Court No. - 38
Case :- APPLICATION U/S 482 No. - 16421 of 2019 Applicant :- Lakhan Singh And Another Opposite Party :- State Of Up And Another Counsel for Applicant :- Santosh Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the applicants and learned A.G.A for the State.
This application has been filed against the impugned order dated 12.3.2019 passed in Criminal Case No.1639 of 2018, State vs Lakhan Singh and others, passed by the Chief Judicial Magistrate, Auraiya whereby the discharge application filed by the applicants, has been rejected.
Learned counsel for the applicants has submitted that in compliance of the order dated 10.1.2019 passed by coordinate Bench of this Court in Application u/s 482 No.785 of 2019, the learned Chief Judicial Magistrate, Auraiya would not have entertained the application and referred the matter to the trial court for deciding the discharge application. He has submitted that the order rejecting the said application passed by the learned Chief Judicial Magistrate, Auraiya is without jurisdiction. It has lastly been prayed by the learned counsel for the applicants that a direction may be given to the applicants that if they move an application for surrender before the court below, the same shall be disposed of expeditiously.
Learned A.G.A has vehemently opposed the submission made by the learned counsel for the applicants and submitted that there is no illegality or perversity in the impugned order. The learned Magistrate has no jurisdiction to decide the discharge application filed by the applicants.
It is settled principle of law that in session triable case, the Magistrate has very limited jurisdiction. Once a charge sheet has been filed by the police for the offence triable exclusively by the court, the Magistrate shall not look into the merit or demerit of the case and his only business is to ensure the compliance of section 207 and to commit the case to the court of session. At this stage, the Magistrate is not required to frame a charge or discharge of the accused because in session triable case the accused may be discharged or charge may be framed against him by the session court in view of the provision mentioned in Sections 227 and 228 Cr.P.C.
In Raj Kishore Prashad Vs. State of Bihar, AIR SC, the Hon'be Supreme Court while discussing the role requires to be played in the matter of session triable case has held as under:-
The present Section 209 is thus the product of the aforesaid expert deliberation followed by legislative exercise. It is thus to be seen prominently that preliminary inquiries then known as "committal proceed- ings" have been abolished in cases triable by a Court of Session. The functions left to be performed by the Magistrate, such as granting copies, preparing the records, notifying the Public Prosecutor etc. are thus prelimi-nary or ministerial in nature. It is of course true that the Magistrate at that juncture takes cognizance of a sort, but that is solely to perform those preliminary functions as a facilitator, towards placement of the case before the Court of Session, rather than being an adjudicator. It is thus manifest that in the sphere of the limited functioning of the magistrate, no application of mind is required in order to determine any issue raised, or to adjudge anyone guilty or not, or otherwise to pronounce upon the truth-fulness of any version. The role of the Magistrate thus is only to see that the package sent to the Court of Session is in order, so that it can proceed straight away with the trial and that nothing is lacking in content, as per requirements of Sections 207 and 208 of the Code of Criminal Procedure. Such proceedings thus, in our opinion do not fall squarely within the ambit of "inquiry" as defined in section 2(g) of the Code of Criminal Procedure, which defines that "inquiry means every inquiry, other than a trial conducted under this Code by a Magistrate or a the Court", because of the prelude of its being "subject to the context otherwise requiring". As said before, the context requires the proceedings before a Magistrate to be formal, barely committal in that sense, and that any notion based upon the old state of law of its being an inquiry to which Section 319 could get attracted, has been done away with. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Section 209 Cr.P.C. is forbidden to apply his mind to the merit of the matter and determine as to whether any accused need be added or subtracted to face trial before the Court of Session. This Court in State of U.P. v. Lakshmi Brahman and Another, AIR (1983) SC 439 445 took a view which prima facie does not seem to be in accord with our Views afore- expressed. It was held as follows :
"The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment. Thus from the time the accused-appears or is produced before the Magistrate with the police report under section 170 and the Magistrate proceeds to enquire under section 207 has been complied with and then proceeds to commit the case to the Court of Session, the proceedings before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code. We find it difficult to agree with the High Court that the functions discharged by the Magistrate under Section 207 is something other than a judicial function and while discharging the function the Magistrate is not holding an inquiry as contemplated by the Code.
From the text of the judgement it is clear that the statement of "Objects and Reasons" reflecting legislative policy as to the quality of 'inquiry' was not laid before this Court as well as the report of the 41st Law Commission recommending abolishing of "inquiry" before the magistrate, which was responsible for the change. Had the Bench been apprised of the historical perspective, we have no doubt in our mind that the comprehension of the word "inquiry" as meant for Section 209 Cr.P.C. would have been the same as gathered by us on be corning cognizant of the legislative scheme for early disposal of cases triable by a court of Session."
From the perusal of record, it transpires that in compliance of order dated 10.1.2019 passed by coordinate Bench of this Court in Application 482 No.785 of 2019, the accused-applicants had filed a discharge application before the Chief Judicial Magistrate, Auraiya and the learned Magistrate considering the offence under sections 323,504 and 308 I.P.C, has rejected the discharge application filed by the applicants stating that the offence under sections 323,504 and 308 I.P.C is triable by the court of Session.
In view of the above discussion and law laid down by the Apex Court, I am of the view that the impugned order dated 12.3.2019 passed by Chief Judicial Magistrate,Auraiya, whereby the discharge application filed by the applicants has been rejected requires no interference. There is not illegality or perversity in the said order.
Accordingly, in view of the above, the prayer for quashing the above impugned order is refused.
However, looking into the fact and circumstance of the case, it is provided that if the applicants appear or surrender before the Court concerned within thirty days from today and apply for bail in the aforesaid case, their prayer for bail shall be considered by the court below expeditiously, in accordance with law.
With the aforesaid direction/observation, the instant application finally stands disposed of.
Order Date :- 29.4.2019 G.S