Davinder Singh Lamba, J. - (1.) THE facts of the case are as under: - -This Kishan Singh accused had been employed as District Nazir (public servant) in the office of the Deputy Commissioner, Rohtak during the period from 8th January, 1965 to 14th July, 1965 During the period he in his capacity as such public servant is said to have been holding the charge of the Malkhana. The accusation against him is that he during the period in his capacity as such public servant committed breach of trust of 16 kilograms of Sugar and two drums of the value of about Rs. 150/ -. It has been claimed that the articles had been in deposit in the Malkhana and had been under the charge of this accused. His prosecution in this regard under Section 409 of the Indian Penal Code was launched in the Court of Shri K.L. Nagpal, Chief Judicial Magistrate, Rohtak After charge report had been put in Shri Nagpal commenced trial as a warrant case and framed charge for the offence under Section 409 of the Indian Penal Code on 9th April, 197. That charge shows that the offence is triable by him. After this no progress was made in the case until Shri P.L. Sanghi, successor of Shri K.L. Nagpal, recorded the statement of an expert witness on 10th August, 1971. At this the hearing was adjourned to 16th August, 1971. At this the hearing was adjourned to 16th August, 1971 and then to 20th August, 1971. The record does not indicate for what purpose those two adjournments were given. It was on (sic)th August, 1971 that all of a sudden and without giving any intimation to the accused Shri P.L. Sanghi committed the accused to the Court of Sessions for standing his trust for the offence and framed a fresh charge for the offence showing that the case is triable by the court of Sessions.
(2.) BEFORE I commenced the trial of the case the accused has made an application before me showing that the order of commitment is illegal and is liable to the quashed for the following reasons: - - (a) He was not given any intimation by the Chief Judicial Magistrate that he intended to commit the case to the Court of Sessions; (b) No reason has been given for passing the order of commitment; (c) After passing the order of commitment the procedure contemplated by Chapter 18 of the Criminal Procedure Code was not followed. It may be stated that the prosecutor has not opposed that application and himself says that the order of commitment is illegal for the aforesaid reasons and liable to be quashed. On behalf of the accused reliance has been placed on the Full Bench decision of the Allahabad High Court in Rex v. Motolay : (AIR. 1949 Allahabad I) which at the end of page 10 declares as under: - - To sum up, in my judgment, a Magistrate otherwise competent, may commit any person for trial to the Court of Sessions or the High Court for any offence; but he must give adequate reasons for committing a person for an offence which is not exclusively triable by the Court of Sessions or the High Court. In (Chetan Sarup Gupta v. State of Delhi, (1966) 68 PLR D. 61), three persons were prosecuted for forging and fabricating documents of pledge in pursuance of criminal conspiracy and for having induced the State Bank of Bikaner to part with a sum of Rs. 3,16,735.20p. The Magistrate without commencing trial and without assigning any reason committed the three accused to the court of Sessions. On those facts Hon'ble Mr. Justice Shamsher Bahadur quashed the order of commitment. His Lordship has been pleased to hold that Section 347 of the ' ode of Criminal Procedure empowers a Magistrate of competent jurisdiction to commit a case for trial by the Court of Sessions at any time before signing the judgment and if the proceedings had begun as in a warrant case and the Magistrate at a subsequent stage was of the opinion that the case should be committed to the Court of Sessions in view of the provisions of Section 347(1) of the Code he is bound to follow the procedure laid down in Chapter 18 of the Code. According to his Lordships where the Magistrate did not intimate to the accused at any stage and also did not record any evidence for the prosecution at any stage the order of commitment has to be quashed. His Lordships has relied on, 1959 S.C.R. 736 (Chhadmal Lal Jai and others v. The State of U.P.) Among other things their Lordships of the Supreme Court with reference to Section 347(1) of the Code have been pleased to declare that while exercising powers thereunder the Magistrate may not begin over again from the beginning, but he must see that when he decides that the case ought to be committed he informs the accused in that behalf and sees that the provisions of Chapter 18 of the Code are complied with upto the stage at which he decides that there ought to be commitment.
(3.) SECTION 34(1) of the Code lays down as below: If in any inquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Sessions or High Court, and if he is empowered to commit for trial he shall commit the accused under the provisions herein before contained. In committing the accused to this court for the offence the leaned Chief Judicial Magistrate has seemingly exercised powers under Section 347(1) of the Code. Nevertheless, he has nowhere said that he shall not be able to punish the accused adequately for the offence. Nor can there by any standard for saying that the Chief Judicial Magistrate can not adequately punish a public servant for having misappropriated property of the value of about Rs. 150/ -. I am told that there are as many as 40 cases of this nature against this accused. All of them have been committed by the Chief Judicial Magistrate to the Court of Sessions for similar reason. The only reason for passing the commitment order given by the Chief Judicial Magistrate is that this case is an off -shoot of other cases. This reason is neither there nor there. It is not known which of the cases is the main one and others are its off shoot. It is incomprehensible that all those cases can be the off shoot of any one of them. There is no indication whatever which of those cases is the main one and the others are its off -shoot. It may be stated that applications seeking that the orders of commitment may be quashed in all those cases have been received and that all those applications have been conceded by the prosecutor. In my opinion the learned Chief Judicial Magistrate could have tried all the cases including this one and adequately punish the accused in each of them. In each of those cases properties of very low value are involved. As a matter of factly the learned Chief Judicial Magistrate has nowhere said that he will not able to punish the accused adequate in this case on any of the other cases.;