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Case Number

Cr. W.J.C Nos. 91 & 112 of 1977

Attorney(S)

For Appellant/Petitioner/Plaintiff: Lalit Mohan Prasad
Ashwini Kumar Hare Ram Sharma and Keshari Kishore Sharan
Advs. in Cr. W.J.C. 91/77 and Braj Kishore Prasad
Advs. No. 2
Krishna Prasad Singh
Chandra Shekhar
Udit Narain Singh and Harijee Upadhya
Advs. in Cr. W.J.C. 112/77; For Respondents/Defendant: K.D. Chatterji
Adv. General and Lala Kailash Bihari Prasad
Advs.

Judges

Shambhu Prasad Singh
S.K Jha
Uday Sinha, JJ.

Acts

Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act.
Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act.
provisions of Sections 84, 116, 125, 137, 138, 145 and 176 of the Code
Section 302/34 Indian Penal Code, and Section 27 of the Arms Act
provisions of Section 209 read with Section 309(2) of the Code
provisions contained in Sections 204, 207 to 209 of the Code
Section 309(2) in juxtaposition of Section 209 of the Code,
provisions of Section 309(2) read with Section 209
Section 309(2) read with Section 209 of the Code.
Section 307 of the Indian Penal Code.
Section 209 and 309(2) of the Code209.
provisions of Section 209 Cr. P.C)
provisions of Section 309(2).
Section 309(2) of the Code
Section 2(g) of the Code,
Section 209 of the Code.
Section 2(i) of the Code
Section 2(g).

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Smart Summary

Full Bench Opinion — S.K. Jha, J. (with concurring opinions)

Factual and Procedural Background

The opinion arises from two criminal writ petitions in which each petitioner sought a writ of habeas corpus alleging illegal detention. Both petitioners are accused of offences under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. In Cr. W.J.C. 91/77 (State v. Mahendra Pratap Singh) the charge-sheet was received by the Chief Judicial Magistrate, Patna, on 17 August 1976 and cognizance was taken on 8 December 1976; the case had not been committed to the court of session. In Cr. W.J.C. 112/77 the charge-sheet was submitted on 3 June 1977 and cognizance was taken on 7 June 1977; that case also had not been committed to the court of session.

The common legal question before the Full Bench was whether, after a Magistrate has taken cognizance of an offence that is exclusively triable by a court of session but before he has committed the case to that court, the Magistrate may remand the accused to custody under the provisions of Section 209 read with Section 309(2) of the Code of Criminal Procedure, 1973.

The petitions were heard by a Full Bench because of divergence of judicial opinion on the point in various High Courts and earlier Benches of this court; the Full Bench ultimately dismissed the applications.

Legal Issues Presented

Whether the proceedings before a Magistrate after taking cognizance of an offence and before committing the case to the court of session (under Section 209 CrPC) constitute an "inquiry" within the meaning of Section 2(g) of the Code of Criminal Procedure, 1973.
If such proceedings are an "inquiry", whether the Magistrate has the power to remand the accused to custody under Section 309(2) read with Section 209 during the period between cognizance and committal.

Arguments of the Parties

Petitioners' Arguments

Learned counsel for the petitioners relied upon observations in Natabar Parida v. State of Orissa (A.I.R. 1975 S.C. 1465) to argue that, if the Legislature has created procedural shelter for accused persons, courts must nevertheless abide by the legislative command; petitioners contended the new Code had left a "paradise for criminals" in this specific context.
The petitioners argued that there is no statutory power to remand an accused to custody in the interval between the Magistrate taking cognizance and the Magistrate committing the case to the sessions court, and that the Magistrate could not resort to inherent powers to effect such remand in that interregnum.
They relied on decisions (specifically the Allahabad High Court decision in Lakshmi Brahman and a Bench decision of this Court in Shankar Singh) holding that proceedings under Section 209 are not an inquiry and that Section 309(2) therefore does not authorize remand during that period.

Note: The opinion does not set out in the same kind of detail any separate, specific pleading or developed argument advanced on behalf of the State or respondents; the record of respondents' argument is not detailed in the provided opinion text.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Natabar Parida v. State of Orissa (A.I.R. 1975 S.C. 1465)	Observation (quoted by petitioners) that courts must abide by the will of the Legislature when procedural law creates protections for accused persons.	The opinion notes the petitioners' reliance on this observation but proceeds to examine whether a lacuna exists in the Code; the Court did not treat this observation as determinative of the present issue.
Lakshmi Brahman v. State (1976 Criminal Law Journal 118) — Allahabad HC Bench decision	Held that proceedings under Section 209 are not part of any "inquiry" and thus Magistrate cannot remand to jail custody under Section 309(2) after taking cognizance and before committal.	The Full Bench rejected this view, finding the reasoning fallacious and holding that Section 209 proceedings are an "inquiry" within Section 2(g), so Lakshmi Brahman does not correctly state the law on this point.
Shankar Singh v. The State (Cr. W.J.C. 24 of 1977) — Patna Bench decision	Followed the Allahabad decision and held that once charge-sheet is submitted and cognizance taken in an exclusively triable-by-sessions case, Magistrate cannot remand under Section 167 or Section 209 before committal.	The Full Bench treated this as a mere following of the Allahabad view without independent reasoning and held it does not lay down the correct law.
Swaroop Singh v. The State of Rajasthan (1976 Criminal Law Journal 1655) — Rajasthan HC Bench decision	Held that proceedings under Section 209 fall within the ambit of "inquiry" and Section 309(2) empowers remand if inquiry under Section 209 is adjourned or postponed.	The Full Bench endorsed this view as consonant with its conclusion and relied upon the Rajasthan Bench decision as supportive.
Ramjidas v. State of Rajasthan (1977 Criminal Law Journal 591) — Rajasthan single judge	Dissented from the Allahabad Bench decision and held the Magistrate does have power to remand in the interregnum.	The Full Bench expressly endorsed the reasons of the Rajasthan single judge and found that decision supportive of its conclusion.
Prem Sukh Lal v. The State (1977 Criminal Law Journal 47)	Decision said to be more in consonance with the Rajasthan view (i.e., permitting remand).	The Court noted that this decision aligns with the view accepting remand power; used as part of the survey of authority favouring remand power.
State v. Jai Ram (1976 Criminal Law Journal 42) — Delhi High Court single judge	Held the Magistrate examines the police report and documents under Section 207 to see whether facts make out an offence exclusively triable by sessions; the Magistrate need not weigh evidence or hear accused and therefore acts in limited fashion.	The Full Bench said that if Jai Ram is read to mean Section 209 proceedings are not an inquiry at all, that part is wrongly decided; but the part stating the Magistrate must examine the report reinforces the Full Bench's view that this examination is an inquiry and supports remand power under Section 309(2) read with Section 209.
Hema Singh v. King-Emperor (A.I.R. 1929 Patna 644)	Quoted authority for the proposition: "a trial is a judicial proceeding which ends in conviction or acquittal; all other proceedings are mere inquiries."	The Full Bench invoked the quoted words to support the distinction between "trial" and "inquiry" and to justify treating Section 209 proceedings as an inquiry.
Ramdeo Mahto alias Sukdeo Mahto v. The State of Bihar (Cr. W.J.C. 30 of 1977)	Held Magistrate had no jurisdiction to remand where investigation was over but cognizance had not been taken and neither had the accused been produced — remand order was illegal until cognizance taken.	The Full Bench observed that the point decided there (remand before cognizance) was different from the present issue (remand after cognizance but before committal); portions of its reasoning were treated as obiter and the First part of paragraph 12 in that judgment was noted as reinforcing the Full Bench's view that Section 209 is an inquiry.
Kamal Krishna De v. State (1977 Criminal Law Journal 1492) — Calcutta HC	Dealt with a complaint case and held it is not incumbent upon the Magistrate to record a specific finding before committing to sessions; the Magistrate may formally commit the case after preliminary duties; the decision stressed that the words "it appears to the Magistrate" vest the question in the Magistrate's opinion.	The Full Bench treated the Calcutta decision as addressing a different issue (requirement to record a finding) and observed that if the Calcutta Bench is construed to support the Allahabad view, it would be wrongly decided to that extent; otherwise it reinforces that the Magistrate must examine the materials before committing.
Jaya Prakash Singh v. The State of Bihar (Criminal Misc. 1668 of 1977) — reference	Noted in the opinion as a matter referred to a Division Bench because a single judge expressed doubt about the correctness of the Allahabad and Patna Bench decisions.	The Full Bench recorded that the doubt existed and that the matter had been referred upward; used as contextual support for why Full Bench consideration was warranted.

Court's Reasoning and Analysis

The Full Bench's analysis proceeds step-by-step from the statutory text and the definition of "inquiry" in Section 2(g) of the Code:

Statutory provisions framed the question: Section 209 requires that when the Magistrate, in a case instituted on police report or otherwise, finds the offence exclusively triable by a sessions court, he shall commit the case to that court and "subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial." Section 309(2) allows a court that has taken cognizance of an offence, or commenced trial, to postpone or adjourn any inquiry or trial and "may by a warrant remand the accused if in custody" (with statutory limitations).
The crucial interpretive question is whether the proceeding under Section 209 (the stage after cognizance and before committal) is an "inquiry" under Section 2(g) ("'Inquiry' means every proceeding, other than a trial, conducted under this Code by a Magistrate or Court").
The Court examined the scope of "inquiry": it noted the dictionary meanings and emphasized that an "inquiry" includes proceedings in which the Magistrate applies his mind to ascertain what offence is made out on the facts alleged and whether that offence is exclusively triable by the sessions court. The phrase "it appears to the Magistrate" in Section 209 implies formation of an opinion—i.e., a judicial application of mind—on the materials (police report and documents) before committing the case.
The Court rejected the characterization that the Section 209 proceeding is merely a mechanical act; instead it held that the scrutiny required, even if summary in compass, is a genuine "inquiry." The Court illustrated the point by a hypothetical (assault with a lathi where police report frames Section 307) to show the Magistrate must assess whether the facts actually disclose an offence exclusively triable by sessions, and thus must apply his mind rather than act as an automaton.
The Court deployed principles of harmonious construction: since Section 309(2) uses the term "inquiry" in the context of remand, and Section 209 requires an "appearance" of the Magistrate that involves opinion-formation, the two provisions must be read together to allow remand by the Magistrate during adjournments of the Section 209 inquiry.
The Court surveyed the conflicting authorities. It found the Allahabad Bench's reasoning in Lakshmi Brahman to be fallacious because it assumed there is nothing to be done in Section 209 proceedings and thus excluded them from "inquiry." It treated Shankar Singh as merely following Lakshmi Brahman and therefore not persuasive. Conversely, the Rajasthan Bench and single judge decisions (Swaroop Singh and Ramjidas) and aspects of Jai Ram and Kamal Krishna De were treated as supportive of the Court's view that Section 209 proceedings are inquiries. Hema Singh (Patna) was quoted to underscore the trial/inquiry distinction.
On that basis the Full Bench concluded as a matter of statutory construction and principle that proceedings under Section 209 are "inquiry" within Section 2(g), and consequently the Magistrate is empowered under Section 309(2) read with Section 209 to remand an accused in custody during the period between cognizance and committal, where the inquiry is adjourned or postponed for reasonable time and reasons recorded.
Concurring judges (Shambhu Pd. Singh, J., and Uday Sinha, J.) added observations reinforcing the textual analysis: Section 2(i) ("judicial proceeding") is distinct and narrower than "inquiry"; the Code contemplates that copies under Section 207 must be supplied and that commitment may not be possible on the day of first appearance; and therefore it would be contrary to the ends of justice to hold that no remand power exists in this interregnum. Uday Sinha, J., expressly agreed that if the determination is an "inquiry" then remand power follows and concurred with the Full Bench judgment rejecting the contrary decisions.
Finally, the Full Bench applied these conclusions to the two petitions and determined there was no merit, resulting in dismissal of the applications.

Holding and Implications

Holding: The Full Bench held that a proceeding under Section 209 of the Code is an "inquiry" within the meaning of Section 2(g) of the Code and that, accordingly, a Magistrate who has taken cognizance of an offence that is exclusively triable by a court of session has power, under Section 309(2) read with Section 209, to remand an accused to custody between the date of taking of cognizance and the date of commitment to the sessions court. The petitions were dismissed.

Implications (direct effect on parties and legal consequence stated in the opinion):

Direct effect on parties: The applications for habeas corpus were dismissed; the Court held there was no illegality in the remand power exercised at the interregnum stage when the inquiry under Section 209 is adjourned or postponed with reasons recorded.
Legal consequence articulated by the Court: The decision rejects the contrary view taken by the Allahabad High Court in Lakshmi Brahman and the Patna Bench decision in Shankar Singh and upholds the view that Section 209 proceedings constitute an "inquiry" so as to render Section 309(2)'s remand power available in that period. The opinion treats certain prior contrary observations as fallacious or obiter to the extent they conflict with this reasoning.

Application dismissed.

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Tuneshwar Prasad Singh Petitioner In Cr. W.J 91/77 v. Ram Pravesh Yadav Petitioner In Cr. W.J.G 112/77

S.K Jha, J.:— The petitioner of each of these two criminal writ cases feeling oppressed and obsessed by his alleged illegal detention has prayed for a writ of habeas corpus. Time and again learned counsel for the petitioners pressed upon our attention the observations of Untwalla, J., speaking for the Supreme Court in the case of Natabar Parida v. State of Orissa (A.I.R 1975 Supreme Court 1465) that if the Legislature has, in its wisdom, created a ‘paradise for the criminals’ by the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code), the courts have to abide by the will of the Legislature. Such a paradise, it is claimed, has been created for the petitioners ‘under the command of the Legislature.’ Learned counsel foe the petitioners, while initiating their argument with the aforesaid observations, sought to support these applications by contending that since there was no power of remand of an accused person to custody between the time of taking of cognizance of the offence by the Magistrate and the commitment of the case to the court of session in cases exclusively triable by that court, the Magistrate could not resort to his inherent powers for the purpose of remanding the accused to custody in this so-called period of interregnum. No exception can be taken to the observations relied upon by the learned counsel for the petitioners that, if the Legislature so commands, criminals may float in paradise. But the moot question before us is as to whether the Legislature, in such circumstances as the present, has left a lacuna or a hiatus to provide a frolicking ground for persons accused of serious offences.

2. The point involved in these cases has given rise to divergence of judicial opinion. The decision of the point is not only of great moment to the petitioners here concerned but its aspects bring up a question of wide public importance and it would be well indeed if it could be brought home not merely to the parties interested in these cases but to those who, in the future, are in the position of an accused against whom cognizance of an offence has been taken but the case has yet to be committed to the court of session in cases exclusively triable by the sessions court. The arguments in these cases on behalf of the petitioners have indeed roamed very wide but the simple question for consideration is as to whether, where an accused, whose offence has been taken cognizance of and whose case has not yet been committed to the court of session in cases exclusively triable by it, it can be said to be still in the stage of an inquiry within the meaning of Section 2(g) of the Code, thus empowering the Magistrate to exercise his power of remand under the provisions of Section 209 read with Section 309(2) of the Code or is only in the stage of some sort of vacuum between the conclusion of an inquiry and the commencement of the trial.

3. Before, however, entering into any discussion on the question of law posed, it would be worthwhile to narrate the facts, short as they are, relating to the two applications.

4. Relevant facts of Cr. W.J.C 91/77.

5. The petitioner is an accused in a case being Masaurhi P.S case no. 3(6)76 (State v. Mahendra Pratap Singh) under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. After completing the investigation, the police submitted charge sheet which was received by the Chief Judicial Magistrate, Patna, on 17th August, 1976. Cognizance was taken by the Chief Judicial Magistrate on 8-12-76. The case has not yet been committed to the court of session.

6. Facts relating to Cr. W.J.C 112/77

7. The petitioner is an accused in Bikram P.S Case no. 5(5)77 under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Charge sheet was submitted by the police on 3rd June, 1977 and the learned Sub-divisional Magistrate, Danapur, took cognizance under Section 302/34 Indian Penal Code, and Section 27 of the Arms Act on 7th June, 1977. The case of the petitioner has not yet been committed to the court of session.

8. On these facts, the common question, which arises or decision in these cases, is as to whether the Magistrate has any power to remand the accused persons to custody between the date of taking of cognizance of the offences and the date of commitment of the case to the court of session; in other words, what is the true interpretation of the provisions of Section 209 read with Section 309(2) of the Code. A Bench of the Allahabad High Court in the case of (1) Lakshmi Brahman v. State (1976 Criminal Law Journal 118) has taken the view, that the proceeding under Section 209 of the Code is not a part of any inquiry nor a part of trial and, as such, does not warrant the accused to be remanded to jail custody by the Magistrate before whom, the commitment proceedings are pending. This view has been adopted by a Bench of this court in the case of (2) Shankar Singh v. The State (Cr. W.J.C 24 of 1977 decided on 28.6.77). A discordant and contrary note has been struck by a Bench of Rajasthan High Court in the case of (3) Swaroop Singh v. The State of Rajasthan (1976 Criminal Law Journal 1655) and more directly and frontally by a learned single Judge of that very court in the case of (4) Ramjidas v. State of Rajasthan (1977 Criminal Law Journal 591). In the case of (5) Prem Sukh Lal v. The State (1977 Criminal Law Journal 47), a case decided by S. Ali Ahmad, J. of this court earlier than the Bench decision of this court in the case of Shankar Singh (Supra) the decision is more in consonance with the Rajasthan view whereas the judgment of a learned single Judge of the Delhi High Court in the case of (6) State v. Jai Ram (1976 Criminal Law Journal 42) leans towards the Allahabad view. Some other decisions, to which we were referred, I shall advert to later at a more appropriate place. Birendra Prasad Sinha, J., has also expressed his doubt with regard to the correctness of the Allahabad and the Patna Bench decisions referred to above in (Criminal Miscellaneous 1668 of 1977) Jaya Prakash Singh v. The State of Bihar) and referred that case to a Division Bench by an order dated 19th August, 1977. When Cr. W.J.C 112/77 was heard by a Division Bench, both the learned Judges Shiveshwar Prasad Sinha and Shivanugrah Narain, JJ. felt in view of the importance of the point and divergence of judicial opinion that the matter be heard by a Full Bench. Hence, it has fallen to our lot to consider the question and to pronounce as to which of the two divergent views is tenable in law. Which of the decisions aforementioned appears to make the way of error luminous that, is the precise question which we are called upon to answer.

9. It is worthwhile to reproduce Section 209 and 309(2) of the Code—

“209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate, and it appears to the Magistrate that the offence is triable exclusively by the court of sessions he shall—

(a) Commit the case to the court or Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.”

“309(2) If the court, after taking cognizance of an offence, or comment cement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused persons to custody under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing.”

10. It would thus be seen that, when an offence is exclusively triable by a court of session in a case instituted on a polled report or otherwise and the accused appears or is brought before the Magistrate, he shall commit the case to the court of session and, subject to the provisions of the Code relating to ball, remand the accused to custody during and until the conclusion of the trial. After taking cognizance of an offence, if the court finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may remand the accused if in custody, under the provisions of Section 309(2). It seems to me the beginning of wisdom in this matter to draw a real distinction between two things trial and Inquiry. Is a proceeding under Section 209 of the Coda a trial? The answer clearly is in the negative. Is this then an inquiry? If the answer be in the negative, can it question the petitioners must succeed. If, on the contrary, it is fin inquiry, the power of remand is expressly conferred on the Magistrate by Section 309(2) read with Section 209 of the Code. This at once leads me to the definition of the term ‘inquiry’ in Section 2(g) of the Code, which runs thus—

“‘Inquiry’ means every, other than a trial conducted under this Code by a Magistrate or Court.”

11. The definition of the term ‘inquiry’ by itself does not, in my view, lead us very far. At the same time, it will be seen that the term ‘inquiry’ has a very wide connotation under the Code and includes every inquiry other than a trial. One thing is well settled and that is that a trial within the meaning of the Code is a judicial proceeding which ends in either conviction or acquittal. The dictionary meaning of the term ‘inquiry’, however, is, according to the New Standard Dictionary, investigation into facts, causes, effects and relations generally and ‘to inquire’ has been defined to mean in the same dictionary ‘to exert oneself to discover something. “Inquiry is a road to truth”, said Gladstone. The Chambers's Twentieth Century Dictionary lays down the meaning of the term ‘to inquire’ as “to ask; to seek” and the term ‘inquiry’ as the “search for knowledge; investigation; a question”. An application of the mind to ascertain what offence is made out on the facts alleged and whether such an offence is exclusively triable by a court of session is an absolute necessary for the Magistrate before he can commit the case to a court of session under Section 209 of the Code. Once on a judicial application of such mind the Magistrate comes to the conclusion that the allegations made and the materials on record (police report) attract a particular penal provision which, in its turn, is exclusively triable by a sessions court; he has to commit. This bringing of the judicial mind to bear upon the facts alleged and the ascertainment of the particular penal provision which is attracted and as to whether such offence is exclusively triable by a court of session certainly needs a scrutiny it is a search for knowledge, it is to seek, to scrutinise and to study not a mere mechanical act but an inquiry, albeit, within a very narrow compass. A Magistrate is exerting himself to discover something. It is extremely difficult to take the view that the proceedings before the Magistrate, after he has taken cognizance of the offence and until he has committed the case to the court of session, are not embraced within the term ‘inquiry’ as defined in Section 2(g) of the Code. It is true that the protracted commitment inquiry under the provisions of Chapter XVIII of the Code of Criminal Procedure, 1898 (old Code) has completely been done away with. That, however, does not mean that any proceeding which is more or less of a summary nature involving no detailed consideration of facts, will in no case be termed an Inquiry. The language of Section 209 itself makes it clear that when it appears to the Magistrate that the offence is triable exclusively by the court of session, he shall commit the case to the court of session. When the legislature uses the expression. ‘It appears to the Magistrate’, it means the formation of an opinion of the Magistrate on the materials on record. This evidently implies a judicial application of mind. Let us take a concrete example. An accused assaults a person with a hard blunt substance, such as a lathi, on his thigh, causing a simple hurt. The police in its charge sheet makes out a report of an offence under Section 307 of the Indian Penal Code. Is the Magistrate like an automaton bound to commit the case to the court of session? Has not the Magistrate to satisfy himself from the materials in the police report that the offence is not such as is exclusively triable by a court of session? Any negative answer to this question posed by me will, in my view, be an absurd proposition. This application of the judicial mind by the Magistrate to the materials in the police report to find out as to whether an offence exclusively triable by a court of session has been made out or not, cannot be anything but an inquiry. The question as to whether the Magistrate is bound to afford to the accused an opportunity of being heard on the point whether or not the case is one exclusively triable by the court of session is wholly academic. It is in the fitness of thing, therefore, that in Section 309(2) of the Code the Legislature has made a provision for adjourning any inquiry from time to time for reasons to be recorded and, while so doing, to remand the accused if in custody. Taking any different view of the matter would render the provision with regard to the adjournment of Inquiry in Section 309(2) of the Code otiose. The term inquiry in Section 309(2) occurs in the context of the exercise of a power to remand the accused, if in custody, after cognizance has been taken. The rule of harmonious construction, therefore, impels me, while reading Section 309(2) in juxtaposition of Section 209 of the Code, to hold as a matter of first impression and, on principle, that the proceeding under Section 209 must inevitably be embraced within the term ‘inquiry’ as defined in Section 2(g). That it should have been so provided in Section 309(2) is in the fitness of things since some time must elapse between the taking of cognizance and the order of commitment at the Magistrate has to satisfy himself within the meaning of Section 209 of the Code. In the context of Section 209 of the Code, I am tempted to use the words of Courtney Terrell, C.J speaking for the Bench in the case of (7) Hema Singh v. King-Emperor* (A.I.R 1929 Patna 644)—

“In other wards, a trial is a judicial proceeding which ends in conviction or acquittal. All other proceedings are mere inquiries.”

12. Judging in this light, I shall now advert to the case law to which our attention was drawn in course of arguments. Learned counsel for the petitioners vehemently relied on the Bench decision of the Allahabad High Court in the case of Lakshmi Brahman (supra). In that case the learned Judges have held that in a case exclusively triable by a court of session once the police submits the charge sheet and investigation of the case is over, the Magistrate cannot authorise the detention of an accused under Section 167 of the Code. It has further been held that the authority of a Magistrate to remand an accused to custody, after he has taken cognizance of an offence, cannot also be gathered from Section 209 of the Code. The power to remand the accused to custody under Section 209 can be exercised only while making an order committing the accused to court of session. Thus if, for some reason, the Magistrate defers the making of an order committing the case to the court of session, he cannot, after taking cognizance of the offence, remand the accused to custody under Section 209. The power to remand the accused under Section 309(2) can be exercised only when a court after taking cognizance of an offence of commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourns, any inquiry or trial. In a case which is exclusively triable by a court of session, the Magistrate, while proceeding to commit an accused under Section 209 of the Code, does not conduct any enquiry as contemplated by Section 309 of the Code. Thus, an order remanding the accused persons to custody made after the police had submitted the charge sheet could not be justified even under Section 309(2) of the Code. The reason advanced by the learned Judges of the Allahabad High Court in Lakshmi Brahman's case is, if I may say so with utmost respect fallacious. In paragraph 10 of the judgment, having referred to the definition of the term ‘inquiry’ in Section 2(g) of the Code, the learned Judges proceed to consider the various provisions in the Code wherein the proceedings before a magistrate or court have been described as enquiry. The learned Judges have dwelt at great length upon the provisions of Sections 84, 116, 125, 137, 138, 145 and 176 of the Code and have concluded at the end of paragraph 10 that these various provisions are attracted towards holding of enquiry in respect of matters other than those which concern offences. Then they go on to consider some of the provisions in the Code which contemplate holding of inquiries in connection with offences, and in this connection refer to Sections 159 and 202. It has been held that Section 159 empowers a Magistrate receiving report under Section 157 from an Officer in charge of a police station either to direct the police to investigate the case or, if he thinks to proceed or deputes Magistrate subordinate to him to, proceed, to hold a preliminary inquiry. Similarly, Section 202 has been noticed as providing that any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192 of the Code may, if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct investigation by the police officer. Having so discussed, the various provisions of the Code, the learned Judges observe in paragraph 12 of the judgment that.

“If the provision contained in Section 2(g) is interpreted in the light of the aforementioned provisions of the Code (relating to inquiries), it becomes obvious that ‘inquiry’ is the name given to a proceeding conducted under the Code by a Magistrate or a court, other than a trial, for ascertaining or verifying facts with a view to take some action under the Code.”

13. The proposition as enunciated in paragraph 12 aforementioned is unexceptionable, for that is how Section 2(g) defines the term ‘inquiry’ itself. With all humility I venture to say that when the stage of application of this principle to the facts of Lakshmi Brahman's case arose, fallacy has subcutaneously crept in. For, while correctly laying sown the definition of the term ‘inquiry’, the learned Judges seem to proceed upon the assumption that the inquiry must be some thing in the nature akin to that conducted under the sections heretofore mentioned. Illustrations do not exhaust the definition necessarily. In paragraph 13 of the judgment it has been said.

“These sections (reference is made to Sections 204, 207, 208 and 209) do not contemplate that before committing the case to sessions the Magistrate should conduct some proceeding with a view to ascertain or verify facts. “Section 209 of the Code merely requires the magistrate, taking cognizance of an offence on the basis of a police report, to look into the report and if he finds 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 inguiry under the Code.”

14. Here is the fallacy of petition principle. The learned Judges have already begged the question that there is nothing to be done in a proceeding under Section 209 as contemplated by the Code, no application of the mind by the Magistrate passing the order of committal to the court of session is required. Therein lies the rub. Again in paragraph 15 of the judgment the learned Judges have, if I may say so with great respect, fallen into the same error when they go on to say that the Code does not contemplate that after taking cognizance the Magistrate should conduct any proceeding for ascertaining or verifying fact on the basis of which he is to decide whether or not to commit the case to the court of session. An inquiry, as I have already held above, may be a protracted one or a short one. All the same it remains an ‘inquiry’. If any proceeding entails an application of mind by the Magistrate or the court to ascertain what offence is made out on the facts as appear from the police report and as to whether such an offence is exclusively triable by a court of session or not, that is also art inquiry. In my view, therefore, the Bench decision of the Allahabad High Court in Lakshman Brahman's case does not correctly, lay down the law in this regard. So far as the Bench decision of this court in the case of Shankar Singh (Supra) is concerned, no independent reason has been advanced but the Allahabad decision has merely been followed without any additional reason and without testing the correctness of the proposition laid down therein.

15. Our attention was next invited to a decision of a learned single Judge of the Delhi High Court in the case of State v. Jai Ram (supra). In that case R.N Aggarwal, J., held that under Section 209 the Magistrate is only to examine the police report and other documents mentioned in Section 207 and find out 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 the offence triable exclusively by a court of session, he is to do no more than commit the case to the court of session. In forming the opinion, the Magistrate would not weigh the evidence and the probability of the case. He is not required to hear the accused. In other words, he is not to hold a judicial inquiry. This judgment, if it be construed to mean that the proceeding under Section 209 of the Code is not an inquiry at all, must, to that extent, be held to have been wrongly decided. But the very first part of the judgment, in which it has been held that under Section 209 of the Code the Magistrate is to examine the police report and other documents mem toned in Section 207 and find out whether the facts stated in the report make out an offence triable exclusively by a court of session, clearly re-inforces the view that I have taken, namely, that the Magistrate is not to act like an automaton. He has to examine the police report. He has to examine the other documents mentioned in Section 207. He has to find out whether the facts stated in the report make out an offence, triable exclusively by a court of session. In doing all these, the Magistrate, in my view, is certainly conducting an Inquiry. It is not necessary to dilate upon the question as to whether it is a part of judicial inquiry or not. For, if it is an inquiry, Section 309(2) read with Section 209 of the Code confers the necessary jurisdiction on the Magistrate to remand the accused to custody.

16. We were next referred to a Bench decision of the Rajasthan High Court in the case of Swaroop Singh (supra). In that case the learned Judges took the view, which is in consonance with the view that I have taken of the matter, that the proceedings taken under Section 209 of the Code by the Magistrate would squarely fall within the ambit of the term ‘inquiry’ and the Magistrate has power under Section 309(2) to remand the accused to custody if inquiry under Section 209 is adjourned or postponed. The Bench decision of the Allahabad High Court in Lakshman Brahman's case was taken notice of by the Rajasthan Division Bench in Swaroop Singh's case but the learned Judges merely distinguished Lakshmi Brahman's case by saying in Paragraph 10 of the judgment that in that case “this question was not directly in issue before the Judges and, therefore, the observations of the learned Judges while dealing with the scope of Section 309(2) of the Code can hardly be of any assistance to Mr. Bhimraj.” When, however, subsequently the matter came up for consideration before a learned single Judge of the Rajasthan High Court in the case of Ramjidas (supra), the learned Judge dissented from the Allahabad Bench decision. I fully endorse the reasons given by the learned single Judge of Rajasthan High Court.

17. Learned counsel for the petitioners, however, drew our attention to yet another Bench decision of this court in the case of (8) Ramdeo Mahto alias Sukdeo Mahto v. The State of Bihar. (Cr. W.J.C 30 of 1977) decided on 18th April, 1977 by M.M Prasad and M.P Singh, JJ. In that case the question was whether there is any provision in the Code which would directly apply to a case where investigation is over and report in the final form has been submitted but neither cognizance of the offence has been taken nor has the accused appeared or been produced so as to enable the court to commit him to the court of session. It was held that the Magistrate had no jurisdiction to pass this order of remand until after he had taken cognizance and proceeded in accordance wish law. The order of remand resulting in the detention of the petitioner was held to be illegal and invalid. The point, which has fallen for our consideration was, therefore, not at issue in that case. However, in paragraph 12 of that judgment, M.M Prasad J., speaking for the Bench, observed as follows:—

“It is obvious, even though the Legislature has not said so in so many words, that Section 209 is attracted only after the Magistrate has taken cognizance of the offence. True, it is not said that he has to do so after he has taken cognizance but it is obvious that the Magistrate is asked to apply his mind to the facts before him with a view to take action, namely, if it is a case triable by a court of session, he has to commit the accused and if it is not so, he has to try the accused. The very fact that he has to determine this after the application of his mind makes it obvious that he has to take cognizance of the offence. It is well known that the Magistrate takes cognizance of an offance when he applies his mind with a view to proceed under the provisions of Chapters XV and XVI of the Code. Obvious, therefore, the right to remand an accused to custody under clause (b) cannot be exercised unless the Magistrate commits the accused to the court of session……..”.

18. The first part of the observation extracted above does go to re-inforce my view that a proceeding under Section 209 is in the nature of an inquiry. The point in the last part of the observation, however, did not fall for consideration before the learned Judges and, therefore, must be treated as being mere obiter dictum.

19. We were next led to a Bench decision of the Calcutta High Court in the case of (9) Kamal Krishna De v. State (1977 Criminal Law Jounral 1492). That case arose out of a complaint case and not on a police report. The point, however, that was raised in that case was whether the Magistrate could approach the case in a mechanical manner to commit the accused without recording a finding that from materials on record it appeared to him that the offences complained of are exclusively triable by the court of session and whether absence of such a finding would vitiate the order of commitment. In that context, it was held at page 1495.

“The contention raised by Mr. Banerjee raises the question what will be the true construction of the words ‘it appears to the Magistrate’ in S. 209. If the contention of Mr. Banerjee is to be accepted, then these words give jurisdiction to decide whether or not there should be commitment. The normal connotation of the word ‘appears’ is ‘seems’ or to be in one's opinion. So it is the mere opinion of the Magistrate that must prevail. The words ‘it appears to the Magistrate’ do not connote satisfaction of the learned Magistrate to enable the superior court to judge whether there was sufficient ground for satisfaction. Preliminary inquiry by a Magistrate in cases exclusively triable by court of session has been dispensed with as such an inquiry served no useful purpose and involved a great deal of infructuous work causing delay in the trial of sessions cases. There was no scope for any inquiry after the processes were issued in the instant case. The learned Magistrate after performing some preliminary duties referred to earlier is to formally commit the case. The words ‘it appears to the Magistrate’ are obviously put in for the purpose of making the Magistrate the sole authority on the question and do not Introduce any new aspect. It depends upon the opinion of the Magistrate not upon the fact of sufficiency or insufficiency of materials. That this is so will be evident from the fact that (apart from an order of commitment in compliance with the mandatory provisions of Section 209 Cr. P.C) the Magistrate merely on report of a police may commit an accused to court of session on perusal of the same without any inquiry, if it appears to him that the offence in respect of which charge sheet has been submitted is triable only by the court of session.”

20. It will thus be seen that the Bench of the Calcutta High Court was seized with the question as to whether it was incumbent upon the Magistrate to record a finding before he could commit the case to a court of session in cases exclusively triable by the court. The ratio of the decision is that it is not incumbent upon the Magistrate to do. It was merely in that context that the term ‘preliminary inquiry’ came to be used. It is universally accepted that the preliminary inquiry as envisaged by Chapter XVIII of the old Code is no longer in vogue under the new Code. What, in essence, the decision says is that the weighing of evidence for the purpose of finding out a prima facie case which constituted a preliminary inquiry under Chapter XVIII of the old Code and which required the committing Magistrate to record his reasons for commitment has been dispensed with, under the new Code. It is in that sense that the term ‘preliminary inquiry’ or the term ‘inquiry’ loosely speaking, has been used in this decision. The point which has fallen for our consideration was not canvassed there and any observation contrary to the view that I have taken must be taken to be merely in the nature of obiter dictum, but, if per chance the Bench decision of the Calcutta High Court be construed as affirming the view of the Allahabad Bench decision in Lakshmi Brahman's case then, to that extent, I must hold it to have been wrongly decided.

21. Having examined the question very closely and having considered the matter in all its ramifications, I unhesitatingly hold that a proceeding under Section 209 of the Code is in the nature of an ‘inquiry’ within the meaning of Section 2(g) of the Code, and, as such under the provisions of Section 309(2) read with Section 209 the Magistrate, after having taken cognizance of the offence and before the committal of the case to the court of session, is fully empowered to remand the accused to custody. There is thus no merit in these applications. They are accordingly dismissed.

22. Shambhu Pd. Singh, J. I agree. However, I would like to add a few observations of my own. Section 2(g) of the Code which defines “inquiry” has already been quoted in the lucid and elaborate judgment of my learned brother S.K Jha, J. Section 2(i) of the Code defines “judicial proceeding” as follows:—

“‘Judicial proceeding’ includes any proceeding in the course of which evidence is or may be legally taken on oath.”

23. If inquiry was to mean only such a proceeding in course of which evidence is or may be legally taken on oath, then there would have been no necessity for the framers of the Code to define “judicial proceeding” separately. The fact that “judicial proceeding” has been defined separately in the Code indicates that inquiry is a term of wider connotation and may include even such proceedings where it may not be necessary to legally take evidence on oath. Therefore, even where evidence is not taken on oath but if the Magistrate or court has to ascertain or verify facts with a view to take some action under the Code, that will be an inquiry and, as pointed out by my learned brother S.K Jha, J., the Magistrate while passing an order under Sect Son 209 of the Code has to ascertain whether the offence is triable exclusively by the court of session or not. During the period when the Magistrate receives chargesheet from the police and takes cognizance and till he passes an order under Section 209 of the Code, the matter is pending inquiry before him for ascertain tag whether the offence made out on the evidence recorded by the police is exclusively traible by the court of session or not. The Code does not provide for commitment of the accused to the court of session in cases exclusively triable by the court of session on the day he takes cognizance of an offence on receipt of the chargesheet from the police. He can pass an order of commitment only after copies of documents mentioned in Section 207 of the Code are supplied to the accused. The copies of those documents can be applied only after the accused appears. Therefore, ordinarily it may not be possible to pass an order of commitment on the very first day the accused appears or is brought before the Magistrate. It is difficult to think that the framers of the Code intended to make a law that howsoever serious may be the crime the accused cannot be remanded to custody after he appears or brought before the Magistrate and before he is committed to the court of session. When the definition of the term “inquiry” is comprehensive enough for holding that the matter is pending inquiry after taking of cognizance and before commitment of the accused to the court of session, it will be against well established canons of interpretation to hold that the matter is not pending inquiry during that period. Every provision of law has to be interpreted which enhances the cause of justice. It has not to be given such an interpretation as to defeat the ends of justice.

24. Now, as it will appear from Section 209 of the Code, its application is not limited only to cases instituted otherwise, i.e on a petition of complaint. In cases where cognizance is taken on a petition of complaint of offences which are exclusively triable by the court of session, an inquiry as envisaged by Section 202 of the Code has to be held in which the complainant has to be called upon to produce all his witnesses and examine them on oath before summoning the accused. A question arises, does this inquiry come to an end as soon as the Magistrate summons the accused for a particular offence for appearing before him on a date or on other date or dates to which the case is adjourned and the Magistrate passes an order committing the accused to the court of session holding that the accused is exclusively triable by the court of session? In my opinion, the answer will be obvious that the inquiry continues till the order of commitment is passed and it does not terminate on the date an order is passed summoning the accused to appear before the Magistrate. Even though Section 209 of the Code does not specifically say that the Magistrate should hear the accused before passing an order under Section 209 of the Code, prima facie, I am of the view that he should be heard for determining whether the offence on the evidence recorded by the Magistrate in the inquiry under Section 202 of the Code an offence exclusively triable by the court of session is made out. Of course, the Magistrate is not required to weigh the evidence. He was not required to weigh the evidence even before the amendment introduced by the present Code doing away with the commitment proceeding under the old Code which was like a pretrial. But in the cases where the evidence as recorded does not prove all the ingredients of an offence exclusively triable by a court of session, but the Magistrate has wrongly passed an order saying that he is taking cognizance of an offence under such a section it will be against the ends of justice to hold that in such cases even though the mistake is pointed out on behalf of the accused, the Magistrate cannot revise his earlier order and must commit the accused to the court of session. If that be so, then there cannot be two standards, one for the cases Instituted on a police report and another for cases instituted otherwise than on a police report, such as on a petition of complaint. As on the facts of the present cases is not necessary to give a definite finding on the question whether the accused has got a right of being heard under Section 209 of the Code or not before the Magistrate passes an order of commitment, I do not propose to discuss this question any further and record a definite finding on that question but, in my view; there cannot be any doubt that the matter is pending inquiry after summoning the accused till his commitment to the court of session and as such Section 309 of the Code is applicable and the accused can be remanded to custody if he is not granted bail during that period.

25. Uday Sinha, J. I have no manner of doubt that a Magistrate has power to remand an accused to custody between the period of taking cognizance and commitment of the case to the court of sessions. That power is to be found in Section 309 of the Code. The adjudication by a Magistrate in regard to a case whether it is exclusively triable by the court of sessions or not must be held to be ‘inquiry’. It must be so held as that determination is not trial. All determination under the Code that are not trial, are ‘inquiry’, as Section 2(g) of the Code clearly lays down. It was conceded at the Bar on all hands that if that determination is ‘inquiry’, there is a power of remand I am, therefore in complete agreement with the view of learned brother S.K Jha, J. that a committing Magistrate is clothed with the power of remanding an accused and that the cases of Lakshmi Brahman, Shankar Singh and Jairam, referred to earlier by learned brother S.K Jha, J. do not lay down the correct law.