- (1.) J. C. Gupta, J. Heard applicants counsel and the learned A. G. A. as well as Sri V. P. Srivastava learned counsel for the complainant.
(2.) BY means of this application in herent powers of this Court are being in voked for quashing the order dated 24-3-99 passed by Chief Judicial Magistrate, Agra in Case No. 7/97 State v. Om Dutt and others, arising out of Crime No. 159/96 under Sections 232/324/504/308, I. P. C. P. S. Kagarol, district Agra whereby the ap plication moved on behalf of the ap plicants for not committing the case to the Court of Sessions has been rejected. It appears that on an earlier occasion also the applicants had approached this Court by filing Writ Petition No. 750/97 and the same was disposed of by Hon'ble P. K. Jain, J. by the order dated 22-8-97 and the learned Magistrate was directed to recon sider the matter whether case under Sec tion 308, I. P. C. was made out against the applicants after properly scanning the material on record. In compliance of the said order the learned Magistrate this time by a detailed order came to the conclusion that from the material placed from the prosecution side, an offence under Section 308, I. P. C. isprima facie made out against the applicants. Learned counsel for the applicants argued before this Court that from the injury report which was placed before the learned Magistrate, it could not be said that an offence punishable under Section 308, I. P. C. has been made out and there fore, it is not a case which requires commit tal to the Court of Sessions. It is well established law that at the stage of Section 209, Cr. P. C. the Magistrate has no power to examine the evidence and other material in a meticulous manner and the matter has to be left to the discretion of the Court of Sessions. The narrow inspection hole through which the committing Magistrate has to look to the case limits him merely to ascertain whether the case as disclosed by police report appears to him to be triable by Sessions Court exclusively. If it is so, he has no option bm. ic commit the case to the Court of Sessions. At the stage Section 209, Cr. P. C. the Magistrate in such matters cannot discharge the accused because dis charge is an anti-thesis of charge. Under Section 209, Cr. P. C. Magistrate can not frame charge so he also does not have power to discharge. While on the other hand Section 228, Cr. P. C. provides that if after consideration of the record of the case and the documents submitted there with and after hearing the submission of the accused and the prosecution in this behalf the Sessions Judge is of the opinion that there is ground for presuming that the accused has committed offence which is not exclusively triable by the Court of Ses sions, he may frame a charge against the accused and, by an order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate shall try the offence in accord ance with the procedure for the trial of warrant cases instituted on a police report; or, if the learned Judge is of the opinion that there is ground ir presuming that the accused has committed an offence which is exclusively triable by the Court of Ses sions, he shall frame in writing a charge against the accused and thereupon the ac cused shall be tried under the provisions of the Code.
(3.) A comparative study of Sections 209 and 228 of the Code of Criminal Proce dure leaves no room of doubt that the powers conferred on the Sessions Court under Section 228 are much wider than those of the Magistrate under Section 209, Cr. P. C. The legislature with some intent and purpose has made the use of the word "appears" in Section 209, Cr. PC. ; whereas a totally different language has been used in Section 228, Cr. P. C. It would not be correct to lay down that under Section 209, Cr. P. C. also the Magistrate has same wide powers as are possessed by a Court of Sessions in examining the question whether or not the offence is exclusively triable by the Court of Sessions. It is also well established that mere ly on the basis of injury report a conclusion about the nature of offence cannot always be arrived at and the entire facts and cir cumstances appearing in the case are also to be looked into to decide as to what offence is prima facie made out. The con sideration of such facts and circumstances is the exclusive domain of a Court of Ses sions. In the present case it may not be appropriate and proper for this Court to make any observations in these incidental proceedings as the same may unwillingly influence the mind of the Sessions Judge while considering the question of framing of charge. Though this Court has restrained himself for making any such observations on the merits of the case. It is made clear that this order shall not in fluence the mind of Sessions Judge and he shall be free to assess and evaluate the merits of the case unhampered by any ob servation this Court may have happened to make and it is suffice to say that the order of the Magistrate rejecting the application of the applicant does not call for interference especially when the cross case has also been committed to the Court of Ses sions.;