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2020 (6) TMI 715 - HC - Indian LawsMaintainability of application - appropriate forum - rape - offences of extortion cheating breach of trust forgery and criminal intimidation - whether the procedure to be followed is that of trial of Warrant case by Magistrate or as a Session triable case ? - HELD THAT - Once the case stands committed to the Court of Sessions the procedure enlisted under Chapter XVIII heading Trial Before A Court of Sessions is followed. A bare perusal of Section 226 to 228 would show that there is no provision for recording any pre-charge evidence. After hearing and considering the records of the case and the documents the accused is either discharged under Section 227 or if the case is exclusively triable by the Sessions Court a charge is framed under Section 228 (1)(b). If the Judge is of the opinion that the case is not exclusively triable by the court of sessions then he may frame the charge against the accused and transfer the case for trial to the Chief Judicial Magistrate. Thus it is clear that a case involving an offence which is exclusively triable by a court of sessions once committed in terms of Section 209 Cr.P.C. has to proceed in terms of chapter XVIII where there is no provision for recording pre-charge evidence. In the present case a complaint was filed under Section 376 IPC along with other sections which is exclusively triable by Court of Sessions the learned M.M. rightly committed the case to the Sessions Court. The procedure adopted thereafter in recording pre-charge evidence was illegal and contrary to provisions of law. Further the impugned order in remanding the case to the court of CMM with a direction to proceed in accordance with law being illegal is equally untenable - the case is directed to be listed before the concerned Sessions Court initially on 06.07.2020 for directions where after the trial in the present case shall proceed as trial before a Court of Sessions as outlined under Chapter XVIII Cr.P.C. Petition allowed.
Issues Involved:
1. Whether the procedure to be followed in the trial of offences including rape along with extortion, cheating, breach of trust, forgery, and criminal intimidation should be as a 'trial of Warrant case by Magistrate' or as a 'Session triable case'. Detailed Analysis: Issue 1: Procedure for Trial of Offences Including Rape Background and Procedural History: The petitioner filed a complaint under Sections 384, 420, 468, 471, 406, 376, and 506 IPC against the accused before the Magistrate. The Magistrate took cognizance of the offences under Sections 384, 376, and 506 IPC and summoned the accused. The case was committed to the Sessions Court as the offences were exclusively triable by the Court of Sessions. Legal Provisions and Interpretation: - Section 190 Cr.P.C.: Provides for taking cognizance of offences by a Magistrate. - Section 200 Cr.P.C.: Requires the Magistrate to examine the complainant and witnesses. - Section 204 Cr.P.C.: Allows the Magistrate to issue process if there is sufficient ground for proceeding. - Section 209 Cr.P.C.: Mandates the Magistrate to commit the case to the Court of Sessions if the offence is exclusively triable by it. Sessions Court Procedure: Once the case is committed to the Court of Sessions, the procedure under Chapter XVIII of Cr.P.C. is followed, which does not include recording pre-charge evidence. Sections 226 to 228 outline that the Sessions Court should either discharge the accused or frame charges without pre-charge evidence. Case Law References: - Shivjee Singh v. Nagendra Tiwary & Ors. (AIR 2010 SC 2261): The Supreme Court clarified that once a case is committed to the Court of Sessions, the trial should proceed as per Chapter XVIII, without recording pre-charge evidence. - Dhano v. State and Anr. (2008 SCC OnLine Del 677): The Sessions Court erroneously recorded pre-charge evidence, which was held as a grave error. Court's Decision: The High Court held that the procedure adopted by the Sessions Court in recording pre-charge evidence was irregular and contrary to the provisions of law. The impugned order remanding the case to the Chief Metropolitan Magistrate (CMM) was also deemed illegal. Conclusion: The High Court set aside the impugned order and directed that the trial should proceed as a 'trial before a Court of Sessions' under Chapter XVIII Cr.P.C. The case was directed to be listed before the concerned Sessions Court for further directions. Final Order: The petition was allowed, and the case was to be listed before the Sessions Court initially on 06.07.2020 for directions. The trial shall proceed as per the procedure outlined for trials before a Court of Sessions. A copy of the order was to be communicated to the learned District Judge to assign the case to the concerned Court of Sessions. The petition was disposed of in these terms.
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