Tirbeni Kahar v. State Of Bihar Opposite Party.

K. Sahai, J.:— Mahanth Kapildeo Ramji of Rajikpore was killed in his Math Mahalla Alamganj of Patna town on 4-8-1958, at about 8P. in Injuries were caused to him by a fire-arm and also by sharp cutting weapons. A girl named Shanti (P.W 4), aged about 8 years, was there when the assailants came, and she claims to have identified Hira Gosain as one of the assailants. At a short distance from the actual place of occurrence, Hira Gosain and petitioner Tirbeni Kahar were arrested and assaulted. A commitment enquiry was held against both of them together, and both have been committed for trial to the court of session. The petitioner has filed this application for quashing the commitment against him on the ground that there is no evidence whatsoever to support it.

2. A point, which has been raised on behalf of the State, is that the High Court has no power to quash army commitment made in a case started. On the basis of a police report. It has been pointed out that before the Code of Criminal Procedure Amendment Act. (Act 26 of 1955) (hereinafter to be referred to as to the Amendment Act) came into force, there was only one procedure for commitment enquiry in all kinds of cases and that, after S. 214 was repealed by Act XII of 1923, the only section under which commitment could be made was section 213. Section 207, as modified by the Amendment Act, lays down that the procedure prescribed in the new S. 207A would be followed in a proceeding instituted on a police report whereas the procedure provided in the other sections of Chapter XVIII would be followed in any other proceeding. As a consequence of this change, commitment in a case arising on a police report is now made under sub-s. 10 of S. 207A and commitment in any other case continues to be made, under S. 213- Section 215 reads:

“215. A commitment once made under S. 213 by a competent Magistrate or by a Civil or Revenue Court under S. 478, can be quashed by the High Court only, and only on a point of law.”

3. The argument on behalf of the State is that as the commitment in the present case has been made under S. 207A and as S. 215 does not provide for the quashing of a commitment made under that section, the High Court has no power to cash this commitment. In my opinion, a lacuna has been clearly left due to oversight. While modifying section 207 and introducing S. 207A under the Amendment Act the Legislature should have) made some provision similar to S. 215 for the quashing of a commitment made under S. 207A or should have made an appropriate modification in S. 215 itself. This is a matter which requires the attention of the Government of India in the department concerned.

4. The omission of the Legislature, however, does not appear to me to deprive the High Court of power to quash a commitment made under S. 201A. Section 561A gives the High Court ample power to interfere in any case in order to prevent abuse of the process of any court or to secure the ends of justice. If commitment is allowed to stand in a case where there is evidence at all to justify it, it will surely mean an abuse of the process of the court. It will also be in the ends of justice to quash a commitment of this kind. That being so, I hold that this Court can undoubtedly interfere in a case where a person has been committed for trial without any evidence.

5. In so far as the merits of this case are concerned, I have perused the commitment order and I have also examined the evidence adduced in the case. The only allegations against the petitioner are that the was arrested at a short distance from the place of occurrence and that he had enmity with the deceased Mahanth. He was not seen causing injuries to the Mahanth nor was he found to have any weapon or blood-stains on him or his clothes. Indeed there is no other circumstance against him.

6. Even if the allegations made against him are fully accented, no offence at all can be said to have been made out against him. I, therefore, hold that the ground urged on behalf of the petitioner is perfectly correct.

7. In the result. I allow the application and quash his commitment.

8. N.L Untwalia, J.:— I agree.

KC/V.S.B

9. Commitment quashed.