KAMAL KRISHNA DE Vs. STATE
LAWS(CAL)-1976-8-31
HIGH COURT OF CALCUTTA
Decided on August 18,1976

KAMAL KRISHNA DE Appellant
VERSUS
STATE Respondents


Cited Judgements :-

MAGI NAYAK VS. STATE OF ORISSA [LAWS(ORI)-1988-8-23] [REFERRED TO]
M GOVINDARAJA PILLAI VS. THANGAVELU PILLAI [LAWS(MAD)-1983-1-75] [REFERRED TO]
M GOVINDARAJA PILLAI VS. THANGAVELU PILLAI DECEASED [LAWS(MAD)-1983-1-8] [REFERRED TO]
SIDHAN VS. STATE OF KERALA [LAWS(KER)-1985-6-29] [REFERRED TO]
DAROGA CHAUBEY VS. KANTI BAITHA [LAWS(PAT)-1978-3-12] [REFERRED TO]
STATE VS. KAPUR SINGH AND OTHERS [LAWS(P&H)-1978-12-17] [REFERRED TO]
ABDUL HAMIDKHAN PATHAN VS. STATE OF GUJARAT [LAWS(GJH)-1987-4-9] [REFERRED]
MUKHTAR ALI VS. STATE OF UTTAR PRADESH [LAWS(ALL)-1998-7-70] [REFERRED TO]
MOIDEENKUTTY HAJI VS. KUNHIKOYA [LAWS(KER)-1987-3-8] [REFERRED TO]
SAYEEDABEGAM VS. DURGAPRASAD GANESHPRASAD SHARMA [LAWS(BOM)-2007-6-111] [REFERRED TO]
VIDEOCON INTERNATIONAL VS. SECURITIES AND EXCHANGE BOARD OF INDIA [LAWS(BOM)-2008-1-133] [REFERRED TO]
LADDU LAL SAHU VS. DHARNIDHAR SAHU [LAWS(PAT)-1984-3-25] [REFERRED TO]
PREM SINGH VS. HARDEV SINGH [LAWS(HPH)-1991-8-16] [REFERRED TO]
GOKULANANDA MOHANTY AND ORS. VS. MURALIDHAR MALLIK [LAWS(ORI)-1978-12-8] [REFERRED TO]
SURESH NAGAR VS. STATE OF MAHARASHTRA [LAWS(BOM)-2007-6-265] [REFERRED]


JUDGEMENT

- (1.)THE expression "it appears to the Magistrate that offence complained of is triable exclusively by the Court of Session" appears twice, once after the proviso to sub-clause (2) of S. 202 and again in the first paragraph of S. 2. 09. According to S. 202 once it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he has to call upon the complainant to produce all his witnesses and examine them on oath. Section 209 provides that when the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session he shall commit the case to the Court of Session. A question which arises in this context is whether the expression "and it appears to the Magistrate that the offence is triable exclusively by the Court of Session" confers any discretion upon the Magistrate or he has to commit the accused to Session without any further consideration. If he is not endowed with any power of discretion under S. 209 then it would mean that once under S. 202 it appears to him that the offence complained of is triable exclusively by the Court of Session the next steps of examining the witnesses and calling upon the accused to appear and committing the case to the Session become automatic processes. If that is so and no discretion altogether is meant to be conferred upon the Magistrate the expression in S. 209 "and it appears to the Magistrate that the offence is exclusively triable by the Court of Session" will have no meaning (so far as the cases not instituted upon police report are concerned) except to read it as reproduction of the language used in S. 202 by way of description of the nature of the case before the Magistrate. In other words, it would mean that when the accused is brought to the Magistrate and the case is of the particular description as mentioned earlier in S. 202 there will be automatic commitment to the Court of Session. The phrase "appearing to the Magistrate" by itself, it may be argued, must involve some consideration. In that view even after the Magistrate decides at the initial stage to call upon the complainant to produce his witnesses he would once again be invested with the discretion for a second time before he commits. The second view seems to be in accord with the intention of the legislature which is to be gathered from what it has chosen to indicate either in express words or by reasonable and necessary implication. We may refer in passing to the notes on clauses of S. 202 but it should be noted that the statement of object and reason as such are to be excluded from consideration in construing an Act as unlike preamble and headings they form no part of the Act itself (see Central Bank vs. The Workmen, reported in A. I. R 1960 S. C. 12 ). But the same can of course be referred to for the limited purpose of ascertaining the conditions prevailing at the time which accused the sponsors of the bill to introduce the same. (State of West Bengal vs. Subodh Gopal, reported in A. I. R. 1954 S. C. 104 ; Ranganathan vs. Government of Madras, reported in A. I. R. 1955 S. C. 604 ; Commissioner of Income Tax v. S. S. Debi, reported in A. I. R. 1957 S. C. 832 ). Cl. 214 (S. 209) : -.
"preliminary inquiries by Magistrates in cases exclusively triable by the Court of Session are being dispensed with as such an inquiry has served no useful purpose and, on the contrary, it involves a great deal of anfractuous work causing delay in the trial of serious cases. The abbreviated form of inquiry provided for the amendments made in 1955 and contained in Section 207 A has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems created fresh problems. Preliminary inquiries are, therefore, being dispensed with in cases triable by a Court of Sessions. However, to perform certain preliminary functions like granting copies, preparing the records, notifying the public prosecutor, etc. provision is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the Court of Session. As regards private complaints in cases triable exclusively by a Court of Session the inquiry into the complaint by the Magistrate under the existing section 202 will serve the purpose of a preliminary scrutiny. "

(2.)FROM the scheme of the new Act, from the numerous important departures made from the old procedure and other considerations mentioned herein the aforesaid view seems to be supported. It is to be noted that departure has been made from the old procedure in which commitment used to be of an accused but under the new Code commitment is contemplated only of a case. The difference emphasises that while in the old code commitment was final under the new Code it is not so. It is now open to the Sessions Court to discharge the accused under S. 227. Under the new scheme the power to ascertain and come to a decision by the exercise of discretion to discharge the accused is now conferred upon the Sessions Judge alone. In that context recording of witnesses by the Magistrate at the initial stage seems to be merely a preparatory stage. The scheme of the new procedure and the rational behind it is also apparent when it is taken note of that some important aspects of the old procedure have been done away with, e. g. (1) Enquiry before committal ; (2) Classification of cases which would be tried concurrently by Magistrates and Sessions Court; (3) Recording of statement of the accused ; (4) Power of discharge of the accused by the Magistrate ; and (5) The Magistrate's power of framing charges.
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