1. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. None appeared on behalf of opposite parties.
2. This is an application under section 482 of the Criminal Procedure Code seeking quashing of the order dated 02.02.2005 passed by learned 3rd Additional Sessions Judge, Siwan, in Criminal Revision No. 21 of 2004, refusing the prayer to set aside the order dated 17.05.2003 passed by Sri V.B. Gupta, learned Judicial Magistrate, 1st Class, Siwan, allowing the prayer of the accused persons that case under Section 307 is not made out but directing them to be present for framing of charge against them for other minor offences and trial.
3. Admittedly, at the instance of the petitioner Maharajganj P.S. Case No. 116 of 2002 for offences under section 341, 323, 324, 307, 504/34 of the Indian Penal Code was instituted on 12.07.2002, wherein after investigation charge sheet was submitted and as it appears from order dated 17.05.2003 passed by Shri V.B. Gupta, Judicial Magistrate, 1st Class, Siwan, in Tr. No. 18/2005 that cognizance for such offences had already been taken by the Chief Judicial Magistrate, where perhaps matter was pending for commitment of the case to the court of session, but the opposite parties accused persons filed a petition on 12th December 2002, stating therein that cognizance for the offences under section 307 of the Indian Penal Code has been taken in a mechanical manner, whereas, no such offence is made out and accordingly the court below after hearing them, arrived at the conclusion that no offence under section 307 is made out so refused to commit the case but ordered to proceed with trial. The petitioner against order of the court below preferred Cr. Rev. No. 21/2004, which has also been dismissed vide order dated 02.02.2005 by learned 3rd Additional Sessions Judge, Siwan.
4. From the orders of the trial court as well as Revisional Court, it is crystal clear that after submission of charge sheet for the offence under Section 307 of the Indian Penal Code besides others, the Chief Judicial Magistrate after taking cognizance transferred the case to the court of Magistrate, 1st Class, to complete remaining requirements as contemplated under section 209 of the Criminal Procedure Code which reads as such:
209. Commitment of case to Court of Session 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 Session, he shall
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made.
(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) Notify the Public Prosecutor of the commitment of the case to the Court of Sessions.
5. No doubt, the Magistrate is empowered to commit the case to the court of session only in the event of being satisfied himself with the case being exclusively triable by the court of session and on such satisfaction only the remaining requirements such as section 209 (a toy d) for commitment as prescribed above is to be fulfilled.
6. Here in the instant case, undoubtedly on receipt of the charge sheet the Magistrate empowered to proceed under section 209 of the Criminal Procedure Code and take cognizance was satisfied that case is triable exclusively by the Court of Session. The moment a formal order of taking cognizance for offence under section 307 of the Indian Penal Code is passed and only thereafter the case appears to have been transferred to the court of Shri Gupta, Judicial Magistrate, to fulfill remaining part of the requirement.
7. At this stage, it can very well be said that first part as required under section 209 of the Criminal Procedure Code relating to satisfaction of Magistrate to the extent whether case is exclusively triable by court of session is or not is over. The moment order of cognizance is passed; it cannot be reconsidered even by the court taking cognizance rather only this aspect whether case is made out for the offence under section 307 of the Indian Penal Code or not may only be considered by the competent court in exercise of power under section 228 of the Criminal Procedure Code.
8. Before the courts below the two decisions of this court were also placed as appears from their respective orders, they are the order by a Single Bench in Cr. Rev. No. 31/1994 Panchanan Mahato v. State of Bihar and others reported in 1995(2) East CrC 66 (Pat)(RB); wherein in para 8 it has been held: "In cases where there are only wrong mentioning of Sessions triable sections then the committing court can exercise its jurisdiction to hold that the case is not exclusively triable by Sessions; it remains open to the Sessions Judge to consider all matters and if it is found that the case is not triable by Sessions then the Sessions Court has the jurisdiction to, instead of trying the case itself, can send it back to the Court of Magistrate under Section 228, Cr.P.C. but the Magistrate cannot exercise all its powers on going through the materials for adjudicating whether the case falls within the exclusive triability of the Sessions or not under Section 209, Cr.P.C.
9. Another decision placed before the courts below is case of Ramayan Singh vs. State of Bihar reported in 2001(1) PCCR 105 and perhaps the principles discussed and laid down therein could not properly be appreciated by both the courts below. Wherein main question for consideration was the powers of Magistrate to remand the accused between the period after submission of charge-sheet and commitment of the case in Sessions triable cases.
10. In the above decision in para 17 after discussing various decisions of the Apex Court and full Bench decision of this Court in Rabindra Rai vs. State of Bihar reported in 1984 PLJR 701; it has been held:
"17. Thus, the binding precedents are that after submission of the charge sheet and before passing an order under Section 209 committing an accused to the Court of Sessions in a case triable by the Court of Sessions, the proceeding pending before the Magistrate is an inquiry and during that period he can exercise the power of remand either under Section 309 of the Code or under Section 209(a) of the Code after its amendment by Act 45 of 1978 which clearly provides that during the commitment an accused can be remanded to custody subject to the provision of bail. This amendment in Section 209 of the Code by the aforesaid Act was made to remove the difficulty actually experienced in cases where the Committing Magistrate is unable to commit the accused on the same day."
And in para 24 after considering subsequent decision including case of Raj Kishore Prasad vs. State of Bihar reported in 1996 (1) PLJR 123 it is made clear that:
"24. With all humility and with respect to the Honble Judges, who have rendered judgment in the case of Raj Kishore Prasad (supra), I follow the judgments rendered by the Apex Court in the earlier two cases and which have been followed by a Full Bench of this Court in the case of Rabindra Rai (supra) and hold that a proceeding before, the Magistrate after submission of the charge sheet and before commitment of the case in a case whether the commitment is to be made is an inquiry under Section 2(g) of the Code and during that period the Magistrate has power to remand either under Section 209(a) or under Section 309(2) of the Code."
11. No doubt the proceeding under section 209 of the Criminal Procedure Code is on inquiry but the same consists of two parts in 1st part it is to be seen whether the offence made out is triable by Court of Sessions and in 2nd part other pre-requisites for transmission of the case to the Court of Sessions are to be complied with. And in the aforesaid case also in para 14 while discussing the earlier decisions it has been held as such: "The Apex Court in case of Rajendra Kumar Jain vs. State, AIR 1980 SC 1510, while dealing with a matter whether, an application for withdrawal can be made at the stage of commitment or not, held that the committing Magistrate exercises a judicial function under Section 209 of the Code. It was also held that Section 209 of the Code of 1973 obliges the Magistrate to commit the case to the Court of Sessions when it appears to the Magistrate that the offence is triable exclusively by a Court of Sessions. Therefore, the Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Sessions. If no offence is disclosed, the Magistrate may refuse to take cognizance of the case or if the offence is disclosed is one not triable exclusively by the Court of Sessions he may proceed to deal with it under the other provisions of the Code. To that extent, the Committing Court does discharge a judicial function."
12. The law on the matter is crystal clear; the Magistrate is definitely empowered to be satisfied after going through the materials, whether case is triable by Court of Sessions or not before proceeding for commitment of the case. But question of satisfaction cames to an end when on going through such materials cognizance for the offence is taken indicating the case triable by the Court of Sessions. The above may further be clear from the observations made in para 10 of the decision in case of Ramayan Singh (supra):
10. The word cognizance has not been defined under the Code. Section 190, which falls under Chapter XIV with the heading "Conditions Requisite for Initiation of Proceedings" only provides that the Magistrate may take cognizance of offences under three clauses (a), (b) and (c). It is difficult to define the meaning of taking cognizance. Whether in a case cognizance has been taken or not depends upon the facts and circumstances of the case. In Ajit Kumar Palit vs. State of West Bengal, AIR 1963 SC 765, the Supreme Court held that the word cognizance has no esoteric or mystic significance in criminal law or procedure. It merely means become aware of and when used with reference to a Court or Judge, to take notice of judicially. Taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence".
13. After arriving at 2nd stage of inquiry under section 209 of the Criminal Procedure Code, nothing more remains for the committing court except completing the package to be transmitted before the Court of Sessions so that the trial there may commence immediately.
14. On receipt of such cases after commitment, the Sessions Judge is empowered to re-examine the materials and pass appropriate order under section 227 and 228 of the Criminal Procedure Code as the case may be. But once cognizance is taken, after being satisfied of offences being made out and the case is triable by Court of Sessions, no court other than sessions is authorized to examine the materials on their own merit for discharge or addition of other accused persons.
15. In the instant case, the courts below have committed error, the learned Magistrate re-examined the order taking cognizance, though, on the prayer of accused persons i.e. opposite parties, that order taking cognizance was passed in mechanical was but the Magistrate was not at all authorized to reconsider such order taking cognizance on examining the materials on merit. The revisional court also could not rectify the error so committed by the court below.
16. Thus, the impugned orders are quashed and accordingly, this application stands allowed, and the matter is remitted to the court below for commitment of the case to the Court of Sessions after complying other pre-requisites. It is further made clear that Court of Sessions shall pass appropriate order under section 227 and 228 of the Criminal Procedure Code in accordance with law after receipt of the case record on commitment.