His power under this section is limited merely to ascertain whether the case, as disclosed by the police report, appears to constitute an offence which is exclusively available by a Court of Session and if so, he has simply to commit the case for trial before the Court of Session. He is not required to hear the accused.
It is for the Court of Session to ascertain whether the material placed before him and the police report discloses the case to be a Sessions offence and if he is not so satisfied, it is open to him to discharge the accused under Section 227 of the Code.
Though Section 209 provides for commitment of a case to a Court of Session if the offence is triable exclusively by the Sessions Court. But this section must be read with Section 323 of CrPC which empowers him, in addition to his power under Section 209, to commit a case which ought to be tried by a Court of Session.
Where on the basis of material on record, it appears to the Magistrate that the offence is not exclusively triable by the Court of Session or no such prima facie offence is disclosed at all, then in such situation, he may decline to commit the case. In making this decision he has to apply his judicial mind and not mechanically commit a case even if the offence does not appear to be one triable exclusively by the Sessions Court.
The presence of the accused is deemed necessary at the time of committal of his case to Sessions Court. His presence is intended with the purpose of committing him to the Court of Session and not with a view to give him an opportunity to be heard or make a representation. However, non-production of the accused before the Magistrate at the time of committal has been held to be a mere irregularity which is curable under Section 465 (1) of the Code.
The committing Magistrate is empowered to summon a person not charge-sheeted by police, if he finds that he is prima facie involved in the commission of the offence, and make him an additional accused and commit him to stand trial before the Court of Session.
The High Court of Bombay in B.J. Dhamankar v. State of Maharashtra, held that the committal order passed by the Magistrate should be precise, clear and it must exhibit the application of mind to the facts that (i) offence is exclusively triable by the Court of Session (2) proper order remanding the accused to judicial custody pending trial has been made (3) provisions of Sections 207 and 208 have been complied with; and (4) the rules and manuals framed by the High Courts in this regard have been scrupulously followed.
The order of commitment under this section and in view of the provisions of Section 397 (2) of the Code being an interlocutory order, no revision is maintainable against such order.
The Supreme Court, in Harinder Kaur v. State of Jharkhand held that where the order discharging accused for an offence under Section 313 IPC, was not challenged by the complainant, subsequent application by him to proceed with the trial of the accused under Section 313 IPC was dismissed.
In revision against such dismissal, the High Court directed that Magistrate may commit the case if on examination of remaining witnesses and documents; accused is found to have committed the offence under Section 313 IPC which was not challenged by the complainant.
The Magistrate had already recorded evidence of two witnesses. He therefore continued with the trial as per the said directions of the High Court and recorded evidence of remaining witnesses. The Supreme Court upheld the order passed by the Magistrate that committal of accused for trial under Section 313 IPC to the Court of Session was not necessary and held that such an order was not erroneous in view of the provisions of Section 209 CrPC. The instant case was related to offences under Section 498-A and 313 IPC and an offence under the Dowry Prohibition Act.