Order These four petitions are directed against the common judgment of convictions and sentences dated 3rd September, 1977 passed by the Sessions Judge, Raichur in Criminal Appeals Nos. 23, 25, 26, 24 of 1976. Criminal Appeals Nos. 23, 25, 26 and 24 of 1976 were filed by the petitioner, who is common to all these petitions, against the judgment of convictions and sentences dated 5th March, 1976 passed by the Chief Judicial Magistrate, Raichur in C.C.Nos. 199, 202, 201 and 200 of 1974. The Sessions Judge to some extent has confirmed the convictions, but modified the sentences to some extent in some of the cases. 2. Only the facts relevant for the order in these petitions will be narrated. In the course of this order, the Code of Criminal Procedure Code, 1898 will be referred to as the ‘Old Code’ and the Code of Criminal Procedure, 1973 will be referred to as the ‘New Code.‘ The petitioner was working as a clerk in the Taluk Agricultural Produce Co-operative Marketing Society Limited, Sindhnoor. He was in-charge Manager during the period between February, 1963 and 31st January, 1966. According to the prosecution, he was writing the accounts and attending to the day to day business of the Society regarding purchase of stock and sale, encashment of cheques etc. The accounts of the Society were audited for the years 1965-66, 1966-67 and 1967-68 and the Auditor found many irregularities including defalcations and mis-appropriations to the tune of Rs. 15,087.95. He prepared his audit report. Ultimately four charge-sheets were filed by the Police against the petitioner. They were registered as C.C. Nos. 199, 200, 201 and 202 of 1974. The items misappropriated, according to the prosecution case in these four cases, fall within the period commencing from 5th July, 1965 and ending on 7th December, 1965. In C.C.No. 199 of 1974, the amount said to have been misappropriated is Rs. 289.70, in C.C.No. 200 of 1974, the amount said to have been misappropriated is Rs.2,019.37 in C.C. No. 201 of 1974, the amount said, to have been misappropriated is Rs. 2,269.88 and in C.C.No. 202 of 1974, the amount said to have been misappropriated is Rs. 10,509. The then First Class Magistrate took cognizance of the offences. It may be mentioned that the charge-sheets were submitted on 17th January, 1973, after investigation under section 156 (3) of the Old Code. 2,269.88 and in C.C.No. 202 of 1974, the amount said to have been misappropriated is Rs. 10,509. The then First Class Magistrate took cognizance of the offences. It may be mentioned that the charge-sheets were submitted on 17th January, 1973, after investigation under section 156 (3) of the Old Code. After the trial commenced the then Magistrate clubbed all the cases and directed that a joint trial should be held. Later on that order was revoked the instance of the prosecution and he directed that separate trial should be conducted. On 28th September, 1974, the Assistant Public Prosecutor submitted to the Court that the cases were to be committed to the Court of Sessions under section 347 of the Old Code. The counsel on behalf of the petitioner objected to the move made by the prosecution. By that date only P.W.I was present and he had been examined in chief only. The Magistrate passed an order committing the accused to take his trial before the Sessions Judge, Raichur for the offence under section 406 , Indian Penal Code, in each one of the cases, as per the provisions in section 323 read with section 325 of the New Code. Thereafter, the four Sessions cases were registered and the then Sessions Judge, on hearing both sides, acted under section 228 of the New Code, framed a charge under section 406, Indian Penal Code in each one of the cases and transferred the cases to the Court of the Chief Judicial Magistrate, Raichur for a trial. The Chief Judicial Magistrate tried the petitioner for an offence under section 408 , Indian Penal Code, instead of section 406, Indian Penal Code, in each one of the cases convicted and sentenced the petitioner. 3. The facts mentioned in the preceding paragraphs show that cognizance of the offences in the four cases had been taken away by the Magistrate much prior to the coming into force of the New Code. The trial in the cases was pending before the then Magistrate by 1st April, 1974 when the new Code came into force. Therefore, by virtue of section 484 (2) of the New Code, the Magistrate had to try the four cases according to the provisions of the old Code and he did try the cases accordingly. The trial in the cases was pending before the then Magistrate by 1st April, 1974 when the new Code came into force. Therefore, by virtue of section 484 (2) of the New Code, the Magistrate had to try the four cases according to the provisions of the old Code and he did try the cases accordingly. In this connection, it is to be observed that originally the Magistrate had passed an order of holding a joint trial and later on again bifurcated the cases. I am unable to understand why the prosecution insisted for the bifurcation of the cases and the Magistrate acted accordingly irrespective of the provisions in section 222 (2) of the old Code which is specifically meant to cover such cases. After all, the period during which various items of amounts said to have been misappropriated by the petitioner, does not exceed one year. 4. Even when the Assistant Public Prosecutor submitted to the Court on 28th September, 1974, that the cases may be committed to the Court of Sessions under section 347 of the old Code, the Magistrate passed an order of commitment exercising the powers vested in him under section 325 of the new Code. In this connection, Shri Chouta, learned High Court. Government Pleader, argued that the order of the commitment passed by the learned Magistrate must be deemed to have been passed in exercise of his power under section 347 of the old Code though the order itself mentions section 323 and 325 of the new Code. He urged that by mistake the Magistrate has mentioned the provisions of the new Code. I am unable to accept this contention of Sri Chouta, because it is clear on reading the order of commitment passed by the Magistrate that the Magistrate had not at all applied his mind to the cases, because he has in the course of the order narrated that the four cases were being jointly tried though that order had been revoked and an order directing separate trial had been passed. He was aware that the submission made by the Assistant Public Prosecutor was that an order of commitment under section 347 of the old Code ought to be passed. Even though he was conscious of this submission, he has passed the order of commitment exercising the power vested in him under section 323 read with section 325 of the new Code. Even though he was conscious of this submission, he has passed the order of commitment exercising the power vested in him under section 323 read with section 325 of the new Code. 5. As already pointed out, it was incumbent on the Magistrate to hold that the trial in the cases according to the provisions of the old Code. In view of section 484 (2) of the new Code, he did not have the power to try the cases under the provisions of the new Code. Application of the procedure as per the provisions of the new Code, and passing an order of commitment,as done by the learned Magistrate, is part of such a trial. Hence, I am of the opinion that the Magistrate while passing the order of commitment under section 323 read with section 325 of the new Code, exercised powers which he was not empowered by law, and passed an order of commitment under section 323 read with section 325 of the new Code. He was empowered to pass such an order under section 347 of the old Code, but he did not exercise that power. As such an order of commitment is also part and parcel of the trial, the act of the Magistrate amounts to trying the petitioner in the four cases. Hence, according to section 461 (1) of the new Code or section 530 (p) of the old Code, the proceedings conducted by the Magistrate from the stage at which he passed the order of commitment will be void. That leads to a further conclusion that the further proceedings, namely the one held by the Sessions Judge after registering the Sessions Cases by virtue of order of commitment, framing of the charges by the Sessions Judge,passing of the order transferring the cases to the Chief Judicial Magistrate, the trial of the cases by the Chief Judicial Magis-trate,passing judgments of convictions and sentences in the four cases against the petitioner by the Chief Judicial Magistrate and confirmation of the convictions and sentences in the four appeals by the Sessions Judge will all be void. Therefore, it follows that the proceedings will have to be re-opened from the stage at which they stood just prior to the order of commitment being passed by the Judicial Magistrate First Class and the petitioner-accused has to be tried under the provisions of the old Code. Therefore, it follows that the proceedings will have to be re-opened from the stage at which they stood just prior to the order of commitment being passed by the Judicial Magistrate First Class and the petitioner-accused has to be tried under the provisions of the old Code. At this stage, it may be observed that it would be to the trial Magistrate to take into consideration section 222 (2) of the old Code for holding a joint trial. 6. Even if the contention of Sri Chouta, learned High Court Government Pleader, that the order of commitment must be deemed to have been passed under section 347 of the old Code is accepted for the sake of argument, it would mean that the cases were committed to the Sessions Judge not by virtue of an enquiry falling within the purview of Chapter XVIII of the old Code. In view of this position in law, Shri Chouta contended that the Sessions Judge ought to have tried the Sessions cases under the provisions of the old Code and, therefore, the order passed by the Sessions Judge under section 228 of the new Code is not justifiable. section 484 (2) of the new Code provides that if a trial is pending before a Court as on the date when the new Code came into force, namely, 1st April, 1974, then the provisions of the old Code should continue to apply. As the order of commitment was passed on 28th September, 1974, the cases came to be pending for trial in the Court of the Sessions Judge from that date onwards. Therefore, the contention of Sri Chouta that the Sessions Judge ought to have tried the cases under the provisions of the old Code has to fail, but his contention that the Sessions Judge could not have transferred the cases to the Chief Judicial Magistrate under section 228 of the new Code is supportable by looking into the provisions of sections 225 to 228 of the new Code. section 225 lays down that “in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor.” section 226 provides that “when an accused appears or is brought before the Court in pursuance of a commitment of the case under section 209 , the prosecutor shall open his case……” section 227 empowers the Sessions Judge to discharge the accused so brought before him. section 228 (1) reads as follows: “If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, 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; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. It is hence clear that section 228 of the new Code operates only when an accused is committed under section 209 of the new Code and not either under section 323 or section 325 of the new Code. If there is a commitment of accused under sections 323 or section 325 of the new Code, the Sessions Judge shall have to, in order to try the cases, apply the provisions of sections commencing from 229 of the new Code. The provisions found in sections 227 and 228 would not be applicable to such cases. In this view of the matter also, the order passed by the then Sessions Judge framing charges and transferring the cases to the Chief Judicial Magistrate is without power and cannot be sustained in law. 7. As it has been held that the then Magistrate though not being empowered by the law had exercised powers under sections 323 and 325 of the new Code, the proceedings from that stage are void it will have to be directed that the petitioner should be tried by the Judicial Magistrate First Class, Sindhnoor and the trial has to proceed from the stage at which it stood just prior to the passing of the order of commitment. It is open to the Magistrate to take into consideration the provisions of section 222 (2) of the old Code while proceeding with the trial. 8. In the result, these petitions are allowed and the convictions and sentences passed by the Chief Judicial Magistrate, Raichur in C.C.Nos. 199, 200, 201 and 202 of 1974 and confirmed by the Sessions Judge, Raichur, in Criminal Appeals Nos. 23, 24, 25 and 26 of 1976 are set aside and it is directed that the petitioner be tried by the Judicial Magistrate, First Class, Sindhnoor as aforementioned. S.V.S. ----- Petitions allowed.