ORDER
1. This revision by the State under Sections 397 read with 401, Cr.P.C. is directed against on order of the learned Munsiff & JMFC, Kunigal, dated 15-4-1991 holding that there is no prima facie material against the accused to commit the case under Section 209, Cr.P.C. for the offence under Section 307, I.P.C. and Section 27 of the Arms Act.
2. A short but important question which arises for consideration is whether the Committal Court has jurisdiction to discharge the accused for the offence triable exclusively by the Court of Session.
3. Facts in brief are these :
The Sub-Inspector of Police Kunigal Police Station laid a charge sheet against the accused-respondent alleging offences under Section 307, I.P.C. and Section 27 and 30 of the Arms Act. It is alleged that on 16-6-1990 at about 5-30 p.m. the respondent-accused who was the Manager of the Stud Farm, Kunigal, fired at CW. 1 with a gun “thereby does an act with such intention or knowledge and under such circumstances that, if he by that time caused death, he would be guilty of murder and thereby committed an offence under Section 307, I.P.C.”
4. The learned Magistrate took cognizance of the offences alleged against the accused in the charge sheet. The accused who entered appearance through his Advocate, persuaded the Magistrate to accept the view that he was empowered to scrutinise the prosecution papers and to find out whether there was a case to commit to the Court of Session in the light of the word sit appears to the Magistrate occurring in Section 209, Cr.P.C. Hence, the learned Magistrate passed the impugned order holding that the prosecution papers prima facie disclose only offence under Section 324, I.P.C. and Section 27 of the Arms Act. The order of the learned Magistrate clearly shows that he has discharged the accused for the offence under Section 307, I.P.C. which is exclusively triable by the Court of Session. This approach of the trial Magistrate is questioned by the State on the ground that the trial Magistrate has embarked on a mini trial in discharging the accused for the offence under Section 307, I.P.C. which is exclusively triable by the Court of Session and framed the charge against the accused for the offence under Section 324, I.P.C. jurisdiction. Sri M. T. Nanaiah-the learned counsel for the respondent however attempted to justify the impugned order.
5. Section 209, Cr.P.C. provides for commitment of the case to the Court of Session when the offence is triable exclusively by it. The Law Commission in its First Report in the objects and reasons observed while recommending insertion of new Section as follows :
“The preliminary inquiry which precedes the trial by a Court of Session, otherwise known as committal proceedings, is being abolished as it does not serve any useful purpose and has been the cause of considerable delay in the trial of offences. The abbreviated form of inquiry provided for by the amendment made in 1885 and contained in Section 207(a) has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, create problems. The preliminary inquiries are therefore being dispensed with in case triable by the Court of Session. However, the purpose of other preliminary functions like granting copies, preparing the records, notifying the Public Prosecutor etc., provision is being made that the Magistrate on taking cognizance of the case to verify these preliminary functions and formally commit the case to the Sessions. As regards the complaints triable exclusively by the Court of Session, inquiry by the Magistrate under the existing Section 202 will serve the purpose of preliminary scrutiny”.
6. Thus the Magistrate on taking cognizance of the offence exclusively triable by the Court of Sessions shall have to formally commit the case instituted on the police report or otherwise to the Court of Sessions after performing certain preliminary functions like considering the applications for bail, preparing and sending the record, notifying the Public Prosecutor etc.
7. Reiterating the opinion of the Law Commission of India, the Supreme Court in Sanjay Gandhi v. Union of India, has stated as follows :
“Under the new Code in cases where offence is triable exclusively by the Court of Session, the Committing Magistrate has no power to discharge the accused. Nor has he power to take oral evidence save where a specific provision like Section 306 enjoins.
It is also 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. 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. If it is so, the Magistrate has simply to commit for trial before the Court of Session. If by error, wrong Section of the Penal Code is quoted, he may look into that aspect. If made-up facts unsupported by any material are reported by the police and a Session offence is made to appear, it is perfectly open to the Sessions Court under Section 227, Cr.P.C. to discharge the accused.”
8. In Kewal Krishan v. Suraj Bhan, the Supreme Court while considering the powers of the Magistrate under Section 209, Cr.P.C. in a private complaint filed before the Magistrate for an offence triable exclusively by the Court of Session, while referring to the powers of the Magistrate under Sections 203 and 204, Cr.P.C. observed thus :
“In a case exclusively triable by the Court of Session, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, there is prima facie evidence in support of the charge levelled against the accused.”
9. In Rajinder Kumar Jain v. State Through Special Police Establishment, the Supreme Court commenting upon the powers of the Magistrate under Section 321, Cr.P.C., incidentally referred to the powers of the Magistrate under Section 209, Cr.P.C.
10. In State of Karnataka v. Sangappa Yamanappa Kattimani, ILR 1976 Kar 578 it is held as follows :
“Section 309 of the Code of Criminal Procedure lays down that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session. After the Magistrate took cognizance of the offence under Section 302 read with Section 34, I.P.C., there was no scope for interpreting the words ‘it appears’ occurring in Section 209 of the Code of Criminal Procedure. Moreover Section 209 does not at all empower a Magistrate to pass an order of discharge. That power is vested in the Sessions Judge under Section 227 of the Code of Criminal Procedure.”
The learned Judge in State of Karnataka v. Shakthi Velu, 1978 (1) Kant LJ 78 concurred with the view expressed in Sangappa Yamanappa Kattimani case and rejected the contention that the trial Magistrate had power to discharge the accused for the offence triable exclusively by the Court of Session. Therefore, it is clear that the Magistrate who takes cognizance of an offence triable exclusively by the Court of Sessions, cannot probe further. At that stage, the Committing Magistrate has to limit himself merely to ascertain whether there is any error or wrong Section of the Penal Code is quoted in the charge sheet. He can correct it and he will have to simply commit the case to the Court of Session. If facts unsupported by any material are found in the police papers and if the Sessions Judge consider that there is no ground to proceed against the accused only he shall discharge the accused for reasons to be recorded. The trial Magistrate has assumed jurisdiction which is not vested in him under Section 209, Cr.P.C. Therefore, in my opinion the learned Magistrate has committed illegality in discharging the accused for the offence under Section 307, I.P.C. The order is liable to be set aside.
11. In the result, the revision is allowed. The order of the learned Magistrate is set aside. He is directed to commit the case to the Sessions Judge, Tumkur.
12. Petition allowed.