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1975 DIGILAW 137 (KAR)

STATE OF KARNATAKA v. ABDUL RAHIMAN

1975-09-10

M.S.NESARGI

body1975
( 1 ) THE State has filed these revision petitions, challenging the common order d]. 16-4-1975, passed by the Sessions Judge, Shimoga, in SC. Nos. 30 to 36 of 1974, quashing the order of commitment dj. 19-6-1974, passed by the judicial Magistrate, First Class, Bhadravathi, in CC. Nos. 73, 202, 203 204, 205, 206 and 552 of 1973, under S. 209 of the Crlpc, 1973 (hereinafter referred to as the 'new Code), and directing that the record should be sent back to the Magistrate and the Magistrate should proceed to dispose of the cases, according to law. ( 2 ) THE offences for which the respondents were committed are under sections 120b, 467, 468, 420 and 471 IPC. Though the charge sheets had been filed in the year 1972, the committal inquiries were pending in the Court of the JMFC, Bhadravathi, even as on 1-4-1974, the date on which the new Code came into force. According to Sch. II of the Crlpc, 1898 (hereinafter referred to as the 'old Code') an offence punishable under S. 467 IPC was exclusively triable by a Court of Session. As such in view of the facts and circumstances of this case offence under S. 471 IPC, was also exclusively triable by the court of Session. In view of the proviso to S. 484 (2) (a) of the new Code, the Magistrate applied S. 209 of the new Code and passed the order of commitment in question. He, in this connection, reasoned that the offences under Ss. 467 and 471 IPC were exclusively triable by the Sessions Court, as per the provisions of the old Code and that was not changed by the proviso to S. 484 (2) (a) of the new Code, but, what had been changed was only the procedure applicable to committal inquiries. He therefore concluded that the two offences being exclusively triable by the Court of session, the cases were to be committed to the Court of Session. The learned Sessions Judge has found fault with this reasoning of the magistrate. He has, by the order in question, held that in view of the proviso to S. 484 (2) (a) of the new Code, S. 209 of the new Code became applicable to the inquiries before the Magistrate and as under Sch. I of the new code, offences under Ss. He has, by the order in question, held that in view of the proviso to S. 484 (2) (a) of the new Code, S. 209 of the new Code became applicable to the inquiries before the Magistrate and as under Sch. I of the new code, offences under Ss. 467 and 471 IPC are not exclusively triable by the sessions Court the Magistrate ought not to have committed the cases to the Court of Session. It is, on this basis, that the Sessions Judge has quashed the order of comittal and directed the trial of the cases by the Magistrate; himself. ( 3 ) SHRI A. B. Patil, learned Govt Pleader urged that the proviso to S. 484, (2) (a) of the new Code when read with 3. 484 (2) (a), would mean that only the cumbrous procedure of making a detailed inquiry as contemplated under S. 207 (a) of the old Code is done away. He urged that the proviso, has no effect of interference, with the powers of the Courts as enumerated in Schedule II of the old" Code. Relevant portion of S. 484 of the new Code reads as follows :"484 (1) * * * * (2) * * * * (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 be, in accordance with the provisions of the Crlpc 1898, as in fores 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 Chap. 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. " ( 4 ) IT is plain that in view of proviso to S. 484 (2) (a) of the new Code, every inquiry under Ch. XVIII of the old Code is excluded from the operation of sub-sec (2) (a) and that such inquiry has to be dea. lt with and disposed of under S. 209 of the new Code only. The proviso does not save Sch. II of the old Code. XVIII of the old Code is excluded from the operation of sub-sec (2) (a) and that such inquiry has to be dea. lt with and disposed of under S. 209 of the new Code only. The proviso does not save Sch. II of the old Code. On the other hand, it manifestly makes the whole of the provisions of S. 209 of the new Code applicable. That means that Sch. I of the new Code also would have to be taken into consideration. Therefore the magistrate was not right in reasoning that the offences under Ss. 467 and 471 IPC being exclusively triable by the Court of Session as per Sch II of the old Code, order of commitment was to. follow. What the Magistrate had to consider in view of S. 209 and proviso to S. 484 (2) (a) of the new code was whether as on 1-4-1974 and thereafter, offences concerned in a committal inquiry were exclusively triable by the Court of Session as per the provisions of the new Code. He having failed to do that, the Sessions' judge was right in reasoning that the offences in question being not exclusively triable by the Court of Session as per the provisions of the new Code, the Magistrate ought not to have passed the concerned older of commitment no fault can be found with this reasoning of the, learned Sessions Judge. Whether the Sessions Judge had or had not, in exercise of his jurisdiction under s. 399 of the new Code, power to quash-the order of commitment need not be, in my opinion, gone into, in view of S. 228 of the new code. Sec. 228 of the new Code lays down that in a case committed to Sessions Court, if the offence concerned is not exclusively triable by the Court oi session, the Sessions Judge may frame a charge against the accused andr by order, transfer the case for trial to the Chief Judicial Magistrate and: thereupon the Chief Judicial Magistrate shall try the offence in accordance; with the procedure for the trial of warrant cases instituted on a police, report. ( 5 ) THE learned Sessions Judge ought to have, instead of exerci'sing his power under S. 399 of the new Code, exercised his power under S. 228 of the new Code. ( 5 ) THE learned Sessions Judge ought to have, instead of exerci'sing his power under S. 399 of the new Code, exercised his power under S. 228 of the new Code. By the order in question, the Sessions Judge has directed that the judicial Magistrate First Glass, Bhadravathi, should hold the trial and dispose of the cases. On the other hand, he ought to have, by the order ln question, directed the Chief Judicial Magistrate to try the cases and dispose of the same. of course, while passing such direction, the Sessions judge ought to necesarily transfer the cases to ther file of the Chief Judicial magistrate. The Sessions Judge is directed to pass an order accordingly. It is with the afore-mentioned observations that these petitions are dismissed. --- *** --- .