Harsingh Narain Singh vs State of U.P.

V.N. Varma, J.—This revision is directed against the order dated 28-5-1976 passed by Judicial Magistrate, Phulpur-Azamgarh, committing the applicant (Harisingh Narainsingh) to the Court of Session for standing his trial under Sections 186, 353, 504, 506 and 392/511 IPC.

In March, 1974 Sri Ram Sahai Lal, opposite party No. 2 was Joint Director of Consolidation, Azamgarh. On 17-3-1974, he first went to village Hindola and distributed compensation there. Thereafter, he moved on to village Sultanpur for the same purpose. While he was distributing compensation in village Sultanpur the applicant met him there and asked him to distribute compensation meant for him and his brothers. He enquired from the applicant about his place of residence. On being told that the applicant belonged to village Hindola he told the applicant that he had already distributed compensation in village Hindola and that he would consider his case only after he had given compensation to the people of Sultanpur. The applicant would not listen to him and insisted on getting his compensation first. He was again told to wait for his turn but he would not wait. He became restive and started quarrelling. Soon thereafter the applicant asked him to give him the file of village Hindola so that he could get his voucher prepared. On being told that the voucher was with his Reader he went to the place where the Reader had been sitting and tried to take away the file from him. The Reader took exception to this whereupon he abused the Reader. Thereafter he again approached opposite party No. 1 and using intemperate language threatened him with serious consequences. Having done that he made an attempt to forcibly remove a file from his table but he was prevented from doing so. It was in these circumstances that opposite party No. 2 filed a complaint against the applicant under Sections 186, 353, 504 and 506 IPC in the court of A.D.M. (J) Azamgarh.

A.D.M. (J) Azamgarh summoned the applicant and the applicant appeared in his court on 20-5-1974. Thereafter, the applicant moved an application in the Court of Sessions Judge, Azamgarh, for the transfer of the case from the court of A.D.M. (J) to some other court of competent jurisdiction. The Sessions Judge transferred the case to the court of Judicial Magistrate Mohammadabad. He did so thinking that the cross-case filed by the applicant against opposite party No. 2, was pending there. Judicial Magistrate, Mohammadabad, however, could not make much headway in the case because the applicant continued to get it adjourned on one pretext or the other. On 22-5-1976, Chief Judicial Magistrate, Azamgarh, passed an order for the transfer of 100 cases from the court of Judicial Magistrate, Mohammadabad to the court of J.M., Phulpur. Amongst these 100 cases this case also was transferred to the court of Judicial Magistrate, Phulpur. In the court of Judicial Magistrate Phulpur also the applicant did not allow the case to progress. Ultimately with the consent of the parties 28-5-1976 was fixed for the evidence of opposite party No. 2. On that day, part of the statement of opposite party No. 2 was recorded. His statement could not be recorded in full because of the hurdles created by the applicant. Ultimately, on the same day, the learned Magistrate passed the impugned order committing the case to the court of Sessions thinking that an offence u/s 392/511 IPC was also made out against the applicant and this part of the case was triable exclusively by the court of Session. It is to assail the correctness of this order that the present revision has been filed by the applicant.

I have heard the Learned Counsel for the parties at sufficient length and after doing so I am firmly of the View that this revision must be allowed. I say so because it was not open to the court below to commit the applicant to the court of Session for trial u/s 323 Code of Criminal Procedure (new). The case against the applicant is to be governed by the old Code because the complaint against him had been filed on 20-3-1973 when the old Code was in force. It is, therefore, the old Code which will govern the proceedings of this case. Under the old Code also a Magistrate has got power u/s 347 to commit an accused to the court of Session for trial if he thinks that the case is one which ought to be tried by the court of Session. However, before he can pass an order u/s 347 Code of Criminal Procedure (old) he has to go through the procedure prescribed by Section 208 Code of Criminal Procedure. u/s 208 Code of Criminal Procedure it is incumbent on the part of the Magistrate to examine the complainant and his other witnesses. The procedure prescribed u/s 208 Code of Criminal Procedure has not been gone through in this case. Neither the statement of the complainant was recorded in full nor were his witnesses examined. That being so, the applicant possibly could not have been committed to the court of Session to stand his trial u/s 186, 353, 504/506 and 392/511 IPC. The impugned order is, therefore, definitely wrong and as such it cannot be allowed to stand.

In the result, I allow this revision and set aside the impugned order dated 28-5-1976. The case is remanded and the Magistrate is directed to decide it in accordance with, law. Stay order dated 12-7-1976 is vacated.