Criminal Application No. 2161 of 2002

12th September, 2002

Petitioner Counsel: Mr. A. S. MARDIKAR, Mr. Y. B. MANDPE

Cases Cited:
Tuneshwar Prasad Vs. State of Bihar, 1978 Cri.L.J. 1080 [Para 7]
Sundar Lal Vs. State, 1983 Cri.L.J. 736 [Para 8]
Raj Kishore Prasad Vs. State of Bihar, AIR 1996 SC 1931 [Para 9,12]
Kannan Vs. Vardarajan, 1995 Cri.L.J. 3059 [Para 11]
State Vs. Jairam, 1976 Cri.L.J. 42 [Para 12]

JUDGMENT

Judgment :- Rule. By consent rule is made returnable forthwith.

2. The applicants were charge sheeted by police station Arvi in Crime No. 160/1997 for alleged offence under section 304 r/w sec. 34 of the Indian Penal Code and Sections 39 and 44 of the Electricity Act, 1910. The charge sheet came to be filed on 20/10/1997. On 17/12/97 the accused preferred an application praying for grant of permission to argue on the point of committal of their case to the Court of Sessions. It was the contention of the present applicant that in the case no offence u/s 304 I.P.C. was disclosed and at the most the offence could be one u/s 304-A of the Indian Penal Code.

3. On 3/1/1998 after hearing the applicant and A.P.P. and perusing the documents alongwith statements recorded by the police, the learned Judicial Magistrate, First Class, Arvi passed an order holding that the offence in question was exclusively triable by the Court of Sessions and thus, rejecting the application made by the applicant-accused. While passing this order, the J.M.F.C., Arvi noted that the owner of the land (present applicant No.11) had supplied electric energy to a naked wire fencing around his field for protection of his crop from wild life and thieves. That the husband of the complainant had come into contact with this live wire and died due to electric shock and this had resulted in the registration of offence against the accused.

4. Being aggrieved by the order dated 3/1/1998, the applicants preferred revision being Criminal Revision No.9/1998 in the Court of 2nd Additional Sessions Judge, Wardha. The said application was disposed off by a judgment and order dated 23/7/2002 passed by the 2nd Additional Sessions Judge, Wardha whereby he came to the conclusion that the offence may be one u/s 304-A, but could also be said to be one under section 304 of the Indian Penal Code. The Revisional court came to the conclusion that the Trial Court had given due consideration to all aspects of the matter and rejected the revision petition.

5. The main point argued before me is that the accused has right under sec.209 of Cri.P.C. for hearing at the committal stage when the magistrate applies his mind as to whether the offence is triable exclusively by the Court of Sessions.

6. The learned counsel for the appellants, Shri Mardikar contended that scheme of the Criminal Procedure Code, 1973 and more particularly sections 207, 208 indicated that the accused was required to be supplied with copies of statements and documents and that at the stage of section 209, the accused would be before the Magistrate. His contention was that once the accused either appeared or was brought before the Magistrate, and the Magistrate applied his mind to the question as to whether the offence was triable exclusively by the Court of Sessions, the accused who was before the court ought to be given a hearing.

7. The learned counsel for the applicants submitted that though the provision for hearing does not specifically appear under section 209, the grant of hearing should be read into section 209 as being an incident of natural justice. He contended that if such hearing was not given at this stage though the accused was before the court, the Magistrate could be deprived of an opportunity of properly appreciating the matters and that if the accused were to be heard at this stage, they could assist the court on the question as to whether the offence was triable exclusively by the Court of Sessions. In support of his contention, the learned counsel for the applicants relied upon a Full Bench Judgment of Patna High Court in the case of Tuneshwar Prasad Vs. State of Bihar (1978 Cri.L.J. 1080). In the said case the full bench of Patna High Court came to the conclusion that a proceeding under sec. 209 of Cri.P.C. was an "inquiry" within the meaning of section 2(g) of the said Code. It further concluded that even though section 209 does not specifically say that the Magistrate should hear the accused before the passing of an order u/s 209, he should be heard for determining whether the offence, on the evidence recorded by the Magistrate in the inquiry u/s 202 is an offence exclusively triable by the Court of Sessions and is made out.

8. The learned advocate for the applicants then relied upon the Full Bench decision of the Allahabad High Court in the case of Sundar Lal Vs. State (1983 Cri.L.J. 736). He referred to the observation contained in para 12 to the following effect.:

".....A reading of S.209, Cr.P.C., would show that it is a self contained Code. The object of inquiry under this section is twofold, firstly to prevent the committal of cases in which there was no reasonable ground for conviction so as to on one hand save the accused from the prolonged anxiety of undergoing a trial for offences that could not be brought home to him and on the other to save the time of the Court being wasted over cases in which the evidence would obviously not justify a conviction, secondly to provide that no person shall be committed for trial without being acquainted with the facts and circumstances of the offence impugned against him and without being given a fair opportunity of meeting them. The statutory requirement of a separate order in writing with reasons therefor, is only in respect of committal and not in respect of remanding the accused to jail custody for which mere issue of warrant of remand is sufficient".

9. As against this, the learned A.P.P. relied upon a more recent judgment of the Apex Court in the case of Raj Kishore Prasad Vs. State of Bihar (AIR 1996 SC 1931). It was his contention that the Apex Court had taken a view that the proceedings under section 209 of Cri.P.C. do not fall within the ambit of "inquiry" as defined in section 2(g) of Cri.P.C. He contended that the proceedings under sec.209 Cri.P.C. were not a part and parcel of the trial. In such proceedings no application of mind was required in order to determine an issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truthfulness of any version. It was his contention that the role of the Magistrate was only to see that the package which was sent to the Court of Sessions is in order, so that it can proceed straightway with the trial and to ensure that nothing was lacking in content as per requirements of section 207 and 208 of the Criminal Procedure Code.

10. In view of the judgment of the Apex Court referred to supra, it is clear that the view of the full Bench at Patna High Court (1978 Cri.L.J. 1080) is no longer good law, because the said judgment proceeds on the footing that the proceeding u/s 209 is an inquiry within the meaning of section 2(g) of Cri.P.C.

11. The learned A.P.P. drew my attention to judgments of other High Courts to indicate that the Magistrate was not empowered to go into the merits of the allegations or to hear the accused at the stage of committal. He made a reference to the judgment of the Madras High Court in the case of Kannan Vs. Vardarajan (1995 Cri.L.J. 3059). In the said case the single Judge of Madras High Court had taken a view which is reproduced herein below:

"....When complaint prima facie discloses commission of offence, Magistrate has no right to go into merit of allegations. In the instant case complaint disclosed commission of offences triable exclusively by Court of Sessions. Held, it was duty of Magistrate to commit the case to Court of Sessions and he has no power to consider veracity of allegations in the complaint and discharge the accused. Thus revision against order of Magistrate and ordering continuance of proceedings is sustainable."

12. He then referred to a judgment of Delhi High Court in the case of State Vs. Jairam (1976 Cri.L.J. 42) in which single Judge of Delhi High Court took a view that the accused was not required to be heard at the stage of committal u/s 209 Cri.P.C., 1973. In fact, this judgment of Delhi High Court was referred to by the full bench of Patna High Court and held to be wrongly decided. While holding so, the full bench of Patna High Court observed that if the judgment of Delhi High Court was to be considered to mean that the proceedings u/s 209 of the Code is not an inquiry at all, it must to that extent, be held to have been wrongly decided. I have already mentioned hereinabove that the observation of the full Bench of Patna High Court to the effect that the proceeding u/s 209 of Cri.P.C. is an inquiry can no longer said to be a good law in view of the subsequent ruling of the Apex Court in a case of Raj Kishore Prasad Vs. State of Bihar (AIR 1996 SC 1931).

13. Be that as it may, on perusal of the section and on application of first principles, it is clear that no hearing can be read into the provisions of section 209. The provisions of section 209 brought about a drastic change from the procedure followed in the matter of committal proceedings. An examination of the corresponding provisions of the old Code indicates that u/s 207-A of the old Code which found place in Chapter XVIII, committal court was required to record evidence that may be provided by the prosecution and thereafter if upon consideration of the evidence and all the documents referred to in section 173, and after examination, if any, of the accused and after affording opportunity to the accused of hearing, he was of the view that no ground for commitment was made out discharge the accused unless it appears to him that he should be tried before himself or some other Magistrate and in that event proceed accordingly, and if upon consideration of the evidence and the documents referred to above, was of the view that he should be committed to trial, frame a charge declaring as to with what offence an accused was charged and commit him to sessions.

14. Section 209 of the new Code has done away with all these aspects required to be followed by the Committal Court pertaining to recording of evidence, examination of accused or hearing him.

15. A glance at the scheme of Chapter XVIII of the Cri.P.C., 1973 which pertains to trial before the court of Sessions indicates that there exists a right of applying for discharge under sec. 227. It is obvious that the accused has to be heard at this stage, because requirement of hearing is provided u/s 227 itself. It is after consideration of the record of the case and hearing as aforesaid that a charge can be framed. At this stage if the Court of Sessions concludes that the offence is not exclusively triable by the court of Sessions, he is then required to frame a charge against the accused and by an order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial Magistrate is required to try an offence in accordance with the procedure for the trial of warrant cases instituted upon police report.

16. By curtailing the right of hearing in the Code provided under sec.207-A and specifically providing a right of hearing at the subsequent stage for the committal, it is clear that the intention of the legislature was not to grant a hearing to the accused at the stage of section 209. In the circumstance, what is required to be done by the Committing court is to ensure that the matter is ready for trial and the stages mentioned in Sec.207 or 208 have been complied with. He has then to come to a prima facie conclusion on the basis of the material before him as to whether the offence disclosed is triable exclusively by the court of Sessions. This is required to be done without hearing the accused and without dealing with the related merits or demerits of the material before him.

17. In this view of the matter, I find that the point which has been raised in this application is devoid of any substance. Both the lower courts have proceeded on the basis that an offence u/s 304 is made out. I am not inclined to interfere with the view taken by the lower courts. Save and except to state that the view taken is prima facie view and the view taken by the Sessions Court as well as any observations made, in this judgment may not come in the way of applicants in their trial. In view of this, a rule issued in this matter is discharged.

Application dismissed.