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1978 DIGILAW 99 (PAT)

ASHARFI SAO v. SARDARI SINGH

1978-04-20

SHIVANUGRAH NARAIN

body1978
JUDGMENT : Shivanugrah Narain, J. This application by one Asharfi Sao (P.W. 6) is directed against the ORDER :dated, 12.4.1977 of Mr. Anirudh Prasad Singh, Magistrate, Second Class, Nawadah acquitting the opposite parties of offences under Sections 380 and 454 of the Penal Code with which they had been charged. 2. The prosecution case, briefly stated is that on 4.8.1972 at about 7 A.M. the opposite parties came to a house situate at Warsaliganj, which was in possession of Asharfi Sao, the petitioner, as usufructuary mortgagee of the same and a part of which was in possession of the informant Ramdeyal Ram who had been inducted as tenant by the said Asharfi Sao. The prosecution case further is that the opposite parties enquired about Asharfi Sao and when they were informed by Ramdeyal that Asharfi had gone out, they abused Ramdeyal and asked him to vacate the house, that Ramdeyal being terrorised vacated the house and removed all his belongings and was coerced by the opposite parties to give in writing that he was vacating the house out of his own sweet will and that, thereafter, the opposite parties removed all the articles of Asharfi kept in the house, put them en a rickshaw and went away, and subsequently opposite party Sardari brought a woman and kept hell in the house. 3. At the trial charges under Sections 380 and 454 Penal Code were, as I have already stated, framed against the opposite parties and the object of house trespass mentioned in the charge under Section 454 Penal Code was described as "to commit theft". As already stated, learned Magistrate acquitted the opposite parties. 4. The sole contention raised by Mr. Kameshwari Nandan Singh, Standing Counsel No. 4 appearing for the petitioner is that the entire trial was without jurisdiction as the offence under Section 454 Penal Code which consisted of house breaking in ORDER :to commit theft was triable exclusively by a Magistrate of the First Class. Under the Code of Criminal Procedure, 1898 (hereinafter called the old Code), the offence under Section 454, Penal Code; even if the offence in ORDER :to commit which housebreaking etc. was committed was theft was triable by the court of session, presidency Magistrate or Magistrate of the First or Second Class. (See Schedule II of the old Code). Under the Code of Criminal Procedure, 1898 (hereinafter called the old Code), the offence under Section 454, Penal Code; even if the offence in ORDER :to commit which housebreaking etc. was committed was theft was triable by the court of session, presidency Magistrate or Magistrate of the First or Second Class. (See Schedule II of the old Code). Under the Code of Criminal Procedure, 1973 (hereinafter called the new Code), however, such an offence is triable only by the Court of Session or a Magistrate of the First Class. Therefore, if the case had to be tried and disposed of in accordance with the provisions of the old Code, the trial was certainly with jurisdiction and the contention must fail. If, on the other hand, the trial had to be conducted according to the provisions of the new Code the trial would be without jurisdiction. The question for determination therefore, is whether the case had to be disposed of in accordance with the provisions of the old Code or the new Code Section 484 of the new Code, which repeals the old Code, provides that 'Notwithstanding such repeat if, immediately before the date on which this Code comes into force there is any.... trial, inquiry ….. pending, then such ... trial, inquiry ….. 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, as if this Code had not come' into force." It is, therefore, manifest that if the, trial was pending on 31.3.1974, i.e., immediately before 1.4.1974, the date on which the, new Code came into force, the trial had to be continued or held in accordance with the provisions of the old Code, as if the new Code bad not come into force. The crucial question for determination, therefore, is that if the trial in which the impugned ORDER :of acquittal was passed was pending on 31.3.1974. 5. In ORDER :to decide this question, it is necessary to mention a few more facts. In the present case cognizance was taken on 29.11.1972 and by ORDER :of that date of the Sub-divisional Magistrate, Nawadah, the case was transferred to the Court of the Judicial Maghurte, First Class for disposal and the accused wert directed to appear in his court on 4.12.1972. In the present case cognizance was taken on 29.11.1972 and by ORDER :of that date of the Sub-divisional Magistrate, Nawadah, the case was transferred to the Court of the Judicial Maghurte, First Class for disposal and the accused wert directed to appear in his court on 4.12.1972. On 4.12.1972, all the three accused, who are opposite parties before me, appeared in response to the summons and, thereafter, the case was adjourned successively to 18.12.1972, 9.1.1973, 22.2.1973, 7.3.1973 and 24.3.1973 to enable the prosecution, to furnish copies of police papers to the accused. On 24.3.1973, all the accused persons were present and the copies of the police papers were supplied to them, and, thereafter, the case was adjourned to 27.4.1973 for framing of charge. The question for determination, therefore, is whether a case instituted upon a police report which has to be tried under the warrant procedure and in which prior to 1.4.1974 summons had been issued to the accused and for accused had appeared and copies of police papers had been furnished to the accused and a date fixed for framing of charge, can be said to he pending for trial on 1.4.1974. 6. Before I proceed to consider this question, I must emphasise that under Sub-section (2) of Section 484 of the new Code, the procedure under the old Code is applicable not only when the trial was commenced but also when the trial is pending. Under Sub-section 2(a) of Section 484 of the new Code, the procedure under the old Code is made applicable if there is any trial pending not if the trial has commenced. A case may be pending for trial even though the trial may not have commenced. In (1) State of Karnatka V. K.H. Annegowda and another (1977 Cr. Law Journal 220) one of the questions for determination was whether a case in which the ORDER :of commitment had been made on 15-3-1974 and pursuant to that ORDER :the records of the case had reached the court of the Sessions Judge on 23.3.1974, but the case was not actually registered and no number had been given to it by 31.3.1974, was a case pending for trial before the Court of Session on 1.4.1974, the date of commencement of the new Code. Bhagwati, J., who spoke for the Supreme Court In that case, dealt with that question thus:- “This contention was, however not pressed at the hearing of the appeal before us and it was conceded, and in our opinion rightly, that the ear liar case before the Sessions Judge was governed by the provisions of the old Code and the new Code had no application to it. Section 484 of the new Code clearly provides that where a trial is pending immediately before the commencement of the new Code, it shall be proceeded with in accordance with the provisions of the old Code as if the new Code were not in force. Here in the present case the Judicial Magistrate had already made an ORDER :of committal on 15th March, 1974 and pursuant to that ORDER :the records of the case had reached the court of the Sessions Judge on 23rd March, 1974. The case was, therefore, already before the Court of Session prior to 1st April, 1974 and it was pending before that court for trial on 1st April, 1974 when the new Code came into force. It is immaterial as to when the case was actually registered and a number given to it.” (at page 222 of the report). The Supreme Court expressly stated that the concession had been made rightly and proceeded to give reasons for holding that the concession was right. This decision of the Supreme Court is, therefore, a clear authority for the proposition that a case is pending before the court of Session after an ORDER :of commitment has been made and the record of the case had reached the court even though the case may not have been actually registered. At that stage, as the case had not even been registered, there can be no doubt that the trial of the case which could be held only by a Court of Session had not commenced. Still, the case was held to be one pending trial. The distinction between a case in which trial has commenced and a case which is pending trial has, therefore, to be kept in mind. 7. The term 'trial' was not defined either in the new or in the old Code, although the Code of 1872 defined it as a proceeding following a charge including punishment of the offender. The distinction between a case in which trial has commenced and a case which is pending trial has, therefore, to be kept in mind. 7. The term 'trial' was not defined either in the new or in the old Code, although the Code of 1872 defined it as a proceeding following a charge including punishment of the offender. As pointed out by the Supreme Court in (2) the State of Bihar V. Ram Naresh Panday ( AIR 1957 SC 389 ), the words 'trial' and 'tried' appear to have no fixed or universal meaning. They Eire words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provision under consideration. As the expression 'trial' in Section 484 (2) (a) follows the word 'inquiry', the expression 'trial' in Section 484(2)(a) may be regarded as being used in contradistinction to 'inquiry' which was defined in the old Code, Section 4(k) as 'every inquiry other than a trial”. To find out when an inquiry ends and trial begins, we have therefore, to consider the scheme of inquiry and trial in the old Code, with reference to the provisions prescribing the procedure for inquiry and trial. 8. In the present case, we are concerned with a case instituted upon a police report which has to be tried by a Magistrate in accordance with the procedure prescribed for trial of warrant cases. Cognizance of such a case was taken by a Magistrate upon a police report in accordance with the provisions of Section 190 of the old Code. The next step in the case was governed by Section 204 of the old Code which empowers the Magistrate to issue summons or warrant for the appearance or production of the accused, if be is of the opinion that there is sufficient ground for proceeding. The procedure for trial of warrant case tinder the old Code after the issue of process under Section 204 is regulated by Section 251 ownard occuring in Chapter XXI of the old Code. 9. Chapter XXI of the old Code is headed as 'Of the trial of warrant cases by Magistrate'. The procedure for trial of warrant case tinder the old Code after the issue of process under Section 204 is regulated by Section 251 ownard occuring in Chapter XXI of the old Code. 9. Chapter XXI of the old Code is headed as 'Of the trial of warrant cases by Magistrate'. Section 451 runs thus: “in the trial of warrant-cases by Magistrates, the Magistrate shall- (a) in any case instituted on a police report, follow the procedure specified in Section 251A; and (b) in any other case, follow the procedure specified in the other provisions of this Chapter”. Section 251A so far as it is relevant runs thus;- “251A(i) When, In any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished. (2) If, upon consideration of all the documents referred to In Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considers the charge against the accused to be groundless, he shall discharge him. (3) lf, upon such documents being considered, such examination, if any being made and the prosecution and the accused Being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (4) The charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried." Thus not only is Chapter XXI headed “Of the trial of warrant cases” but Section 251 in express term provides that a Magistrate shall in the trial of warrant cases instituted upon a police report follow the procedure specified in Section 251A. It is, therefore, manifest that Section 251A prescribes the procedure for trial of such cases and not the procedure for inquiry of such cases. Once, therefore, the stage of Section 251A is reached, the stage of trial has arrived. That conclusion is reinforced by the expression 'at the commencement of trial' used in Section 251A. It follows, therefore that in a case instituted upon a police report, once process is issued under 'Section 204 and the accused appears, the state of trial is reached. 10. I am fortified in my view by the definition of 'trial' given in (3) Gomer Sirda and others V. Queen Empress (I.L.R. 25 Calcutta 863). It was observed in that case that 'trial' means the proceeding which commences when the case is called on with the Magistrate on the Bench the accused in the dock, and the representatives of the prosecution on and for the defence if the accused be defended present in Court for the hearing of case. This definition of 'trial' given in I.L.R. 25 Calcutta 863 was quoted with approval and relied upon by a bench of the Bombay High Court in (4) Dagdu Govindset Wani V. punja Vedu Wani and others (AIR 1937 Bombay 55). The Lahore High Court has also taken a similar view; (See the decisions reported in 3 Lahore 115 and 6 Labore 176). In (5) R. Govindaswamy V. The State (AIR 1960 Andhra Pradesh 391) a leaned single Judge of the Andhra Pradesh High Court also expressed the view that in regard to warrant cases Instituted on police report, the trial under the old Code as amended by the 1955 amending Act, commences as soon as the stage of Sub-section (i) of Section 251A of the old Code is passed and that trial does not commence only on the framing of the charge. 11. I am conscious that the afore said view of the learned sing1e Judge of the Andhra Pradesh High Court has been dissented from by a bench of the Andhra Pradesh High Court in (6) Fakruddin and others V. State police, Nirmal (AIR 1962 Andhra Pradesh 236) in which it was observed that the trial commences only after charge was framad. I am conscious that the afore said view of the learned sing1e Judge of the Andhra Pradesh High Court has been dissented from by a bench of the Andhra Pradesh High Court in (6) Fakruddin and others V. State police, Nirmal (AIR 1962 Andhra Pradesh 236) in which it was observed that the trial commences only after charge was framad. In Govindaswamy's case (supra) after holding that the trial commenced once the stage of Section 251-A of the old Code is passed, Krishna Rao, J. went to hold that as under Section 251A (i) of the old Code there was no enquiry but only a trial by the Magistrate the ORDER :of discharge passed by the Magistrate under Sub-section (2) of Section 25lA was not a discharge within the meaning of Section 436 of the old Code and the Sessions Judge had, therefore, no power to direct further enquiry under Section 436 of the old Code. The same question namely, whether an ORDER :of further enquiry could be directed under Section 436 of the old Code in a case in which the accused had been discharged under Sub-section (2) of Section 251 A arose before the bench of the Andhra Pradesh High Court in Fakruddin's case (Supra) and the Bench held that a further enquiry could be directed after setting aside the ORDER :of discharge which could not be equated with an ORDER :of acquittal. If I may say so with respect, the decision on this point of the learned single Judge of the Andhra Pradesh High Court was clearly wrong and was rightly overruled by the subsequent Bench decision of the said High Court. Section 436 of the old Code empowers the High Court of the Sessions Judge to direct further enquiry into the case of any person accused of an offence who has been discharged. The jurisdiction under Section 436, therefore, is exercisable whenever by any ORDER :of the Magistrate the, accused is discharged. Section 436 does not say that the powers under Section 436 can be exercised only when the accused is discharged during an enquiry and not when he is discharged during a trial. That an ORDER :under Section 251A(2) is an ORDER :of discharge and not an ORDER :of acquittal is in my opinion beyond doubt. Section 436 does not say that the powers under Section 436 can be exercised only when the accused is discharged during an enquiry and not when he is discharged during a trial. That an ORDER :under Section 251A(2) is an ORDER :of discharge and not an ORDER :of acquittal is in my opinion beyond doubt. Section 251A (2) uses the expression 'discharge' in contradistinction to Sub-section (ii) of Section 251A (2) which speaks of 'acquittal'. If the intention of the legislature was that the ORDER :of discharge under Section 251A(2) must be equated with acquittal and was not an ORDER :of discharge it would not have used two different expressions 'discharge' and 'acquittal' in the same section. Section 436 follows Section 251A and other sections in which the expression 'discharge' has been used and it must be presumed that the expression 'discharge' was used in a, sense wide enough to comprehend an ORDER :of discharge under Sub-section (2) of Section 251A which is, as pointed out in Fakruddin's case, (supra) analogous to an ORDER :of discharge under Sub-section (2) of Section 253. The concision of the Judges in Paktruddin's case (supra) that the trial in its technical sense commences only when charge is framed by the Court under Subsection (3) of Section 251A of the old Code was, therefore not really necessary for the decision of the case. 12. Their view that the trial commences only after the charge is framed was greatly influenced by the view taken by the Madras High Court in decisions under the old Code prior to the 1955 Amendment that a trial did not commence till charge was framed. See the observations In (7) Ramanathan 'Chettiar V. King Emperor (I.L.R. 46, Madras 719) and (8) Sriramulu V. Veerasalongam (I.L.R. 38 Madras 585) and in the decisions reported in I.L.R. 32 Madras 220 and I.L.R. 43 Madras 511. The view of the Madras High Court was contrary to the view expressed by the Calcutta High Court in Goner Sirda's case (supra) and was dissented from by the Bombay High Court in Dagdu's case (supra) which, in my opinion, had taken more a correct view of the commencement of a trial. The view of the Madras High Court was contrary to the view expressed by the Calcutta High Court in Goner Sirda's case (supra) and was dissented from by the Bombay High Court in Dagdu's case (supra) which, in my opinion, had taken more a correct view of the commencement of a trial. Chapter XXI of the old Code even prior to the 1955 Amendment prescribed the procedure for ‘trial’ of warrant cases and Sections 252 and Section 253 prescribed the procedure for trial and they regulated the stage of the proceeding after on appearance even prior to the framing of charge. The proceeding before a Magistrate after the, appearance of the accused in response to the process issued even prior to the framing of the charge was thus expressly made a part of the trial even though it may have been in the nature of a preliminary enquiry till the framing of charge. The view cannot be countenanced that until a Charge was framed that the trial did not commence even though a part of the procedure which was a part of the procedure prescribed for trial had been gone through. What the Code had made expressly under the Code a part of the trial could not by interpretation be held to be not a part of the trial but a part of inquiry even though it may have similar incidents as an 'enquiry'. The Madras decisions do not take into account the aforesaid considerations and the observations therein that there is no trial prior to the framing of the charge to be based on the analogy derived from English common law under which a criminal trial is a trial of the general issue joined between the Crown and the accused on the latter’s plea of not guilty of the charges preferred against him. Whether the proceeding is a trial within the meaning of the Code has, where the statutory provision is explicit to be decided with reference to the provisions of the Code and not on analogies derived' from the common law. The decision of the Madras High Court in (9) Fakkirisamy Pillai (A.I.R. 1962 Madras 142) and in (10) re. Whether the proceeding is a trial within the meaning of the Code has, where the statutory provision is explicit to be decided with reference to the provisions of the Code and not on analogies derived' from the common law. The decision of the Madras High Court in (9) Fakkirisamy Pillai (A.I.R. 1962 Madras 142) and in (10) re. Rengaswamy and others (A.I.R. 1964 Madras 435) which have been relied upon by the learned counsel for the, petitioner fell in the same class as the decision of the Andhra Pradesh High Court in Fakruddin's case (supra) and the view contrary to the view expressed by me was neither necessary for the decision of the cases, nor correct The proceeding under Subsection (2) of Section 251A may not be a trial in the strict sensed but it is certainly a trial within the meaning of expression as used in the old Code. In my opinion, in a warrant case instituted upon a police report, once process under Section 204 of the Code was issued and the case, was pending for taking the steps provided for by Section 251A the case was pending for trial under the old Code, And it cannot be gainsaid that if on the date of commencement of the new Code the case was pending for trial under the old Code, there is a 'trial pending' within the meaning of the expression as used in Section 484(2) of the new Code. 13. In the present case, prior to 1.4.1974 not only process under Section 204 had been issued, but the accused had appeared and part of the procedure of Subsection (i) of Section 251A of the old Code bad been gone through because the Magistrate had caused the police papers to be furnished to the accused as required by Section 251A(i). In the instant case, therefore, prior to 1.4.1974, the trial was not only pending, but had commenced. It is manifest, therefore the instant case in which the impugned ORDER :has been passed was pending for trial in the court of the Magistrate and the trial had to be continued and concluded in accordance with the provisions of the old Code. Under the old Code, a Magistrate of the Second Class was competent to try the case, and therefore, the trial by the Magistrate Second Class, cannot be held to be without jurisdiction. 14. Under the old Code, a Magistrate of the Second Class was competent to try the case, and therefore, the trial by the Magistrate Second Class, cannot be held to be without jurisdiction. 14. In the result, the application is without merit, and, it is accordingly, dismissed. Application dismissed