- (1.) SHRI Sukhdeo Mirdha, the Sessions Judge of Partapgarh, has submitted this reference for quashing an order of commitment made by the Sub-Divisional Magistrate of Begun, dated the 26th April, 1960. The accused in the case have been thereby committed for trial under various sections of the Indian Penal Code, including sec. 304. They are all police officials. One of the accused Ram Murti was Sub-Inspector Police at Nimbahera Police Station at the relevant time and the other four accused were then serving as constables under him.
(2.) ON 24th March, 1960 a report was lodged at that Police Station about a theft of 13 seers of opium from the house of one Ramchandra Kumawat. ON that report, a case under secs. 454 and 380 of the Indian Penal Code was registered. ON the same date one Padamchand was arrested in connection with that case and it is said that 8 seers of opium was recovered from his possession. The case of the prosecution further is that from Padam Chand the police officers learnt that the rest of the opium was with one Mulchand Soni having his shop at village Badi. Mulchand was then sent for at Police Station, Nimbahera, on 26th March, 1960, for interrogation. It is said that he was detained at the Police Station for the whole of that night. ON the following morning, he was taken to village Badi by the five accused and on interrogation, it is said, that Mulchand informed them that opium was lying concealed in his house underneath a chair. A search was made but nothing was found. ON this, Mulchand was given a beating by the accused and he was asked to point out where the opium actually lay concealed. Mulchand is then said to have made another statement but on that statement also, nothing was recovered and a fresh beating followed by the accused persons. Mulchand then said that the opium was in his shop. The shop was then scarched but again nothing was recovered and then, it is said that at his instance one Likhmichand was called and some opium was recovered from him. It is further stated that Mulchand was again beaten by the five accused because the rest of the opium had still not been recovered. He was then put in a cart and taken to a Chowki in the village where again he received beating but no opium could be recovered. Due to these repeated beatings the condition of Mulchand worsened. Head Constable Shridhar was then sent to Nimbahera and a jeep in the use of the Deputy Superintendent Police was obtained from there. Mulchand was put in that jeep and taken to Nimbahera, evidently for the purposes of medical assistance, but no doctor was available and it is said that by the time Mulchand reached the Hospital there was no life left in him. Accused Ram Murti along with the other accused Shri Kishansingh and Shri Manoharsingh then took the body of Mulchand in the same jeep towards Javad, a place in the Madhya Pradesh. Somewhere near the court building in Javad at the instance of Ram Murthi accused Kishansingh and Manoharsingh took out the body of Mulchand from the jeep and went away with the body saying that they were going to hand it over to his relatives. They returned after an hour and said that the body of Mulchand had been entrusted to his relatives and the jeep then returned with the accused to Nimbahera. As Mulchand did not come back from the custody of the police officers there was an agitation in Nimbahera on 1st April, 1960. A report was lodged at the Police Station by Udairam, the husband of the sister of the wife of Mulchand, in which it was stated that Mulchand had been mercilessly beaten to death by the accused. ON that report, a case was registered and after investigation, the accused were put up on trial under sec. 302 Indian Penal Code. In the course of the investigation it was found that the dead body of Mulchand was lying in a well in Madhya Pradesh and the allegation that it had been given to the relatives of Mulchand was false. The post mortem of the dead body also revealed that death had taken place due to the rupture of the spleen. The accused denied having committed any offence but the Magistrate after recording evidence of the prosecution witnesses in the case and hearing the accused, framed charges against them under various sections of the Indian Penal Code including secs. 304 and 201. It is against this order of commitment that the learned Sessions Judge has made the reference. It is observed by the learned Sessions Judge that the Magistrate was in error in not examining two of the eye witnesses Padamchand and Mulchand, who were also mentioned in the list of witnesses filed along with the challan; and since these witnesses had not been examined, the order of commitment was illegal. He has referred to certain decisions of this Court in support of his submission that it was necessary for the Magistrate to examine all the eye witnesses before any charges could be framed against the accused. It appears that the committing Magistrate before framing the relevant charges had already examined a number of other material witnesses on behalf of the prosecution. Sub secs. 4 and 7 of sec. 207-A provide that where the Magistrate has taken evidence of such persons as are produced by the prosecution as witnesses to the actual commission of the offence alleged, and examined any documents produced, and after such examination has given the prosecution and the accused an opportunity of being heard, then if the Magistrate is of opinion that the accused should be committed tor trial, he is entitled to frame charge under his hand, declaring the offences of which the accused is charged. On the face of the section itself, there is nothing to show that the Magistrate is bound to examine all the eye witnesses in the case before he makes up his mind to frame the relevant charges against the accused. Speaking for myself, I felt therefore much hesitation in agreeing with the observation made in the decisions of this Court; and if it were necessary, I would have made a reference to a larger bench for a consideration of the point. The matter, however, appears to be concluded by the decision of the Supreme Court in Shri Ram and Dayaram Vs. The State of Maharashtra decided on 5th December, 1960, where their Lordships postulated the following propositions - " (1) In a proceeding instituted on a police report, the Magistrate is bound to take evidence of only such eye witnesses as are actually produced by the prosecution in Court. (2) The Magistrate, if he is of opinion, that it is in the interest of Justice to take evidence, whether of eye witnesses or others, has a duty to do so. (3) If the Magistrate is not of that opinion and if the prosecution has not examined any eye witnesses, he has jurisdiction to discharge or commit the accused to sessions on the basis of the documents referred to in sec. 173 of the Code. (4) The discretion of the Magistrate under sub-sec. (4) is a judicial discretion and, therefore, in appropriate cases the order of discharge or committal, as the case may be, is liable to be set aside by a superior court. " There is nothing to show that the Magistrate did not exercise a proper discretion under sub secs. (4) and (7) of sec. 207-A in framing the relevant charges against the accused and in committing them for trial before the sessions court. The ground therefore, suggested by the learned Sessions Judge, fails. The other ground, to which the learned Sessions Judge refers, is somewhat peculiar. He seems to assume as if he were sitting on appeal on the judgment of committing Magistrate and he has taken pains to go into details of the evidence in order to show that the charges trained by the Magistrate could not be sustained. The learned Sessions Judge ought to have realised that that was not the stage for him to consider the evidence in the case. All that he had to see was whether there was prima facie material on which the learned Magistrate could exercise his judicial discretion in framing the charges that he did. It may be that when the matter is investigated by the sessions court and evidence is led in detail, some of the charges may be found to be baseless or even the accused may be entitled to acquittal because the prosecution case is not established. But that is far from saying that the material which was before the learned Magistrate did not prima facie justify the charges framed. The learned Judge points out that in his opinion the facts found did not amount to an offence under sec. 304 of the Indian Penal Code, and the utmost that could be said is that offences under sec. 330 and 348, Indian Penal Code, had been committed by the accused which offences were triable by the court of session. Even so, the order of commitment is justified; and it was for the Sessions Judge trying the case, after hearing the parties, to modify the charges or frame additional charges, if necessary. Even on a review of the evidence as given by the learned Sessions Judge, it is difficult to uphold the theory advanced by him that a charge under sec. 304 of the Code could not have been framed by the Magistrate. It is unfortunate that the time and labour of the learned Judge have been completely mis-spent in making the reference to this Court. I wish he had carefully applied his mind to the relevant provisions of sec. 207-A and to the fact that he was not sitting in appeal at that stage on the order of commitment passed by the learned Magistrate. In view of his preconceived notions of the evidence, I would have thought it proper to transfer the case from his Court for trial by some other Sessions Judge, but since the learned Sessions Judge has been transferred already from Partab-garh, the trial can safely proceed before his successor. I, accordingly, discharge the reference and direct that the trial should proceed on the commitment made by the Magistrate in respect of the various charges mentioned by him. It would be open to the learned Sessions Judge to modify or amend the charges as he thinks proper. .;