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1977 DIGILAW 14 (PAT)

MAHESHWAR SINGH v. MAHENDRA SINGH

1977-01-17

C.N.TIWARY

body1977
JUDGMENT : C.N. Tiwari, J. This is an application, for quashing the entire proceeding in case no. C.R. 672/73 T.R. 2305/75 (Mahendra Singh V. Maheshwar Singh and others) pending in the court of the Judicial Magistrate, Samastipur. 2. Opposite party Mahendra Singh filed a petition of complaint before the Sub-divisional Magistrate, Samastipur on 15.6.1973 against the petitioners stating that on 14.6.1973 at about 8 A.M. the complainant Mahendra Singh had gone to the house of Mohan Kamti to engage him as a labourer to work at his place. The accused-petitioners went there armed with lathi, bhala, garasa etc. and surrounded the complainant Mahendra Singh. At the ORDER :s of Kameshwar Singh (petitioner No. 5), all the accused-petitioners began to assault the complainant Mahendra Singh with their respective weapons with the intention to kill him. Having received injuries, the complainant Mahendra Singh fell down. Thereupon Shaligram Singh (petitioner No. 2) took left thumb impression of the complainant on blank paper and banded it over to Maheshwar Singh (petitioner No. 1). Mohan Kamti and his mother tried to save the complainant. The accused-petitioners fisted and slapped them also and took away articles from their house. The complainant was taken to Shumbha Deorhi State Dispensary for treatment. In view of the seriousness of the injuries the complainant was sent to Samastipur hospital for treatment. Certificate of the doctor regarding injuries found on the person of the complainant was enclosed with the petition of complaint. The Sub-divisional Magistrate took cognizance and examined the complainant on solemn affirmation on 21.6.1973 and referred the matter for enquiry and report under Section 202 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code') to Shri H.K. Verma. 3. The Enquiring Officer, Shri H.K. Verma, submitted report on 24.10.1973. The complainant had produced witnesses before the Enquiring Officer in support of his case, but in view of the fact that one Sukhendra Narain Singh, a relation of accused-petitioner Nos. 10 to 12 had instituted a case at the police station on 14.6.1973 against the complainant Mahendra Singh and others and also on, consideration of probabilities of the case, the enquiring Officer recommended that the complaint should be dismissed. The complainant filed a protest petition against the report of the Enquiring Officer. The matter was placed before the Sub-divisional Magistrate on 29.11.1973. The complainant filed a protest petition against the report of the Enquiring Officer. The matter was placed before the Sub-divisional Magistrate on 29.11.1973. Having heard lawyers of the parties, the Sub-divisional Magistrate fixed 7.12.1973 for ORDER :s. It appears from the ORDER :dated 29.6.1974 that the Sub-divisional Magistrate could not get time to pass ORDER :s tilt the commencement of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code') and, therefore, he directed the record to be placed before the Chief Judicial Magistrate for necessary ORDER :s. 4. On 8.8.1974 the Chief Judicial Magistrate felt that it was necessary to get the matter reinvestigated. He, therefore referred the matter to Shri C.N. Jha for that purpose. Having examined the witnesses produced by the complainant, Shri C.N. Jha reported that a prima facie case had been made out against the accused-petitioners. Petitioner Kameshwar Singh filed a protest petition against the report of Shri C.N. Jha. On 5.12.1974 the Chief Judicial Magistrate heard the lawyers of the complainant and the accused persons and passed ORDER :s taking cognizance and transferring the case to Shri J.K. Narain Judicial Magistrate for disposal. The Judicial Magistrate, Shri J.K. Narain, passed ORDER :dated 6.1.1975 for issue of summons against the accused petitioners. It is for the quashing of this proceeding that this application has been preferred. 5. Learned counsel appearing on behalf of the petitioners has urged that the Sub-divisional Magistrate bad already taken cognizance on 21.6.1973 and therefore, second cognizance taken by the Chief Judicial Magistrate on 5.12.1974 is bad. He has further submitted that the Chief Judicial Magistrate could not have taken cognizance without examining the complainant on oath. According to him, the examination of the complainant on oath by the Sub-divisional Magistrate before the commencement of the new Code could not be legally acted upon by the Chief Judicial Magistrate. It is thus submitted that the entire proceeding is liable to be quashed because neither the Chief Judicial Magistrate nor the Judicial Magistrate to whom the case was transferred for disposal, examined the complainant on solemn affirmation. It is thus submitted that the entire proceeding is liable to be quashed because neither the Chief Judicial Magistrate nor the Judicial Magistrate to whom the case was transferred for disposal, examined the complainant on solemn affirmation. The alternative argument of learned counsel for the petitioners is that if the Sub0divisional Magistrate was not competent to deal with the case on the commencement of the new Code, be should have returned the complaint petition to the complainant for presentation before the proper court with an endorsement to that effect under Section 201 of the new Code. 6. In my opinion, none of the contentions raised by learned counsel for the petitioners is tenable. Cognizance had in fact been taken on 21.6.1973 and, therefore, the observation of the Chief Judicial Magistrate made in his ORDER :dated 5.12.1974 that he took cognizance was superfluous and redundant. The ORDER :of the learned Chief Judicial Magistrate passed on 5.12.1974 was in fact an ORDER :under Subsection (1) of Section 192 of the new Code which lays down that any Chief Judicial Magistrate may after taking cognizance of an offence, make over the case for enquiry or trial to any competent Magistrate subordinate to him. 7. A General Letter No. 8903-33 dated 13.3.1974 had been issued by the High Court directing that on the commencement of the new Code with effect from 1.4.1974 the records of all criminal cases pending in the courts of the Sub-divisional Magistrates or any other executive Magistrates which were not triable by such Magistrate should be sent to the Chief Judicial Magistrate at the head-quarters of the district and to the Sub-divisional Judicial Magistrate posted in subdivision, as the case might be, on the 1st April, 1974 or as soon as possible thereafter to be dealt with by them in accordance with law. Another Letter No. 15678708 dated 15.7.1974 was also issued by the High Court in this regard directing that records of such cases should be sent immediately to the Chief Judicial Magistrate at headquarters of the districts or to the Sub-divisional Judicial Magistrate posted in the subdivision, as the case might be. 8. The Sub-divisional Judicial Magistrate had jurisdiction to take cognizance on 21.6.1973. Therefore, it is not a case falling under Section 201 of the new Code as contended by learned counsel for the petitioners. 8. The Sub-divisional Judicial Magistrate had jurisdiction to take cognizance on 21.6.1973. Therefore, it is not a case falling under Section 201 of the new Code as contended by learned counsel for the petitioners. In view of the aforesaid letters of the High Court records of the criminal cases which were not triable by the Sub-divisional Magistrate and the executive Magistrate under the new Code were sent to the Chief Judicial Magistrates or the Sub-divisional Judicial Magistrate. In Criminal Miscellaneous No. 2425 of 1974 (Bhuvaneshwar Singh and others V. State of Bihar and another, decided on 16th January, 1976) I have held that the Sub-divisional Judicial Magistrate under the new Code is successor-in-office of the Sub-divisional Magistrate who functioned under the old Code in the Subdivision concerned immediately before the commencement of the new Code in this regard. As pointed out in that case a pending complaint is not covered by Section 484(2) of the new Code and, therefore, it could not be disposed of in accordance with the provisions of the old Code. As successor-in-office of the Sub-divisional Magistrate who took cognizance on 21.6.1973, the Chief Judicial Magistrate, at the head-quarters of the district, under the new Code, was competent to act upon the statement of the complainant recorded on solemn affirmation by the Sub-divisional Magistrate under the old Code. 9. It was therefore, not necessary for the Chief Judicial Magistrate to examine the complainant on solemn affirmation again. The Chief Judicial Magistrate was, thus competent to transfer the case to the Judicial Magistrate Shri J.K. Narain for disposal under Section 192(1) of the new Code. The case of (1) Sudama Singh V. Kavindra Narain Singh (1973 P.L.J.R 35) relied upon by learned counsel for the petitioners is of no avail to the petitioners. The instant case was a complaint case. The complainant had already been examined on solemn affirmation by the predecessor-in-office of the Chief Judicial Magistrate. As laid down by their Lordships in that case, the power of the transferee Magistrate to issue processes in a complaint case under Section 202 of the old Code is not circumscribed by the terms of Section 204. Therefore, the ORDER :of the transferee Magistrate Shri J.K. Narain for issue of processes against the accused-petitioners cannot be said to be illegal or invalid. 10 In view of the aforesaid discussion, I do not find any merit in the application. Therefore, the ORDER :of the transferee Magistrate Shri J.K. Narain for issue of processes against the accused-petitioners cannot be said to be illegal or invalid. 10 In view of the aforesaid discussion, I do not find any merit in the application. The application is accordingly dismissed. Application dismissed.