S.S.GREWAL, J. - (1.) WHILE hearing the bail application of Brij Mohan alias Vijay petitioner, it has come to my notice that Shri Rajinder Kumar Bishnoi, Chief Judicial Magistrate, Rohtak himself proceeded with the trial of the case after framing charge under Section 39 of the Indian Penal Code against the petitioner and his co-accused Tilak Raj. The bail application itself reveals that FIR No 758 relates to commission of offence under Section 392 IPC as well as under Sections 397, 398 read with Section 34 of the IPC. Perusal of the said FIR also reveals that one of the culprits was armed with a knife and he had kept that knife on the neck of Jai Parkash, first informant and the latter was told that he should-hand over whatever he had. Thereafter the first informant is said to have handed over two notes of rupees one hundred each to the culprits. Without following proper procedure for commitment of the case, the Chief Judicial Magistrate proceeded with the trial of the case himself, after framing charge under Section 392 of the IPC.
(2.) EXPLANATION of the Chief Judicial Magistrate, Rohtak was sought wherein he has tried to justify his action on the ground that the FIR had only been registered under Section 392 of the IPC and that offences under Sections 397 and 398 of the IPC were mentioned below Section 392 IPC in the report under Section 173 of the Code of Criminal Procedure. This according to him appears to be a later addition. The aforesaid facts leave no manner of doubt that the Chief Judicial Magistrate has committed a grave error in not following the proper procedure for commitment of the case instituted on police report even though the offences under Sections 397 and 398 IPC are exclusively triable by the Court of Sessions and not by a Magistrate. It was, thus, obligatory for the Chief Judicial Magistrate to commit the case to the Court of Session as contemplated under Section 209 of the Code of Criminal Procedure, 1973. He could not himself decide as to whether the accused had committed any offence under Sections 397 and 398 IPC, or not. This was the prerogative of the Court of Session, which, after commitment of the case could proceed with trial, according to law. In case the Court of Session was of the opinion that the accused had not committed any offence which was not exclusively triable by the Court of Session then it could proceed under Section 228 of the Code of Criminal Procedure, 1973 and could remit the case to the Chief Judicial Magistrate for trial. In case the Court of Session was of the view that offence was exclusively triable by it could frame charge and proceed with the trial according to law. In view of the facts and circumstances referred to above it would be desirable in the interest of justice to rectify this error by exercising inherent jurisdiction of this Court. Since the Chief Judicial Magistrate has not followed the correct procedure and proceeded with the trial of the case illegally, the proceedings already taken by him including framing of the charge under Section 392 IPC against the petitioner and his other co-accused are directed to be set aside and the Chief Judicial Magistrate, Rohtak is directed to commit the case to the Court of Session, who, would then proceed with the case, according to law.
(3.) THE occurrence is, alleged to have taken place more than a year back and the trial of the petitioner has been unnecessarily prolonged because of error committed by the Chief Judicial Magistrate, referred to above. Brij Mohan petitioner is directed to be released on bail to the satisfaction of Chief Judicial Magistrate, Rohtak. Copy of this order be sent to the Chief Judicial Magistrate, Rohtak as well as to Sessions Judge, Rohtak for compliance. Copy of this order be sent to the Registrar of this Court and placed on the personal file of Shri Rajinder Kumar Bishnoi, Chief Judicial Magistrate, Rohtak. Order accordingly.;