P L D 1958 Azad J & K 24 (PLP)

F. H. SHAH, C. J.‑-- This is an application under section 561 (A), Criminal P. C., by the five petitioners, who have been committed to the Court of Session by order dated the 3rd September 1957, of the Additional District Magistrate, Muzaffarabad, who charged one of them, namely, Abdul Aziz under section 302, A. P. C. for murder and the remaining four under section 323, A. P. C. for causing simple hurt to the deceased, praying that the commitment of the petitioners charged under section 323, A. P. C. be quashed as having been made without jurisdiction. This case had once before come on reference by the Sessions judge to this Court on another ground and one of the points, half‑heartedly referred by the Sessions judge, was that in his opinion in a case like the present one, when some of the accused had been charge‑sheeted under section 323, A. P. C. and another had been charge‑sheeted under section 302, A. P. C., the commitment of these accused to the Sessions was illegal. No reason had been assigned for this opinion of the learned Sessions judge and the matter was not argued before me to any extent. I remarked that I did not think it to be an absolute rule that such a commitment would be illegal and that if the offence under sec tion

323. A.P.C. and the offence under section 302, A.P.C. are alleged to have been committed in the course of same transac tion, there would be nothing illegal for the Sessions judge to try both these offences together. In the present application, it is urged that the Law on this point was clearly in favour of the 4 petitioners charged under section 323, A. P. C. only. Before considering the legal position, I was invited to look at the charges framed in this case. The charge against Abdul Aziz is under section 302, A. P. C., but curiously, it is recited that the case is triable by the Additional District Magistrate himself and yet towards the end of the charge, it is ordered that the accused is committed for trial to the Court of Session. I think, this is due to inadvertence that the words in the printed form of the charge‑sheet have not been struck off and substituted by the words that the case is triable by the Court of Session. However, the committing Magistrate has to be careful in filling‑in the printed forms of the charge- sheet. This mistake that in the charge‑sheet, it is shown) that the offence under section 302, A. P. C. is triable by the Magistrate himself appears to be an accidental slip when it is clearly recorded towards the end that the case is to be tried by the Sessions Judge. Such a mistake will not entitle Abdul Aziz accused to quashing of the commitment. In any case, the Sessions judge has the power to amend, if need be, the charge against the accused and rectify the mistake. Then there are four separate charge‑sheets for Abdullah, Faqar Din, Abdul Ghaffar and Abdur Rahim petitioners. They are also framed by filling‑up of the printed forms and all these four petitioners have been charge‑sheeted under section 333, A. P. C. each and it is recited that the offence is triable by the Magistrate himself, yet they have been towards the end ordered to be committed to the Sessions. It is in respect of these four petitioners that the learned Counsel contended that it was illegal for the learned Magis trate to commit them to the Court of Sessions. According to him, section 206 subsection (1) of the Criminal P. C. gave the Magistrate power to commit for trial to the Court of Sessions "for any offence triable by such Court" and since an offence under section 223, A. P. C. of causing simple hurt was not triable by the Sessions Court, it would follow that the Magistrate could not commit these four accused persons to the Court of Sessions (offence under section 323 in Schedule 2 of the Criminal P. C. in Column 8 is shown to be triable by any Magistrate). It was urged that an offence of this nature was not triable by a Court of Sessions at all and the Magistrate must try the case himself. The learned Counsel also cited 1932 Lah. 168, in which it was field that "an apparent connection of a case under section 326, Penal Code, with a case under section 302 is no ground whatsoever for committing it to the Sessions Court when the offence involved is triable and can be adequately punished by a First Class Magistrate or one exercising powers under section 30, Criminal P. C. If the object of the Magis trate is to avoid a possible conflict of decisions it can be achieved by awaiting the result of the Sessions trial in the case under section 302". The Government Advocate pointed out that the words "triable by such Court" in subsection 1 of section 206, Criminal P. C. had been interpreted to mean not only exclusively triable by such Court but also triable from the nature of the case. He cited 6 All. 477, an old authority in support of his contention. It was held therein "that the procedure to be adopted under Chapter XVIII of the Criminal P. C. was not confined to cases exclusively triable by the Court of Session, but is also applicable to cases which, in the opinion of the Magistrate concerned, ought to be tried by such Court." Therefore, it was left to the discretion of the Magistrate to take into consideration the nature of the case and if in his opinion, the case ought to be tried by a Court of Session, he was not barred by the provision of subsection 1 of section 206, Criminal P. C. to order the commitment. He pointed out section 347, Criminal P. C. under which in any enquiry or trial before a Magistrate before signing judgment, is empowered to commit for trial if he is of the opinion that the case is one which ought to be tried by a Court of Session and that he could do so even in a case which started as a summons case. In the present case, it was pointed out that the com mitting Magistrate had given good reasons why he ordered commitment, namely, that the offence under section 302, A. P. C. and the offence under section 323, A. P. C. appear to have been committed in the course of the same transaction and that there was nothing illegal in such commitment not withstanding the Lahore case cited by the learned Counsel for the petitioners. This is true that the Lahore High Court is of the view that an apparent connection of one case with another is no good ground for committal. Yet, it was held in 1920 Sind 55 that commitment for offence triable as summons case along with other accused triable by Sessions, if forming part of the same transaction, was not bad. The Madras view also appears to be that some connected matter already before the Court of Session may be a good ground for committing a case to the Sessions. In A I R 1932 Mad. 502 while discussing the Lahore cases Walsh, J., observed "I do not at all wish to say that this (Lahore view) is the view which has been taken by the Madras High Court." With all respect, I think, the Lahore view delimits the discretion of the Magistrate in a case like the present unneces sarily. I think "When two or more persons are jointly indicted and the jurisdiction of the Magistrate is ousted in the case of one of them, the proper course is to commit C both or all for trial before a Court of Session" (68) 1 Weir

448. The reason of the Lahore view appears to be to prevent the waste of valuable time of the Court of Session which in the Punjab usually remain over‑worked. If that reason does not exist in our Sessions Courts, I do not see why in order to avoid possible conflict of decisions, a proper case like the present one, may not be committed to Sessions. The petitioners charged under section 323, A. P. C. have no fear to greater punishment being inflicted than the maximum provided under section 323, A. P. C.. unless of course the charge is amended by the Sessions Judge. The procedure suggested in A I R 1932 Lah. 168 that is to await the result of the Sessions trial will be curtailed and the case expedi tiously decided. I am, therefore, declined to agree with the Sind view and hold that there is nothing illegal in all the petitioners being committed to Sessions for trial. Of course, the discretion whether the charge under section 323, A. P. C. D "ought to be tried" by the Court of Session along with a charge under section 302, A. P. C. against another person is a judicial discretion to be exercised with care and on proper grounds which should be set out in the committal E order to enable the superior Courts to judge whether com mittal is a sound exercise of discretionary power, in the absence of which the committal may be quashed. In the present case, the reasons given in the committal order are that though they cannot be held constructively liable under section 149, A. P. C., for the murder of the deceased along with Abdul Aziz petitioner, who has been charged under section 302, A. P. C they may be guilty of an offence under section 323, A. P. C. for inflicting simple injuries on the deceased at about the same time and also that the witnesses are the same. The latter is not an inconsiderable reason here where sometimes a trivial warrant case takes years to decide due to non‑attendance of witnesses. I am unable to say that these reasons are inadequate and I decline, therefore, to interfere. The petition is dismissed. Let the record be returned. K. M. A. Petition dismissed.