M. L. SHRIMAL, J. - (1.) HEARD learned counsel for the petitioner and the learned Public Prosecutor on behalf of the State.
(2.) THE first contention raised by the learned counsel for the petitioner has already been repelled by this Court's order, dated October 23, 1978. Hon'ble Sidhu J. has held that the accused-petitioner is not below 16 years of age. THEre is nothing on the record to revise that finding, as the material in both the cases is the same. I do not feel persuaded to agree with the second contention raised by learned counsel for the petitioner. The contention is that learned Magistrate, before whom the challan had been filed, had had no jurisdiction to remand the accused under Sec. 209, Cr. P. C. The only function which he was to perform was to commit the accused to the Court of Sessions and this ought to have been done within 60 days of the arrest of the accused. The above view expressed by me finds support from a Division Bench decision of this Court delivered in Swaroop Singh vs. State of Rajasthan (1) to which I was a party. In that case, the then Chief Justice while dealing with the same point as raised before me observed as under : - "the arguments advanced by Mr. Bhimraj, if accepted, can create situations which may result in absurdity. Suppose for one reason or the which are beyond the control of the presiding officer if the Magistrate cannot complete his study of papers produced before him under Sec. 207 of the Code then according to Bhimraj he cannot postpone the case even for the next date without releasing the accused howsoever dangerous to the society he may be, because according to him a Magistrate has no power to remand the accused to custody unless commitment order has been passed. This argument is based on an erroneous construction of the provisions of sec. 309 (2) of the Code and this anomaly can be solved only by holding that the proceedings taken by a Magistrate under sec. 209 is nothing but an "inquiry" as envisaged by the Code for committing the accused to the court of Sessions to stand his trial in Sessions cases. " Similar view has been taken by a Division Bench of this Court in Dau Dayal vs. The State of Rajasthan (D. B. Criminal Writ Petition (Habeas Corpus) No. 871 of 1978, decided on December 20, 1978), wherein their Lordships have after considering ratio decidendi of Sanjay Gandhi vs. The Union of India (2) observed as under : - "a perusal of Section 209 of the Code will show that no period is fixed under which the case should be committed to the Court of Sessions when the offence is exclusively triable by it. The ruling Sanjay Gandhi vs. The Union of India (2) does not apply to the instant case. No doubt, in the ruling it has been enjoined that committal proceedings should be expedited, but has not been held that if there is delay in committing the accused to the Court of Sessions, then the detention of the accused from the date of cognizance by the Magistrate till he is committed to the Court of Sessions is unlawful. " It will be profitable to note here that the learned Magistrate dealing with the case ought not to have adjourned the case for a long time. When the case relates to an offence triable by a Court of Sessions the proceeding will take a simple form. He has to perform only certain preliminary functions like granting copies, preparing records notifying the Public Prosecutor etc. and formally commit the case to the Court of Sessions. The Magistrate has a narrow function to discharge. He is required to look at the case merely to as certain whether the case as disclosed by the police report appears to him to show an offence triable solely by the Court of Sessions. Assuming the facts to be correct as stated in the police report, if the offence is plainly one which is triable by the Sessions Court, only he has simply to commit for trial before the Court of Sessions, if, by error a wrong section of the Penal Code is quoted, he may look into that aspect. But that never means that he should go on adjourning the case. The learned Magistrate has shown lock of promptness in keeping the case with him for so long a time. It is expeced of him to at least go through the authoritative pronouncements made by Hon'ble the Supreme Court. The observations made in Sanjay Gandhi vs. Union of India (supra) and above noted cases of this Court provide sufficient guide line for the Magistrate to commit the cases without loss of time.
(3.) MERE allegations of mala fides by the offender against the police and a vehement claim of innocence put forward by the learned counsel are manifestly insufficient for arriving at the conclusion that the accused is innocent. Prima facie the chain of evidence relied upon by the prosecution is complete. Each of the circumstance when considered individually can be explained by citing a variety of acceptable answers, but such circumstances cannot be considered in water tight compartments. The totality of the circumstances relied upon by the prosecution are required to be seen. It would be too much to say at this stage that there is no evidence against the accused. No doubt, at the final stage of the case a stricter proof will have to be applied, for judging the guilt of the accused with reference to the various circumstantial evidence against him. I will like to caution that nothing which may have to be said in support of my order it meant and should be understood to prejudice in the least the case of either party at the trial. The bail application is rejected. Learned Magistrate is directed to complete the committal proceedings within seven days from the date of the receipt of the copy of this order by him. . ;