BRITISH MACHINERY SUPPLIES CO. v. BHATTACHARYA — 1977 DIGILAW 296 (KER)

Judgment :- 1. The petitioners are accused 1, 3 and 5 in C C. 251 of 1977 on the file of the Chief Judicial Magistrate, Ernakulam. The petition is filed challenging the order of the Principal Assistant Sessions Judge, Ernakulam, transferring Sessions Case No. 70 of 1975 of that court under S.228 (1) (a) of the Code of Criminal Procedure for trial by the Chief Judicial Magistrate Ernakulam. 2. The proceedings had a very chequered career. The complainant is the Deputy Chief Controller of Imports and Exports. New Delhi. The complaint was filed in 1968 before the District Magistrate, Ernakulam, as he then was, alleging that the 5 accused in the case committed offences punishable under Ss 120B, 420,467 and 471 of the Indian Penal Code and also under S.5 of the Imports and Exports (Control) Act, 1947 and it was registered as Preliminary Enquiry No. 3 of 1968 The case was being adjourned from time to time on the ground that certain records necessary for the trial of the case were produced in an appeal pending before the High Court, Madras. After a number of adjournments, the case was posted for evidence, though the documents had not been received from the Madras High Court. On 12 6 72 the court discharged the accused on the ground that the complainant was absent and no witnessess were produced. The complainant took the matter in revision - CRP. No 33 of 1972-before- the Sessions Judge, Ernakulam. The Sessions Judge allowed the revision petition and directed the District Magistrate to make further enquiry into the complaint and to dispose of the same in accordance with law. This order was passed on 3112 73. The case was re-registered as Preliminary Enquiry No.1 of 1974 in the Court of the Dist. Magistrate. By the time the case came up for disposal, the new Code of Criminal Procedure (hereinafter to be referred to as 'new Code') bad come into force. The District Magistrate, who is redesignated as Chief Judicial Magistrate under the new Code followed the formalities under S.208 of the new Code and committed the case to the Court of Session, Ernakulam, under S.209. The Sessions judge made over the case to the Principal Assistant Sessions Judge for disposal. The District Magistrate, who is redesignated as Chief Judicial Magistrate under the new Code followed the formalities under S.208 of the new Code and committed the case to the Court of Session, Ernakulam, under S.209. The Sessions judge made over the case to the Principal Assistant Sessions Judge for disposal. The Principal Assistant Sessions Judge framed charges against the accused and holding that the offences involved were triable by the Chief Judicial Magistrate, passed the impugned order under S.228(1) of the Code transferring the case to the Chief Judicial Magistrate for disposal. 3. The stand taken by the petitioner is that the Sessions Judge bad no jurisdiction to entertain SC. 70 of 1975 as the order of commitment by the Chief Judicial Magistrate purporting to be one under S.209 of the new Code is bad in law. Under the new Code, the offences involved in the case are triable by a First Class Magistrate. Under S.209 of the new Code, the Chief Judicial Magistrate is competent to commit a case to the Court of Session only if it is exclusively triable by that Court. The order of commitment being wrong, the Court of Session should not have taken cognizance of the case The charge framed by the Asst. Sessions judge and the order transferring the case to the Chief Judicial Magistrate, are, therefore, liable to be set aside. The petitioners contend that the case being one registered on a private complaint, they have got the right to cross-examine the witnesses both before and after the framing of the charge. This right is lost to them by the order of commitment and the impugned order and, therefore, they are entitled to have the order of commitment set aside. 4. The point involved in the case relates to the scope and interpretation of S, 484(2)(a) of the Code of Criminal Procedure, 1973. Relevant portions of S.484 reads: "484 Repeal and savings. (1) The Code of Criminal Procedure, 1898 (5 of 1898), is hereby repealed. 4. The point involved in the case relates to the scope and interpretation of S, 484(2)(a) of the Code of Criminal Procedure, 1973. Relevant portions of S.484 reads: "484 Repeal and savings. (1) The Code of Criminal Procedure, 1898 (5 of 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 (5 of 1898) as in force immediately before such commencement, (hereinafter referred to as the old Code), as if this Code bad 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. 5. In the instant case, the complaint was filed before the new Code came into force. Under S.484 (2), cases of trial, inquiry and investigation pending at the commencement of the new Code are to be preceded with under the old Code except those covered by the proviso. The function of the proviso, as observed by the Supreme Court is to qualify the generality of the main enactment by providing on exception and taking out as it were from the main enactment a portion of it which but for the proviso would fall within the main enactment. Thus but for the proviso, the enquiry in the present case would have been conducted by the Chief Judicial Magistrate and the case would have been committed to the Court of Session and the Court of Session would have conducted the trial. The proviso dors not say that in cases where the enquiry is pending under Chapter XVIII of the Code, the court concern d, if competent to try the case under the new Code, shall dispense with the commitment proceedings and try the case. The proviso only directs that the preliminary enquiry should be as provided in the new Code. Committal proceedings, under the new Code, is governed by S.209 of the Code, relevant portion of which reads: "209. Commitment of case to Court of Session when offence is triable exclusively by it. The proviso only directs that the preliminary enquiry should be as provided in the new Code. Committal proceedings, under the new Code, is governed by S.209 of the Code, relevant portion of which reads: "209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall (a) commit the case to the Court of Session 6. The petitioners would say that the Chief Judicial Magistrate is expected to commit the case only if the offences involved are triable exclusively by the Court of Session. In other cases, after initiating the proceedings, the Court is to try the case itself. In the instant case, the offences are, under the new Code, triable by the First Class Magistrate, and therefore, they are not triable exclusively by the Court of Session The argument is that the order of commitment is, therefore, wrong and is liable to be set aside. 7. A similar question arose in this court in Crl. M. P. No. 630 of 1975, This court held that, the order of commitment was rightly made in the circumstances of that case. 8. The identical point had come up for decision before other High Courts also. In Adya Prasad v. Rajindra Mahto (1975 Crl. L. J. 997), the complaint was that the accused committed offences including one under S.386 IPC. which was exclusively triable by a Court of Session. The Magistrate who conducted the preliminary enquiry found that the offence made out was only under S.384 IPC and that the case was triable by himself. A revision petition was filed against the alleged discharge of the accused of the offence under S.386 IPC. The Sessions Judge held that the evidence produced prima facie made out a case under S.386 IPC. and directed the Magistrate to commit the accused to the Court of Session. This order was challenged. The single judge of the Patna High Court, who disposed of the objection, held as follows: "Merely because, this offence under the new Code has been made triable by a Magistrate of the First Class could not make any substantial change so fas as the contemplated commitment is concerned. This order was challenged. The single judge of the Patna High Court, who disposed of the objection, held as follows: "Merely because, this offence under the new Code has been made triable by a Magistrate of the First Class could not make any substantial change so fas as the contemplated commitment is concerned. The matter would have stood on a different footing if the commitment proceeding in this behalf was not pending from before the commencement of this new Code." 9. in Bitthal v. State (1976 Crl. L. J. 735) of the Allahabad High Court, the offence involved was under S.307 read with S.34 IPC. After prosecution evidence was recorded the new Code came into force. The Magistrate directed copies to be given to the accused as provided in S.208 of the new Code and posted the case for orders under S.209. This order was challenged in revision. The order was upheld. 10. A similar question arose in the Karnataka High Court in State of Karnataka v. Abdul Rahiman (1976 Crl.L J. 928). Committal proceeding involving offences under S.467 and 471 IPC. was pending in that court when the new Code came into force. The court committed the case to the Court of Session. The Court of Session quashed the order of commitment stating that offences were triably by the First Class Magistrate and the Magistrate should proceed to dispose of the case according to law. A revision petition filed by the State challenging the above order of the Sessions Judge was dismissed holding that the cases were triable by the First Class Magistrate. The High Court, however, observed that the Sessions Judge should not have exercised his powers of revision to quash the order of commitment, but should have exercised his powers under S.228 of the new Code and transferred the case for trial by the First Class Magistrate. The Sessions judge was directed to pass an order accordingly. 11. A Division Bench of the Calcutta High Court considered the scope and application of the proviso to S.484 (2)(a) and S.209 in State v. Bikash Majumdar (1976 Crl. L. J. (800). The police charge-sheet in that case included offences under S.467 and 471 IPC. The committal proceedings were pending on 14 74 when the new Code came into fores. The case was committed to Court of Session on 22 4 74. L. J. (800). The police charge-sheet in that case included offences under S.467 and 471 IPC. The committal proceedings were pending on 14 74 when the new Code came into fores. The case was committed to Court of Session on 22 4 74. The City Sessions Court referred back the case to the Chief Metropolitan Magistrate under S.228(0 of the new Code after framing charges under S.420, 467, 468 and 471 IPC. The Chief Metropolitan Magistrate felt doubt regarding the correctness of the order of transfer and a reference was made, to the High Court, The High Court held that neither the proviso to S.484(2)(a) nor S.209 of the new Code was attracted in view of the fact that under the new Code the offences were triable by a First Class Magistrate and there was no question of the Magistrate being satisfied that the case was exclusively triable by the Court of Session. The High Court held that in the circumstances, the order committing the accused to the Court of Session was neither legal nor made in accordance with law, and that the learned Sessions Judge was, therefore, fully justified in referring back the case to the Chief Metropolitan Magistrate after framing charges in exercise of his powers under S.228(1) of the Code. The court, however observed: "Suffice it for the purpose of the present reference to say that the proviso can be attracted and a commitment made under S.209 in pending inquiry under Chapter XVIII of the old Code in respect of cases arising in a police report only where the offence was exclusively triable by the Court of Session under the Schedule to the New Code but not otherwise. No other interpretation is possible on a reading of S.484 (2) (a) of the New Code." 12. The Calcutta High Court considered the applicability of S.484 (2) (a) in another case decided by a Division Bench and reported in R.C. Maity v. S. C. Mondal (1977 Crl. L. J 481). The petitioner therein was the complainant in a private complaint. The offence involved was under S 467 IPC. An Inquiry under Chapter XVIII of the old Code was pending before the Magistrate when the new Code came into force. The petitioner prayed for a committal of the case to the Court of Session. The Magistrate rejected the prayer as under the new Code, the offence was triable by him. The offence involved was under S 467 IPC. An Inquiry under Chapter XVIII of the old Code was pending before the Magistrate when the new Code came into force. The petitioner prayed for a committal of the case to the Court of Session. The Magistrate rejected the prayer as under the new Code, the offence was triable by him. The High Court upheld the order and stated: "To hold that the committal enquiry commenced by the Magistrate under the old Code should continue in spite of an offence being made triable by a Magistrate of 1st Class under the new Code is to arbitrarily ignore the existence of the new Code and not to give effect to the same " 13. The Allahabad High Court had occasion to consider a similar case in Babu Ram v. Mohammad Ali (1977 Crl. L. J. (NOC) 117). An enquiry was pending under Chapter XVIII of the old Code when the new Code came into force The offences alleged were triable by the Magistrate under the new Code The court held that the case must be proceeded with as a warrant case and not as a Sessions case. 14. There is thus conflict of views in regard to the procedure to be followed in cases where the offences involved are triable by a First Class Magistrate under the new Code and enquiry proceedings, started under the old Code, were pending at the commencement of the new Code. One view is that the committal proceedings should be continued following the procedure under S 209 of the new Code and that after commitment, the Sessions Judge should frame charge and send back the case to the First Class Magistrate for trial. The other view is that there is no necessity to resort to S.209 in cases triable under the new Code by the First Class Magistrate and the Magistrate may try the case himself independently of S.209. 15. After an anxious consideration of the different aspects of the matter, I hold the view that the Court where an enquiry under Chapter XVIII of the old Code was pending on the date of commencement of the new Code should continue to function as a Court of enquiry in respect of the particular case; but while so continuing it should follow the provisions relating to committal in the new Code. It is not open to the court to drop the committal proceedings and proceed with the trial of the case on the ground that the offences ceased to be exclusively triable by a Court of Session. I reached the above conclusion for the reasons that follow: Under S.484(2) (a), appeals applications, trial, inquiry or investigation pending disposal on the date of repeal of the old Code should be disposed of, continued, held or made, as the case maybe, under the old Code as if the new Code had not come into effect. It follows that but for the proviso to the above clause, an enquiry preliminary to committal should also be proceeded with under the old Code. The proviso states that in the case of committal proceedings, there should be a deviation from the ordinary rule and they should be governed by the new Code. The proviso applies to all pending enquiries under Chapter XVIII of the old Code. If I may say so with respect, there is a fallacy involved in the decision of the Calcutta High Court that in a case which was pending enquiry when the new Code came into force the proviso is attracted only where the offence is exclusively triable by a Court of Session. The decision overlooks the fact that in the absence of the proviso, the enquiry in such cases, by virtue of S.484(2) would be governed by the provisions of the old Code as if the new Code had not come into force. What the proviso directs is not that the preliminary enquiry should be eliminated but that it should be continued under the new Code, While under the old Code it was left to the committing Magistrate to decide prima facie whether on the materials available the case should be tried by himself or whether it should be committed to the Court of Session and also to frame the necessary charges, under the new Code it is for the Sessions Judge to discharge the above functions. It therefore, stands to reason that in cases where committal proceedings have already been initiated under the old Code, it is the Court of Session which should decide on the materials available whether the case should be tried by itself or should be made over to the Magistrate. That is what the Assistant Sessions Judge has done in this case. It therefore, stands to reason that in cases where committal proceedings have already been initiated under the old Code, it is the Court of Session which should decide on the materials available whether the case should be tried by itself or should be made over to the Magistrate. That is what the Assistant Sessions Judge has done in this case. In fact the petitioners have acquiesced in the procedure followed. Petitions are seen filed by them for directions to furnish copies of all the documents as provided in S 208, Code of Criminal Procedure. Objections are seen raised for the first time only after charges were framed and the case was transferred to the Chief Judicial Magistrate. It is true that as a consequence of the procedure followed, the petitioners lost an opportunity of cross-examining the witnesses before the charge is framed; but that is so even in more serious cases which are triable by Court of Session under the new Code whether instituted on a police report or otherwise As observed by the Supreme Court 'a person accused of the commission of an offence has no vested right to be tried by a particular Court or a particular procedure except in so far as there is any constitutianal objection by way of discrimination or violation of any other fundamental right involved. (See Union of India v. Sukumar (AIR. 1966 SC, 1206) ). 16. I am also not impressed by the argument put forward on behalf of the complainant that the Assistant Sessions Judge should not have transferred the case to the Chief Judicial Magistrate as the case was triable by that court when the proceedings were first initiated. But S.484(2) has application only to the stage at which proceedings were pending at the time of the coming into force of the new Code. The Sessions Judge gets jurisdiction to deal with the case only on commitment. The commitment in the present case was after the new Code came into force. There is no doubt that the trial which follows the commitment should be in accordance with the new Code. The revision petition is dismissed.