ORDER
Arun Mishra, J.
1. The petitioners have challenged the constitutional validity of Section 323 of the Cr.P.C. being violative of Articles 14 and 21 of the Constitution of India According to the petitioners the provision enables a Magistrate to commit any case to the Court of Sessions tried before it at any time before signing the judgment. By such an action, the petitioners submit that the accused whose trial is complete before the Magistrate would have to face trial denovo before the Court of Sessions, same interferes with an accused’s right to speedy trial enshrined under Article 21 of the Constitution of India. The power is uncanalised and in contravention of the right to speedy trial and therefore, the provision is liable to be struck down as unconstitutional.
2. The factual matrix giving rise to the present petition discloses that the petitioners are accused for offences under Sections 323, 324, 294, 427 and 506 read with Section 34 I.P.C. for an incident which took place on 26-12-1992. The case was registered at Crime No. 4/93 at Barela Police Station, Jabalpur. On the same date i.e. 26-12-1992 the petitioners also made a complaint before the Cantt. Police Station against the complainants and the case was registered at Crime No. 35/93. The police filed two charge-sheets before the Court of Judicial Magistrate First Class, Jabalpur. On the basis of the complaint lodged by the petitioners the challan was only filed for offence under Section 325/34 I.P.C. and the complaint of dacoity, looting made by the petitioners in Crime No. 35/93 was ignored. Hence, the petitioners filed private complaint registered at Complaint Case No. 579 of 1996 under Sections 395, 397 and 341 I.P.C. against the complainant before the Court.
3. In the case which was filed against the present petitioners, Judicial Magistrate First Class framed charges under Sections 323, 324, 294, 427 and 506 I.P.C. read with Section 34 I.P.C. The evidence was also recorded by the Magistrate. Ultimately at the stage of defence evidence exercising the power under Section 323 Cr.P.C. the Judicial Magistrate First Class committed the case to the Court of Sessions on the ground that the cross-case in which private complaint was lodged by the petitioners, has been committed to the Court of Sessions.
4. The petitioners challenged the order of committal dated 16-10-1999 in a revision before this Court vide Cr. Revision No. 1791/99, which was dismissed on 22-12-99. No illegality was found in the order of committal to the Court of Sessions, by this Court. Before the Sessions Court again an objection was raised by the present petitioners that no charge could be framed after lapse of about 7 years. The Sessions Court framed the charges. Against that order another petition under Section 482 Cr.P.C. vide M.Cr.C. No. 815/2000, was preferred which was also dismissed by this Court on 9-2-2000. Against the orders passed in Cr. Revision No. 1791/1999 dt. 22-12-1999 and in M.Cr.C. No. 815/2000 dt. 9-2-2000, a S.L.P. was preferred before the Supreme Court which wss delayed, registered as Cr.M.P. No. 4979 of 2000, which came up for hearing on 1-9-2000 before the Apex Court. The Special Leave Petitions was dismissed as withdrawn. Thereafter, on 13-10-2000 the present writ petition has been filed assailing the validity of the provision under Section 323 Cr.P.C.
5. Learned counsel for the petitioners has urged that the provision of Section 323 Cr.P.C. is violative of Articles 14 and 21 of the Constitution of India as it gives unfettered power to a Magistrate to commit a case any time before signing the judgment. Same defeats the right of speedy trial which is a fundamental right. He submits that in the instant case the Magistrate could not commit the case as evidence was already recorded and the case was at the defence stage as well as the provision of Section 323 Cr.P.C. if interpreted in such a manner so as to give the power to the Magistrate to commit even in such a case would render the provision unconstitutional. Learned counsel has relied on the decision of the Apex Court in case of Romesh Thapper v. The State of Madras, 1950 SCR 594 to submit that the provision cannot be construed so as to give unrestricted right to the Magistrate. Any interpretation of Section 323 Cr.P.C. so as to enable the Magistrate to commit a case after recording the evidence would amount to violation of right of speedy trial. In the instant case it has happened, hence, the provision is liable to be struck down as. giving unfettered power to the Magistrate. Learned counsel further submits on the strength of the decision in case of Mittulal and Anr. v. The State of M.P, (1975) 3 SCC 529, that as it is a case of two cross-cases being tried by the Sessions Court, it would not be open to the Court of Sessions to refer to the evidence of the other case which has been committed to the Court of Sessions. Hence, the provision of Section 323 Cr.P.C. enabling the Magistrate to commit the case to the Court of Sessions is arbitrary and serves no useful purpose. Learned counsel further submits that the right of speedy trial is a fundamental right and in case of S. Guin and Ors. v. Grindlays Bank Ltd., (1986) 1 SCC 654, the Apex Court has quashed the order of the High Court remanding the case for retrial after lapse of six years, particularly in view of the offences alleged being of trivial nature. For right of speedy trial, learned counsel has also pressed into service a decision of the Apex Court in case of Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392.
6. The first submission raised by learned counsel is that the provision of Section 323 Cr.P.C. is unconstitutional being violative of Articles 14 and 21 of the Constitution of India. Section 323 Cr.P.C. reads thus :
“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 Session, 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.”
This section refers to a case which a Magistrate has first taken up with a view to disposing it himself, but which, he later finds, is one which ought to be tried by the Court of Session. It is open to a Magistrate to commit a case under Section 323 Cr.P.C. where he, on being satisfied that cases were connected and arose out of same incident which ought to be tried simultaneously. In the instant case exact situation exists. The cross-case is triable exclusively by the Court of Sessions and it has been committed to the Court of Sessions. The Magistrate though after prosecution evidence was over, has committed the case to the Court of Sessions. However, legality of the orders was challenged before this Court of committal as well as framing the charges by the Court of Sessions, but, both the challenges were disallowed on merit by this Court in Criminal Revision and petition under Section 482 Cr.P.C. The S.L.P. filed before the Supreme Court was dismissed as withdrawn on 1-9-2000. Thus, the orders of committal as well as of framing of charges have attained finality at this stage. Hence the constitutional validity of Section 323 Cr.P.C. has been itself challenged. Firstly the challenge is misconceived as on merit the orders have been upheld already by this Court, even otherwise we do not find that on the basis of the submissions raised, the provision of Section 323 Cr.P.C. is unconstitutional or can be declared arbitrary or giving uncanalised power. The provision has wholesome purpose where the Magistrate comes to a conclusion before signing the judgment that the case ought to be tried by the Court of Sessions, he shall commit the case to the Court of Sessions. Right of speedy trial is a fundamental right, but, at the same time is subservient to the provision that if case ought to be tried by the Court of Sessions, must be tried by such a Court. If the Magistrate is of the opinion that he cannot punish the offender for some other sufficient reasons, propriety demands that case should be given trial by the Court of Sessions, it can commit the case.
7. Learned counsel submits that though it would be valid exercise of power if the case is committed at the threshold to the Court of Sessions without giving it a trial with a case triable by Court of Sessions. However, at a later stage such exercise of power defeats the right of speedy trial. Such an argument has folly in it and does not impinge upon the validity of the provision and it is within the sphere of the propriety or the legality of the order. Since that power exists, the discretion has to be exercised on sound principle. In substance the argument raised pertains to propriety of the order passed by the Magistrate, which has been upheld by this Court and challenge in the S.L.P. has failed before the Apex Court.
8. The argument canvassed that the evidence cannot be read of one criminal case in another criminal case, hence case could not be committed to the Court of Sessions and as such the provision should be declared as arbitrary. Merely by the fact that the evidence of one case cannot be read in another case, cannot be said to affect while it is settled that cross-case should be tried by the same Court, as the Court empowered to try the one case must have full facts before it so as to come to the conclusion and the real cause behind the offence complained of in respective cross-cases. Joint trial for the wholesome purpose and the argument raised at par is unacceptable.
9. The provision of Section 323 Cr.P.C. does not adversely affect the right of speedy trial, but, it goes to the very root of the trial where the case should be tried. If a case is not triable or ought not to be tried by Magistrate and during the course of enquiry he comes to such a conclusion, he obviously refers the case to the Competent Court as offence cannot be allowed to go unpunished, is also underlining principle of public policy under Section 323 Cr.P.C. The power of a Magistrate under Section 323 Cr.P.C. is in addition to his power under Section 209 of the Code to commit cases exclusively triable by the Court of Sessions to that Court. The provisions contained in Section 244 Cr.P.C. cannot take away the powers vested in the Magistrate under Section 323 to commit the case to the Court of Sessions at any stage of the proceedings before signing the judgment provided the case is one which ought to be tried by the Court of Sessions. Merely because a case has been instituted otherwise then on a police report, cannot take away the power vested in Magistrate under Section 323 Cr.P.C. to commit the case to the Court of Sessions at any stage of the proceedings. Whether that course should have been adopted in the instant case? The question on merits of case which has also attained finality and that does not affect the validity of the provisions contained in Section 323 Cr.P.C.
10. Learned counsel submits that the proceedings should be dropped, since no charge could be framed by the Court of Sessions as yet. The revision against the order of committal has already been dismissed and the submissions which were raised at the time of framing charges before the Court of Sessions were also made subjects of the petition under Section 482 Cr.P.C. Right of speedy trial was also one of the submissions raised at that time. Hence, we see no force in the submissions raised in the present petition. The same is totally misconceived in view of the previous orders. We find no merit in any submissions raised by the counsel for the petitioner, and we have no hesitation in upholding the constitutional validly of the provision of Section 323 Cr.P.C.
11. The petition is accordingly dismissed.