Yog Raj & Anr. vs Girdhari Lal & Ors.

This criminal revision petition has been directed against the order dated 15.11.2000 passed by the 1st. Additional Sessions Judge, Jammu

(hereinafter ""Sessions Judge"") whereby he has remanded the complaint committed to him by the City Judge Judicial Magistrate 1st Class vide

order dated 18.7.2000 and also discharged the coaccused while framing charge against accused Girdhari LaL.

The impugned order has been challenged on the ground that the learned sessions judge has erred while discharging the other accused and

directing Girdhari Lal accused to face trial before the learned magistrate.

I have heard the learned counsel for the parties and perused the record.

A complaint came to be filed before the learned city judge, Judicial Magistrate 1st Class, Jammu under section 500 RPC against five accused

namely, (1) Girdhari Lal (2) Vasdev (3) Hari Ram (4) Ashwani Kumar and (5) Som Nath R/o Dansal, Jammu. The Magistrate took cognizance

and complainant vide order dated 30.5.1998 was directed to lead evidence. At this stage, the learned presiding officer perhaps contemplating that

the case is exclusively triable by the sessions judge, being section 500 RPC containing in two parts viz; (a) and (b) committed it to the learned

sessions judge directing the accused to be present before the sessions court on 7.8.2000.

Upon examination of the order of learned Magistrate, the Sessions Judge after appreciating part (a) and (b) of section 500 RPC came to the

conclusion that the offence is not exclusively triable by him. He returned the complaint for trial to the learned Magistrate. While doing so, he

discharged the other accused except Girdhari Lal against whom he framed the charge. What emerges from the order of learned sessions judge is

that complaint could be tried by the Magistrate also in terms of schedulell of Cr.P.C. To this extent, the findings of the learned sessions judge are

not disputed being in consonance with law.

The sessions judge after appreciating the evidence, complaint and the statement of the complainant has come to the conclusion that prima facie

no offence is made out against the other accused except accused Girdhari Lal and chargesheeted him. He therefore remanded the case to the

Magistrate for trial. It is required to be seen as to whether this finding of the learned sessions judge is in accordance with law. What emerges from

the order of the learned sessions judge is that the action of discharging the coaccused shows that he has taken cognizance of the complaint. If

cognizance has been taken by him he has no jurisdiction to transfer the complaint for trial; and on the contrary if the cognizance is not taken, in that

situation, he has not jurisdiction to discharge the accused. The learned sessions judge has sent the complaint back to the learned Magistrate which

is illegal in the event of having taken cognizance by discharging the other coaccused in view of the mandate of section 528 (2) Cr.P.C. In both

these situations, order passed by the sessions court is patently bad and is accordingly quashed. Proceedings of the trial Magistrate are in

accordance with law except the reference made to the Sessions Judge. The record be returned back to the trial Magistrate.