State vs Suresh Kohli and Others

M.L. Kaul, J.—Upon the committal order of Chief Judicial Magistrate Jammu, the learned Sessions Judge Jammu transferred the case to the

learned 1st Additional Sessions Judge Jammu for trial of the accused in accordance with law. On receipt of the case the said Additional Sessions

Judge suo motor proceeded in the matter in its revisional jurisdiction and adjudicated upon the matter within the provisions of law as envisaged u/s

435, Cr. P.C. and made a reference to this court for confirmation, holding that the order of commitment being violative of Sub-section 2 of Section

337 of the Criminal Procedure Code, be quashed with a direction to the Chief Judicial Magistrate Jammu to hold committal proceedings afresh in

accordance with law.

One of the learned single Judges of this Court while admitting the reference to hearing observed that the reference raised two important

questions to be determined which reads as under :-

Whether an Additional Sessions Judge is competent to make a reference suo motu u/s 438, Cr. P.C. for setting aside an order of commitment

passed by the Judicial Magistrate;

Whether there is any conflict between Section 205(b) and Section 337 of the Criminal Procedure Code, if so what should be their harmonious

interpretation so as to enable the committing Magistrate or the trial court to record the statement of the Approver.

He, therefore, referred the matter to a larger Bench for an authoritative pronouncement and the case came up before us for hearing on the

aforementioned points.

A charge sheet was presented in the Court of Chief Judicial Magistrate Jammu on 21-7-1984 against the accused who were alleged to have

committed the offences under Sections 120-B RPC read with Sections 420, 419, 467, 468/471, RPC by the CIB Jammu. Undoubtedly the

offences under Sections 120-B, RPC, 467 and 471 RPC were exclusively triable by the Court of Session Judge, Jammu. The Magistrate in that

case had to ordinarily commit the accused to the Sessions for standing a trial before the learned Sessions Judge in accordance with law.

The first question in this regard which is to be determined by us is as to whether an Additional Sessions Judge is competent to make a reference

suo motu u/s 438, Cr. P.C. for setting aside an order of commitment passed by the Judicial Magistrate, which in nutshell means whether an

Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under Chapter XXXII of the Code of Criminal

Procedure in respect of any case which may be referred to him by or under any general or special order of the Sessions Judge.

According to clause (1) of Section 9 of the Code of Criminal Procedure it is imperative upon the Government to establish a court of Session for

every Sessions Division and (in consultation with the High Court) appoint a Judge of such Court under Clause (3) of the said Section. The

Government is also entitled to appoint in consultation with the High Court, the Additional Sessions Judges and the Assistant Sessions Judges to

exercise jurisdiction in one or more such Courts. It is thus clear that the Government in consultation with the High Court is at liberty to appoint as

many Addl. Sessions Judges in every Sessions Division as per requirement to exercise jurisdiction in one or more such courts. Every Additional

Sessions Judge is entitled to hear all the cases which are referred to him by the Sessions Judge for disposal by any general or special order. Such

exercise of jurisdiction by the Additional Sessions Judge is justified under Sub-section (2) of Section 438 of the Cr. P.C. as well which envisages

that an Additional Sessions Judge shall have and may exercise all powers of Sessions Judge, which may be transferred to him by or under any

general 0f special order of the Sessions Judge that it emerges that an Additional Sessions Judge is empowered to exercise all the powers of a

Sessions Judge within a particular District with regard to the criminal case or cases which are referred to him by or under any general or special

order of the Sessions Judge of that District. Under the Scheme of the Act it is found to have been laid down that every Addl. Sessions Judge in any

Sessions Division of the State can hold and exercise all the judicial powers of the Sessions upon the case/cases which are transferred to him by or

under the general or special orders of the Sessions Judge, so the Additional Sessions Judge can be held to be a Sessions Judge for the case.

It is as such held that every Additional Sessions Judge is a Sessions Judge for purposes of the disposal of the cases which have been referred to

him under the general or special order of the Sessions Judge of that District.

The point remains as to whether the Additional Sessions Judge Jammu, who has made the reference was suo motu competent to make it u/s

438, Cr. P.C. for setting aside the order of the committing Magistrate. In this regard it becomes imperative to make mention of Section 435, Cr.

P.C. which relates to the power to call for records of inferior courts. It relates that the High Court or any Sessions Judge of the Chief Judicial

Magistrate may call for and examine the record of any proceeding before any inferior criminal Court situate within the local limits of its or his

jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or

passed and as to the regularity of any proceedings of such inferior court and may, when calling for such record direct that the execution of any such

sentence or order be suspended and, if the accused is in confinement that he be released on bail or on his own bond pending the examination of the

record.

It was argued by Mr. J.P. Singh, learned counsel for the accused that the Additional Sessions Judge Jammu, who was seised of the matter could

not ask for the quashment of the criminal proceeding, for no proceedings were lying before the Committal Magistrate. The record of the case was

lying with the Addl. Sessions Judge and he could, therefore, not call for any of the record for the purposes of satisfying himself as to the

correctness, legality or propriety of the committal order passed by the trial Magistrate. According to him there was no power with the Addl.

Sessions Judge to exercise the revisional powers in the matter and say that the committal proceedings were not recorded by the trial Magistrate in

accordance with law. He made an attempt to convince us that within the conservative interpretation of Section 435, Cr. P.C. the Additional

Sessions Judge could not examine the record of the committal proceedings suo motu and make out a case that the committal proceedings were not

taken by the Magistrate in accordance with law. He could not convince us with his argument which was not based on any case law and such a

view if taken would be counter to the language of Section 435, Cr. P.C. Section 435, Cr. P.C. read with clause (2) of Section 438, Cr. P.C.

empowers an Addl. Sessions Judge to exercise of all the powers of a Sessions Judge under Chapter XXXII in respect of any case which may be

transferred to him by or under any general or special order of the Sessions Judge. It is immaterial as to in what manner the record has reached him.

Whether it came to him by way of a revision or the record reached him by way of a committed proceedings or the same is called by him in any

matter referred to him by the Sessions Judge of the Division. He is not debarred to peruse such a record to satisfy himself as to the correctness,

legality or propriety of finding, or order recorded by any inferior court working under him. Every Addl. Sessions Judge can sup motu look into the

matter referred to him by a Sessions Judge and such a finding, sentence"" or order was liable to be quashed because of its being suffering from

illegality and impropriety and make a reference to this Court for the reasons recorded by him in the case.

In the present case the committal proceedings were referred to the Additional Sessions Judge Jammu by the Sessions Judge for disposal in

accordance with law and the Additional Sessions Judge Jammu on perusal of the record found that the committal proceedings were not recorded

by the Chief Judicial Magistrate in accordance with law for the reasons recorded in his order. Therefore, he while exercising the powers u/s 435,

Cr. P.C. made a reference to this Court for quashing of the committal proceedings of the Chief Judicial Magistrate, Jammu, and sending it back to

him for making a fresh committal order in accordance with law. It thus is held that the learned Additional Sessions Judge Jammu who for the

purposes of disposal of this case was a Sessions Judge, was competent to make a reference suo motu to this Court u/s 438, Cr. P.C. for setting

aside the order of commitment passed by the Chief Judicial Magistrate, Jammu.

The next point which deserves consideration and adjudication by us is as to whether there is any conflict between Section 205(8) and Section

337 of the Criminal Procedure Code, if so, what should be their harmonious interpretation so as to enable the committing Magistrate or the court

to record the statement of an approver.

In order to find out as to whether there is any corelation between Section 205(d) and Section 337 of the Criminal Procedure Code, it is

relevant to quote the relevant portions of such sections, as under:-

Section 205(d) Commitment of case to Court of Sessions when offence is triable exclusively by it.-

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate

that the offence is triable exclusively by the Court of Sessions, he shall -

(a) commit the case to the Court of Sessions"".

Section 337(1): Tender of pardon to accomplice.-

In the case of any offence triable exclusively by the High Court or Court of Session or any offence punishable with imprisonment, which may

extend to sever years, or any offence under any of the following sections of the Ranbir Penal Code, namely, Sections 161, 165, 165-A, 216-A,

369, 401, 435 and 477-A, a Chief Judicial Magistrate a Sub-divisional Magistrate or any Judicial Magistrate of the first class may, at any stage of

the investigation or enquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or

indirectly concerned in or privy to the offence tender a pardon to such person on condition of his make a full and true disclosure of the whole of the

circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission

thereof;

Provided that, where the offence is under inquiry or trial, no Magistrate of the first class other than the Chief Judicial Magistrate shall exercise the

power hereby conferred unless he is the Magistrate making the inquiry or holding the trial, and, where the offence is under investigation, no such

Magistrate shall exercise the said power unless he is a Magistrate having jurisdiction in a place where the offence might be inquired into or tried and

the sanction of the Chief Judicial Magistrate has been obtained to the exercise thereof.

(2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the

offence and in the subsequent trial, if any

(2-a) In every case where a person has accepted a tender of pardon and has been examined under Sub-section (2), the Magistrate before whom

the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit

him for trial to the Court of Session or High Court, as the case may be.

On the literal reading of Section 205(D) of the Criminal Procedure Code, it transpires that when in a case instituted on a police report or

otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the.

Court of Session, he shall commit the case to the Court of Session for trial as envisaged by the relevant provisions of law. However, this provision

of law for the purposes of dealing with the commitment of an accused for an offence which is exclusively triable by the Court of Session, and is

dependent on the evidence of an accomplice cannot be committed for trial to a Sessions Judge unless such a person accepting a tender u/s 337 of

the Code of Criminal Procedure is examined as a witness in the court of Magistrate who is taking cognizance of the offence upon the police report

or otherwise. In such a case where such a person who has accepted a tender of pardon and has been examined under Sub-section (2), the

Magistrate before whom the proceedings are pending shall if he is satisfied that there are reasonable grounds for believing that the accused is guilty

of an offence, commit him for the trial to the Court of Session or High Court, as the case may be, so that it is found that there is co-relation

between Section 205(D) and Section 337 of the Criminal Procedure Code so far as it relates to the commitment of an accused, whose case is

dependant on the statement of an accomplice who has accepted the tender of pardon. In such cases which are dependent upon the evidence of an

accomplice, the Magistrate cannot commit an accused person to stand his trial for the offences triable exclusively by the Court of Session unless

the statement of the person accepting the tender u/s 337 of the Criminal Procedure Code is recorded and the Magistrate thereupon gets satisfied

that there are reasonable grounds to believe that the accused is guilty of an offence and commits him for trial to the Court of Session or the High

Court, as the case may be. So the legal position which emanates and is settled is that there is no conflict between Section 205(D) and Section 337

of the Criminal Procedure Code so far as the commitment of an accused for trial to the Court of Session is concerned. In all those cases where the

offence is exclusively triable by the Court of Session and the case is not dependant upon the evidence of an accomplice, the Magistrate can on the

institution of a police report or otherwise against the accused after it appears to him that the offence is triable exclusively by the Court of Session he

shall commit the accused to the Court of Session for the trial in accordance with law. However, where the case of an accused on the institution of a

police report or otherwise is found by a Magistrate dependant upon the evidence of accomplice who has tendered pardon before the Magistrate,

he can be committed after the statement of such a person accepting a tender is recorded and thereafter the Magistrate is satisfied that there are

reasonable grounds for believing that the accused is guilty of an offence triable solely by the Sessions Judge or High Court.

In view of the above position of law, it is established and held that there is no conflict between the above two provisions of the Criminal

Procedure Code and they are supplementary and complimentary to each other so far as the commitment of an accused for trial to a Court of

Session, as discussed above, is concerned.

In view of findings on both the questions referred to above, we hold that the Additional Sessions Judge Jammu has been correct in holding that

the commitment order passed by the Chief Judicial Magistrate Jammu was not in accordance with law and the same was violative of sub-Sections

(2)(2-a) of Section 337 of the Criminal Procedure Code and is as such quashed.

The case is sent back to the Chief Judicial Magistrate, Jammu to hold an enquiry afresh by examining the approver as a witness before

committing the case to the Court of Session.