing the case under Section 323, Cr. P. C. has been discussed. It has been held that the Magistrate can exercise his discretion suo motor on an application of any one of the parties. If he exercises power under Section 323, Cr. P. C. and commits the case to the Court of Sessions, proceedings before him is terminated. In order of refusal to exercise power to terminate proceeding by committing the case to Sessions is final order and is amenable to revisional jurisdiction of the Sessfons Judge. There is no express finding in this decision over the issue in question. But it has answered to another question put forward on behalf of the opposite parties whether the order is interlocutory order and revision is maintainable. All the aforesaid decisions are out come of the revisional application preferred by one side or the other and one of the court including the Division Bench in Achchey Lai's case has held that such revision is maintainable.
(3.) NORMALLY an order of commitment is made under Section 209, Cr. P. C. if the case exclusively triable by the Court of Sessions and under Section 323, Cr. P. C. where the power of the learned Magistrate to commit the case is also extended to those cases which are one which ought to be tried by the court of sessions. Section 228, Qt. P. G. provides that the learned Sessions Judge may transfer the case for trial to' be Chief Judicial Magistrate if there is ground for presuming that the accused has committed offence which is not exclusively triable by the court of sessions and he will send the record of the case after framing the charge against the accused. In A. N. Shah's Criminal Reference (Vth Edition) at page 290 the case of Nahar Chand v. Ishwar Singh, reported in 1981 Cr LJ 1906 has been mention ed wherein it was held that when that Magistrate commits the case under Section 323, Cr. P. C. but the sessions court differs and remits it under Sec tion 228, Cr. P. C. no charge is required to be framed by the court of sessions. From all these decisions it appears that the retransfer of case under Section 228, Cr. P. C. is equally applicable to a case committed under Section 209, Cr. P. C. or under Section 323, Cr. P. C. It cannot be said that when a case has been committed to the court of sessions under Section 323, Cr. P. C. the learned Additional Sessions Judge is devoid of power in applying Section 228, Cr. P. C. and in that case he is bound to hold trial. But while applying to such provision it is necessary that there should be proper reasons to do so. The learned Sessions Judge by his order dated 18-2-1983 in all those three cases transferred the case to the Court of Chief Judicial Magistrate with the finding that when the Chief Judicial Magistrate is competent to award sentence up to 7 years that would meet the ends of justice. It has also been held that the maximum sentence of the sections charged is 10 years Mr. Singh has drawn my attention to Sections 409/467/ 471,i. P. C. , where maximum sentence has been provided for imprisonment for life in each of those sections. So the very basis of the reasoning for sending the case to the Chief Judicial Magistrate having been made on wrong conception, the order cannot stand. Considering the gravity of the allega tions also it is necessary that trial should be conducted by the court of sessions. Accordingly, all the three Government Revisions namely, 891 of 1983, 892 of 1983 and 893 of 1983 are allowed. The order dated 18-2-1983 passed separately in ST Nos. 388 of 1976, 389 of 1976 and 390 of 1976 are hereby set aside. Considering the delay in disposing of the revisional appli cation it is hereby ordered that trial should be started after framing charge as expeditiously as possible.;