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1976 DIGILAW 317 (CAL)

Durgapada Chakraborty v. State

1976-09-07

P.K.Chanda, Sudhamay Basu

body1976
Judgment 1. THIS rule relates to an order dated the 17th of December, 1974 passed by the Judicial Magistrate, Midnapore in G. P. Case No. 2423 of 1973 arising out of Narayan Gar P. S. Case No. 9 dated the 8. 10. 1973. 2. ALLEGATION against the accused persons are that they assembled unlawfully, armed with lathis and forcibly entered into the grocery shop of the complainant's brother Birendra Mahapatra and assaulted him and other persons named as witnesses in the charge sheet with lathis causing injuries and looked property valued at Rs. 2000/ -. On the basis of written report the Police made investigation and later on submitted charge sheet to the learned Magistrate under Section 147/445/427/323/380 T. P. C. An application was made by the complainant dated 9. 10. 74 and another by A. P. P. dated the 3. 12. 74 for committing the accused to the court of Sessions by framing charges under section 395 I. P. C. The learned Judicial Magistrate perused the F. I. R., the statements under section 161 Cr. P. O. heard the learned lawyers and, inter alia, held that he found, prima facie, grounds for framing charges under section 395 I. P. C. against the accused but "evidence of P. W. s was to be taken as provided in chapter XVIII of the Code of Criminal Procedure Code (Old)" before any order under section 207 (6) was passed. He fixed 18. 1. 75 for committal enquiry. The prosecution was asked to produce witnesses on the date fixed. The said part of the impugned order is challenged before this court.Mr. Banerjee, learned advocate, appearing in support of the rule argued that the learned Magistrate was not justified on the basis of the records to come to a decision for proceeding under chapter XVIII of the Code of Criminal Procedure. According to him, the learned Magistrate could not consider any charge graver than 380 I. P. C. which was mentioned in the charge sheet. But in course of argument at the bar a new point emerged for consideration of this Court viz., whether the new or the old Criminal Procedure Code was to be followed for the committal enquiry. It must be noted, however, in fairness to Mr. But in course of argument at the bar a new point emerged for consideration of this Court viz., whether the new or the old Criminal Procedure Code was to be followed for the committal enquiry. It must be noted, however, in fairness to Mr. Banerjee that after the hearing commenced he said that he was prepared to withdraw the petition and not press the same as the question of appropriate procedure was not important from the point of view of his client. But when Mr. Roy pointed out that the procedure proposed to be adopted by the learned Magistrate was clearly wrong Mr. Banerjee joined issue and advanced arguments on behalf of his client. As is well known the new Criminal Procedure code of 1974 came into existence on the 1st of April, 1974. The impugned order passed in December, 1974 was passed long after the said date. The trial, of course had commenced under the old Code. Under section 484 of the new Code of Criminal Procedure a pending trial is to be disposed of in accordance with the provision of the Code of Criminal procedure, 1898. Mr. Banerjee contended that the procedure adopted by the learned Judicial Magistrate was correct. As the old Code applied for pending trial the learned Magistrate has to proceed under chapter XVIII of the old Code if he is to embark on an enquiry for committal. 3. MR. Balai Roy, learned Advocate who opposed the rule, however, contended that if the learned Magistrate thought that the case was prima facie one which was to be committed to the court of sessions he could not take recourse to chapter XVIII of the old Code. The committal enquiry should be dealt with in accordance with the provisions of the new Criminal Procedure Code of 1974. 4. ON careful consideration of the submissions we find substance in the contention of Mr. Roy and are constrained to negative Banerjee's contention. Section 484 of the new Code of Criminal Procedure of 1974 specifically mentions and separately deals with the different aspects of a criminal proceedings namely, appeal, application, trial, enquiry, and investigation. 4. ON careful consideration of the submissions we find substance in the contention of Mr. Roy and are constrained to negative Banerjee's contention. Section 484 of the new Code of Criminal Procedure of 1974 specifically mentions and separately deals with the different aspects of a criminal proceedings namely, appeal, application, trial, enquiry, and investigation. While a pending appeal, application, trial, enquiry or investigation has been provided to be disposed of, continued, held or made in accordance with the provisions of the old Code of Criminal Procedure, 1898 by virtue of the proviso to section 484 (2) every "inquiry under chapter XVIII" of the old Code which is pending at the commencement of the code, however, "shall be dealt with and disposed of in accordance with the provisions of this Code." It is well known that as a general rule the procedure to be adopted is the one regulated by the law in force at the time. Provisions deleting to procedure operate retrospectively unless any saving clause specifically provides to the contrary (See Nani Gopal Mitra Vs. State of Bihar, reported in A. I. R. 1970 S. C. 1636; Davawati Vs. Inderjit, reported in A. I. R. 1966 S. C. 1423 ; Zindas Oil Mill Vs. Godhra Electricity Company, reported in A. I. R. 1969 S. C. 1325. The old Code has been repealed. Mr. Banerjee seeks to rely on the saving clause of section 484 (2) by which a pending trial is to be governed by the old Code. But the moment the learned Magistrate decides to make an enquiry the stage of the trial is over. Immediately there is initiation of a commitment inquiry by virtue of the statutory provisions under section 347 of the old Code (the corresponding section with some minor amendment is section 323 of the new Code. Reference may be made to the case of Panchanan Sarkar Vs. The Emperor, reported in A. E. R. 1930 Calcutta 666 in which it was held, inter alia, by a Division Bench (page 667) of this Court that when a Magistrate records an order that the case was one which should be committed, "from that moment what had hitherto been a trial became an inquiry." The case of Sudhindra Vs. The Emperor, reported in A. I. R. 1933 Calcutta 354 also endorses this principle that the trial ends after invocation of the committal procedure. The Emperor, reported in A. I. R. 1933 Calcutta 354 also endorses this principle that the trial ends after invocation of the committal procedure. Therefore as soon as the learned Magistrate decides to embark on enquiry the proceedings ceases to be a trial. Now this decision to commit is taken by the learned Magistrate on the 27th of December, 1974 long after the new Code came into play. There is no reason why the new Code should not apply. In this context Mr. Banerjee's contention seems to be untenable. When even a pending committal inquiry is not saved from the operation of the new Code by the proviso to section 484 (2) it can hardly be presumed to be the intention of the legislature that a new enquiry commenced after the coming into operation of this act should not be governed by the new Code. It is difficult to uphold the other contentions of Mr. Banerjee that a criminal proceeding has to be viewed as a whole and it would be unwise or wrong to view different stages of the proceedings in fragments. That is manifestly what the legislature has provided for in section 484 of the act. There is hardly any scope for ambiguity in this respect. "trial," "enquiry" and "investigation" apart from "appeals" and "applications" have been dealt with separately and specifically. It will be against the intention of the legislature which is primarily to be gathered from what it has chosen to indicate either in express words or by necessary implication to hold that merely because "pending trials" have been provided to be governed by the old code an "inquiry" should be so governed, even though it is not pending. Even a cursory glance at the definitions not only of the new Code but also of the old Code makes it clear that an "inquiry" means an enquiry other than trial. We do not see any sound logic why distinctions between the two categories, viz. trial and inquiry should be done away with. It is also not necessary to deal with another point which Mr. Banerjee made in passing that if all committal enquiries after 1st of April, 1974 relating to cases begun under the old Code are not governed by the old Code there would be a conflict between section 323 of the new Code with section 347 of the old Code. It is also not necessary to deal with another point which Mr. Banerjee made in passing that if all committal enquiries after 1st of April, 1974 relating to cases begun under the old Code are not governed by the old Code there would be a conflict between section 323 of the new Code with section 347 of the old Code. It may be noted that the two are substantially same. Only sub-section 2 of section 347 has been omitted and minor changes have been introduced with regard to sub-section (1). The expression "only" and "high Court" are omitted. Moreover, the scope for examining whether there is a repugnancy only arises in relation to provisions of the same statute. 5. IN conclusion it remains for us to hold specifically that it was within the competence of the learned Magistrate to decide to embark on an inquiry for committal on the basis of the F. I. R., the statement made under section 161 and on hearing the learned Advocates. If any authority is needed we may readily refer to the aforesaid case of Panchanan Sarkar reported in A. I. R. 1930 Calcutta 666 where it was held] "that the Magistrate had undoubtedly power at any stage of proceedings to decide that the case was one which he ought not to try and which ought to be committed to the Sessions and according to this section he would ordinarily commit the case for trial provided that the evidence had been completed." Mr. Ray assured us that there are materials in the Sec. 161 statements to show that, force was applied in seiznig the articles but we do not think it necessary to go into evidence. If the learned Magistrate, prima facie, thought that there was reasons for him to cause enquiry for committal as he considered that offence under section 395 was involved, he was at liberty to do so and we do not find any illegality in the same. 6. THE impugned order itself in an interlocutory one and ordinarily a revisional application would be barred under section 397 (2) of the new Criminal procedure Code. But as we find that the procedure proposed to be adopted by the learned Magistrate namely under chapter XVIII of the old Code would be a wrong and illegal one we consider it necessary to interfere. But as we find that the procedure proposed to be adopted by the learned Magistrate namely under chapter XVIII of the old Code would be a wrong and illegal one we consider it necessary to interfere. We hold that the learned Magistrate will henceforth proceed according to law under the new Criminal Procedure Code, that is, under section 209. The Rule is disposed of accordingly.