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Bombay High Court
Emperor vs Mahamad Khan Rajakhan Pathan on 3 December, 1908
Equivalent citations: 1 Ind Cas 104
Author: Chandavarkar
Bench: Chandavarkar, Heaton


Chandavarkar, J.

1. It is very much to be regretted that this case, which could have been dealt with by the First Class Magistrate, who tried it in the first instance, was committed by him to the Sessions Court. The charge originally had been of an offence tinder Section 409, Indian Penal Code, but the Magistrate added one under Section 477A of the Indian Penal Code without any solid ground for the addition and any reasonable support for it in the evidence. It appears as if the addition was made to enable the Magistrate to commit the case to the Sessions. At any rate that is the conclusion forced on the mind of this Court by the circumstances of the case. A practice of this kind must be deprecated, because it throws on Sessions Courts the burden of trying cases which can well be tried and disposed of by Magistrates of the First Class. This Court has noticed of late several cases in which Magistrates have added charges apparently for the purpose of enabling them to commit those cases to the Court of Session without any reasonable ground for the addition. The law no doubt gives a discretion to Magistrates empowered to commit cases to the Sessions Court to decide whether a certain case calls for such committal, but the discretion, being judicial, must be exercised with care and on some proper ground. If a Magistrate thinks that a case not exclusively triable by the Court of Session must be committed, he must state his grounds in the order so as to enable this Court to judge whether the committal is a sound exercise of the discretionary power. But to add the charge of an offence exclusively triable by a Sessions Court for the mere purpose of committing it to that Court is an unsound and improper exercise of that power.

2. Here the charge under Section 477A of the Indian Penal Code was improperly added by the Magistrate because the tampering with the record by the accused was for the purpose of concealing his offence under Section 409 of the Code.

3. Passing now to the merits of the case we think that the evidence is clear and brings home to the accused the offence charged against him. It is difficult to understand the grounds on which the jury found the accused not guilty. We accept the opinion of the learned Sessions Judge and convict the accused under Section 409 of the Indian Penal Code, and sentence him to rigorous imprisonment for three months.

Heaton, J.

4. I agree to the proposed order. And as occasion has arisen to comment on the cases committed by the Magistrates to the Sessions Court, I should like to add this. Section 210 of the Criminal Procedure Code lays down that when the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged. That is to say it is left to the discretion of the Magistrate to determine whether a particular case should be committed or not. So far as I know there is nothing anywhere in the law which compels the Magistrate to frame that charge, which on the most heinous view of the circumstances indicated by the evidence, is the gravest possible charge. The law leaves it to the Magistrate to take a broad and common sense view of the facts and to determine for himself whether the correct charge to frame is or is not one which necessitates a trial in the Court of Session.

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