Shobha Nath vs Acchu Ram and Another

K.C. Agrawal, J.—This revision is directed against an order of the VIII Additional Munsif-Magistrate, Saharanpur, dated 28-5-1983.

It appears that a complaint was filed by Shobha Nath, the applicant, against Achchhu Ram, opposite party No. 1, and several others for the offence under Sections 395/397 IPC on 5-12-1981, the Station Officer submitted a final report which was accepted by the Munsif-Magistrate, Hardwar on 15-12-1981. On 11-1-1982, Shobha Nath filed a Protest Petition which was treated as a complaint on 16-1-1982 by the Magistrate and statements were recorded by him of the complainant and his witnesses under Sections 200 and 202 of the Code of Criminal Procedure.

On 10-1-1983, the Chief Judicial Magistrate summoned Achchhu Ram, the opposite party No. 1, for the offence under Sections 395/397 IPC. The case was, thereafter, received on the file of VIII Additional Munsif-Magistrate for commitment u/s 209 of the Code of Criminal Procedure to the Sessions Judge. At that stage, an application was made by the opposite party No. 1, Achchhu Ram, for discharge on the ground that an offence under Sections 395/397 IPC could not, in law, be committed by a single individual, hence, on the finding of the Chief Judicial Magistrate given on 10-1-1983, the opposite party No. 1 Achchhu Ram was entitled to be discharged.

Opposing the application for discharge made by Achchhu Ram, the applicant contended that in the proceedings u/s 209 of the Code of Criminal Procedure, the Court had no jurisdiction to go into the validity or legality of the order made by the Chief Judicial Magistrate summoning the opposite party under Sections 395/397 IPC. Accordingly, the application was liable to be rejected. On 28-5-1983, the Munsif-Magistrate held that summoning of Achchhu Ram under Sections 395/397 IPC was illegal as no offence under these sections could be committed by a single individual. He repelled the argument of the applicant that in the proceedings u/s 209 of the Code of Criminal Procedure, the Munsif-Magistrate had no jurisdiction to consider the legality of commitment and has to pass the order blindly without applying his mind. At this stage, I may point out that by the impugned order, the Munsif-Magistrate had not discharged the accused Achchhu Ram and had ordered the case to be put up before him on 30-5-1982. The Munsif-Magistrate did not either commit or refuse to commit Achchhu Ram u/s 209 of the Code of Criminal Procedure and sent the case back to the Chief Judicial Magistrate who had passed the order dated 10-1-1983 for passing appropriate orders. In these circumstances, no final order had since been passed refusing to commit Achchhu Ram (if that could be done under the law), no cause of action had accrued to the applicant to file the present revision. In any view of the matter, it will not be appropriate at this stage for the High Court to interfere.

The learned Counsel for opposite party Achchhu Ram submitted that the expression used "if it appears to the magistrate" requires him to apply his judicial mind and find whether the case is a fit one for committal. He cannot according to the learned Counsel for opposite party No. 1, make a mechanical approach to the case and pass an order of commitment with eyes closed. The scope of Section 209 of the Code of Criminal Procedure was considered by the Supreme Court in Sanjay Gandhi v. Union of India AIR 1976 SC 514, wherein the Supreme Court held that it is not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on merits. In this regard the observations made further were;

In our view, 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 Sessions.... If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect.

This question was considered by the Bombay High Court in Dr. D. Samant v. State of Maharashtra, 1981 CriLJ 1819. In this case it was said:

The employment of the word ''appears'' is pregnant with all these inevitable inferences, which, in turn negative a deeper probe involving the process of appreciation of finer shades. In effect, therefore, on a plain reading of the material on record, which impliedly excludes appreciation of finer shades involving of deeper probe as at the full dressed trial, if it appears to the judicial mind of the Magistrate that there exists an offence triable exclusively by a Sessions Court, or on such plain reading such an offence is prima facie or on the face of the record is disclosed, then he has no option but to commit the case to the Court of Sessions.

Counsel for the opposite party No. 1 appears to me to be right in contending that on the face of the record, no offence under Sections 395/397 IPC could be said to have been committed by a single individual, hence, the commitment of the applicant u/s 209 of the Code of Criminal Procedure was unjustified. For this purpose, counsel contended that even within the narrow scope of Section 209 Code of Criminal Procedure, the VIII Additional Munsif-Magistrate could refuse to do so and he has rightly sent the matter to the Chief Judicial Magistrate. In a mistake apparent on the face of the record and without examining the statements of the witnesses under Sections 200 or 202 of the Code of Criminal Procedure and other materials, if the Court finds that the commitment cannot be made under the sections for which an accused is summoned, it can in appropriate, and, of course, in rare cases pass an appropriate order, just as it was done in the present case.

For these reasons, the revision is dismissed. The stay order dated 22-6-1983 is discharged.