ORDER
Muneshwari Sahay, J.
1. This application is directed against the order of the learned Second Additional Sessions Judge Dar-bhanga dated 22nd Nov. 1975 by which he allowed the criminal revision application and directed the Chief Judicial Magistrate, Madhubani to commit the petitioners to face their trial before the Court of Session for an offence under Section 366 of the Indian Penal Code.
2. The facts relevant for the purpose of this case are shortly these:
On 5th Dec. 1972, one Chhatradhari Prasad Singh husband of Mahari Devi filed a complaint before the Sub-divisional Magistrate, Madhubani alleging that the petitioners had abducted his wife with the intention of grabbing her properties and for sexual offence and also for giving her in marriage to someone else for which preparations were being made. The complainant alleged further that Mahari Devi was kept concealed in the house of petitioner No. 1 Jagdish Das. The learned Sub-divisional Magistrate sent a copy of the complaint to Khajauli Police Station for institution of a case where Khajauli P. S. Case No. 5 (12) 72 was instituted. During the investigation Mahari Devi was said to have appeared at the police station where she made her statement to the effect that she had not been abducted and that she had voluntarily gone away with petitioner No. 1, Her statement under Section 164 of the Cr. P.C. was recorded on 7th Dec. 1972, where she repeated her statement which she had made before the police. Mahari Devi had been taken into custody, but she was released on 21st Dec. 1972, when she presented a complaint before the Sub-divisional Magistrate. That complaint petition as well was sent to Khajauli police for institution of a case and Khajauli P. S. case No. 6 (1) 73 was registered on its basis, in her complaint Mahari Devi alleged that the accused persons had gone to her house on 24-11-1972 and represented to her that her husband was ill and, therefore, it was necessary for her to go where her husband was lying ill. She was thus induced to leave her parents house for her husband’s place. The petitioners, however, did not allow her to go to her husband’s house and instead they took her to the house of petitioners Nos. 1 and 2. The petitioners also pressed her to take another husband, but she successfully defied the pressure. She was, however, kept in wrongful confinement and her thumb marks were taken on blank stamped papers. The petitioners also threatened to murder her and under this threat they took her to Madhubani Court where she was made to give statement exonerating the petitioners.
3. The police submitted chargesheet against the accused persons, one instituted by the husband of Mahari Devi and the other instituted by Mahari Devi herself and cognizance was taken against the petitioners. The petitioners moved this Court in Criminal Revision Nos. 1724 and 1725 of 1973, which were dismissed by Madan Mohan Prasad, J., with the observation that the learned Magistrate will consider the prayer for amalgamation of both the cases. It was thus that the two cases came to be amalgamated.
4. On 6th June 1974 the petitioners made a prayer before the court below either to discharge them or to adopt the procedure of warrant trial, as according to them, the allegations made against them did not make out an offence under Section 366 of the I.P.C. which was the only offence triable exclusively by a Court of Session. The other offences alleged against the petitioners were triable by a Magistrate. The learned Magistrate on the basis of the materials before him including the case diary did not accept the prayer of the petitioners and fixed 27th July 1974 for order on commitment matter under the provisions of the Cr. P.C. 1973. The petitioners again moved this Court in Criminal Misc. No. 1835 of 1974. The application was dismissed by D. P. Sinha, J. with an observation that the Magistrate had not till then passed any order of commitment. In the circumstances the petitioners should have ample opportunity to argue before him as to whether a case for commitment to the Court of Session had been made or not.
5. The learned Magistrate in view of the aforesaid order heard the petitioners again and held in his order dated 27th Aug. 1974 that no prima facie case under Section 366 of the I.P.C. was made out against the petitioners. A revision application was filed against that order before the learned Sessions Judge, Darbhanga which was heard by the learned Second Additional Sessions Judge. The learned Additional Sessions Judge came to the conclusion that the learned Magistrate had no jurisdiction under Section 209 of the Cr. P.C. 1973 to sift the evidence to come to the conclusion that no prima facie case under Section 366 of the Indian Penal Code was made out against the petitioners. He was of the view that the only order that the learned Magistrate could have passed was to commit the case to the Court of Session. It is against this order that the petitioners have now come up to this Court.
6. Learned counsel for the petitioners has urged one point in support of the application. He has contended that the Sessions Court in exercise of its revisional jurisdiction was not competent to direct the commitment of the accused. It is submitted that the power to direct commitment instead of ordering further inquiry was expressly given to the Sessions Court under Section 437 of the old Cr. P.C. There is no corresponding provision under the new Code and, therefore, it is said that that power has been taken away. In this view of the matter, it is contended that the order of the learned Additional Sessions Judge was without jurisdiction. Learned counsel for the opposite party, on the other hand, contends that the order of the learned Magistrate which was revised by the learned Sessions Judge was really without jurisdiction and that the Sessions Judge was competent to direct commitment in exercise of its revisional powers.
7. I will first examine the legality of the order passed by the learned Magistrate refusing to commit the petitioners for an offence under Section 366 of the I.P.C. on the ground that no prima facie case under that section had been made out against them. Under the new Code, Section 209 prescribes a procedure for ordering commitment of an accused in a case instituted on a police report. It lays down inter alia that when in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate or it appears to the Magistrate that the offence is triable exclusively by a Court of Session, he shall commit the case to the Court of Session. The scope of this section came up for consideration before the Supreme Court in the case of Sanjay Gandhi v. Union of India and I can do no better than to quote the observations of the Supreme Court on this question. The Supreme Court said:
2. We have heard counsel on both sides and proceed to elucidate certain clear propositions under the new Code bearing upon the committal of cases where the offence is triable exclusively by the Court of Session. The committing Magistrate in such cases has no power to discharge the accused. Nor has he power to take oral evidence save where a specific provision like Section 306 enjoins. From this it follows that the argument that the accused has to cross-examine is out of bounds for the Magistrate, save in the case of approvers. No examination in chief, no cross-examination.
3. Secondly, it is not open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament’s purpose in. remoulding Section 207-A (old Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully, if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session. Assuming the facts to be correct as stated in the police report, if the offence is plainly one under Section 201 I.P.C. the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect. Shri Mulla submits if the Magistrate’s jurisdiction were to be severely truncated like this the prosecution may stick a label mentioning a sessions offence (if we may use that expression for brevity’s sake) and the accused will be denied a valuable opportunity to prove his ex facie innocence. There is no merit in this contention. If made-up facts unsupported by any material are reported by the police and a Sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227 Cr. P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused.
8. Applying these propositions to the facts of the instant case it is patent that it was not open for the Magistrate to embark upon an inquiry to find out as to whether a prima facie case under Section 366 of the I.P.C. was made out against, the petitioners. It is manifest, therefore, that the order of the learned Magistrate was without jurisdiction.
9. This takes us to the consideration of the question as to whether the Sessions Court was competent to direct commitment of the accused. It is true that under the old Code, Section 437 expressly empowered the Sessions Judge to direct commitment instead of ordering further inquiry. It is also true that there is no such provision in the new Code. The question, therefore, which arises for consideration is as to whether under the new Code the Sessions Court has any such power. Barring a reference to a Sessions Court the corresponding provision regarding the High Court’s powers and jurisdiction under the old Code is to be found in Section 439 of that Code. It provides inter alia that in the case of any proceeding the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court, may in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338.
10. It may also be noticed that under the new Code a Sessions Judge has been given the same powers in revision as the High Court has in view of Section 399 of the new Code. The question, therefore, which arises for consideration is as to whether the High Court can in exercise of its revisional judisdiction direct commitment of a case. If the High Court is held to have such powers, it is obvious that the Sessions Judge must also be held to have similar powers. A Full Bench of the Madras High Court in the case of the Public Prosecutor v. Ponnuswami Nayak AIR 1928 Mad 1267 held that Section 439 of the Cr. P.C. conferred on the High Court the powers granted to a Court of Appeal by Section 423 and one of the powers so granted was that of directing an accused to be committed for trial. Their Lordships referred with approval in this case to the views expressed by the Allahabad High Court, a Full Bench decision of the Calcutta High Court and the Bombay High Court in the decisions cited before them. I respectfully agree with the views expressed by the Madras High Court and I hold that the High Court in exercise of its revisional jurisdiction can direct the commitment of a case. To hold otherwise may lead to a queer situation. If it be held that the High Court and a Sessions Court have got no such powers in exercise of their revisional jurisdiction, then the prosecution would be left virtually without any remedy if a Magistrate arbitrarily refused to commit a case, exclusively triable by a Court of Session, to the Sessions Court. It is true that under Section 398 of the new Code the High Court or the Sessions Court may direct further inquiry into the case of any person accused of an offence who has been discharged. In my opinion, this provision cannot apply to a case of discharge of accused persons from an offence exclusively triable by a Court of Session. As pointed out in the case of Sanjay Gandhi (supra), it is no longer open to the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on its merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, directing further inquiry in the case of an accused, discharged from an offence exclusively triable by a Court of Session, will be meaningless.
11. Learned counsel for the petitioners referred me to the decision of the Allahabad High Court in the case of Malkhan Singh v. State . In my view the decision has no application to our case. In that case the Sessions Judge in appeal under Section 515 of the Old Code had remanded the case with the direction to dispose it of in accordance with the observations made by him. It was held that the Sessions Judge has no such powers of remand firstly because Chap. XXXI of the Code did not apply to an appeal under Section 515 of the Code and secondly even if it did, Section 423(1), Clauses (c) and (d) could not.
12. I am satisfied for the reasons that I have given that the order passed by the learned Additional Sessions Judge was just and legal and no interference therefore, is called for in that order and the application is, accordingly dismissed.