# THAKUR RAM v. THE STATE OF BIBAR

- **Citation:** [1966] 2 S.C.R. 740
- **Court:** Supreme Court of India
- **Decided:** 1965-11-26
- **Case number:** Criminal Appeals Nos. 165-168 of 1962
- **Bench:** J. R. Mudholkar, R. S. Bachawat, P. Satyanarayana Raju
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/thakur-ram-v-the-state-of-bibar-3745
- **Pages:** 12

## Headnote

Code of Criminal Procedure 1898 (Act 5 of 1898), s. 437-Powers
of Sessions Judge to order committal in the absence of express order of
discharge by Magistrate.
The accused were charged under s. 392, Indian Penal Code in the
Coun of a Magistrate. The prosecution failed in its attempt to have the
procedure under Ch. XVIII, Code of Criminal Procedure adopted. After
15 months, the prosecution made an application to the Magistrate
to
frame a charge under s. 386 or s. 387, Indian Penal Code (which are
exclusively triable by a Court of Sessions)
and to commit the
accused to the
Court of Sessions,
which
was
refused. Thereafter
a second application was made for committing the case to the Court of
Sessions. This, too, was rejected by the Magistrate. Immediately thereafter, one of the informants, filed a revision which the Sessions Judge
allowed being of the view that the framing of charges under s. 386 or
387, I.P.C. could not be ruled out altogether and directed the Magistrate
to commit the accused to the Court of Sessions. The appellants preferred
a revision to the High Court, contending that the Sessions Judge had no
jurisdiction to pass an order for commitment as there was no order of
discharge by the Magistrate. The High Court rejected the revision application.
In appeal to. this Court :
HELD : There is nothing in the language of s. 437 of the Code of
Criminal Procedure from which it could be said that this power is not
exercisable during the pendency of a trial before a Magistrate or that
this power can be exercised only .where Magistrate had made an express
order of discharge.
The provisions of the Code indicate that an express
order of discharge is contemplated only in a case where a Magistrate
comes to the conclusion tha• the act alleged against the accuse~ does not
amount to any offence at all and, therefore, no question of trying him
either himself or by another court arises. Where on a certain set of facts
the accused is alleged by the prosecution to have committed an offence
exclusively triable by a Court of Sessions but the M•gistrate
is of the
opinion that th>e offence disclosed is only an offence which he is himself
competent to try and either acquits or convicts him there is an end of the
matter in so far as the very set of acts are concerned.
The facts· may
disclose really a very grave off<i:ce such as, say, one unde.r s. 302 J.P.(;.
but the Magistrate thinks that the offence falls under s. 304A which he
can try and after trying the accused either convicts or acquits him.
In
either case the, result would be that the appropriate court will be prevented
from trying the accused for the grave offence which those very facts
disclose. It is to obviate such a consequence and to prevent inferior
oourts from clutching at jurisdiction that the provisions of s. 437, Crimi·
nal Procedure Code have been enacted. [747 C, F; 748 G]
Nahar Singh v. State, I.L.R. ( 1952) 2 All. 152, Sri Dulap Singh cl
On. v. State through Sri Harnandan Singh A.LR. 1954 All.
163 and
Sambhu Charan Mandol v. The State 60 C.W.N. 708, disapproved.
A
B
..
c
D
E
-
F
G
-
H
.-
-
____ ,,
THAKUR RAM v. STATE (Mudholkar, !.)
741
A
In re : Nal/a Ba/igad11, A.LR. 1953 Mad. 801, Rambalam Pd. Singh
B
c
D
E
v. State of Bihar, A.l.R. 1960 Patna 507,
Krishnareddi v. Subbamma,
I.L.R. 24 Mad. 136 Shambhooram v. Emperor, A.LR. 1935 Sind 221,
Sultan Ali v. Emperor, A.LR. 1934 Lahore 164 and In re Val/uru Naruyan
Reddy & Ors. A.LR. 1955 Andhra 48., approved.
Yunus Shaikh v. The State, A.LR. 1953 Cal. 567 distinguished.
The provisions of s. 437, howe¥er, do not make it obligatory upon a
Sessions Judge or a District Magistrate to order commitment in every case
where an offence is exclusively triable by a Court of Sessions. The Jaw
gives a discretion to the revising authority and that discretion has to be
exercised judicially. [750 Bl
Considering the delay in moving the Sessions Judge, the terrible harassment that the accused would be called upon to face if the Magistrate were
t

## Text

THAKUR RAM
v.
THE STATE OF BIBAR
November 26, 1965
[J. R. MUDHOLKAR, R. S. BACHAWAT AND
P. SATYANARAYANA RAJU, JJ.]
Code of Criminal Procedure 1898 (Act 5 of 1898), s. 437-Powers
of Sessions Judge to order committal in the absence of express order of
discharge by Magistrate.
The accused were charged under s. 392, Indian Penal Code in the
Coun of a Magistrate. The prosecution failed in its attempt to have the
procedure under Ch. XVIII, Code of Criminal Procedure adopted. After
15 months, the prosecution made an application to the Magistrate
to
frame a charge under s. 386 or s. 387, Indian Penal Code (which are
exclusively triable by a Court of Sessions)
and to commit the
accused to the
Court of Sessions,
which
was
refused. Thereafter
a second application was made for committing the case to the Court of
Sessions. This, too, was rejected by the Magistrate. Immediately thereafter, one of the informants, filed a revision which the Sessions Judge
allowed being of the view that the framing of charges under s. 386 or
387, I.P.C. could not be ruled out altogether and directed the Magistrate
to commit the accused to the Court of Sessions. The appellants preferred
a revision to the High Court, contending that the Sessions Judge had no
jurisdiction to pass an order for commitment as there was no order of
discharge by the Magistrate. The High Court rejected the revision application.
In appeal to. this Court :
HELD : There is nothing in the language of s. 437 of the Code of
Criminal Procedure from which it could be said that this power is not
exercisable during the pendency of a trial before a Magistrate or that
this power can be exercised only .where Magistrate had made an express
order of discharge.
The provisions of the Code indicate that an express
order of discharge is contemplated only in a case where a Magistrate
comes to the conclusion tha• the act alleged against the accuse~ does not
amount to any offence at all and, therefore, no question of trying him
either himself or by another court arises. Where on a certain set of facts
the accused is alleged by the prosecution to have committed an offence
exclusively triable by a Court of Sessions but the M•gistrate
is of the
opinion that th>e offence disclosed is only an offence which he is himself
competent to try and either acquits or convicts him there is an end of the
matter in so far as the very set of acts are concerned.
The facts· may
disclose really a very grave off<i:ce such as, say, one unde.r s. 302 J.P.(;.
but the Magistrate thinks that the offence falls under s. 304A which he
can try and after trying the accused either convicts or acquits him.
In
either case the, result would be that the appropriate court will be prevented
from trying the accused for the grave offence which those very facts
disclose. It is to obviate such a consequence and to prevent inferior
oourts from clutching at jurisdiction that the provisions of s. 437, Crimi·
nal Procedure Code have been enacted. [747 C, F; 748 G]
Nahar Singh v. State, I.L.R. ( 1952) 2 All. 152, Sri Dulap Singh cl
On. v. State through Sri Harnandan Singh A.LR. 1954 All.
163 and
Sambhu Charan Mandol v. The State 60 C.W.N. 708, disapproved.
A
B
..
c
D
E
-
F
G
-
H
.-
-
____ ,,
THAKUR RAM v. STATE (Mudholkar, !.)
741
A
In re : Nal/a Ba/igad11, A.LR. 1953 Mad. 801, Rambalam Pd. Singh
B
c
D
E
v. State of Bihar, A.l.R. 1960 Patna 507,
Krishnareddi v. Subbamma,
I.L.R. 24 Mad. 136 Shambhooram v. Emperor, A.LR. 1935 Sind 221,
Sultan Ali v. Emperor, A.LR. 1934 Lahore 164 and In re Val/uru Naruyan
Reddy & Ors. A.LR. 1955 Andhra 48., approved.
Yunus Shaikh v. The State, A.LR. 1953 Cal. 567 distinguished.
The provisions of s. 437, howe¥er, do not make it obligatory upon a
Sessions Judge or a District Magistrate to order commitment in every case
where an offence is exclusively triable by a Court of Sessions. The Jaw
gives a discretion to the revising authority and that discretion has to be
exercised judicially. [750 Bl
Considering the delay in moving the Sessions Judge, the terrible harassment that the accused would be called upon to face if the Magistrate were
to commit them for trial by a Court of Sessions now, and further that
it was a private party who had no locus standi that went up in revision
before the Sessions Judge after the last attempt by the prosecution had
failed, it was injudicious for the Sessions Judge to order the commitment of the accused. [150 F-H; 751 B-C]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
165-168 of 1962.
Appeals by special leave from the judgment and order dated
August 25, 1962 of the Patna High Court in Criminal Revisions
Nos. 527 to 530 of 1962.
Nuruddin Ahmad and U. P. Singh, for the appellants.
S. P. Varma and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by
Mudholkar, J. This judgment will also govern Crl. As. No. 166
of 1962, 167 of 1962 and 168 of 1962. A common question
arises in these appeals from a judgment of the Patna High Court
F dismissing four revision applications preferred before it by four
sets of appellants in the appeals before us. Counsel on both tbe
sides agree that since the relevant facts of all the proceedings are
similar and the question <?f law arising from them is the same it
will be sufficient to refer to the facts of Case No. TR 320/60.
G
Four informations were lodged at the police station, Ghora
Saha on April 14, 1960 by different persons against the different
appellants in these cases and a similar information was lodged
. against some of the appellants by one Mali Ram. In all these
cases the allegations made by the informants were that each set
of the accused persons armed with deadly weapons went to the
H
shops of the various informants, demanded from them large sums
of money and threatened them with death if they failed to pay tbe
amounts demanded by them.
The informations also stated that
742
SUPREME
COURT REPORTS
[1966] 2 S.C.R.
some of these persons paid part of the money and were given
A
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
B
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.
In the case against the appellants in Crl. A. 165 of 1962 the
C
challan was presented on October 27, 1960.
The order sheet of
that date reads as follows:
Date of order
S. No. or proceeding
Order with the
signature of
the Court
Office action
taken with
date
1.
27-10-1960 All the 4 accused are present. Heard both sides. It is argued
on behalf of the prosecution that it is a fit case for adopting
procedure under Chapter XVIII Cr. P. C. and also that the
entire occurrence relates to offences committed on 4 dates so
D
that all of them cannot be dealt with in a single case. Discussed
E
law point
"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
F
occurrence accused Jagarnath, Kamal Ram and Bansi
Ram are charged separately u/s 384, I.P.C. and further
accused Thakur Ram u/s 384/109, I.P.C. and explained
to the respective accused. They plead not guilty. These
charges relating to three incidents on 3 dates will
constitute a separate single case.
G
Start separate order sheet for both.
Summons
P.W. for 26-10-60 and 27-11-60.
Accused as before.
Sd.! 0. Nath".
The trial dragged on for nearly 15 months and then the prosecution made an application to the court for framing a charge
H
-
"
\
-
THAKUR RAM v. STATE (Mudho/kar, !.)
743
A under s. 386 or s. 387, Indian Penal Code and for com·
mitting the case to a court of Sessions.
This was disposed of
by the learned Magistrate on January 25, 1962.
The relevant
portion of his order sheet of that date reads thus :
B
c
D
"Accused absent.
A petition for their representation u/s 540-A, Cr P.C. is filed.
Allowed. No reference book is produced.
Persued the record.
The
prosecution has pressed to refer the case to the Court
of Sessions u/s 386 or 387 I.P.C. On close scrutiny
I find that the robbery defined inside 390 I.P.C. fully
cover the ingredients pointed out and asked by the
prosecution side.
The case has entered in the defence
stage.
This point was not introduced ever before. The
charge was framed u/s 392, I.P.C. after hearing the
parties.
Although it may be referred to the superior
court at any stage, I find no reason to do so.
Put up on 28-2-62.
All accused to appear with
D.Ws without fail.
Accused as before."
On February 28, 1962 the prosecution moved a petition for stay
of proceedings on the ground that it wanted to prefer an application for revision of the order of January 25, 1962.
Stay was
"r
refused and the case was proceeded with.
On March 17, 1962
E the defence case was closed and the case was fixed for March 29,
1962 for arguments.
On that date a second application was made
for committing the case to a court of Sessions. It would appear
from the order sheet of March 29, 1962 that the Magistrate heard
the parties and ordered the case to be put up on the next day,
that is March 30, 1962. On this day the Magistrate passed an
F order to the following effect :
G
"30-3-62-All the 2 accused persons are present.
Having carefully gone through the law points and section 236 Cr.P.C. I do not find that it is a case exclusively coming u/s 386 or 387 I.P.C. Hence the
prosecution prayer is rejected."
Immediately thereafter a revision application was preferred, not
by the prosecution, but by Sagarmal, an informant in one of the
other three cases.
The Sessions Judge, Champaran, after briefly
reciting the facts and reasons on which the ?~der of 0e .tryi~g
Magistrate was founded, disposed of the rev1s10n apphcatton m
H the following words :
"The cases are of very serious nature and the framing of charges under sections 386 or 387, I.P .C. can-
744
SUPREME COURT REPORTS
[1966) 2 S.C.R.
not be ruled out altogether. Consequently, I direct that
A
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."
An application for revision was preferred by the appellants before
Se
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
C
proceeding before a Magistrate in respect of offences not exclusively
triable by a Court of Sessions.
After referring to some decisions
and relying upon two decisions of the Allahabad High Court the
learned Judge who disposed of the revision application observed
as follows:
"As I have already indicated, in the instant cases,
the trial Magistrate, after hearing the parties, refused
to frame a charge for the major offence under section
386 or s. 387 .of the Indian Penal Code.
The refusal
by the Magistrate to frame a charge under section 386
or 387 of the Indian Penal Code was a final order and
it amounted to an order of discharge of the accused of
the offence under those sections.
That being the position, the learned Sessions Judge had full jurisdiction to
order for commitment."
The learned Judge further observed :
"Without expressing any opinion on the merits of the
four cases, I would state, that, on the materials on
record, the Sessions Judge was not unjustified in passing the impugned order for commitment of the accused
in the four cases.
The order of the Magistrate refusing
to frame a charge under section 386 or s. 387 of the
Indian Penal Code, which amounted to an order of the
implied discharge of the accused, was improper in all
the four cases."
and dismissed the revision applications.
D
E
F
G
An application was made for a certificate of fitness to appeal
H
to this Court. That was rejected and the appellants have come
here by special leave.
-
THAKUR RAM v. STATE (Mudho/kar, !.)
745
A
The ambit of the powers of the Sessions Judge under s. 437,
Cr. P.C. has been considered by a Full Bench of the Allahabad
High Court in Nahar Singh v. State('). In that case it was held
,
that the powers conferred by that section are exercisable only in
a case where a Magistrate by an express order discharges
an
accused person in respect of an offence exclusively triable by a
B court of Sessions.
The learned Judges constituting the Full
Bench have taken the view that in the light of certain provisions
of the Code to which they adverted, the failure of or refusal by
a Magistrate to commit an accused person for trial by a court
of Sessions does not amount to an implied discharge of the accused
person so as to attract the power of the Sessions Judge under
C s. 437, Cr.P.C. to direct the Magistrate to commit the accused
person for trial by a court of Sessions on the ground that the
offence is exclusively triable by a Court of Sessions.
The Full
Bench decision has been followed in Sri Dulap Singh & ors. v.
State through Sri Harnandan Singh( 2 ). Before us reliance is also
placed on behalf of the appellants on the decision in Y unus Shaikh
D v. The 'state('). 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
E 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 Manda! v.
Thi!
State(•).
On the other hand a Full Bench of the Madras High
F Court has held in in re Na/la Baligadu(") 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
powers under·s. 437, Cr.P.C. can be exercised before the concluG sion of the trial before such Magistrate.
The learned Judges
expressly dissented from the view taken by the Full Bench of the
Allahabad High Court.
This decision has been followed in
Ramba/am Pd. Singh v. State of Bihar( 6 ). Other decisions which
take the same view as the Madras High Court are : Krishnareddi
H
(1) I.LR. [1952] 2 All. 152.
(3) A. l.R. 1953 Cal. 567.
(5) A.l.R. 1953 Mad. 801.
(2) A.l.R. 1954 All. 163.
(4) 60 C.W.N. 708.
(6) A.LR. 1960 Patna 507.
746
SUPREME
COURT REPORTS
[1966] 2 s.c.R.
v. Subbamma('); Shambhooram v. Emperor( 2 ); Sultan Ali v.
A
Emperor("); and in re Tl alluru Narayana Reddy & ors.(').
In order to decide the question which has been raised before
us it would be desirable to bear in mind the relev<1nt provisions of
the Code of Criminal Procedure.
Section 207 provides that in
every inquiry before a Magistrate where the cas('. is triable excluB
sively by a Court of Sessions or High Court, or, which in the
opinion of the Magistrate, ought to be tried by such Court, the
Magistrate must in any proceeding instituted on a police report,
follow the procedure specified in s. 207-A.
Under s. 207-A the
Magistrate, after perusing the police report forwarded under s. 173,
has to fix a date for hearing and require the production of the
accused on that date.
He has also the power to compel the attendance of such witnesses or the production of any document or
thing on that date if an application is made in that behalf by the
officer conducting the prosecution.
On the date of hearing the
Magistrate, after satisfying himself that copies of the documents
referred to in s. 173 have been furnished, has to proceed to take
D
the evidence of such persons, if any, as are produced as witnesses
to the actual commission of the offence.
After the examination
of those witnesses and after their cross-examination by the accused
the Magistrate may, if he thinks it necessary so to do in the interest of justice, take the evidence of any one or more of the other
witnesses for the prosecution.
He has then to examine the acE
cused for the purpose of enabling him to explain the circumstances
appearing in the evidence against him and hear both the prosecution as well as the accused. If at that stage he is of opinion that
no ground for committing the accused for trial exists, the Magistrate can, after recording his reasons, discharge the accused. If,
however, it appears to the Magistrate that such person should be
F
tried by himself or some other 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
G
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-A we are not concerned.
It will thus be seen that where the police report suggests the
<:ommission of an offence which is exclusively triable by a Court
(l) I.L.R. 24 Mad. 136.
(3) A.I.R. 1934 Lahore 164.
(2) A.I.R. 1935 Sind 221.
(4) A.I.R. 1955 Andhra 48.
H
THAKUR RAM v. STATE (Mudholkar, !.)
747
Ji.
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 Sessions 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
B Sessions he can proceed with the trial of the accused for that
offence himself.
Section 34 7 which occurs in chapter XXIV
headed "General provisions as to Inquiries and Trials" empowers
a Magistrate to commit a person for trial by a Court of Sessions
if in the course of the trial before him and before signing the
judgment it appears to him at any stage of the proceeding that
C:
the case ought to be so tried.
These provisions would thus indicate that an express order of discharge is contemplated only in a
case where a Magistrate comes to the conclusion that the act
alleged against the accused does not amount to any offence at all
and, therefore, no question of trying him either himself or by any
other court arises.
They also show that where an accused person
D is being tried before a Magistrate in respect of an offence triable
by that Magistrate it appears to the Magistrate that the act of
the accused amounts to an offence which is triable either exclusively or concurrently by a Court of Sessions he has the power to
order his committal.
This power, however, has to be exercised
I: only before signing the judgment. It cannot obviously be exercised thereafter because of the provisions of s. 403 (I) which bar
the trial of the person again not only for the same offence but
also for any other offence based on the same facts.
It would
follow from this that where on a certain state of facts the accused
is alleged by the prosecution to have committed an offence excluF
sively triable by a Court of Sessions but the Magistrate is of the
opinion that the offence disclosed is only an offence which he is
himself competent to try and either ac(;uits or convicts him there
is an end of the matter in so far as the very set of facts are
concerned.
The facts may disclose really a very grave offence
such as, say, one under s. 302, I.P.C. but the Magistrate thinks
G that the offence falls under s. 304-A which he can try and after
trying the accused either convicts or acquits him.
In either case
the result would be that the appropriate court will be prevented
from trying the accused for the grave offence which those very
facts disclose.
It is to obviate such a consequence and to prevent
inferior courts from clutching at jurisdiction that the provisions
ff of s. 437, Cr.P.C. have been enacted. To say that they can be
availed of only where an express order of discharge is made by
a Magistrate despite the wide language used in s. 43 7 would have
748
SUPREME COURT
REPORTS
(1966] 2 S.C.R.
the result of rendering those provisions inapplicable to the very
A
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
B
makes out an offence which he can try or whether it does not
make oat any offence at all.
In Ramgopal Ganpatrai v. State of
Bombay(') 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."
It has, however, also to be borne in mind that the ultimate duty
c
of weighing the evidence is cast on the court which has the jurisdiction to try an accused person. Thus, where two views are
D
possible about the evidence in a case before the Magistrate, it
would not be for him to evaluate the evidence and strike a balance
before deciding whether or not to commit the case to a Court of
Sessions.
If, instead of committing the case to a Court of Sessions, he proceeds to try the accused upon the view that the evidE
ence found acceptable by him only a minor offence is made out
for which no commitment is required he would obviously be making an encroachment on the jurisdiction of the appropriate court.
This may lead to miscarriage of justice and the only way to prevent it would be by a superior court stepping in and exercising
its revisional jurisdiction under s. 437 Cr. P.C.
There is nothing in the language of s. 437 from which it could
be said that this power is not exercisable during the pendency of
a trial before a Magistrate or that this power can be exercised
only where the Magistrate has made an express order of discharge.
Express orders of discharge are not required to be passed by the
Court in cases where, upon the same facts, it is possible to say
that though no offence exclusively or appropriately triable by a
Court of Sessions Judge is made out,
an offence triable by a
Magistrate is nevertheless made out. One of the reasons given by
the Allahabad High Court in support of the view taken by it is
F
G
that a Magistrate has power even during the course of the trial
to commit the accused to a Court of Sessions and that to imply
H
a discharge from his omission to commit or refusal to commit
(I} [1958] S.C.R. 618.
1
THAKUR RAM v. STATE (Mudholkar, I.)
749
A would not be consistent with the existence of the Magistrate's
power to order commitment at any time.
That does not, however, seelll to be a gtDod enough ground for coming to this conclusion.
The power to commit at any stage is exercisable by virtue
of the express provisions of s. 347 or s. 236 and a previous discharge of an accused from a case triable by a Court of Sessions
B would not render the power unexercisable thereafter. Moreover,
even if an express order of discharge is made by a Magistrate in
respect of an offence exclusively triable by a Court of Sessions but
a trial on the same facts for a minor offence is proceeded with the
Magistrate has undoubtedly power to order his commitment in respect of the very offence regarding which he has passed an order of
C
discharge provided of course the material before him justifies such
a course.
There is nothing in s. 34 7 which precludes him from
doing this.
It will, therefore, be not right to say that the power
conferred by s. 43 7 is exercisable only in respect of express orders
of discharge.
In this context it will be relevant to quote the
0
following passage from the judgment of the Full Bench of the
Madras High Court in Krishna Reddy's case(') :
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"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 4 77, 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 disposal has been.
It seems to me that the accused has
been discharged so far as the charge under section 477
is concerned.
The Magistrate's order, if stated fully,
sho~ld have been 'I discharge him as regards the offence
pumshable under section 477, and I acquit him as regards the offence punishable under section 379."
(I) I.L.R. 24 Mad. 136.
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SUPREME COURT REPORTS
[1966] 2 S.C.R.
We agree and are, therefore, of the view that the High Court was
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right in holding that the Sessions Judge had jurisdiction to make
an order directing the Magistrate to commit the case for trial by
a Court of Sessions.
The provisions of s. 437, however, do not make it obligatory
upon a Sessions Judge or a District Magistrate to order commitment in every case where an offence is exclusively triable by a
Court of Sessions.
The law gives a discretion to the revising
authority and that discretion has to be exercised judicially.
One
of the factors which has to be considered in this case is whether
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the intervention of the revising authority was sought by the prosecution at an early stage.
It would be seen that an attempt to
have the case committed failed right in the beginning and was
repeated not earlier than 15 months from that date. The second
attempt also failed.
Instead of filing an application for revision
against the order of the Magistrate refusing to pass an order of
;commitment the prosecution chose to make a second application
upon the same facts.
It may be that successive applications for
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such a purpose are not barred but where a later application is
based on the same facts as the earlier one the Magistrate would
be justified in refusing it. Where the Magistrate has acted in this
way the revisional court ought not to with propriety interfere
unless there are strong grounds to justify interference.
While
rejecting the application on January 25, 1962 the ground given
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by the learned Judge was that the case had already entered the
defence stage and the attempt to have the committal was very
belated.
Matters had advanced still further when a third attempt
failed on March 30, 1962. By that date not only had the defence
been closed and arguments heard, but the case was actually closed
for judgment. It would be a terrible harassment to the appellants
now to be called upon to face a fresh trial right from the beginning
which would certainly be the result if the Magistrate .were to
commit the appellants for trial by a Court of 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 Se~sions 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
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THAKUR RAM v. STATE (Mudholkar, !.)
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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 exceptions, 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 person who has acted against the social
interests of the community to book. In our opinion it was injudicious for the learned Sessions Judge to order the commitment of
the appellants particularly so without giving any thought to the
aspects of the matter to which we have adverted. Even the High
Court has come to no positive conclusion about the propriety of
the direction made by the Sessions Judge and has merely said that
the Sessions Judge was not unjustified in making the order which
he made in each of the applications.
For all these reasons we
allow the appeals, quash the orders of the Sessions Judge as
affirmed by the High Court and direct that the trials of each of the
appellants shall proceed before the Magistrate according to law
from the stages at which they were on the date on which the stay
order became operative.
Appeals allowed.