Ram Prasad and Others vs State of U.P.and Others

J. C. Gupta, J.—Heard applicants'' Counsel and the learned AGA,

By means of this application, the applicants have challenged the order dated 2711998 passed by Metropolitan Magistrate 1st, Kanpur City, committing the applicants to the Court of Sessions to face their trial before that Court.

The contention of the applicants'' Counsel is that in the same proceeding, at an earlier stage, the Court had rejected the opposite party''s petition to commit the case to the Court of Sessions under Section 307 IPC. That application was rejected at the stage when evidence of the witnesses was not recorded. It was only after the evidence of the witnesses was recorded that the Magistrate was of the opinion that the case was one which ought to be tried by the court of Sessions. Section 323, Gr. P.C. provides that 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 the judgment that the case is one which ought to be tried by the Court of Sessions, 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.

Learned Counsel for the applicants argued that Section 362 Cr. P.C. bars reviewing of earlier orders. In the present case, the subsequent order of the Magistrate is an independent order and it would not amount to reviewing of the earlier order inasmuch as the earlier order was passed at the initial stage as the proceeding before the evidence was recorded while the subsequent order has been passed after when the learned Magistrate had recorded evidence of a few witnesses. In a case where Magistrate frames charges under various offences which are not exclusively triable by a Court of Sessions but later on after recording evidence it transpires from the evidence that a case is prima facie made out which ought to be tried by the Court of Sessions, it is within his powers to pass an order under Section 323 Cr. P.C. fer commitment of the case to the Court of Sessions. Such an order would not amount to be an order reviewing the earlier order of framing charges. Therefore, the argument raised by the learned Counsel has no force and must be rejected.

Learned Counsel for the applicant then submitted that since the applicants were on bail and have not misused the same, a direction may be issued to the Courts below to accept fresh bail bonds from the accused persons instead of compelling them to secure fresh bail order.

In the circumstances, the applicants are allowed to continue on bail on their furnishing fresh bail bonds for the offence under Section 307IPC and accordingly it is directed that the Magistrate concerned shall accept fresh bail bonds from the applicants in respect of offence punishable under Section 307A IPC and the petitioner shall be allowed to continue on bail.

With the above observations, this application is dismissed.