Committal of case
dev kapoor
(Querist) 29 October 2011
This query is : Resolved
Dear Friends/Experts,
I am fixed at a legal-puzzle. A CJM recorded formal statements of the pws examined by the complainant & also the complainant,on a fresh complaint being presented before him.Instead of issuing summons etc, he found the case exclusively trial by Sessions Judge & committed the case for trial.
Q: Is is not an ILLEGALITY/IRREGULARITY?
In any case What is required of the SJ to set the things right e.g.Shall he return the complaint to CJM for adopting proper procedure & commit again? OR
Shall he make a reference to the High Court for illegality committed by CJM in not adhering to the procedure?
OR
Should he proceed with the complaint,issue notice to PP,summons etc to accused & wait till they appear in his court,supply copies of complaint etc to them & proceed with trial?
Purely academic & not Professional !!!!
kuldeep kumar
(Expert) 29 October 2011
if the case is really triable by sj why wud he set it back/instead wud act upon it for no provision allows cjm to take into all depositions being made infront him and cast any duty in him to faactually score any warrant/inference for/agaist accused to summon him.why is it called irreegularity is strange to me for no question of law involved here and the job of intimating to pp is cjms not sjds.
Shonee Kapoor
(Expert) 30 October 2011
I don't see any irregularity here. It is for the session to decide now onwards.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prashant pundhir
(Expert) 30 October 2011
In the complaint case,after recording the statement of sec.200 nd 202 cr.p.c. , magistrate will either dismiss the complaint u/s 203 cr.p.c. or issue summons for the attendance of the accused u/s 204cr.p.c.
U/s 209cr.p.c.if the accused appears before the magistrate and magistrate find it a matter triable by session,the magistrate will commit the case after complying with the provisions of sec.208cr.p.c.
Again the word is used "after complying with the provisions of sec.208cr.p.c." and again in sec.208cr.p.c. the word is used "accused" .
So the magistrate is not empowered to send the complaint to the court of session without appearing of the accused and sec.208cr.p.c. bar him to do so .
So the order of the magistrate is illegal and the court of session should return the complaint to the magistrate for adopting proper procedure and for complying the provisions of sec.208 cr.p.c.
dev kapoor
(Querist) 30 October 2011
Dear Mr.Prashant,
Agree to sm extnt.But where is the procedure for SJ to RETURN such complaint committed by a Magistrate without following the procedure?
Couldn't any one make it more elaborate, Plz ?
Regards
bhupender sharma
(Expert) 30 October 2011
pl. refer to the 228(1)a of the code of Criminal Procedure the thih\ngs will be clear.
There is no illegality in the commital of the case by the CJM.
dev kapoor
(Querist) 01 November 2011
S.228(1) is totally irrelevant in this context as it comes in being only after the case is committed & comes before the SJ.He may find the case NOT exclusively triable by him & send the case back to CJM or other Mag.My qn is covered by Section 208 & 209 read with section 193 Cr.P.C.
Mr Bhupinder Sharma please read these section now & find the answer...I again say there is no provision in the Code which empowers the SJ to return the case committed w/o following ss.208 & 209 Cr.P.C.SJ could only make a REFERENCE to the HC ??????
