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1977 DIGILAW 156 (PAT)

Sita Ram Prasad v. Harilal Sao

1977-08-24

B.D.SINGH

body1977
Judgment 1. This application by Sita Ram Prasad under S. 482 of the Cr. P. C. 1973, (hereinafter referred to as the Code) is directed against the order dated 27-1-1976 passed by the Sub-divisional Judicial Magistrate, Hilsa at Biharsharif, transferring the case from his file to the Sub-divisional Magistrate, Hilsa at Biharsharif (Executive Magistrate), after examining the petitioner-complainant on solemn affirmation under S. 200 of the Code, 6-12-75. on the ground that when the complaint was filed by the petitioner on 14-10-69, the provisions contained under the old Code were applicable. The relevant portion of the impugned order which is in Hindi reads thus: 2. In this case the petitioner, as mentioned earlier, had lodged a complaint against the opposite party under Ss. 147, 448, 380 and 427 of the I. P. C, relating to a loot committed in the shop of the petitioner, in which he had filed a protest petition on 13-10-69 and complaint petition on 14-10-69. The Sub-divisional Magistrate, Biharsharif, did not examine the petitioner on solemn affirmation; nor did he take cognizance and accepted the final report, which the police submitted, by order dated 14-8-71, against which order the petitioner came to this Court in Criminal Revision No. 2466 of 1971 and that was allowed by this Court on 26-7-74 whereby it was ordered for examination of the petitioner on solemn affirmation and the case was remanded to the Sub-divisional Magistrate, Biharsharif, for needful action. Sub-divisional Magistrate, Biharsharif, sent the case to the court of the Sub-divisional Judicial Magistrate, Hilsa, for disposal, who, after receipt of the record, examined the petitioner on solemn affirmation on 6-12-75 and was pleased to examine one of the witnesses Lalloo Ram in support of the prosecution case, out of several witnesses present on 12-12-75, and when other witnesses were going to be examined, the other opposite party appeared through an advocate and objected to the examination of witnesses on the ground that he had no jurisdiction to try the case and subsequently on 22-12-75 filed certified copy of the order sheet dated 24-7-74 of this Court in Criminal Misc. No. 1512 of 1974. Thereupon, the Sub-divisional Judicial Magistrate transferred the case by the impugned order dated 27-1-76 to the Sub-divisional Magistrate, Hilsa (Executive Magistrate) for disposal. The Sub-Divisional Magistrate directed the petitioner for fresh examination and had fixed 5-4-76. 3. No. 1512 of 1974. Thereupon, the Sub-divisional Judicial Magistrate transferred the case by the impugned order dated 27-1-76 to the Sub-divisional Magistrate, Hilsa (Executive Magistrate) for disposal. The Sub-Divisional Magistrate directed the petitioner for fresh examination and had fixed 5-4-76. 3. Learned counsel for the petitioner has assailed the impugned order, the relevant portion of which has been quoted above and he has contended that in this case the provision of the new Code would be applicable. In order to find support to his contention he has relied on Bhubneshwar Singh V/s. State of Bihar, 1976 0 BBCJ 496 and drew my attention to para 7 of the judgment, which reads thus: "Lastly it is urged that immediately before the commencement of the new Code the proceeding was pending and therefore, this case is covered by S. 484 (2) of the Code and hence, notwithstanding the repeal of the old Code processes should have been issued and this should have been disposed of in accordance with the provisions of the old Code by the S. D. O. Lakhisaral. There is no substance in this argument. The wordings of sub-sec. (2) (a) of S. 484 of the new Code, are quite clear. This case does not come under clause (a) of sub-sec. (2) of S. 484 of the new Code. The words of the statute, when there is doubt about their meaning, are not to be understood In the sense, in which they best harmonise with the aspect of the enactment and the object which the Legislature had In view, We have to seek aid from other provisions of the new Code in order to arrive at the proper meaning of words used in sub-sec. (2) of S. 484 and that interpretation should be accepted, which would result in properly carrying out the intention of the Legislature in enacting the new Code. In the old Code Executive Magistrate could exercise powers under Ss. 190, 192 and 200 to 204 but they cannot do so now. As pointed out above, the intention of the Legislature in enacting the new Code is that the Judicial Magistrates should exercise the powers of Magistrates under Ss. 190, 192 and 200 to 204 of the new Code. These changes have been introduced with the clear object of separation of the Judiciary from the Executive, which the new Code seeks to bring about. 190, 192 and 200 to 204 of the new Code. These changes have been introduced with the clear object of separation of the Judiciary from the Executive, which the new Code seeks to bring about. Under the new Code the courts of Executive Magistrate cannot exercise powers and functions of a Magistrate under Ss. 190, 192 and 200 to 204. S. 20 (4) says that: "The State Government may place an Executive Magistrate in charge of a sub-division and may relieve him of the charge as occasion requires; and the Magistrate- so placed in charge of a sub-division shall be called the Sub-divisional Magistrate." Therefore, the Officer in-charge of Lakhisarai Sub-division is an Executive Magistrate designated as Sub-divisional Magistrate. The Sub-divisional Magistrate Lakhisarai being an Executive Magistrate cannot issue process and cannot try cases. Hence, it would best harmonise with other provisions of the new Code to hold that a pending complaint does not come under sub-sec, (2) of S. 484 of the new Code." 3A. In this case It seems that while passing the impugned order the Sub-divisional Judicial Magistrate, Hilsa at Biharsharif, had relied upon the order of this Court D/-24-7-1974 in Criminal Misc. No. 1512 of 1974 (Puna Mahto V/s. Hari Narain) wherein B. P. Jha, J. had observed that the provision contained under the old Code would apply. In my view, that order by his Lordship B. P. Jha with due respect has not laid down correct law. The judgment, which has now been relied on by the Counsel for the petitioner in the instant case, the relevant portion of which I have quoted, fully supports the case of the petitioner and the said judgment has been delivered after full-dress hearing and correct proposition of law has been laid down in this regard. It may be noticed that in the earlier two judgments also similar, view was taken. In one case also I had taken the same view. In the case of Mahanth Harihar Das V/s. State, 1975 0 BBCJ 364 N. P. Singh and S. Ali Ahmed, JJ, observed that by fiction of law, now a Magistrate has to be read to mean a Judicial Magistrate. Now the power of issuance of process or warrant under S. 204 has to be exercised by the Judicial Magistrate. The effect of S. 3 (1) (a) (i) and sub-sec. Now the power of issuance of process or warrant under S. 204 has to be exercised by the Judicial Magistrate. The effect of S. 3 (1) (a) (i) and sub-sec. (1) of S. 204 is that the power to issue process has been vested in the Judicial Magistrate and only they can exercise the said power even in cases in which initial cognizance had been taken by the Executive Sub-divisional Magistrate under the old Code, The Judicial Magistrate will, therefore, be deemed to be successor-in-office of the executive Sub-divisional Magistrate and as such it cannot be urged that the order is illegal and without jurisdiction. It may be observed that the above judgment is of the Division Bench. Therefore, in view of this Division Bench judgment the observation made by his Lordship, B. P. Jha, J., as observed earlier, has not laid down good law and is not binding, and the submission made by learned counsel for the petitioner is well founded. The impugned order cannot be sustained. 4. In the result, the application is allowed, the impugned order dated 27-1-76 is set aside and the case is remanded to the Sub-divisional Judicial Magistrate, Hilsa at Biharsharif, who will proceed with the case expeditiously in accordance with law from the stage as it stood prior to the passing of the order dated 27-1-76. Let the record of the case be sent down immediately.