Rashid Ahmad v. S.F Rich

Pullan, J.:— This is a reference made by the learned Sessions Judge of Meerut, asking this Court to set aside the order of discharge passed by a Magistrate of the first class in the case of one Mr. S.F Rich, who had been charged with offences under sections 409 and 420 of the Indian Penal Code. This Mr. Rich claimed to be tried as a European British subject under the special provisions of chapter XXXIII of the Code of Criminal Procedure. After he had made that claim and after an order had been passed under section 443 directing that he should be tried under those special provisions, a charge was framed against him by the Magistrate. The powers of a Magistrate when an order has been passed under section 443 of the Code, are strictly limited by section 446. In that section it is, laid down that the Magistrate inquiring into or trying a case shall, if he does not discharge the accused under section 209 of section 253 as the case may be, commit the case for trial to the court of session. This section appears to me to take away from the Magistrate the powers given him under section 213(2) of the Code of Criminal Procedure, in cases which are to be tried under the special provisions of chapter XXXIII of that Code. The same view was expressed by Mr. Justice Dalal in the case of Emperor v. Banarsi* (1), but that case cannot be taken as an authority, because in so far as the observations of the framed Judge referred to a European British subject they were obiter. Thus, as far as I know, there is no authority to guide the Court in this matter. But the words of section, 446 are, in my opinion, sufficiently clear. It has been argued before me that on this interpretation of the Code a person who has claimed a right to be tried as a European British subject has forfeited another valuable right, namely, a right to have a charge against him cancelled if in the opinion of the Magistrate there is not a sufficient case to justify a commitment. This may be so, but whatever may have been the intention of the legislature in framing section 446, I am satisfied that the effect of that section is to debar a Magistrate from cancelling a charge which has once been framed against a person who has claimed to be tried under the provisions of chapter XXXIII as a European British subject, and whose claim to be so tried has been upheld by a competent court under section 443 of the Code. I accept this reference, set aside the order of discharge made by the Magistrate and direct that the Magistrate or his successor in office shall commit this case to the sessions.