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TMI Blog2020 (6) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... isted for arguments on the point of summoning of the accused. On 13.07.2009, learned M.M. took cognizance under Sections 384/376/506 IPC and summoned the accused/respondent no.2. 4. The aforesaid order of summoning was challenged by respondent no.2 before the Sessions Court however, the challenge stood dismissed vide order dated 17.05.2010. 5. In the meantime, the accused/respondent no.2 appeared through his counsel before the learned M.M. on 25.11.2009 and after supply of copies of the documents, the case was listed for recording of pre-charge evidence. Subsequently, on 05.06.2013, learned M.M. after observing that the accused had been summoned for the offence under Sections 384/376/506 IPC which were exclusively triable by the Court of Sessions, committed the case to the Court of Sessions. 6. The Sessions Court listed the matter for pre-charge evidence and for consideration of charge. Subsequently, on 10.11.2014 and 25.05.2017, the pre-charge evidence was partly recorded by examining the complainant as CW-1. 7. While the matter was pending before the Sessions Court, on 25.04.2018, the complainant filed an application under Section 464 Cr.P.C. for rectification of the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ads as under: "Cognizance of offences by Magistrates. - (1) Subject to the provisions of this Chapter, any Magistrate of the first class, specially empowered in this behalf under sub- section (2), may take cognizance of any offence- (a) Upon receiving a complaint of facts which constitute such offence; (b) Upon it police report of such facts; (c) Upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try" 14. Section 200 under Chapter XV of the Criminal Procedure Code, 1973 provides that a Magistrate taking cognizance of an offence shall examine the complainant and the witnesses present. It reads as under: "Examination of complainant- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 17. The trial of warrant cases before Magistrate is governed by the provisions under chapter XIX. Section 244 onwards provides for procedure to be followed in cases instituted otherwise than on police report. 18. The First Schedule (Part 1) under Cr.P.C. provides for Classification of Offences under the Indian Penal code. As per the classification, Section 376 (offence of rape) is exclusively triable by the Court of Sessions. The relevant entry in the First Schedule reads as follows: "Once any of the offences alleged against the accused is classified as an offence exclusively triable by Court of Sessions, after appearance of the accused in pursuance to the process issued, mandatorily need to be committed to the Court of Sessions. The use of word "Shall" by the legislature in Section 209 leaves no manner of doubt in this regard. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also directed that the ld. ASJ will send the file back to the concerned Magistrate for holding an enquiry under Section 244 Cr.P.C for pre-charge evidence. I respectfully disagree with the latter part of the decision in the captioned case as one of the offences involved for which the accused stood summoned was Section 308 IPC, which is exclusively triable by the Court of Sessions. As discussed above, once the case stands committed to the Court of Sessions under Section 209 Cr.P.C, there is no provision to hold any pre-charge evidence. The Sessions Court has to proceed to hear arguments on charge and only when after such consideration and hearing, if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Sessions, he may frame the charge and by order, transfer the case for trial to the CJM/any other Magistrate. In reaching such conclusion, I deem it fit to refer to the following paras of the 41st Law Commission Report, as reproduced in the case of Raj Kishore Parsad v. State of Bihar and Anr. Reported as (1996) 4 SCC 495: "17.11. Where the case (whether instituted on a police report ..... X X X X Extracts X X X X X X X X Extracts X X X X
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