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TMI Blog1965 (11) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... informants, demanded from them large sums of money and threatened them with death if they failed to pay the amounts demanded by them. The informations also stated that some of these persons paid part of the money and were given time to pay the balance while some agreed to pay the amounts demanded. Upon informations given by these persons offences under s. 392, Indian Penal Code, were registered by the station officer and after investigation five challans were lodged by him, in the court of Magistrate, First Class at Motihari. One of the cases ended in an acquittal but we have not been informed of the date of the judgment in that case. In the other four cases trial had come to a close in that all the prosecution witnesses and the defence witnesses had been examined and the cases had been closed for judgment. 3. In the case against the appellants in Crl. A. 165 of 1962 the challan was presented on October 27, 1960. The order sheet of that date reads as follows : Charge u/s 302, I.P.C. framed against accused Thakur Ram and Jagarnath Pd. and explained to them. They plead not guilty. This case will constitute an independent case. As for the other parts of the alleged occurre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Immediately thereafter a revision application was preferred, not by the prosecution, but by Sagarmal, an information in one of the other three cases. The Sessions Judge, Champaran, after briefly reciting the facts and reasons on which the order of the trying Magistrate was founded, disposed of the revision application in the following words : The cases are of very serious nature and the framing of charges under sections 386 or 387, I.P.C. cannot be ruled out altogether. Consequently, I direct that each of these cases should be tried by a Court of Session. The learned Magistrate will commit the accused persons for trial accordingly. The applications are thus allowed. 7. An application for revision was preferred by the appellants before the High Court and the main ground urged on their behalf was that the Sessions Judge had no jurisdiction to pass an order for commitment as there was no order of discharge by the Magistrate. There is conflict of authority on the question whether under s. 437, Cr.P.C. a Sessions Judge can, in the absence of an express order of discharge, direct commitment of a case to it while the trial is proceeding before a Magistrate in respect of of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Full Bench decision has been followed in Sri Dulap Singh ors. v. State through Sri Harnandan Singh AIR 1954 All 163. Before us reliance is also placed on behalf of the appellants on the decision in Yunus Shaikh v. The State AIR 1953 Cal 567. That decision, however, is of little assistance to them because the ground on which the High Court set aside the order of the Sessions Judge is not that he had no jurisdiction to make it under s. 437, Cr.P.C. but that the action of the Magistrate in not framing a charge under s. 366 of the Indian Penal Code but framing a charge only under s. 498, I.P.C. did not, in the light of the material before him, amount to an improper discharge of the accused in respect of an offence triable by a Court of Sessions. The view taken by the Allahabad High Court has been accepted as correct in Sambhu Charan Mandal v. The State 60 C.W.N. 708. On the other hand a Full Bench of the Madras High Court has held in in re Nalla Baligadu AIR 1951 Mad 0 that where under s. 209(1) a Magistrate finds that there are not sufficient grounds for committing the accused for trial and directs such person to be tried before himself or some other Magistrate, the revisional powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Magistrate he must proceed accordingly. This contingency will arise if the Magistrate forms an opinion that no case exclusively triable by a Court of Sessions is disclosed but a less serious offence which it is within the competence of the Magistrate to try is disclosed. In that case he has to proceed to try the accused himself or send him for trial before another Magistrate. Where the Magistrate is of opinion that the accused should be committed for trial he has to frame a charge and declare with what offence the accused should be charged. With the remaining provisions of s. 207. we are not concerned. It will thus be seen that where the police report suggests the commission of an offence which is exclusively triable by a Court of Sessions, the Magistrate can nevertheless proceed to try the accused for an offence which is triable by him if he is of the view that no offence exclusively triable by a Court of Session is disclosed. Similarly, even in a case where an offence is triable both by a Magistrate and a Court of Sessions, the Magistrate is of the view that the circumstances do not warrant a trial by a Court of Sessions he can proceed with the trial of the accused for that off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those provisions inapplicable to the very class of cases for which they were intended. When a case is brought before a Magistrate in respect of an offence exclusively or appropriately triable by a Court of Sessions what the Magistrate has to be satisfied about is whether the Material placed before him makes out an offence which can be tried only by the Court of Sessions or can be appropriately tried by that Court or whether it makes out an offence which he can try or whether it does not make out any offence at all. In Ramgopal Ganpatrai v. State of Bombay 1958 CriLJ 244 this Court has pointed out : In each case, therefore the Magistrate holding the preliminary inquiry, has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit and unless he is so satisfied, he is not to commit. 12. It has, however, also to be borne in mind that the ultimate duty of weighing the evidence is cast on the court which has the jurisdiction to try an accused person. Thus, where two views are possible about the evidence in a case before the Magistrate, it would not be for him to evaluate the evidence and strike ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercisable only in respect of express orders of discharge. In this context it will be relevant to quote the following passage from the judgment of the Full Bench of the Madras High Court in Krishna Reddy's case I.L.R. 24 Mad. 136 : I do not think that the order of the Sessions Judge was one which he had no jurisdiction to make. In my view the decision of the Magistrate must be taken to be not only one of acquittal of an offence punishable under section 379, Indian Penal Code, but one of discharge so far as the alleged offence under section 477, Indian Penal Code is concerned. The complaint against the accused was that he committed an offence punishable under section 477, Indian Penal Code. Such offence is triable exclusively by the Court of Sessions. The Magistrate could neither acquit nor convict him of such offence. He was bound either to commit him to the Sessions Court or to discharge him. He did not commit him. The only alternative was to discharge him, and that, I take it, is what the Magistrate really did do. It is not suggested that the charge under section 477 is still pending before the Magistrate. It has been disposed of, and the only question is as to what the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions now. It is further noteworthy that after the last attempt failed it was not the prosecution which went up in revision before the Sessions Judge but the informants and, as pointed out earlier, in the matter concerning the appellants before us it was not even the informant Shyam Lall but one Sagarmal, the informant in another case who preferred a revision application. In a case which has proceeded on a police report a private party has really no locus standi. No doubt, the terms of s. 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not be irrelevant to bear in mind the fact that the court's jurisdiction was invoked by a private party. The criminal law is not to be used as an instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few except one, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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