Before Abdul Aziz, C. J.
MANAWAR ALI and another¬
Miscellaneous reference from the Sessions Judge, Bahawalpur, decided on 12th January, 1950.
Criminal Procedure Code, S. 215-Point of Law-Case under section 326, Indian Penal Code-Triable by Court of Session or Magistrate 1st Class-Case not sent to Section 30 Magistrate but committed to Sessions-Commitment, held, not against law.
A. I. R. 1932 Lah. 263 referred to and A. I. R. 1934 Lah. 326 relied on.
ORDER.-Manawar Ali and Mahmood Ali were charged under section 323, Indian Penal Code and Wahid Ali under section 326, Indian Penal Code by Mr. Ghulam Muhammad Durrani, Magis¬trate, 1st Class, Bahawalpur. After the charge, the accused were committed to the Court of Session on the ground that it was necessary to do so in the interest of justice. The learned Sessions Judge has sent the file to this Court to quash the order of commitment and to send the case back for trial to the Magis¬trate as lie was competent under law to pass adequate sentence in case of the conviction of the accused.
Under section 215, Criminal Procedure Code a commitment once can be quashed only on a point of law. In a similar case the learned Sessions judge who moved the Lahore High Court to quash the commitment order had stated that an unnecessary committal is an error of law which would justify the quashing of the commitment order. The reasonings of the learned Sessions Judge were accepted by the High Court and the commitment was quashed and the case was sent back to the Magistrate for disposal in accordance with law. See 1932 L. 263. In another case which subsequently came before the same High Court, it was held that when the case is triable by the Sessions judge the mere fact that the Magistrate did not give his reason for committing the case when there was a Section 30 Magistrate in the District cannot make the commitment illegal. The present case is triable by a Sessions Judge. It would no doubt have been proper if Mr. Ghulam Muhammad Durrani having charged an accused under section 326, Indian Penal Code had sent the file to the District Magistrate to be made over to a Section 30 Magistrate for final disposal. If he has not done so, the commit¬ment cannot be considered against law as the case is triable by the Sessions Judge. I would, therefore, follow the view laid down in 1934 L. 326 and would hold that the commitment is not illegal and consequently should not be quashed. The file is there¬fore, returned to the learned Sessions judge to proceed further in accordance with law. I would, however, like the Registrar to issue general instructions for the guidance of Magistrates through the District Magistrates that the case of this nature should ordinarily be tried by Magistrates with Section 30 powers.
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