K. S. LODHA, J. - (1.) THIS is a complainant's revision against the order of the learned Sessions Judge, Churu, dated 20. 9. 83 by which he framed charges u/ss 147, 148, 447, 323 and 325 read with 149 I. P. C. against the non-petitioners and sent the case back to the learned Chief Judl. Magistrate for trial. The objection of the complainant is that this case need not have been sent back by the learned Sessions Judge to the learned Chief Judl. Magistrate but should have been tried by him as the learned Magistrate had committed this case to him u/s 323 Cr. P. C. , although it may not have been exclusively triable by a Court of Sessions. The ground on which the learned Sessions Judge refused to retain the case on his file and sent it back to the Chief Judl. Magistrate was that u/s 228, the Court of Sessions can try only those cases which are exclusively triable by that court. He was further of the view that before the coming into force of the amended Criminal Procedure Code of 1973, this may not have been the position but now section 228 Cr. P. C. clearly lays down that Court of Sessions shall proceed with the trial only if the case is exclusively triable by it. The Court has not disagreed with the learned Magistrate on the finding that the case was one which ought to be tried by the Court of Sessions since the cross case arising out of the same incident had been committed to it and was exclusively triable by it.
(2.) I have heard the learned counsel for the parties and the learned p. p. I am of the opinion that the view taken by the learned Sessions Judge does not appear to be correct inasmuch as even under the Criminal Procedure Code of 1973, section 323 clearly empowers a Magistrate to commit a case for trial to the Court of Sessions even though it may not be exclusively triable by that Court. Section 323 Cr. P. C. reads as under :- "323. Procedure when, after commencement of inquiry or trial. Magistrate finds case should be committed.- 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 Sessions, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made. " The words "case is one which ought to be tried by the Court of Sessions" have to be marked. This section does not say that only those cases which are exclusively triable by a Court of Sessions, have to be thus dealt with because for that purpose the provision of sec. 209 are already there. Therefore, when a Magistrate can commit even such a case also which is not exclusively triable by a court of Sessions to the Court of Sessions u/s 323 Cr. P. C, the Sessions Judge will certainly have power and jurisdiction to try such a case if he also is of opinion that the case is one which ought to be tried by him and not necessarily one which is exclusively triable by him. Of course, if he finds that the case is not one which ought to be tried by him and if he disagrees in this respect with the view of the committing Magistrate, he may send the case back as provided u/s. 228 (1 ). If on the other hand, he agrees with the Magistrate that the case is one which ought to be tried by the Court of Sessions, he need not send it back to the magistrate but proceed with the trial. It will be convenient here to reproduce s. 228 Cr. P. C, which is as under: "228. Framing of charge.- (1 If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Sessions, he may frame a charge against the accused and by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writting a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. " It may be noted that under clause (a) of sub section (1) of section 228, the words used are is not exclusively triable by the Court of Sessions, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate. The provision thus is in a directory form and not in a mandatory form. It does not say that a Court of Sessions in such circumstances shall transfer the case to the Chief Judicial Magistrate. It only authorises him to do so if he so chooses. But if he does not transfer the case and wants to retain the same, clause (b) of this sub-section would not come in his way. Clause (b) refers only to the case which is exclusively triable by a Sessions Judge. In that case, he has no option to send it back to the committing Magistrate or the Chief-Judicial Magistrate but he has an option so far as the cases which are not exclusively triable by him but have been committed to him u/s 323 Cr. P. C. The learned Sessions Judge has been carried away by the mandatory nature of clause (b) of sub-section (1) of section 228 Cr. P. C. but he has not applied his mind to sub-clause (a) thereof. If the learned Sessions Judge only retains those cases which are exclusively triable by him and cannot entertain and proceed with the cases, which have been committed to him u/s 323 Cr. P. C. and which are not exclusively triable by him, the very purpose of section 323 Cr. P. C. would be frustrated. There may be cases which are triable by both a Magistrate as well as a Court of Sessions. The Magistrate may be of the view that looking to all the facts and circumstances of the case, he may not be in a position to award adequate punishment to the accused and, therefore, he may think it necessary to commit the case for trial to the Court of Sessions although it may not be exclusively triable by it. There may be also cases arising out of the same incident against different parties. The case against one party may be regarding offences exclusiv-ely triable by a Court of Sessions and the case against the other party may not be so exclusively triable by the Court of Sessions and may be triable by a Mag-istrate only. However, in the interest of justice, it is proper that both type of cases arising out of the same incident, be heard by the same court. Now if he view taken by the learned Sessions Judge that the Court of Sessions cannot entertain cases which are not exclusively triable by it, is to be adheard to then such cases cannot be tried by the same court because in that event the Court of Sessions will not be able to entertain those cases which are not exclusively triable by it and the Court of Magistrate cannot entertain those cases, which are exclusively triable by the Court of Sessions.
(3.) LOOKING to this situation, the only harmonious interpretation given to section 228 in the light of section 323 Cr. P. C. would be that if a Magistrate finds it necessary to commit a case not exclusively triable by the Court of Sessi-ons but which ought to be tried by the Court of Sessions and the Sessions Judge also agrees with that view, the Sessions Judge will have power to try that case and he would not be bound to send it back to the Chief judicial magistrate In this connection, the view taken by the different High Courts in Girijananda v State of Assam (1), State v. Soagenskhara Kurup (2) and State of M. P. vs. Madho Ram (3) appears to be relevant. For the reasons stated above, I am clearly of the opinions that the learned Sessions Judge should not have sent this case back to the Chief Judicial Magistrate. The distinction drawn by him regarding the authorities cited before him on the ground that such a course was possible only before the amended Criminal Procedure Code came into force, does not appear to be correct beca-use the position holds good even now. I, therefore, accept this revision, set aside the order of the learned Sessions Judge and direct him to proceed with the trial himself. . ;