B.S. Dhillon, J. - (1.) THIS reference has been made by the Additional Sessions Judge, Karnal, - -vide his order dated 18th May, 1978, under Sub -section (2) of Section 395 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code).
(2.) BRIEFLY stated, the facts giving rise to this reference are that the police filed a challan under Sections 324 and 323 of the Indian Penal Code against the Respondents. In a cross -case, which resulted from the same incident, the other side was charged with an offence under Section 302 of the Indian Penal Code in addition to the other offence. Consequently, the cross -case being exclusively triable by the Court of Session, was committed to the Court of Session. When the challan was presented before the Sub -Divisional Judicial Magistrate, Panipat, in which the Respondents are the accused, he, - -vide his order dated 24th March, 1978, committed this case to the Court of Session on the ground that the cross -case which resulted out of one and the fame occurrence, was being tried by the Court of Session as the same was exclusively triable by the Court of Session. The learned Additional Sessions Judge has made a reference to this Court recommending that the order of commitment be quashed on the ground that the offences for which the Respondents were being charged were not exclusively triable by the Court of Session. The learned Additional Sessions Judge has made reference to a Single Bench decision of the Lahore High Court in Emperor v. Karam Singh : A.I.R. 1930 Lah 312 and a Single Bench decision of this Court in State of Punjab v. Gurmukh Singh and Anr., 1973 G.L.R. 59, for coming to the conclusion that under the provisions of Section 323 of the New Code the words "ought to be tried" should be construed to be exclusively triable. I have carefully gone through the provisions of the New Code and find that it is not possible to give such an interpretation. The provisions of Section 209 of the New Code are as follows: 209. When in a case instituted on a police report or otherwise, 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, be shall: (a) Commit the case to the Court of Session; (b) Subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of the trial; (c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) Notify the Public Prosecutor of the commitment of the case to the Court of Session. The provisions of Section 323 of the New Code are as under: 323. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions herein before contained.
(3.) AS regards the provisions in the Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code), it is quite significant that the procedure for commitment proceedings was different and therefore, elaborate procedure was provided in Chapter XVIII of the Old Code. Sections 205 and 207 of the Old Code were in the following terms - - 206 (1) Any Chief Judicial Magistrate or a Judicial Magistrate of the first class or any Judicial Magistrate of the second class empowered in this behalf by the High Court, may commit any person for trial to the Court of Session or High Court for any offence triable by such Court. (2) But, save as herein otherwise provided, no person triable by the Court of Session shall be committed for" trial to the High Court. 207. In every inquiry before a Magistrate where the case is triable exclusively by a court of Session or High Court, or, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall: (a) in any proceeding instituted on a police report, follow the procedure specified in Section 207 -A, and (b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter.;