Nanak Chand Jindani vs State of Himachal Pradesh and Rajesh Sharma

Justice V.K Ahuja, J.—The petitioner has filed the present petition u/s 482 of the Code of Criminal Procedure challenging the order passed by the learned Chief Judicial Magistrate, Shimla, dated 28.08.2012 vide which the petitioner has been arrayed as an accused. Briefly stated, the facts of the case are that a complaint was registered by the police on 08.05.2008 as FIR No. 115/2008, Police Station Sadar, Shimla. The police investigated the case and filed the challan. The final report was filed by the police before the Court of learned Chief Judicial Magistrate, Shimla as against four persons namely S.H.O. Shiv Chaudhary, S.I. Kanwar Singh, I.O. Rattan Singh and Constable Mahinder Singh u/s 341, 342, 323, 325, 218 read with section 120B IPC. The supplementary challan was filed before the learned Chief Judicial Magistrate, Shimla, in which it was alleged that the statement of Rajesh Sharma was recorded on the direction of the Court and the said statement was also filed in the Court as an supplementary challan. Thereafter, the learned Chief Judicial Magistrate vide its impugned order, Annexure P-6, dated 28.8.2012 came to the conclusion on consideration of the medical certificate and other evidence that a case u/s 307 I.P.C. was also made out at least against accused Shiv Chaudhary.

Thereafter, the learned Chief Judicial Magistrate observed in para 50 of its impugned order that Nanak Chand Jindani, the present petitioner had also a role to play and it was observed that a prima facie case was made out against him also apart from other sections u/s 307 I.P.C. and there was ample material on record to hold that there is prima facie case u/s 307 I.P.C. and other Sections as against the present petitioner also. Thereafter, the learned Chief Judicial Magistrate committed the case to the learned Sessions Judge for trial observing that since the offence u/s 307 I.P.C. is exclusively triable by the learned Sessions Judge, the petitioner, Nanak Chand also deserved to be summoned as a co-accused and therefore, the committal order was passed.

It is clear from the above discussion that the learned Chief Judicial Magistrate had considered the evidence and observed that case u/s 307 I.P.C. was also made out apart from the other Sections against the four persons, who were challaned u/s 173 Cr.P.C. Once the learned Magistrate comes to the conclusion that offence u/s 307 I.P.C. appears to be the prima facie there, which is exclusively triable by the learned Sessions Judge, the hands of the Magistrate are tied and he can not consider the evidence for the purpose of framing of charge and for the purpose of any such opinion and he had only to commit the case to the learned Sessions Judge, who is to consider as to whether the charge is to be framed u/s 307 I.P.C. also or under the Sections which are triable by the learned Magistrate. Once an opinion is formed that provisions of Section 307 I.P.C. are attracted, his hands are tied and he has not to pass any order holding as to which of the accused are to be summoned and whether the charge should be framed or not. Moreover, the learned Magistrate while committing the case, had also considered the final report and observed that the case u/s 307 I.P.C. was also made out against the present petitioner apart from other Sections mentioned in the report. This conclusion could not have been drawn by the learned Magistrate and he could not consider the evidence as the offence was exclusively triable by the learned Sessions Judge. It is for the learned Sessions Judge to consider the evidence and consider the question as to whether the petitioner should also be arrayed as an accused or not. That discretion has to be exercised by the learned Sessions judge as the offence was not exclusively triable by the learned Chief Judicial Magistrate.

During the course of arguments, learned counsel for the complainant has referred to the decision in Sajjan Kumar Vs. Central Bureau of Investigation, . In para 20, it was observed by their Lordships that a Magistrate enquiring into a case u/s 209 Cr.P.C. is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. Thus, it was submitted that the learned Chief Judicial Magistrate had rightly passed the order for summoning the petitioner.

The Hon''ble Supreme Court in many cases triable by the Court of Sessions, in which the committal proceedings had taken place, has observed that the Magistrate has not to act only as a mere post office and he has to commit the case to the Sessions Judge accordingly. In the above case, their lordships have observed that while he is not to act as a mere post office but it has to come to the conclusion whether the case is fit for committal of the accused to the Court of Sessions. The said conclusion has to be drawn by the learned Magistrate on the basis of evidence that the provisions of Section 307 IPC were attracted, but he could not have passed order as to whether the petitioner is to be summoned or not on the basis of evidence which conclusion was to be drawn by the learned Session Judge trying the case. Accordingly the impugned order is set-aside and the learned Sessions Judge shall proceed with the case.

In view of the discussion made above, in case he comes to the conclusion at any stage of the trial as permitted by law that the present petitioner is also to be arrayed as an accused, he is free to pass appropriate order accordingly. In view of the above, the petition stands allowed and disposed of accordingly.