TaxTMI 
TaxTMI 
1981 (12) TMI 182
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....the house of complainant at the dead of night and resorted to indiscriminate looting; when the ladies etc. protested they were threatened with dire consequences; the revisionists also told to reduce them to status of prostitutes and to cut their noses etc.; thus they ransacked the house and looted the property worth Rs. 5000/-. A report about the occurrence was lodged at Police Station Kotwali but it was not faithfully recorded; police did not take any action in the matter and so the complaint was filed in the court of Magistrate, Statement of Smt. Taufiq a complainant was recorded Under Section 200 and of Smt. Taiaba Khatoon was recorded Under Section 202 of Cr.P.C. The revisionists were summoned Under Sections 148, 380 and 452 IPC Criminal Revision No. 166 of 77 was preferred by respondent No. 2 against the aforesaid order as the revisionists were not summoned Under Section 395 IPC That revision was rejected on 9-2-1978 by Sri S. K. Jain learned 6th Additional Sessions Judge, Moradabad with the observations that it was open to the Magistrate to record the evidence and to assess the same at the stage of framing the charge and if an offence Under Section 395 IPC was made out at tha....
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.... Distinction between discharge and acquittal is well established. Discharge is before the framing of the charge while acquittal is after the framing of the charge in a trial. Acquittal operates as a bar for retrial of the offender on the same facts about the same offence while discharge does not operate as a bar vide Section 300 Cr.P.C. The order of discharge was clearly revisable by learned Sessions Judge. The remedy against acquittal is an appeal to the High Court. Under the old Code the Magistrate was empowered to discharge the accused at the stage of inquiry even in cases triable solely by Court of Session Under Sections 207(2)(6) and 209(1) and (2). (2) The order of Mr. Jain by which he directed the Magistrate to assess the evidence before framing the charge did not operate as a bar in deciding the revision by learned Sessions Judge. It is significant to note that Mr. Jain decided the case against the order of summoning the accused which is drawn Under Section 204 Cr.P.C. Sri Chandra Prakash decided the revision at a subsequent stage when learned Magistrate assessed the evidence before framing the charge. If the offence was exclusively triable by a Court of Session th....
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.... Code, Their role at that stage is significant and important. Magistrates can order investigation on the following occasions: 1. When a Magistrate take cognizance upon his own knowledge Or suspicion. (Sections 190(1)(c) and 156(3)). 2. Under Section 202 in a case instituted on a complaint. 3. In a non-cognizable case Under Section 155. 4. When the officer-incharge of a police station does not think it necessary to proceed to the spot (Sec. 157(1) proviso (a)) or he sees no sufficient ground to proc««d with the investigation (proviso (b) ibid) and sends reports in that behalf Under Section 157(2) to the Magistrate. (vide Section 159). 5. When at the end of the investigation the officer-in-charge of a police station sees no ground to proceed further and releases the accused on a bond Under Section 169(Final report). No investigation can be properly carried out without the help of the Magistrates. Copies of seizure memos as well as other reports are sent forthwith to the Magistrate having jurisdiction, who can also at any lime see the police case diary. Magistrates have to conduct identification parade and record con....
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....that the case is triable exclusively by Court of Session to make an order committing the case to Sessions. Since in such a case the Magistrate taking cognizance of the offence is not required to conduct any proceeding for ascertaining or verifying facts with a view to commit the case to Sessions, it cannot be" said that the provisions contained in Sections 204, 207 to 209 of the Code contemplate an inquiry under the Code. Under the new Code of 1973 the Magistrate taking cognizance of the case is merely required to look into the charge-sheet and if he finds that the facts stated therein constitute an offence triable exclusively by a Court of Session he has got to make an order committing the case to Sessions. He is not to inquire into the case and to see whether or not there is a triable case against the accused. Instead that function has not been entrusted to Sessions Court itself by Section 227. 9. It appears that all these observations were made by the learned Judges with reference to the power to be exercised by inquiring Magistrate under Section 209 of the Criminal P. C. to remand the accused to judicial custody. 10. The proceedings Under Section 209 of Cr.P.C. r....
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....lice report, if the offence is plainly one Under Section 201 IPC the Magistrate has simply to commit for trial before the Court of Session. If by error, a wrong section of the Penal Code is quoted, he may look into that aspect. 11. Thus it is obvious that the narrow inspection hole through which Magistrate has to do the screening shall constitute an inquiry even though the power of Magistrate to discharge the accused Under Sections 207(a)(vi) and 209(1) and (2) as vested in him under the old Code has been taken away now in cases triable exclusively by a Court of Session. 12. A similar point came up for consideration before the learned Judges of the Rajasthan High Court in a Full Bench case reported in Swaroop Singh v. State of Rajasthan where it was observed (at p. 16157): The proceedings taken Under Section 209 by the Magistrate would squarely fall within the ambit of the term 'inquiry' and the Magistrate has a power Under Section 309(2) of the Code to remand the accused to custody if inquiry Under Section 209 is adjourned Or postponed by him. Section 209 enjoins a duty on Magistrate before the accused is committed to the Court of Session that he must sat....