STATE OF GUJARAT v. ISMAIL MOHMED LAKHAN — 1974 DIGILAW 110 (GUJ)

M. C. TRIVEDI, S. H. SHETH, J. ( 1 ) THESE Revision Applications have been placed before us for final hearing and disposal under the following circumstances. ( 2 ) R. Sunder Raman Assistant Collector of Customs Jamnagar filed in the Court of the Judicial Magistrate Dwarka (hereinafter referred to as Dwarka Court) the present complaint against 13 accused under sec. 135 of the Customs Act 1962 He alleged that the accused had committed an offence under sec. 135 by carrying to this country contraband goods of foreign origin in violation of the provisions of the Customs Act 1962 The contraband goods were valued at Rs. 23 49 472 P. This complaint was filed on 5th December 1973. On the same day Dwarka Court issued process to the accused. By its order dated 18th March 1974 made on the application filed by accused Nos. 1 to 10 Dwarka Court split up the case against accused Nos. 1 to 11 from the case against accused Nos. 12 and 13 because accused Nos. 1 to 11 had been undertrial prisoners since 8th September 1973. On another application made by the Public Prosecutor Dwarka Court made an order that since the offence disclosed by the complaint was a serious one inquiry proceedings under Chapter XVIII of the Code of Criminal Procedure 1898 (hereinafter referred to as the old Code) be held with the object of committing the accused to the Court of Sessions at Jamnagar if prima facie case was proved against them. On that very day Dwarka Court recorded evidence of Shivprasad Chhelshanker Chhaya P. W. 1. Thereafter on 28th March 1974 it recorded the statements of accused Nos. 1 to 11. On that day it also framed a charge against the accused. All these steps were taken by Dwarka Court before 1st April 1974 when Criminal Procedure Code 1973 (hereinafter referred to 85 the new Code) came into force and the old Code was repealed. ( 3 ) ON 5th April 1974 the Dwarka Court instead of committing the accused to the Court of Sessions at Jamngar referred the case to the Court of the Chief Judicial Magistrate First class Jamnagar (hereinafter referred to as Jamnagar Court) under sec. 322 of the new Code. Jamnagar Court proceeded with the case. Accused Nos. 1 to 10 pleaded guilty to the charge and also prayed for mercy. Jamnagar Court convicted accused Nos. 322 of the new Code. Jamnagar Court proceeded with the case. Accused Nos. 1 to 10 pleaded guilty to the charge and also prayed for mercy. Jamnagar Court convicted accused Nos. 1 to 10 for having committed an offence under sec. 135 of the Customs Act and sentenced each one of them to undergo rigorous imprisonment for three months and to pay a fine of Rs. 200. 00 or in default to undergo rigorous imprisonment for one month. It acquitted accused No. 11. On an application subsequently made by accused Nos. 1 to 10 Jamnagar Court directed that the period of detention undergone by each of accused Nos. 1 to 10 prior to the conviction should be set off under sec. 428 of the new Code against the term of imprisonment awarded to each one of them. ( 4 ) CRIMINAL Revision Application No. 296 of 1974 has been filed by the State of Gujarat for enhancement of sentence awarded by Jamnagar Court to accused Nos. 1 to 10. ( 5 ) THIS Revision Application along with another Revision Application was placed before Mr. Justice Surti for final hearing and disposal. On behalf of accused Nos. 1 to 10 it was contended before him that this case was governed by the old Code and that therefore under sec. 322 of the new Code it could not have been referred by Dwarka Court to Jamnagar Court. It was further contended that Dwarka Court ought to have committed the accused to the Court of Sessions at Jamnagar. Under the aforesaid circumstances it was contended before him on behalf of accused Nos. 1 to 10 that the order of conviction and sentence recorded by Jamnagar Court against accused Nos. 1 to 10 was without jurisdiction and void. Mr. Justice Surti found this to be an important point and therefore has referred this case to the Division Bench. ( 6 ) THE following two questions arise in this Revision Application :1 Whether the order of conviction and sentence recorded by Jamnagar Court is without jurisdiction and void. 2 If that order is valid whether the sentence awarded to each one of accused Nos. 1 to 10 by Jamnagar Court should be enhanced. ( 7 ) THE answer to the first question depends upon the construction sec. 484 of the new Code. It provides for the effect of repeal. The material part of sec. 2 If that order is valid whether the sentence awarded to each one of accused Nos. 1 to 10 by Jamnagar Court should be enhanced. ( 7 ) THE answer to the first question depends upon the construction sec. 484 of the new Code. It provides for the effect of repeal. The material part of sec. 484 is as follows. (1) The Code of Criminal Procedure 1898 is hereby repealed. (2) Notwithstanding such repeal - (A) if immediately before the date on which this Code comes into force there is any appeal application trial inquiry or investigation pending then such appeal application trial inquiry or investigation shall be disposed of continued held or made as the case may be in accordance with the provisions of the Code of Criminal Procedure 1898 as in force immediately before such commencement (hereinafter referred to as the Old Code) as if this Code had not come into force:provided that every inquiry under Chapter XVIII of the Old Code which is pending at the commencement of this Code shall be dealt with and disposed of in accordance with the provisions of this Code;the rest of sec. 484 is not material for the purpose of the present se. Clause (a) of sub-sec. 2 clearly provides that all inquiries investigations trials applications and appeals pending on 1st April 1974 when the new Code came into force shall be decided in accordance with the provisions of the old Code as if the new Code had not come into force. Proviso to clause (1) of sub-sec. (2) carves out an exception to the rule enunciated in the principal part of clause (a ). The proviso lays down that inquiries under Chapter XVIII of the old Code pending on 1st April 1974 shall be dealt with and disposed of in accordance with the new Code. The facts stated hereinabove clearly show that Dwarka Court had been holding an inquiry into this matter under Chapter XVIII of the old Code for committing accused Nos. 1 to 11 to the Court of Sessions at Jamnagar if prima facie case was proved against them. Therefore one ingredient of the proviso to clause (a) of sub-sec. (2) of sec. 484 of the new Code was satisfied. 1 to 11 to the Court of Sessions at Jamnagar if prima facie case was proved against them. Therefore one ingredient of the proviso to clause (a) of sub-sec. (2) of sec. 484 of the new Code was satisfied. In order to decide whether the proviso was attracted to the proceedings before Dwarka Court the next question which we have to answer is whether the inquiry before Dwarka Court had been pending on 1st April 1974. Mr. Majmudar has contended before us that on 1st April 1974 no inquiry had been pending before Dwarka Court because Dwarka Court had recorded prosecution evidence had recorded statements of the accused and had also framed the charge before 1st April 1974. According to him therefore so far as the inquiry was concerned there was nothing which remained to be done by Dwarka Court on 1st April 1974. It is true that before 1st April 1974 Dwarka Court had recorded prosecution evidence recorded statements of the accused and framed the charge. However Dwarka Court had not made an order committing the accused to the Court of Sessions at Jamnagar. Mr. Majmudar has argued that an order of commitment is not a part of the inquiry because according to him inquiry means collection and gathering of materials against the accused. Mr. Nanavaty appearing for the State has argued that the inquiry before Dwarka Court had been pending because no inquiry can be said to be complete until the final order has been recorded therein so far as the inquiring Court is concerned. ( 8 ) IN order to examine these rival contentions it is necessary for us to see not what an inquiry means in popular parlance but what an inquiry means in law. It is therefore necessary to turn to some of the provisions of the old Code. Sec. 4 (1) (k) defines inquiry in the following terms. inquiry includes every inquiry other than a trial conducted under this Code by i Magistrate or Court. We now turn to Chapter XVIII of the old Code which lays down procedure for holding an inquiry into a case triable by the Court of Sessions. Sec. 206 empowers a Magistrate to commit an accused for trial to the Court of Sessions or the High Court as the case may be. Sec. 207 lays down that the procedure laid down in sec. Sec. 206 empowers a Magistrate to commit an accused for trial to the Court of Sessions or the High Court as the case may be. Sec. 207 lays down that the procedure laid down in sec. 207a shall be followed by a Magistrate while holding an inquiry into a case which is exclusively triable by a Court of Sessions or High Court and which has been instituted upon a police report. It further lays down that in any other proceedings the procedure specified in the other provisions of Chapter XVIII shall be followed. Sec. 207a lays down procedure which a Magistrate has to adopt in proceedings instituted on a police report. This was not s a case which was instituted upon police report. It is therefore not necessary to make a detailed reference to the provisions of sec. 207a. In cases other than those instituted on police report if the offence which is disclosed by the facts stated in the complaint show that the offence alleged against the accused is triable by a Court of Session the first step which an inquiring Magistrate has to take is to record evidence which the prosecution produces or which may be called for by the Magistrate. Under sub-sec. (2) of sec. 208 the accused has a right to cross-examine prosecution witnesses and the prosecution has a right to reexamine them. Sub-sec. (3) of sec. 208 confers upon the complainant or the prosecution and the accused the right to apply to the Magistrate to issue process to compel the attendance of a witness or the production of any document or thing. This is the first stage of the inquiry held under Chapter XVIII of the old Code. Sec. 209 provides that the Magistrate shall examine the accused for the purpose of enabling him to explain any circumstances appearing against him in the evidence. After having done so if the Magistrate finds that there are no sufficient grounds for committing the accused for trial he shall discharge him after recording his reasons in support of his order. It empowers the Magistrate to order that the accused shall be tried before him or before some other Magistrate if the circumstances disclosed in the case warrant adoption of that course by him but if he thinks that the case is not one for committal to the Court of Sessions. It empowers the Magistrate to order that the accused shall be tried before him or before some other Magistrate if the circumstances disclosed in the case warrant adoption of that course by him but if he thinks that the case is not one for committal to the Court of Sessions. That is the second stage of the inquiry under Chapter XVIII of the old Code. The third stage of the inquiry is laid down by sec. 210 of the old Code. It provides that after evidence has been recorded and the accused has been examined and if the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial he shall frame a charge under his hand declaring the offence with which the accused is charged. It also requires him to have the charge read over and explained to the accused and to furnish a copy thereof to him free of cost if the accused requires it. That is the third stage of the inquiry under Chapter XVIII of the old Code. Sec. 211 lays down the fourth stage of the inquiry. It provides that the accused shall be required at once to give orally or in writing a list of persons if any whom he wishes to summon to give evidence at his trial. It also confers upon the Magistrate discretion to receive a further list of witnesses at a subsequent stage from the accused. That is the fourth stage of the inquiry. The fifth stage of the inquiry is laid down by sec. 213 of the old Code. After all the aforesaid stages have been gone through the Magistrate is required to make an order committing the accused for trial by the Court of Sessions and is further required to state his reasons briefly for making such an order of commitment. Sub-sec. (2) provides for an alternative situation. If the Magistrate at that stage feels satisfied that there are not sufficient grounds for committing the accused he may cancel the charge and discharge the accused. These are the five stages of inquiry which the old Code contemplates. In our opinion all those stages taken into account together constitute an inquiry contemplated by Chapter XVIII of the old Code. If the Magistrate at that stage feels satisfied that there are not sufficient grounds for committing the accused he may cancel the charge and discharge the accused. These are the five stages of inquiry which the old Code contemplates. In our opinion all those stages taken into account together constitute an inquiry contemplated by Chapter XVIII of the old Code. In other words an inquiry which is held under Chapter XVIII of the old Code must lead to one of the following three results: (1) Discharge of the accused under S6c. 209 or (2) his trial by the Magistrate himself or by some other Magistrate or his committal to the Court of Sessions by an order of commitment; or (3) his discharge at that stage. ( 9 ) IT is therefore not correct to say that the inquiry contemplated by Chapter XVIII of the old Code only means gathering and collection of material and information against the accused but it also includes the application of mind by the Magistrate and making of the final order against him with reasoning support of that order. In the instant case the first four stages of the inquiry had been gone through by Dwarka Court before 1st April 1974. But it was in our opinion not complete because the accused was neither discharged under sec. 209 nor ordered to be tried by the Magistrate himself or by someone else nor was he committed to the Court of Sessions under sec. 213 or discharged at that stage. It is therefore clear that the inquiry before Dwarka Court had been pending on 1 April 1974 when the new Code came into force. Proviso to clause (a) of sub-sec. (2) of sec. 414 of the new Code was therefore clearly attracted to it. Therefore Dwarka Court could make an order under sec. 322 of the new Code. ( 10 ) SEC. 322 of the new Code inter alia provides that if in the course of any inquiry into an offence or a trial before a Magistrate in any district the evidence appears to him to warrant a presumption that the case should be tried by the Chief Judicial Magistrate he shall stay the proceedings and submit the case with a brief report explaining its nature to the Chief Judicial Magistrate or to such other Magistrate having jurisdiction as the Chief Judicial Magistrate directs. It was in pursuance of this provision (sec. 322 (1) (c) of the new Code) that Dwarka Court made an order on 6th April 1974 after the new Code came into force referring the case to the Chief Judicial Magistrate at Jamnagar. In our opinion since the inquiry under Chapter XVIII before Dwarka Court had been pending on 1st April 1974 proviso to clause (a) of sub-sec. (2) of sec. 484 of the new Code was attracted and therefore it was within the jurisdiction of Dwarka Court to act under sec. 322 (1) (c) of the new Code and to refer the matter to Jamnagar Court. ( 11 ) MR. Majmudar has tried to argue that within the meaning of the proviso to clause (a) of sub-sec. (2) of sec. 484 what was pending before Dwarka Court was not the inquiry but the proceeding. With the object of drawing a distinction between the expressions inquiry and proceeding he has tried to rely upon the provisions of secs. 207 207 and 208 which use the expression proceeding in juxta-position with the expression inquiry. In our opinion the distinction which Mr. Majmudar has tried to draw is not a sound and tenable distinction because what we have to find out is the true and correct connotation of the expression inquiry used in clause (a) of sub-sec. (2) of sec. 484 of the new Code. If a case pending on 1st April 1974 answers the description of inquiry used in sec. 484 of the new Code the proviso to clause (a) of sub-sec. (2) of sec. 484 must necessarily apply. Now the proviso to clause (a) of sub-sec. (2) of sec. 484 nowhere uses the expression proceeding. The only expressions which have been used are appeal application trial inquiry and investigation. It is in the context of these five expressions used in clause (a) of sub-sec. (2) of sec. 484 that we have to find out whether the proceedings which were pending before Dwarka Court on 1st April 1974 answered the description of inquiry within the meaning of clause (a) of sub-sec. (2) of sec. 484 of the new Code It is needless to say that they do not answer the description of appeal application trial or investigation. Expressly they were called an inquiry because it was an inquiry properly so called under Chapter XVIII of the old Code. (2) of sec. 484 of the new Code It is needless to say that they do not answer the description of appeal application trial or investigation. Expressly they were called an inquiry because it was an inquiry properly so called under Chapter XVIII of the old Code. ( 12 ) THE next argument advanced by Mr. Majmudar is that in an inquiry held under Chapter XVIII of the old Code the inquiry ends at the stage where the provisions of sec. 211 or sec. 212 if that be the case are complied with and what remains thereafter viz. the compliance with the provisions of sec. 213 is merely a proceeding not so much forming a part of an inquiry. We are unable to accede to the argument advanced by Mr. Majmudar because an inquiry in our opinion must necessarily include a final order which brings it to an end. The final order which brings an inquiry to an end can never be said to be something which is not an integral part of the inquiry and is totally disconnected therefrom. In all inquiries and proceedings it is the final result which affects the accused. It is therefore. extremely difficult for us to say that inquiry does not include the final act on the part of the inquiring Court which affects the accused. It has also been argued that really Dwarka Court had committed the accused to the Court of Sessions and had framed a charge against them. Dwarka Court framed the charge on 28th March 1974. It is at Ex. 36. Strong reliance has been placed on the following expression used in that charge. . . . . THEREBY all of you have committed an offence punishable under sec. 135 (1) of the Customs Act 1962 and within the cognizance of the Honourable Sessions Court Jamnagar. Relying upon this part of the charge it has been contended that the accused had already been committed to the Court of Sessions at Jamnagar by Dwarka Court on 28th March 1974. In our opinion. reliance placed upon the aforesaid part of the charge is thoroughly misplaced. When Dwarka Court framed charge it acted under sec. 210 of the old Code. In order to comply with the provisions of sec. 210 it was not necessary for Dwarka Court to make in its charge a reference to the Court of Sessions at Jamnagar. In our opinion. reliance placed upon the aforesaid part of the charge is thoroughly misplaced. When Dwarka Court framed charge it acted under sec. 210 of the old Code. In order to comply with the provisions of sec. 210 it was not necessary for Dwarka Court to make in its charge a reference to the Court of Sessions at Jamnagar. Therefore a gratuitous reference made by Dwarka Court to the Court of Sessions at Jamnagar while complying with the provisions of sec. 210 of the old Code cannot mean that what was done by it was done in compliance with sec. 213. Framing of the charge and committing an accused to the Court of Sessions are two different functions to be performed by a Magistrate under two different sections of the old Code-sec. 210 and sec. 213. The argument therefore which has been based by Mr. Majmudar upon the charge Ex. 36 in our opinion cannot be upheld. It has been argued by Mr. Chinoy that with the framing of the charge which included reference to the Court of Sessions at Jamnagar a substantive right had accrued to the accused to appeal to the High Court in case they were convicted by the Court of Sessions at Jamnagar. In our opinion this argument is completely misplaced because no right of appeal to the High Court would accrue to the accused unless the accused were committed to the Court of Sessions. In the instant case no order committing the accused to the Court of Sessions was made by Dwarka Court. ( 13 ) OUR attention has been invited to a few decisions. In Emperor v. Venkatesh Sadashiv Nargund 12 Bombay Law Reporter 521 the question which arose was whether the Magistrate who made an order of commit. ment could change it. In that case the applicant was tried before the Magistrate who examined the witnesses for the prosecution and was about to frame the charge against the accused. It was pointed out to him at that stage that it would be proper to commit the case for trial to the Court of Sessions. The Magistrate yielded to that suggestion and framed certain charges one of which was under sec. 467 I. P. C. Ho thereupon directed that the case should be tried by the Court of Sessions. The accused thereafter raised an objection that the charge under sec. The Magistrate yielded to that suggestion and framed certain charges one of which was under sec. 467 I. P. C. Ho thereupon directed that the case should be tried by the Court of Sessions. The accused thereafter raised an objection that the charge under sec. 467 I. P. C. could not proceed for want of sanction under sec. 195 of the Code of Criminal Procedure. Thereupon the Magistrate amended the charge and intimated his intention to try the case himself instead of committing it to the Court of Sessions. The accused challenged that order in the High Court. It was held by a Division Bench of the High Court of Bombay that the Magistrate by framing the charge as required by sec. 210 of the Criminal Procedure Code had not divested him of his jurisdiction to proceed with the case. He had some other procedure to adopt before making an order of commitment. Therefore it was open to him before he made the order of commitment to consider whether he should commit the case to the Court of Sessions or try it himself. It has also been observed by the High Court of Bombay in that decision that the mere framing of a charge against the accused as required by sec. 210 is distinct from and does not amount to an order of commitment which has to be made under sec. 213. It is clear from this decision that before a Magistrate makes an order of commitment under sec. 213 it is open to him to reconsider the case and to arrive at a different decision. The view expressed by the High Court of Bombay in that decision supports the conclusion which we have recorded that it was open to Dwarka Court after it had framed charge against the accused under sec. 210 of the old Code but before it had made an order of commitment under sec. 213 of the old Code to reconsider the matter and to decide whether proviso to clause (a) of sub-sec. (2) of sec. 484 of the new Code was attracted to the case and if so whether he should refer the case to the Chief Judicial Magistrate under sec. 322 (1) (c) of the new Code. 213 of the old Code to reconsider the matter and to decide whether proviso to clause (a) of sub-sec. (2) of sec. 484 of the new Code was attracted to the case and if so whether he should refer the case to the Chief Judicial Magistrate under sec. 322 (1) (c) of the new Code. ( 14 ) OUR attention has also been invited to a Division Bench decision of this Court in Apabhai Hemabhai v. The State of Gujarat 3 Gujarat Law Reporter 14. In that case the Magistrate who held an inquiry under Chapter XVIII of the old Code did not make an order committing the accused to the Court of Sessions nor did he frame a charge against him as required by sec. 210. He also made no order of discharge as contemplated by sec. 209 of the old Code. The question therefore which arose was whether in absence of any express order of discharge as contemplated by sec. 209 of the old Code the accused could be said to have been discharged because no charge was framed against him under sec. 210 of the old Code. This Court expressed the opinion that in so far as the charge in respect of the offence exclusively triable by the Court of Sessions was concerned the accused could be said to have been discharged even though no express order of discharge was made in that behalf but on account of the fact that no such charge was framed against him. The principle laid down in that decision cannot be applied to the instant case for the reasons which are obvious on the facts of that case. ( 15 ) IN Kingam Savaranna v. State and another A. I. R. 1957 Andhra Pradesh 472 in the context of the definition of inquiry under sec. 4 (1) (k) of the old Code it has been laid down by the learned single Judge of that Court that an inquiry is something different from a trial and that `inquiry stops when trial begins. The principle laid down in that decision not only does not help the accused but it destroys the argument which has been raised on their behalf. In proceedings which go on in a Court of law pr in Courts of law from stage to stage there is no vacuum. The principle laid down in that decision not only does not help the accused but it destroys the argument which has been raised on their behalf. In proceedings which go on in a Court of law pr in Courts of law from stage to stage there is no vacuum. Therefore there cannot be any vacuum between inquiry and trial If inquiry ends when trial begins then it must be said that if trial had not begun in the instant case the inquiry had not ended. In the instant case it is very much so because the most vital part of the inquiry had not been gone through before the new Code came into force viz. the making of an order of commitment under sec. 213 of the old Code. ( 16 ) RELIANCE has also been placed upon a Division Bench decision of the Madras High Court in Palaniandy Goundan v. Emperor (1909) Indian Law Reports 32 Madras 218. The principle laid down in that decision that a preliminary inquiry which a Magistrate holds into a case exclusively triable by the Court of Session is not a trial before the charge is framed. That decision however does not lay down that as soon as the charge is framed as required by sec. 210 of the old Code inquiry ends and trial begins. No support therefore from this decision can be derived for the contention which has been raised before us on behalf of the accused. ( 17 ) RELIANCE has also been placed on behalf of the accused upon a Division Bench decision of the Madhya Bharat High Court in State v. Ambaram and others A. I. R. 1953 Madhya Bharat. The principle which has been laid down in that case is that a trial means only the proceeding taken in a Court after a charge has been drawn up. It has next been observed that a proceeding before the Magistrate in a warrant case under Chapter XXI of the Code of Criminal Procedure is only an inquiry until a charge is framed and that it becomes a trial only after the charge is framed. This decision also does not help the contention raised on behalf of the accused because il does not lay down that an order of commitment required to be made by sec. This decision also does not help the contention raised on behalf of the accused because il does not lay down that an order of commitment required to be made by sec. 213 of the old Code does not form a part of inquiry under Chapter XVIII of the old Code. ( 18 ) MR. Majmudar has also referred to the decision of Chancery Division in In re Clagetts Estate Fordham v. Clagett (1881-82) 20 Chancery Division 637. It was a case under the Insolvent Act which has nothing to do with an inquiry or trial in a criminal case. It is unsafe to apply any observation made therein to the case before us. ( 19 ) FOR the reasons stated above we are of the opinion that the inquiry proceedings under Chapter XVIII of the old Code had been in the instant case pending before Dwarka Court on 1st April 1974 and therefore proviso to clause (a) of sub-sec. (2) of sec. 484 of the new Code was attracted to it. It was therefore within the jurisdiction of Dwarka Court to refer the case to the Court of the Chief Judicial Magistrate Jamnagar under sec. 322 (1) (c) of the new Code. The order of conviction and sentence recorded by Jamnagar Court therefore was a perfectly valid order and suffered from no legal infirmity whatsoever. Sentence enhanced: Leave to appeal refused. .