Magistrate Can't Probe Matter Or Discharge Accused Where Offence Is Cognizable By Sessions Court: Allahabad High Court

The Allahabad High Court has observed that whenever it is provided that an offence is cognizable by the Session Court, the Magistrate cannot probe the matter and cannot discharge the accused. With this, the Court set aside an order of magistrate dismissing discharge application filed by an accused booked under Section 306 IPC

The bench of Justice Brij Raj Singh further observed that the Magistrate should have committed the case to the Court of Session under section 209 CrPC, but in spite of doing so, he had heard the application of the accused for discharge, which was not in his domain.

The case in brief

Sukhbir Singh/accused was booked under Section 306 IPC [Abetment of suicide] for allegedly abetting the suicide of a female student who was found dead in a mysterious condition in September 2017 in the hostel after she was ragged in the college.

After the local police investigated the case, a CBCID inquiry was carried and a closure report was filed by the investigating agency in February 2020 by which the applicant was exonerated. Thereafter, the Magistrate issued notice to the informant upon closure report in August 2020.

Thereafter, the applicant was granted anticipatory bail by High Court in November 2020 with a direction to the trial court to pass an order upon the contradictory reports filed by two investigating agencies (local police and CBCID) within two months.

In the meantime, the informant filed a protest petition against the closure report, against which a reply was filed by the applicant and since, the applicant was already on anticipatory bail, he preferred a discharge application before the Magistrate, which was later on withdrawn.

The reason for such withdrawal was that the application would not be maintainable before the Magistrate's court but before the Session Court as the offence under Section 306 I.P.C. was exclusively triable by Session Court.

However, the magistrate dismissed the closure report and proceeded on the discharge application on merit, and pass the impugned order by rejecting the application for discharge. In the meantime, a non-bailable warrant was issued against the applicant in January 2021, therefore, both orders were challenged before the Court.

Court's observations 

At the outset, the Court referred to Section 209 of CrPC which states that an offence triable by Court of Session should be committed by the Magistrate (to the court of sessions) before whom the accused appears or is brought before.

Against this backdrop, the Court noted that in the present case, since the offence is triable by Session Court and therefore, while, hearing the application of discharge, the Court observed thus:

"...the Magistrate committed error by assuming the jurisdiction of Session Court. The Session Court has to apply its mind whether the applicant is liable to be discharged or whether application is liable to be rejected. The Magisterial Court committed an error by deciding the case itself...The Magistrate overlooked the observation made by the High Court and resumed the jurisdiction of the Session Court while taking decision on the application for discharge. It was incumbent upon the Magistrate to commit the case to the Court of Session but in spite of doing so he heard the application for discharge which was not in his domain. The objection taken by the applicant was not considered by the Magistrate and he passed the order ignoring the statutory provision of judgment of Supreme Court without applying its mind."

With this, the Court set aside the order of the magistrate and with the following directions:-

(i) The Additional Chief Judicial Magistrate, Room No.1, Bareilly will commit the case within one and half months from today to the Court of Session.

(ii) The Court of Session will pass appropriate order on the application for discharge of the applicant within two months from the date of committal order in accordance with law after affording an opportunity of hearing to the parties.

It may further be noted that in Balveer Singh And Anr vs State Of Rajasthan And Anr CRIMINAL APPEAL NO. 253 OF 2016, the Apex Court had held that the committal of a case exclusively triable by the Court of Session, in a case instituted by the police is mandatory.

"The scheme of the Code simply provides that the Magistrate can determine, whether the facts stated in the report make out an offence triable exclusively, by the Court of Session. Once he reaches the conclusion that the facts alleged in the report, make out an offence triable exclusively by the Court of Session, he must commit the case to the Sessions Court."

The present application was thus allowed.

Case title - Sukhbir Singh v. State of U.P. and Another [APPLICATION U/S 482 No. - 21859 of 2021]

Case citation: 2022 LiveLaw (AB) 337

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