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PETITIONER: THAKUR RAM

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 26/11/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. BACHAWAT, R.S. SATYANARAYANARAJU, P.

CITATION:  1966 AIR  911            1966 SCR  (2) 740  CITATOR INFO :  R          1975 SC 146  (8)

ACT:      Code  of  Criminal Procedure 1898 (Act 5 of  1898),  s. 437-Powers  of  Sessions  Judge to order  committal  in  the absence of express order of discharge by Magistrate.

HEADNOTE:      The  accused  were charged under s. 392,  Indian  Penal Code  in the Court of a Magistrate.  The prosecution  failed in its attempt to have the procedure under Ch.  XVIII,  Code of  Criminal  Procedure  adopted.   After  15  months,   the prosecution made an application to the Magistrate to frame a charge  under s. 386 or s. 387 Indian Penal Code (which  are exclusively  triable by a Court of Sessions) and  to  commit the  accused  to the Court of Sessions, which  was  refused. Thereafter a second application was made for committing  the case  to the Court of Sessions.  This, too, was rejected  by the   Magistrate.   Immediately  thereafter,  one   of   the informants,  filed  a  revision  which  the  Sessions  Judge allowed being of the view that the framing of charges  under s. 386 or 387, I.P.C. could not be ruled out altogether  and directed  the Magistrate to commit the accused to the  Court of Sessions.  The appellants preferred  revision to the High Court,   contending   that  the  Sessions   Judge   had   no jurisdiction to pass an order for commitment as there was no order  of  discharge by the Magistrate.     The  High  Court rejected the revision application.     In appeal to this Court     HELD : There is nothing in the language of s. 437 of the Code of Criminal Procedure from which it could be said  that this power is not exercisable during the pendency of a trial before a Magistrate or that this power can be exercised only where  Magistrate  had made an express order  of  discharge. The  provisions of the Code indicate that an express  order of  discharge  is  contemplated  only  in  a  case  where  a Magistrate  comes  to the conclusion that  the  act  alleged against  the accused does not amount to any offence  at  all and, therefore, no question of trying him either himself  or by  another court arises.  Where on a certain set  of  facts the accused is alleged by the prosecution to have  committed

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an  offence exclusively triable by a Court of  Sessions  but the Magistrate is of the opinion that the offence  disclosed is only an offence which he is himself competent to try  and either acquits or convicts him there is an end of the matter in so far as the very set of acts are concerned.  The  facts may  disclose really a very grave offence such as, say,  one under  S.  302  I.P.C. but the Magistrate  thinks  that  the offence  falls  under  s. 304A which he can  try  and  after trying  the  accused  either convicts or  acquits  him.   In either  case the result would be that the appropriate  court will  be  prevented from trying the accused for  the  grave: offence  which those very facts disclose.  It is to  obviate such  a  consequence  and to prevent  inferior  courts  from clutching  at  jurisdiction that the provisions of  s.  437, Criminal Procedure Code have been enacted. [747 C, F; 748 G]       Nahar  Singh v. State, I.L.R. (1952) 2 All.  152,  Sri Dulap Singh Ors. v. State through Sri Harnandan Singh A.I.R. 1954  All.  163  and Sambhu Charan Mandal v.  the  State  60 C.W.N. 708, disapproved. 741     In  re : Nalla Baligadu, A.T.R. 1953 Mad. 801,  Rambalam Pd.   Singh  v.  State  of Bihar,  A.I.R.  1960  Patna  507, Krishnareddi  v. Subbamma,I.L.R. 24 Mad. 136 Shambhooram  v. Emperor, A.I.R. 1935 Sind 221,Sultan Al; v. Emperor,  A.I.R. 1934  Lahore  164  and In re Valturu Narayan  Reddy  &  Ors. A.I.R. 1955 Andhra 48., approved. Yunus Shaikh v.The State, A.I.R. 1953 Cal.567 distinguished.      The  provisions  of  s. 437, however, do  not  make  it obligatory upon a Sessions Judge or a District Magistrate to order   commitment  in  every  case  where  an  offence   is exclusively triable by a Court of Sessions.  The law gives a discretion to the revising authority and that discretion has to be exercised judicially. [750 B]       Considering  the delay in moving the  Sessions  Judge, the  terrible  harassment that the accused would  be  called upon to face if the Magistrate were to commit them for trial by  a  Court  of Sessions now, and further  that  it  was  a private  party  who  had no locus standi  that  went  up  in revision before the Sessions judge after the last attempt by the  prosecution  had  failed, it was  injudicious  for  the Sessions Judge to order the commitment of the accused,  [150 F-H; 751 B-C]

JUDGMENT:       CRIMINAL  APPELLATE  JURISDICTION:  Criminal   Appeals Nos.165-168 of 1962.       Appeals  by special leave from the judgment and  order dated  August 25, 1962 of the Patna High Court  in  Criminal Revisions Nos. 527 to 530 of 1962.        Nuruddin Ahmad and U. P. Singh, for the appellants.        S. P. Varma and R. N. Sachthey, for the respondents.        The Judgment of the Court was delivered by        Mudholkar,  J.  This judgment will also  govern  Crl. As.  No. 166 of 1962, 167 of 1962 and 168 of 1962.  A common question  arises  in these appeals from a  judgment  of  the Patna  High  Court  dismissing  four  revision  applications preferred  before  it  by four sets  of  appellants  in  the appeals  before  us.  Counsel on both the sides  agree  that since the relevant facts of all the proceedings are  similar and  the  question of law arising from them is the  same  it will  be  sufficient to refer to the facts of  Case  No.  TR 320/60.        Four informations were lodged at the police  station,

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Ghora  Saha on April 14, 1960 by different  persons  against the  different  appellants  in these  cases  and  a  similar information was lodged against some of the appellants by one Mali  Ram.  In all these cases the allegations made  by  the informants  were that each set of the accused persons  armed with  deadly  weapons  went  to the  shops  of  the  various informants,  demanded  from  them large sums  of  money  and threatened them with death if they failed to pay the amounts demanded by them.  The informations also stated that 742 some of these persons paid part of the money and were  given time to pay the balance while some agreed to pay the amounts demanded.  Upon informations given by these persons offences under  s.  392, Indian Penal Code, were  registered  by  the station  officer and after investigation five challans  were lodged  by him, in the court of Magistrate.  First Class  at Motihari.   One  of the cases ended in an acquittal  but  we have  not been informed of the date of the judgment in  that case.  In the other four cases trial had come to a close  in that all the prosecution witnesses and the defence witnesses had  been  examined  and  the  cases  had  been  closed  for judgment.       In the case against the appellants in Crl.  A. 165  of 1962  the  challan was presented on October 27,  1960.   The order sheet of that date reads as follows: Date of order           Order with the    Office action S. No. or proceeding    signature of      taken with                         the Court date 1.27-10-1960                          All the 4 accused are present  Heard               both  sides.  It is argued on  behalf  of  the               prosecution that it is a fit case for adopting               procedure  under Chapter XVIII Cr.  P. C.  and               also  that  the entire occurrence  relates  to               offences  committed on 4 dates so that all  of               them  cannot be dealt with in a  single  case.               Discussed law point                     "Charge u/s 302,  I.P.C.  framed against               accused  Thakur  Ram  and  Jagarnath  Pd.  and               explained  to  them.  They plead  not  guilty.               This case will constitute an independent case.               As   for  the  other  parts  of  the   alleged               occurrence  accused Jagarnath, Kamal  Ram  and               Bansi  Rain  are charged separately  u/s  384,               I.P.C.  and  further accused  Thakur  Ram  u/s               384/109,   I.P.C.   and   explained   to   the               respective  accused.  They plead  not  guilty.               These charges relating to three incidents on 3               dates will constitute a separate single case.               Start separate order sheet for both.   Summons               P.W. for 26-10-60 and 27-11-60.               Accused as before.                                                 Sd/       O.               Nath".     The  trial dragged on for nearly 15 months and then  the prosecution  made an application to the court for framing  a charge 743 under S. 386 or s. 387, Indian Penal Code and for committing the  case to a court of Sessions.  This was disposed  of  by the  learned Magistrate on January 25, 1962.   The  relevant portion of his order sheet of that date reads thus      "Accused  absent.  A petition for their  representation u/s 540-A, Cr P.C. is filed.  Allowed.  No reference book is produced.  Persued the record.  The prosecution has  pressed

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to  refer the case to the Court of Sessions u/s 386  or  387 I.P.C.  On  close scrutiny I find that the  robbery  defined inside  390 I.P.C. fully cover the ingredients  pointed  out and asked by the prosecution side.  The case has entered  in the  defence  stage. , This point was  not  introduced  ever before.  The charge was framed u/s 392, I.P.C. after hearing the  parties.  Although it may be referred to  the  superior court at any stage, I find no reason to do so.       Put  up on 28-2-62.  All accused to appear  with  D.Ws without fail.  Accused as before."        On February 28, 1962 the prosecution moved a petition for  stay  of proceedings on the ground that  it  wanted  to prefer  an application for revision of the order of  January 25, 1962.  Stay was refused and the case was proceeded with. On  March 17, 1962 the defence case was closed and the  case was fixed for March 29, 1962 for arguments.  On that date  a second  application  was made for committing the case  to  a court of Sessions.  It would appear from the order sheet  of March  29,  1962 that the Magistrate heard the  parties  and ordered the case to be put up on the next day, that is March 30, 1962.  On this day the Magistrate passed an order to the following effect               "30-3-62-All   the  2  accused   persons   are               present.   Having carefully gone  through  the               law  points and section 236 Cr.P.C. I  do  not               find that it is a case exclusively coming  u/s               386 or 387 I.P.C. Hence the prosecution prayer               is rejected." Immediately thereafter a revision application was preferred, not by the prosecution, but by Sagarmal, an informant in one of  the other three cases.  The Sessions  Judge,  Champaran, after  briefly reciting the facts and reasons on  which  the order of the trying Magistrate was founded, disposed of  the revision application in the following words:  .lm15     "The cases are of very serious nature and the framing of charges under sections 386 or 387, I.P.C. can- 744               not be ruled out altogether.  Consequently,  I               direct  that  each of these  cases  should  be               tried  by  a Court of  Session.   The  learned               Magistrate will commit the accused persons for               trial accordingly.  The applications are  thus               allowed." An application for revision was preferred by the  appellants before  the  High Court and the main ground urged  on  their behalf  was that the Sessions Judge had no  jurisdiction  to pass  an  order  for commitment as there  was  no  order  of discharge by the Magistrate.  There is conflict of authority on  the  question whether under S. 437, Cr.P.C.  a  Sessions Judge can, in the absence of an express order of  discharge, direct  commitment  of  a  case to it  while  the  trial  is proceeding  before a Magistrate in respect of  offences  not exclusively triable by a Court of Sessions.  After referring to  some  decisions and relying upon two  decisions  of  the Allahabad  High Court the learned Judge who disposed of  the revision application observed as follows                    "As  I  have already  indicated,  in  the               instant  cases,  the trial  Magistrate,  after               hearing the parties, refused to frame a charge               for the major offence under section 386 or  S.               387 of the Indian Penal Code.  The refusal  by               the Magistrate to frame a charge under section               386  or  387 of the Indian Penal  Code  was  a               final  order  and it amounted to an  order  of

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             discharge of the accused of the offence  under               those sections.  That being the position,  the               learned  Sessions Judge had full  jurisdiction               to order for commitment."               The learned Judge further observed                    "Without  expressing any opinion  on  the               merits of the four cases, I would state, that,               on the materials on record, the Sessions Judge               was  not unjustified in passing  the  impugned               order  for  commitment of the accused  in  the               four  cases.   The  order  of  the  Magistrate               refusing  to frame a charge under section  386               or  S.  387 of the Indian  Penal  Code,  which               amounted to an order of the implied  discharge               of  the accused, was improper in all the  four               cases." and dismissed the revision applications.       Am  application was made for a certificate of  fitness to  appeal  to  this  Court.   That  was  rejected  and  the appellants have come here by special leave. 745      The ambit of the powers of the Sessions Judge under  s. 437,  Cr.  P.C. has been considered by a Full Bench  of  the Allahabad  High Court in Nahar Singh v. State(1).   In  that case  it was held that the powers conferred by that  section are  exercisable  only in a case where a  Magistrate  by  an express order discharges an accused person in respect of  an offence  exclusively  triable by a court of  Sessions.   The learned  Judges constituting the Full Bench have  taken  the view that in the light of certain provisions of the Code  to which  they  adverted,  the  failure  of  or  refusal  by  a Magistrate to commit an accused person for trial by a  court of  Sessions does not amount to an implied discharge of  the accused  person so as to attract the power of  the  Sessions Judge  under  s. 437, Cr.P.C. to direct  the  Magistrate  to commit  the accused person for trial by a court of  Sessions on  the ground that the offence is exclusively triable by  a Court  of  Sessions.   The  Full  Bench  decision  has  been followed  in  Sri Dulap Singh & ors. v.  State  through  Sri Harnandan  Singh(2).  Before us reliance is also  placed  on behalf of the appellants on the decision in Yunus Shaikh  v. The   State(3).   That  decision,  however,  is  of   little assistance  to  them because the ground on  which  the  High Court set aside the order of the Sessions Judge is not  that he had no jurisdiction to make it under S. 437, Cr.P.C.  but that  the action of the Magistrate in not framing  a  charge under  s. 366 of the Indian Penal Code but framing a  charge only  under  s.  498, T.P.C. did not, in the  light  of  the material before him, amount to an improper discharge of  the accused  in  respect  of an offence triable by  a  Court  of Sessions.   The view taken by the Allahabad High  Court  has been  accepted  as correct in Sambhu Charan  Mandal  v.  The State(4  )  . On the other hand a Full Bench of  the  Madras High  Court has held in in re Nalla Baligadu(5)  that  where under  s.  209(1)  a Magistrate finds  that  there  are  not sufficient grounds for committing the accused for trial  and directs such person to be tried before himself or some other Magistrate, the revisional powers under s. 437, Cr.P.C.  can be exercised before the conclusion of the trial before  such Magistrate.  The learned Judges expressly dissented from the view  taken by the Full Bench of the, Allahabad High  Court. This  decision has been followed in, Rambalam Pd.  Singh  v. State of Bihar(6).  Other decisions which take the same view as the Madras High Court are : Krishnareddi (1)  I.L.R. [1952] 2 All. 152.

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(3)  A.I.R. 1953 Cal. 567. (5)  A.I.R. 1953 Mad. 801. (2)  A.I.R. 1954 All. 163. (4)  60 C.W.N. 708. (6)  A.I.R. 1960 Patna 507. 746 v.Subbamma(1);  Shambhooram  v. Emperor(2);  Sultan  Ali  v. Emperor(-’); and in re Valluru Narayana Reddy & ors. (4 ) .       In order to decide the question which has been  raised before us it would be desirable to bear in mind the relevant provisions  of the Code of Criminal Procedure.  Section  207 provides that in every inquiry before a Magistrate where the case  is triable exclusively by a Court of Sessions or  High Court, or, which in the opinion of the Magistrate, ought  to be  tried  by  such  Court,  the  Magistrate  must  in   any proceeding  instituted  on  a  police  report,  follow   the procedure  specified  in  s.  207-A.   Under  S.  207-A  the Magistrate, after perusing the police report forwarded under S.  173,  has  to fix a date for  hearing  and  require  the production  of  the accused on that date.  He has  also  the power  to  compel the attendance of such  witnesses  or  the production  of  any  document or thing on that  date  if  an application is made in that behalf by the officer conducting the  prosecution.   On the date of hearing  the  Magistrate, after  satisfying  himself  that  copies  of  the  documents referred to in s. 173 have been furnished, has to proceed to take the evidence, of such persons, if any, as are  produced as witnesses to the actual commission of the offence.  After the  examination of those witnesses and after  their  cross- examination by the accused the Magistrate may, if he  thinks it  necessary so to do in the interest of justice, take  the evidence  of any one or more of the other witnesses for  the prosecution.   He  has then to examine the accused  for  the purpose  of  enabling  him  to  explain  the   circumstances appearing  in  the evidence against him and  hear  both  the proseeution as well as the accused.  If at that stage he  is of  opinion  that no round for committing the  accused  for trial  exists,  the  Magistrate  can,  after  recording  his reasons, discharge the accused.  If, however, it appears  to the  Magistrate that such person should be tried by  himself or some other Magistrate he must proceed accordingly.   This contingency  will arise if the Magistrate forms  an  opinion that  no case exclusively triable by a Court of Sessions  is disclosed but a less serious offence which it is within  the competence  of the Magistrate to try is disclosed.  In  that case  he has to proceed to try the accused himself  or  send him   for  trial  before  another  Magistrate.   Where   the Magistrate  is  of  opinion  that  the  accused  should   be committed  for  trial he has to frame a charge  and  declare with  what offence the accused should be charged.  With  the remaining  provisions of s, 207-A we are not concerned.   It will thus be seen that where the police report suggests  the commission  of an offence which is exclusively triable by  a Court (1)   I.L.R. 24 Mad. 136. (3)  A.I.R. 1934 Lahore 164. (2)   A.I.R. 1935 Sind 221. (4)  A.I.R. 1955 Andhra 48. 747 of Sessions, the Magistrate can nevertheless proceed to  try the accused for an offence which is triable by him if he  is of  the view that no offence exclusively triable by a  Court of  Sessions is disclosed.  Similarly, even in a case  where an  offence is triable both by a Magistrate and a  Court  of Sessions,   the   Magistrate  is  of  the  view   that   the

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circumstances do not warrant a trial by a Court of  Sessions he  can  proceed  with the trial of  the  accused  for  that offence  himself.  Section 347 which occurs in chapter  XXIV headed  "General  provisions  as to  Inquiries  and  Trials" empowers  a  Magistrate to commit a person for  trial  by  a Court  of Sessions if in the course of the trial before  him and  before  signing the judgment it appears to him  at  any stage of the proceeding that the case ought to be so  tried. These  provisions would thus indicate that an express  order of  discharge  is  contemplated  only  in  a  case  where  a Magistrate  comes  to the conclusion that  the  act  alleged against  the accused does not amount to any offence  at  all and, therefore, no question of trying him either himself  or by  any. other court arises.  They also show that  where  an accused person is being tried before a Magistrate in respect of  an offence triable by that Magistrate it appears to  the Magistrate that the act of the accused amounts to an offence which  is  triable either exclusively or concurrently  by  a Court  of Sessions he has the power to order his  committal. This power, however, has to be exercised only before signing the  judgment.  It cannot obviously be exercised  thereafter because  of the provisions of S. 403(1) which bar the  trial of  the person again not only for the same offence but  also for any other offence based on the same facts.  It would follow from this that where on a certain state of facts  the accused  is alleged by the prosecution to have committee  an offence  exclusively triable by a Court of Sessions but  the Magistrate  is of the opinion that the offence disclosed  is only  an  offence which he is himself competent to  try  and either acquits or convicts him there is an end of the matter in so far as the very set of facts are concerned.  The facts may  disclose really a very grave offence such as, say,  one under  s.  302, I.P.C. but the Magistrate  thinks  that  the offence  falls  under S. 304-A which he can  try  and  after trying  the  accused  either convicts or  acquits  him.   In either  case the result would be that the appropriate  court will  be  prevented from trying the accused  for  the  grave offence  which those very facts disclose.  It is to  obviate such  a  consequence  and to prevent  inferior  courts  from clutching  at  jurisdiction that the provisions of  s.  437, Cr.P.C. have been enacted.  To say that they can be  availed of  only  where an express order of discharge is made  by  a Magistrate  despite the wide language used in s.  437  would have 748 the result of rendering those provisions inapplicable to the very  class of cases for which they were intended.   When  a case is brought before a Magistrate in respect of an offence exclusively or appropriately triable by a Court of  Sessions what the Magistrate has to be satisfied about is whether the material placed before him makes out an offence which can be tried only by the Court of Sessions or can be  appropriately tried by that Court or whether it makes out an offence which he  can try or whether it does not make out any  offence  at all.  In Ramgopal Ganpatrai v. State of Bombay(1) this Court has pointed out :               "In   each  case,  therefore  the   Magistrate               holding  the  preliminary inquiry, has  to  be               satisfied that a prima facie case is made  out               against   the  accused  by  the  evidence   of               witnesses  entitled to a reasonable degree  of               credit  and unless he is so satisfied,  he  is               not to commit." It has, however, also to be borne in mind that the  ultimate duty of weighing the evidence is cast on the court which has

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the jurisdiction to try an accused person.  Thus, where  two views  are possible about the evidence in a case before  the Magistrate, it would not be for him to evaluate the evidence and  strike  a  balance before deciding whether  or  not  to commit  the  case to a Court of Sessions.   If,  instead  of committing  the case to a Court of Sessions, he proceeds  to try  the  accused  upon the view  that  the  evidence  found acceptable by him only a minor offence is made out for which no  commitment is required he would obviously be  making  an encroachment  on the jurisdiction of the appropriate  court. This may lead to miscarriage of justice and the only way  to prevent  it  would be by a superior court  stepping  in  and exercising  its  revisional jurisdiction under  s.  437  Cr. P.C. There  is  nothing in the language of S. 437 from  which  it could be said that this power is not exercisable during  the pendency  of a trial before a Magistrate or that this  power can  be  exercised  only where the Magistrate  has  made  an express order of discharge.  Express orders of discharge are not required to be passed by the Court in cases where,  upon the same facts, it is possible to say that though no offence exclusively or appropriately triable by a Court of  Sessions Judge  is  made out, an offence triable by a  Magistrate  is nevertheless  made  out.  One of the reasons  given  by  the Allahabad  High Court in support of the view taken by it  is that  a Magistrate has power even during the course  of  the trial to commit the accused to a Court of Sessions and  that to imply a discharge from his omission to commit or  refusal to commit (1)  [1958] S.C.R.618. 749 would   not  be  consistent  with  the  existence   of   the Magistrate’s  power to order commitment at any  time.   That does  not,  however,  seem to be a good  enough  ground  for coming to this conclusion.  The power to commit at any stage is exercisable by virtue of the express provisions of S. 347 or S. 236 and a previous discharge of an accused from a case triable  by a Court of Sessions would not render  the  power unexercisable  thereafter.   Moreover, even  if  an  express order of discharge is made by a Magistrate in respect of  an offence  exclusively  triable by a Court of Sessions  but  a trial  on  the same facts for a minor offence  is  proceeded with  the  Magistrate  has undoubtedly power  to  order  his commitment  in respect of the very offence regarding  which, he  has passed an order of discharge provided of course  the material  before  him  justifies such a  course.   There  is nothing  in s. 347 which precludes him from doing this.   It will,  therefore,  be  not  right  to  say  that  the  power conferred  by  s.  437 is exercisable  only  in  respect  of express  orders  of discharge.  In this context it  will  be relevant to quote the following passage from the judgment of the  Full Bench of the Madras High Court in Krishna  Reddy’s case(1) :     "I do not think that the order of the Sessions Judge was one  which he had no jurisdiction to make.  In my  view  the decision of the Magistrate must be taken to be not only  one of  acquittal  of an offence punishable under  section  379, Indian  Penal  Code,  but one of discharge  so  far  as  the alleged  offence  under section 477, Indian  Penal  Code  is concerned.   The complaint against the accused was  that  he committed  an offence punishable under section  477,  Indian Penal  Code.   Such offence is triable  exclusively  by  the Court of Sessions.  The Magistrate could neither acquit  nor convict him of such offence.  He was bound either to  commit him  to the Sessions Court or to discharge him.  He did  not

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commit him.  The only alternative was to discharge him,  and that,  I take it, is what the Magistrate really did do.   It is not suggested that the charge under section 477 is  still pending before the Magistrate.  It has been disposed of, and the  only  question is as to what the disposal  has  been.It seems to me that the accused has been discharged  so far  as the  charge under section 477 is concerned.The  Magistrate’s order, if stated fully,should have been ’I discharge him  as regards  the  offence punishable under section  477,  and  I acquit  him as regards the offence punishable under  section 379." (1)  L.L.R. 24 Mad. 136. 750 We agree and are, therefore, of the view that the High Court was   right   in  holding  that  the  Sessions   Judge   had jurisdiction  to make an order directing the  Magistrate  to commit the case for trial by a Court of Sessions.     The  provisions  of  S. 437, however,  do  not  make  it obligatory upon a Sessions Judge or a District Magistrate to order   commitment  in  every  case  where  an  offence   is exclusively triable by a Court of Sessions.  The law gives a discretion to the revising authority and that discretion has to be exercised judicially.  One of the factors which has to be  considered in this case is whether the  intervention  of the  revising authority was sought by the prosecution at  an early  stage.  It would be seen that an attempt to have  the case  committed  failed  right  in  the  beginning  and  was repeated  not  earlier than 15 months from that  date.   The second   attempt   also  failed.   Instead  of   filing   an application for revision against the order of the Magistrate refusing  to  pass an order of  commitment  the  prosecution chose to make a second application upon the same facts.   It may  be that successive applications for such a purpose  are not  barred  but where a later application is based  on  the same  facts  as  the earlier one  the  Magistrate  would  be justified in refusing it.  Where the Magistrate has acted in this  way the revisional court ought not to  with  propriety interfere  unless  there  are  strong  grounds  to   justify interference.   While rejecting the application  on  January 25, 1962 the ground given by the learned Judge was that  the case  had already entered the defence stage and the  attempt to  have  the  committal  was  very  belated.   Matters  had advanced still further when a third attempt failed on  March 30, 1962.  By that date not only had the defence been closed and  arguments heard, but the case was actually  closed  for judgment.   It  would  be  a  terrible  harassment  to   the appellants now to be called upon to face a fresh trial right from  the beginning which would certainly be the  result  if the Magistrate were to commit the appellants for trial by  a Court of Sessions now.  It is further noteworthy that  after the  last  attempt failed it was not the  prosecution  which went  up  in  revision before the  Sessions  Judge  but  the informants  and,  as  pointed out  earlier,  in  the  matter concerning  the  appellants before us it was  not  even  the informant  Shyam  Lall but one Sagarmal,  the  informant  in another  case  who preferred a revision application.   In  a case which has proceeded on a police report a private  party has  really no locus standi.  No doubt, the terms of S.  435 under  which the jurisdiction of the learned Sessions  Judge was  invoked are very wide and he could even have  taken  up the  matter suo motu.  It would, however, not be  irrelevant to bear in mind the fact that the court’s 751 jurisdiction  was invoked by a private party.  The  criminal law  is not to be used as an instrument of wreaking  private

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vengeance  by  an aggrieved party against  the  person  who, according to that party, had caused injury to it.  Barring a few exceptions, in criminal matters the party who is treated as  the aggrieved party is the State which is the  custodian of the social interests of the community at large and so  it is  for  the  State  to take all  the  steps  necessary  for bringing  the  person  who  has  acted  against  the  social interests  of the community to book.  In our opinion it  was injudicious  for  the learned Sessions Judge  to  order  the commitment of the appellants particularly so without  giving any  thought to the aspects of the matter to which  we  have adverted.   Even  the  High Court has come  to  no  positive conclusion about the propriety of the direction made by  the Sessions  Judge and has merely said that the Sessions  Judge was  not  unjustified in making the order which he  made  in each  of the applications.  For all these reasons  we  allow the  appeals,  quash  the orders of the  Sessions  Judge  as affirmed  by  the High Court and direct that the  trials  of each  of the appellants shall proceed before the  Magistrate according  to law from the stages at which they were on  the date on which the stay order became operative.                                Appeals allowed. 752