Ajay Kumar Parmar v.

State Of Rajasthan
Criminal - Discharge of Accused - Jurisdiction - Sections 161 , 164 and 190 Criminal Procedure
Code, 1973 (Cr.P.C.) - Sections 376 and 342 of Indian Penal Code, 1860 (I.P.C.) - Sessions Judge
in Revision Petition reversed order of discharge of Appellant for offences punishable under
provisions of I.P.C. passed by Judicial Magistrate - Further High Court confirmed order of
Session Judge - Hence, this Appeal - Whether, order of High Court as well as Session Court was
proper - Held, Magistrate had a power to drop proceedings even in cases exclusively triable by
Sessions Court when charge-sheet was filed by police - Admittedly Magistrate had not given any
notice to complainant before dropping proceedings and, thus, acted in violation of mandatory
requirement of law - It was found that Magistrate proceeded to deal with Application without
identification of prosecutrix and had no where mentioned that he knew prosecutrix personally -
Judicial Magistrate recorded statement of prosecutrix after she was identified by lawyer - There
was nothing on record to show that she had appeared before Magistrate along with her parents
or any other person related to her - In such circumstances statement so recorded, lost its
significance and legal sanctity - Thus fact-situation revealed that court proceeded with utmost
haste and any action taken so hurriedly ,could be labelled as arbitrary - Further original record
revealed that prosecutrix had lodged FIR herself and same beared her signature and she was
medically examined next day - After comparing signatures with signatures appearing upon
Application filed before Chief Judicial Magistrate for recording her statement under Section 164
Cr.P.C , prima facie it was found that they had not been made by same person - However there
was no legal bar to prevent Court from comparing signatures or handwriting, by using its own
eyes to compare disputed writing with admitted writing and then from applying its own
observation - Court could not itself become an expert - Therefore order of Magistrate was not
justified and so High Court and Session Court rightly set aside its order - Appeal dismissed.

In Sanjay Gandhi v. Union of India, AIR 1978 SC 514,

This court while dealing with the competence of the Magistrate to
discharge an accused of an offence exclusively triable by session court in
a case like the instant one at hand,
Held:
 It is not open to the committal Court to launch on a process of
satisfying itself that a prima facie case has been made out on the
merits.
 Therefore, to hold that he can go into the merits even for a prima
facie satisfaction is to frustrate/thwart the Parliament's purpose in
re-moulding earlier section into its present non-discretionary shape.
 Expedition was intended by this change. And This will be defeated
successfully if dress rehearsal of a trial before the Magistrate is
permissible.
 The narrow inspection hole through which the committing
Magistrate has to look at the case - limits him merely to ascertain
whether the case, as disclosed by the police report, appears to
the Magistrate to show an offence triable solely by the Court of
Session. His concern is limited to the extent to see what provisions
 of the Penal statute have been mentioned and in case an offence
triable by the Sessions Court has been mentioned, he must commit
the case to the Sessions Court and do nothing else.
 Assuming the facts to be correct as stated in the police report, the
Magistrate has simply to commit for trial before the Court of
Session under Sec 209 of Crpc.
 If, by error, a wrong section of the Penal Code is quoted, he may
look into that aspect.
 If made-up facts unsupported by any material are reported by the
police and a sessions offence is made to appear, it is perfectly open
to the Sessions Court under Section 227 CrPC to discharge the
accused. This provision takes care of the alleged grievance of the
accused.
IT is evident from the aforesaid judgment that when an offence is triable by the
Sessions court, the Magistrate cannot probe into the matter and discharge
the accused. It is not permissible for him to do so, even after considering the
evidence on record, as he has no jurisdiction to probe or look into the matter at
all.
The only documents which are required to be considered are the documents
submitted by the investigating agency along with the charge-sheet. Any
document which the accused want to rely upon cannot be read as evidence. If
such evidence is to be considered, there would be a mini trial at the stage of
framing of charge. That would defeat the object of the Code. The provision
about hearing the submissions of the accused as postulated by Section 227
means hearing the submissions of the accused on the record of the case as filed
by the prosecution and documents submitted therewith and nothing more. Even
if, in a rare case it is permissible to consider the defence evidence, if such
material convincingly establishes that the whole prosecution version is totally
absurd, preposterous or concocted, instant case does not fall in that category.
The court should not pass an order of discharge by resorting to a course of
not taking cognizance, where prima facie case is made out by the
Investigating Agency. More so, it is the duty of the court to safeguard the right
and interests of the victim, who does not participate in discharge proceedings.
At the stage of application of Section 227, the court has to sift the evidence in
order to find out whether or not there is sufficient ground for proceeding against
the accused. Thus, appreciation of evidence at this stage, is not permissible.
The scheme of the Code, particularly, the provisions of Sections 207 to 209
Cr.P.C., mandate the Magistrate to commit the case to the Court of
Sessions, when the charge-sheet is filed. A conjoint reading of these
provisions makes it crystal clear that the committal of a case exclusively triable
by the Court of Sessions, 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 Sessions. Once he
reaches the conclusion that the facts alleged in the report, make out an offence triable
exclusively by the Court of Sessions, he must commit the case to the Sessions Court.

HOWEVER , The Magistrate, in exercise of its power under Section 190

Cr.P.C., can refuse to take cognizance if the material on record warrants
so. The Magistrate must, in such a case, be satisfied that the complaint,
case diary, statements of the witnesses recorded under Sections 161 and 164
Cr.P.C., if any, do not make out any offence. At this stage, the Magistrate
performs a judicial function. However, he cannot appreciate the evidence on
record and reach a conclusion as to which evidence is acceptable, or can be
relied upon. Thus, at this stage appreciation of evidence is impermissible. The
Magistrate is not competent to weigh the evidence and the balance of
probability in the case.
THUS, Magistrate has a power to drop the proceedings even in the cases
exclusively triable by the Sessions Court when the charge-sheet is filed by
the police. where the Magistrate decides not to take cognizance and to drop the proceeding or
takes a view that there is no sufficient ground for proceeding against some of the persons
mentioned in the FIR, notice to informant and grant of being heard in the matter, becomes
mandatory.