TMI Blog2020 (6) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... xclusively 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. - CRL.M.C. 4606/2018 & CRL. M.A. 31840/2018 - - - Dated:- 4-6-2020 - Mr. Manoj Kumar Ohri, J. Dr. L.S. Chaudhary, Mr. Ajay Chaudhary, Mr. Viresh Chaudhary, Mr. Anurag Tomar and Ms. Rubhi Tomar, Advocates For The Petitioner. Mr. Mukesh Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as per the Code of Criminal Procedure, 1973 as pre-charge evidence was recorded before the Sessions Court. The case was directed to be listed for arguments on the above issue. 8. Vide impugned order dated 18.05.2018, the Sessions Court while relying on the decision of a Co-ordinate Bench of this Court in Smt Dhano v. State and Anr. reported as 2008 SCC OnLine Del 677, directed that file of the complaint case be sent to the concerned C.M.M. with a further direction to proceed in accordance with law. The application filed by the complainant under Section 464 Cr.P.C was dismissed. 9. The present petition impugns the aforesaid order. Learned counsel for the petitioner contended that the present complaint case ought to have been tried as a Sessions trial case and not as a Warrant case before the Magistrate. He placed reliance on the decision in Shivjee Singh v. Nagendra Tiwary Ors. reported as AIR 2010 SC 2261. It was also contended that the procedure adopted by the learned Sessions Court in recording the pre-charge evidence was irregular. Further, the direction given to the learned M.M. to proceed with the complaint case is also assailed in the present petition. 10. Per Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 15. Subject to Sections 202 203, the next relevant provision is Section 204 under Chapter XVI and it provides that if in the opinion of Magistrate taking cognizance, there is sufficient ground for proceeding against the accused, process is issued. In a complaint case, once the accused appears and the case is triable exclusively by the Court of Sessions, then after supply of statements and documents, the Magistrate is required to commit the case to the Court of Sessions in terms of Section 209 which reads as under: 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all furnish to the accused, free of cost, copies of the statements recorded under Section 200 or Section 202, statements and confessions recorded under Section 161 or Section 164 and any other document on which prosecution proposes to rely. Section 209 speaks of commitment of case to the Court of Sessions when offence is triable exclusively by it. This section casts a duty on the Magistrate to commit the case to the Court of Sessions after complying with the provisions of Section 208. Once the case is committed, the trial is to be conducted by the Court of Sessions in accordance with the provisions contained in Chapter XVIII. 20. In view of above, 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. 21. In Dhano (Supra), the facts of the case were that in a complaint case, after recording evidence under section 202 Cr.P.C and after considering the evidence on record, the accused were summoned only for the offence punishable under Sections 323/506 IPC, both offences being Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng part of the commencement of proceedings before Magistrate. It will be convenient to refer to this process as commitment of the case to the Court of Session although the procedure is radically different from the commitment proceedings at present provided in Chapter 18. (ii) Cl. 214 (S. 209). Preliminary inquiries by Magistrates in cases exclusively triable by the Court of Session are being dispensed with as such an inquiry has served no useful purpose and, on the contrary, it involves a great deal of infructuous work causing delay in the trial of serious cases. The abbreviated form of an inquiry provided for by the amendment made in 1955 and contained in Section 207-A has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, created fresh problems, Preliminary inquiries are, therefore, being dispensed with in cases triable by a Court of Session, However, to perform certain preliminary functions like granting copies, preparing the records, notifying the Public Prosecutor, etc, provision is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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