J. M. SHETH, J. ( 1 ) THIS appeal is filed by the appellant who has been convicted of an offence punishable under sec. 292 of the Indian Penal Code and sentenced to suffer three months rigorous imprisonment and to pay a fine of Rs. 500/ and in default of payment of fine to undergo one months simple imprisonment by the learned City Magistrate 7 Court Ahmedabad in Criminal Case No. 918 of 1970. Review application has been filed for enhancement of the sentence. ( 2 ) THE appellant was charged in that he in the month of August 1968 printed for sale in the name of Prakash Vardhan a book bearing the title EX SANSKARI GHARNI YUVTINI KHANGI DIARY which is an obscene book. In that it contained the following passages quoted in the sheet attached and thereby committed an offence punishable under sec. 292 of the Indian Penal Code. ( 3 ) MR. G. A. Mehta appearing for the appellant has contended that the appellant was charged for the aforesaid offence having beers committed sometime in the month of August 1968 and he has been tried and convicted by the learned City Magistrate. This sec. 292 of the Indian Penal Code was amended by Amending Act No. 36 of 1969 described as Indian Penal Code (Amendment) Act 1969 that came into force on 7th September 190 Sec. 292 of the Indian Penal Code originally stood as under: whoever- (A) sells lets to hire distributes publicly exhibits or in any manner puts into circulation or for purposes of sale hire distribution public exhibition or circulation makes produces or has in his possession any obscene book pamphlet paper drawing paintings representation or figure or any other obscene object whatsoever or (B) imports exports or conveys any obscene object for any of the purposes fore aid or knowing or having reason to believe that such object will be sold let to hire distributed or publicly exhibited or in any manner put into circulation or (C) takes part in or receives profits from any business in the court of which he knows or has reason to believe that any such obscene objects are for any qt. the proposes aforesaid made produced purchased kept imported exported conveyed publicly exhibited or in any manner put into circulation or (D) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section or that any such obscene object can be procured from or through any person or (E) offers or attempts to do any act which is an offence under this section shall be punished with imprisonment of either description for a term which may extend to three months or with fine or with both. After the amendment it stood as under:"292 (1) For the purposes of sub-sec. (2) a book pamphlet paper writing drawing painting representation figure or any other object shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect or (where it comprises two or more distinct items) the effect of any one of its items is if taken as a whole such as to tend to deprave and corrupt persons who are likely having regard to 11 relevant circumstances to read see or hear the matter contained or embodied in it. " (2) Whoever (A) sells lets to hire distributes publicly exhibits or in any manner puts into circulation or for purposes 3f sale hire distribution public exhibition or circulation makes produces or has in his possession any obscene book pamphlet paper drawing painting representation or figure or any other obscene object whatsoever or (B) imports exports or conveys any obscene object for any of the purposes aforesaid or knowing or having reason to believe that such object will be sold let to hire distributed or publicly exhibited or in any manner put into circulation or (C) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid made produced purchased kept imported exported conveyed publicly exhibited or in any manner put into circulation or (D) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section that any such obscene object-can be procured from or through any person or (E) offers or attempts to do any act which is an offence under this section shall be punished on the first conviction with imprisonment of either description for term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to five thousand rupees. By this amendment there has been also certain incidental amendments made. That is why it is referred to as the Act further to amend India Penal Code and to provide for matters incidental thereto. By sec. 3 of this Amending Act certain amendments have been made In the Criminal Procedure Code 1898 We are concerned only with the amendment require to therein in sec. 3 (c) which reads as under:"in the Code of Criminal Procedure 1898 ,- (c) in Schedule II for the entries relating to sec. 292 of the Indian Penal Code the following entries shall be substituted namely: 1 2 3 4 5 6 7 8 -292 Sale etc. 3 (c) which reads as under:"in the Code of Criminal Procedure 1898 ,- (c) in Schedule II for the entries relating to sec. 292 of the Indian Penal Code the following entries shall be substituted namely: 1 2 3 4 5 6 7 8 -292 Sale etc. May arrest War- Bail- Not com- On first conviction with Court obscene of without rant able pound- imprisonment or eitherdes- of books etc. warrant able cription for a term which Session may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to five thousand rupees. -For the following entries - Sec. Offence Whether the Whether a warrant or Whether Whether police may summons shall ordi- bailable compound- arrest without narily issue in the or not. dable or warrant or not. first instance. not. 1 2 3 4 5 6 292 Sale etc. of May arrest Summons Bailable Not com- obscene books without poundable. etc. warrant Punishment under the By what Court Indian Penal Code. triable. - 7 8 - Imprisonment of either Presidency Magistrate description for three or Magistrate of the months or fine or both. first class. -It is thus evident that after this amendment this offence which was prior to amendment triable by Presidency Magistrate or Magistrate of First Class has been made triable exclusively by the Sessions Court. ( 4 ) IT is true that the offence in the instant case is alleged to have been committed sometime in the month of August 1968 i. e. prior to the date this Amending Act of 1969 came into force. But that by itself will not make any difference as the charge-sheet against the appellant for this offence was sent on 4th September 1970 to the Court and charge has been framed against him on 24th September 1970 In the instant case the Court has taken cognizance of the offence on the Police report. It would therefore mean that the cognizance of the offence by the Magistrate has been taken under clause (b) of sec. 190 (1) of the Criminal Procedure Code upon a police report in writing of such facts made by any police officer. ( 5 ) SEC. It would therefore mean that the cognizance of the offence by the Magistrate has been taken under clause (b) of sec. 190 (1) of the Criminal Procedure Code upon a police report in writing of such facts made by any police officer. ( 5 ) SEC. 28 of the Criminal Procedure Code reads as under:"subject to the other provisions of the Code any offence under the Indian Penal Code may be tried- (a) by the High Court or (b) by the Court of Session or (c) by any other Court by which such offence is shown in the eighth column of the second schedule to be triable". In the instant case we are concerned with the question whether this offence under sec. 292 of the Indian Penal Code which is alleged to have been committed in August 1968 but charge-sheet in respect of which it has sent on 4th September 1970 and charge against the appellant was framed on 34 September 1970 was triable by the learned City Magistrate It would be triable by the learned Magistrate if we find that such Court-of Magistrate has been shown in the eighth column of the second schedules empowered to try such offence. When the question regarding the trial arose admittedly such offence was triable by the Court of Sessions. It is therefore evident that this court having been shown to be empowered in that eight column of the second schedule to try such an offence the Court of City Magistrate was not competent to try such an offence. ( 6 ) IT will be further significant to note that the prosecution cannot press into service the provisions of sec. 537 of the Criminal Procedure Code and cannot urge that the appellant must show a failure of justice on account of such trial by the Magistrate who had no jurisdiction to try such an offence. Sec. 537 of the Criminal Procedure Code reads:" Subject to the provisions hereinbefore contained no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account: - (a) of any error omission or irregularity in the complaint summons warrant. Sec. 537 of the Criminal Procedure Code reads:" Subject to the provisions hereinbefore contained no finding sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account: - (a) of any error omission or irregularity in the complaint summons warrant. Proclamation order judgment or other proceedings before or during trial or in inquiry or other proceedings under this Code or (b) of any error omission or irregularity in the charge including any misjoinder of charges or (c) of the omission to revise any list of jurors in accordance with sec. 324 or (d) of any misdirection in any charge to a jury unless such error omission irregularity or misdirection has in fact occasioned a failure of justice. "it is thus evident that for taking the aid of the provisions contained in that section the finding sentence or order must have been recorded or passed by a Court of competent jurisdiction. In the instant case as found by me above the Court of City Magistrate at the relevant time had no jurisdiction and was not competent to try such an offence. Such an offence was triable exclusively by the Court of Sessions. The prosecutions therefore cannot get the benefit of the provisions of sec. 537 of the Criminal Procedure Code. ( 7 ) THIS conclusion of mine gets support from the decision of the Supreme Court in Payarelal v. State of Punjab A. I. R. 1962 Supreme Court 690 at pages 693 and 694 in para 15 the relevant observations made are:" It is then said that this defect was a mere irregularity and the conviction of the appellant can if sustainable on the evidence be upheld under sec. 537 of the Code. In regard to this section it was said by the Privy Council in Pulukuri Kotayya v. Emperor 74 Indian Appeals 65 (A. I. R. 1947 P. C. 67) at page 75: When a trial is conducted in a manner different from that prescribed tee the Code (as in N. A. Subrahmania Iyer v. Emperor 38 Indian Appeals 257 PC) the trial is bad and no question of curing an irregularity arises but if the trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct the irregularity can be cured under sec. 537 and none so because the irregularity involves as must nearly always be the case a breach of one or more of the very comprehensive provisions of the Code. It seems to us that the case falls within the first category mentioned by the Privy Council. This is not a case of irregularity but want of competency. Apart from sec. 350 which as we have said is not applicable to the present case the Code does not conceive of such a trial. The trial offends the cardinal principle of law earlier stated the acceptance of which by the Code is clearly manifest from the fact that the Code embodies an exception to that principle in sec. 350. Therefore we think that sec. 537 of the Code has no application. It cannot be called in aid to make what was incompetent competent. There has been no proper trial of the case and there should be one. "in the instant case also we are concerned with the competency of the Court. The Court of City Magistrate was not competent to try this offence. The order of conviction and sentence passed against the appellant therefore cannot be sustained. ( 8 ) IT need not be stated that even if the sentence that could be awarded to the appellant in case an offence is established against him may be a punishment that was provided in the Indian Penal Code when the offence was committed would not make any difference as regards the aforesaid question regarding the trial. ( 9 ) THE appeal is allowed and the order of conviction and sentence passed against the appellant is set aside. The case being triable exclusively by the Sessions Court the City Magistrate will have to follow the provisions regarding the inquiry into cases triable by the Court of Sessions referred to in Chapter XVIII of the Criminal Procedure Code and if he sufficient ground to commit the appellant to the Court of Sessions Ahmedabad to stand his trial. ( 10 ) THE appellant to appear in the Court of the City Magistrate 7 Court on 5th February 1973 and the Court may pass proper orders as regards fresh bail. ( 11 ) REVIEW Application No. 128 of 1971 therefore does not survive. It therefore stands disposed of. Rule is discharged. Appeal allowed Case remanded .