State vs Govinda Pillai Kumara Pillai

Kunhi Raman, C.J.—The additional sessions Judge of Alleppey is responsible for this reference.

The stationary Second Class Magistrate of (sic) an order of commitment for trial to the Alleppey Sessions Court in respect of offences committed by the accused under Sections 302 and 318 of the Indian Penal Code. The case was transferred to the file of the Addl. Sessions Court. When the trial was about to commence, the advocate for the accused raised the question as to the legality of the order of commitment. According to the reference made by the learned Judge the argument seems to have been that the order of commitment was void because it was passed by a Magistrate who was not competent to make that order. This contention seems to have found favour with the Court. The result is the present reference. In the course of the order, the learned additional Judge reads Section 215 of the Indian Code of Criminal Procedure as also Section 532 of the same code. He records his conclusion in the following words:

In the circumstances...the provisions of Section 215 of the Indian Criminal P.C. have to be invoked for the purpose of deciding on the correctness, legality or propriety of the order of commitment in question. The Honourable High Court alone is competent to exercise the powers tinder the above mentioned section.

That Is the obvious reason why the reference was made by the Court below.

We are afraid the learned Judge did not apply his mind to the wording of Section 215 when, he made these observations. The section refers only to cases where a commitment is made by a magistrate, In the present case the Judge expresses the opinion that the magistrate is not competent. In such circumstances, the provisions of Section 215 cannot be attracted. Where the order of commitment is made by a Magistrate about whose f jurisdiction there is no doubt whatsoever and there is ground for interfering with that order of commitment, the High Court has the power u/s 215 to quash the commitment in proper cases. But where the Magistrate passing the order of commitment is not competent, but professes to act of purports to act in the exercise of a power which he thinks he has got, then the appropriate section under which relief can be given to the party who objects to the commitment is Section 532 of the Indian Code of Criminal Procedure. The opening words of the section are clear. Reference is made to a magistrate purporting to exercise powers duly conferred but which were not so conferred. From the facts narrated by the learned Judge in the order of-reference, this seems to us to be a case which would come within the purview of Section 532. At the same time we want to make it clear that we are not expressing any opinion as to whether the magistrate that passed the order was competent or not. That question does not arise in the reference. We are depending for the facts upon the reference made by the Court below. Therefore, since this is not a case in which the provisions of Section 215 of the Criminal P.C. are attracted, the Court below can act in the exercise of the power conferred upon it by Section 532 . The reference is answered in these terms. Communicate at once.