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Sessions court has withdrawn the case from judicial magistrate

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Criminal Law

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Question: One of the accused has lodged an FIR against me. The trial of that accused has been going on in the sessions court. Total three persons are accused in that case. In the subsequent case the investigation is still in progress. But the sessions court has withdrawn the case from the judicial magistrate. My advocate says that I should file a revision against the order of sessions court. Can I get any relief from the High Court?

Asked from: Tamil Nadu

This is an interlocutory order hence you cannot file revision in the High Court. The withdrawal of the case from the judicial magistrate is illegal. Investigation is still in progress. Hence, the court cannot form an opinion at the stage of investigation that alleged offence is triable by the court of sessions. 

Section 190 of the code of criminal procedure empowers the judicial magistrate of first class to take cognisance. Judicial magistrates have the power under Section 156(3) crpc to monitor the investigation. He can pass any appropriate order to ensure fair investigation. That power is not vested in the court of sessions. 

Upon conclusion of the investigation, the investigating officer submits a report under Section 173(2) crpc. He can either submit a charge sheet or file a final report. In the later condition the judicial magistrate can close the case. Therefore, the case will not reach the stage of trial. Hence, withdrawal of case from the magistrate will yield no result. 

Move a petition in the High Court

In this condition you should move a petition in the High Court under Section 482 of the code of criminal procedure. Withdrawal of a case at the stage of investigation is an abuse of process. It violates the provision of section 209 crpc. 

The court of session cannot take cognisance unless the judicial magistrate commits a case under Section 209 crpc. Section 209 empowers the judicial magistrate to commit the case to the court of session if offence is triable by the sessions court. In Ganeshan vs State (2011) 5 CTC 474 the Madras High Court has held that 

The court of sessions has no power to direct a magistrate to commit any case to his file. Nor sessions court has power to withdraw a case from the magistrate to his file. 

Hence, withdrawal of case by sessions court without committal order is illegal. It is against the provision of Section 209 crpc. The judicial magistrate, after perusal of the charge sheet, will decide to commit the case to the court of session. If the offence committed by the accused is exclusively triable by the sessions court, the magistrate will commit the case. Section 209 exclusively comes within the domain of judicial magistrate. Intervention of sessions court and withdrawal of case is ultra vires.

The High Court will remand the case to the Magistrate because investigation has not been completed. You should file the afore said petition as soon as possible. Sessions court has withdrawn the case from judicial magistrate in violation of section 209 crpc.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

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