ORDER
1. This is a petition filed under Sections 482 and 483 Cr. P.C. by the first accused as the petitioner to call for the records in C.C. No. 4064 of 1994 on the file of XVIII Metropolitan Magistrate, Saidapet, Madras and to give a direction to the case does not warrant such a recourse mechanically.
2. The material averments in the petition are as follows :- Petitioner has ben ranked as the first accused in Crime No. 2690 of 1993 for offences under Sections 147, 148, 120B and 302 read with 140, I.P.C. for the alleged occurrence that took place on 1-2-1993. Altogether 11 persons including the petitioner have been charged with reference to the death of one Abdul Rahman. After investigation, a police report for the above said offences was filed in C.C. No. 4064/94 on the file of XVIII Metropolitan Magistrate saidapet, Madras. Copies were served upon the petitioner/Ist accused and others on 1-3-1996. While furnishing copies under Section 208, Cr. P.C., the learned Committal Magistrate directed the petitioner and others to come prepared for the committal proceedings on 15-4-1996 with proper sureties. The directions given by the Magistrate to come prepared for the committal proceedings on 15-4-1996 is without application of judicial mind. The word “appears” employed in Section 209(1), Cr. P.C. conveys the meaning that the learned Magistrate has to apply his judicial mind while committing the accused to the Court of Sessions without automatically or mechanically committing the accused to take up the trial before the Court of Sessions. The Magistrate is not bound by the police report or by the charge-sheet. The facts of the present case would be that only on the basis of the confession of a co-accused in this case that the petitioner, who is the first accused is being implicated in the case on hand. That material is not sufficient to commit the case to the Court of Sessions, as the confession given to the police officer is totally barred under Section 25 of the Indian Evidence Act and the same is admissible to a limited extent, leading to the recovery of a distinct fact under Section 27 of the India Evidence Act. The confession of the co-accused is less in evidenciary value. Viewed from the above angle of the confession of a Co-accused, it cannot be treated as evidence as defined under Section 3 of the Indian Evidence Act. Therefore the Magistrate had to indicate in his committal order that he has applied his mind to the materials on record and then only he can commit the case for trial to the Court of Sessions. In other words it is only on the satisfaction of the evidence that the case has to be committed to the Court of Sessions by the Magistrate. The petitioner has been implicated in this case only on the basis of the confession of the co-accused. If the petitioner is committed to the Court of Sessions to take up the trial, it will cause serious irregularities and it would also occasion a miscarriage of justice, besides taking, away the valuable judicial time of the Court of Sessions. Therefore the High Court may be pleased to give suitable direction to the learned Magistrate viz., XVIII Metropoliten Magistrate, Saidapet, Madras not to commit the case as the case does not warrant such a recourse mechanically.
3. It is resisted by the respondent-complainant by filing a counter as well as additional Counter-statement raising the following contentions :- The petitioner is A1 concerned in Teynampet Police Station in Crime No. 2690/93 for offences under Sections 147, 148, 120B and 302 read with 149, I.P.C. The case has been charge-sheeted on 13-9-1994. There are enough materials to commit the case to the Court of Sessions.
If at all the petitioner wants to dispute, he can file a petition under Section 207, Cr. P.C. before the Court of Sessions before framing charges and seek for discharge. At the time of committing the case of the Court of Sessions, the learned Magistrate need not go into the probative value of the materials on record. The only criteria to commit the case of the Court of Sessions is that an offence as brought by the prosecution appears on its face value to be tried exclusively by the Court of Sessions and nothing else.
4. On the above pleadings and on hearing the learned counsel for both sides, the point that arises for determination in this petition is as to whether the petitioner/1st accused is entitled to the relief prayed for under Sections 482 and 483, Cr. P.C.
5. Point :- The petitioner is the 1st accused concerned in Teynampet Police Station Crime No. 2690/93 for the alleged offences under Sections 147, 148, 120B and 302 read with 149, I.P.C. and the charge-sheet or final report has been filed in this case on 13-7-1994. Now the case is said to be at the stage of committal proceedings. While so, the petitioner moved this Court for a direction not to commit the case to the Court of Sessions.
6. The learned counsel for the petitioner argued that the committal Magistrate has given directions to the accused to come prepared for the committal proceedings on 15-4-1996 with proper sureties. This is a statement made at the Bar. The learned committal Magistrate had no occasion either to affirm or deny this statement because no remarks were called for from the concerned committal Magistrate about such statement by my learned predecessor, who admitted this Crl. O.P. at the initial stage and granted stay of all further proceedings of the committal Court. It is a self-serving statement which cannot form the basis to grant the relief prayed for in this petition.
7. Even assuming that the learned committal Magistrate has given such a direction to the accused to come prepared for the committal proceedings on 15-4-1996 with proper sureties, it does not follow that the learned committal Magistrate has made up his mind even earlier because he is alleged to have stated to come prepared for the committal proceedings. Therefore the alleged statement of the Magistrate cannot be availed of by the petitioner to seek the relief of “not to commit” the case to the Sessions Court under Section 209 of Cr. P.C.
8. It was further argued by the learned counsel for the petitioner that the word “appears” employed in Section 209(1), Cr. P.C. means that the learned Magistrate has to apply his judicial mind, while committing the accused to the Court of Sessions without automatically or mechanically committing the accused to take up the trial before the Court of Sessions. In particular the petitioner would state in para 7 of this petition that the Magistrate for his satisfaction that an offence is exclusively triable by the Court of Sessions is required to look into the materials produced before him and then only the learned commital Magistrate can commit the case to the Court of Sessions. Again it is reiterated in para 11 of this petition that the Magistrate had to indicate in his committal order that he has in fact applied his mind to the materials on record before committal and it is only on such satisfaction of evidence and the circumstances of the case that the case has to be committed to the Court of Sessions. The petitioner would further state in para 10 of the petition that the only piece of material available as against the petitioner/1st accused herein is the confession of the co-accused on the basis of which the petitioner was implicated in the present case and that material is not sufficient to commit the case to the Court of Sessions.
9. In support of the above contention the learned counsel for the petitioner placed reliance on two decisions and they are the decisions of Patna High Court and Gauhati High Court. In the decision of Patna High Court reported in Prem Sukhlal v. State, 1977 Crl LJ 47, a single Judge of the Patna High Court held as follows at Page 48 :-
“A Magistrate acting under Section 209 has to look into the allegations against the accused with a view to find out as to whether the offence is one which is prima facie exclusively triable by the Court of Sessions. He should examine the materials on record. If on such examination, he is satisfied that the offence is one which is prima facie exclusively triable by the Court of Session, then alone he should commit the accused to the Court of Sessions.”
10. In the other decision, viz., Gauhati High Court reported in Jainal Mia v. State of Assam, 1982 Crl LJ (NOC) 175 it was stated as follows :-
“It is not open to committing Magistrate under Section 209 to try to satisfy himself that a prima facie case on merits has been made out. That jurisdiction vests in the Sessions Judge under Section 227 of the Code. Still then it cannot be held that the Magistrate has to act like an automation or a despatch clerk. If that was the function which was sought to the assigned to the Magistrate under the new Code, the Parliament could have well provided that in a case exclusively triable by a Court of Sessions, the charge-sheet shall be submitted in that Court”.
11. The learned Government Advocate appearing for the Respondent refuted the above contentions put forth on the side of the petitioner and argued that the provision of Section 209 come into operation only if it appears to the Magistrate that the offence is triable exclusive by the Court of Sessions and the committal Magistrate need not to look into the materials available on record and assess the materials on record and then commit the case of the Court of Sessions as it is exclusively triable by it. In support of the above contention the learned Government Advocate has drawn support from the decision of the Supreme Court reported in Sanjay Gandhi v. Union of India, wherein the Supreme Court laid down the dictum in para 3 as follows :-
“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 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 frustate the Parliament’s purpose in re-moulding Section 207A (old Code) into its present non-discretionary shape ….. 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 Sessions. 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 severaly truncated like this, the prosecution may stick a label mentioning a sessions offence (if we may use that expression for brevity sake) and the accused will be denied a valuable opportunity to prove his ex facie innocence. There is 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. The provision takes care of the alleged grivance of the accused.”
12. The entire arguments of both the counsel on record rests upon the words “if it appears” employed under Section 209, Cr. P.C. The word “appears” is defined in Concise Oxford Dictionary, 9th Edition, Published by Oxford University Press, as “be visible”. In the Law Lexicon of P. Ramanatha Iyer, 1997 Edition, published by Wadhva and Company Nagpur, the word “appears” is defined as “seems”. Therefore the power of the committal Magistrate is to see whether any offence triable exclusively by the Court of Sessions is mentioned in the police report. His power to scrutinise the police report is confined to see whether a wrong section of the Penal Code has been quoted to describe the offence. Besides this, in my view, the Committal Magistrate cannot examine the police report to see whether there are materials to support the charges made in the report. That function now belongs to the Sessions Judge under Section 227 of Cr. P.C. The accused has no right to be heard at the time of committal in the matter of determination of the question as to whether the offence is triable exclusively by the Court of Sessions. If the Magistrate’s determination that the offence is exclusively triable by the Court of Sessions is found by the Sessions Court to be wrong, the latter Court may discharge the accused under Section 227 of Cr. P.C. or may remit the case to the Chife Judicial Magistrate under Section 228(1)(a) of Cr. P.C. The changes introduced by the new Code of the year 1973 was to abolish the committal proceedings in the old Cr. P.C. in respect of cases exclusively triable by the Court of Sessions. Under Section 207 of Cr. P.C. (old) there was regular committal proceedings in the natural of a trial, before the order of committal could be passed by a Magistrate. A prolonged controversy arose under the old Criminal Procedure Code as to the nature and quantum of evidence that was necessary to justify the order of committal. Such controversy has been rendered Otiose by the new Criminal Procedure Code of the year 1973. As observed by the Supreme Court in the decision reported in 1978 SCC (Crl) 172 : (1978 Cri LJ 642) at Page 174 and in para 3 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 and therefore to hold that the committal Magistrate can go into the satisfaction of the materials even for a prima facie case was taken away. In other words the committal Magistrate cannot even evaluate, much less to assess, the materials like the confession of the co-accused in the present case, to come to the conclusion that prima facie case has been made out and then only the committal Magistrate can send the case to the Court of Sessions for trial. The only function of the committal Magistrate under Section 209, Cr. P.C. of the year 1973 is to see as to whether the offence as alleged is triable exclusively by the Court of Sessions. He is bound to commit once that question is answered in the affirmative. The committal Magistrate cannot withhold the commital on the ground that the accused has some positive defence for example, the confessions of co-accused is a weak piece of evidence against him as set out in this petition. The committal Magistrate may examine the police report to see whether a wrong section of the Penal Code has been quoted and he has no other powers to ascertain as to whether the facts stated in the police report discloses an offence exclusively triable by the Court of Sessions. That power has been taken away from the committal Magistrate and has been vested in the Sessions Judge under Section 227, Cr. P.C. to discharge the accused or to remit the case to the Chief Judicial Magistrate for trial of other offences as provided under Section 228(1), Cr. P.C. There is an inbuilt safeguard in Section 228(1), Cr. P.C., which says that if, after such consideration and hearing, the Sessions Judge is of opinion that there is a ground for presuming that the accused has committed an offence, which is not exclusively triable by the Court of Sessions, he may frame the 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. When such safeguard is available in Section 228, Cr. P.C. only for the Sessions Judge, it is not open to the committal Magistrate before even an order of committal is passed to go into the merits and demerits of the case or to apply his mind and sastisfy himself with the materials or to test or evaluate the reliability or truth or otherwise of the allegations mentioned in the final report to the charge-sheet filed and the materials produced before the committal Court. For the above reasons, I am of the view that the decision of the Patna High Court reported in 1977 Cr LJ 47 and the decision of the Gauhati High Court reported in 1982 Crl LJ NOC 175, cannot be correct views and the views expressed by the learned Judges of Patna High Court and Gauhati High Court are dissenyed. Even otherwise, the decision of a single judge of the Patna High Court and Gauhati High Court are no longer good law in the light of the Supreme Court’s decision .
13. The learned counsel for the petitioner further pointed out to another decision of the Supreme Court reported in Rizwan v. Waqar Ahmad, 1993 SCC (Crl) 455 in support of his contention that the committal Magistrate can convert the case into a warrant case. That was a converse case. That was a case where the police filed the charge-sheet against the accused under Section 307, I.P.C. and the Magistrate having regard to the nature of injuries instead of committing the case converted into a warrant case and proceeded to try the accused under Sections 323 and 324 of I.P.C. Questioning the same, a Revision was filed before the Sessions Judge, who directed the Magistrate to commit the case to the Court of Sessions holding that the Magistrate had no option except to commit the case. As against that, a further Revision was filed by the accused before the High Court and the High Court allowed the Revision and confirmed the order of the Magistrate. But a certificate granting leave to appeal to the Supreme Court was granted by the High Court. In such circumstances the Supreme Court held that even though there are number of injuries on the complainant, the Doctor found almost all of them to be simple and in that view of the matter, the Magistrate thought that it was not a fit case to commit and therefore the Supreme Court came to the conclusion that the High Court was not wrong in allowing the Revision and accordingly the appeal filed before the Supreme Court was dismissed. The question as to whether the committal Magistrate has to apply his mind to the materials on record and as to whether he has to satisfy himself of such materials to commit the case to the Court of Sessions was not even raised or discussed in the reported decision in 1993 SCC (Crl) 455 and a finding was rendered on this question by the Supreme Court in the above said decision of the Supreme Court. The facts in the reported decision of the Supreme Court mentioned above are not identical with the facts of the present case. In the case before us, no committal has been made nor the Magistrate has converted into a warrant case. For the above reasons, the principles laid down in the above decision of the Supreme Court will have no application to the facts of the present case.
14. Even assuming that the committal Magistrate can assess or test the materials available in the case now on hand, the prayer in this petition is significant. It reads that a suitable direction should be given to the committal Magistrate not to commit the case as the case does not warrant such a recourse mechanically. So the petitioner wants a blanket direction not to commit the case. If such a direction was given, then there will be stalemate, the proceedings before committal and the committal records will be consigned to the Record room of the Magistrate’s Court. Therefore no blanket direction could be given to the committal Magistrate not to commit the case as the case does not warrant such recourse mechanically.
15. Considering the above facts and circumstances of the case I am to hold that the petitioner is not entitled to the relief prayed for in this petition under Sections 482 and 483 Cr. P.C., and this petition is devoid of merits, and the same has to be dismissed, and consequently I answer this point as against the petitioner/1st accused.
16. In the result the petition is dismissed. Consequently the stay petition in Crl. M.P. No. 1154 of 1996 is also dismissed as unnecessary. Interim stay is vacated.
17. Petition dismissed.