ABANI CHOWDHURY v. STATE — 1979 DIGILAW 392 (CAL)

P. C. Borooah, B. N. Maitra ( 1 ) ONE Haradhan Banerjee, an employee of the Union Co-operative Insurance Society Ltd, gave an information to the police. On 7. 10. 1969 the Police recorded an F. I. R. Investigation was taken up and then on 11. 12. 1976, chargesheet was submitted against one P. K. Roy Chowdhury then Claims Officer of that Company in respect of offences under Ss. 120b, 409, 467, 471, 477/09 before the Chief, Metropolitan Magistrate. He made a confession before the Presidency Magistrate, Calcutta. P. K. Roy Chowdhury applied for rendering him pardon and also for being examined as an approver. The defence raised an objection. On 28. 8. 1976, the learned Additional Chief Metropolitan Magistrate granted hi pardon and directed his examination under S. 306 (4) of the Criminal Procedure code, 1973. He was examined and cross examined before the Chief Metropolitan Magistrate. Then on 14. 2. 1979, he was committed to sessions by rejecting the defence contention that no such commitment could be made. When the matter came up before the learned Judge of the City Sessions Court, Calcutta, various objections were raised by the defence against the commitment. The learned Judge turned down the objection and stated that in view of the decision of the case of State v. Dilip Kumar Das in 1979 1 Calhn 240, the order of commitment had been made to the Court of Sessions according to the provisions of S 306 (5) (a) (i) of the Code. That order was final and he had no option but to try the case. Hence this revisional application by the accused. ( 2 ) MR. N. C. Banerjee, learned Advocate appearing on behalf of the petitioner, has contended that the decision of the learned Single Judge in the case of State v. Dilip Kumar Das is not correct. Though S. 306 (5) (a) (i) of the Criminal Procedure Code says that in such a case the Chief Judicial Magistrate can commit to sessions if cognisance had been taken by him, in fact, he has no such power of commitment because that section does not say that such a commitment would be made according to the provisions of S. 209 of the Code. Section 323 of the Code says that if in an enquiry into an offence or a trial before the Magistrate, it appears that the case is one into an offence or a trial before the Magistrate, it appears that the case is one which ought to be tried by the Court of Sessions, the Magistrate shall commit it to that Court. By an amendment made in 1978, it has been added at the end of that section that "thereupon the provisions of Chapter XVIII shall apply to the commitment so made. " But no such words have been added to S. 306 by any amendment. Since S. 209 alone deals with the provisions for commitment and inasmuch as those words are missing from S. 306 the Magistrate has no power of commitment. ( 3 ) MR. B. Mitter, learned public Prosecutor, has contended that the case of State v. Dilip Kumar Das was wrongly decided. Investigation was commenced in this case according to the provisions of the old Criminal Procedure Code. But in view of the saving provisions contained in S 484 (2) of the new Code, this case would be governed by the provisions of the old Code. He has referred to sub-s. (2), which says that notwithstanding the repeal of the old Criminal Procedure Code, if there is any appeal, application, trial, enquiry or investigation pending, then the same shall be disposed of continued, held or made as the case may be, according to the provisions of the old Code. The proviso to sub-s. (2) says that "provided that every enquiry under the 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. " ( 4 ) MR. P. C. Ghosh appeared as amicus curiae. He also has contended that he cannot support the decision of the case of State v. Dilip Kumar Das. There is no conflict between the provisions of S. 228 (1) (a) and of 306 (5) (a) (i ). Though in S. 306 it has not been stated that regarding such commitment made by the Chief Judicial Magistrate the provisions of Chapter XVIII of the Code will apply, but by evaluation the court will think that, in fact, it is a commitment authorised by the provisions of the Criminal Procedure Code. Though in S. 306 it has not been stated that regarding such commitment made by the Chief Judicial Magistrate the provisions of Chapter XVIII of the Code will apply, but by evaluation the court will think that, in fact, it is a commitment authorised by the provisions of the Criminal Procedure Code. Section 228 is not controlled by S. 306. Such commitment was made under S. 306 (5) (a) (i) read with S. 209. ( 5 ) WE shall first deal with the question whether the case will be dealt with according to the provisions of the old Criminal Procedure Code or by of the new Criminal Procedure code. Two Bench decisions of this Court reported in 1976 CHN 576 (State v. Abdul Rashid) and in 81 CWN 249 (Durgapada's case) are against this view. Mr. Banerjee has referred to the latest Supreme Court decision of Superintendent and L. R. v. Asutosh Ghosh in (1979) 4 SCC 381 at page 382. In that case no enquiry was pending when the new Cr. P. C. came into force. Only proceedings were initiated against the accused on the basis of a charge-sheet submitted by the police after completing the investigation. High Court quashed the proceedings in 1970. On an interpretation of the provisions of S. 484 (2) (a) of the Criminal Procedure code, the Supreme Court has stated that in view of the clear language enshrined in the proviso, the new Code will apply to the proceedings before the Committing Magistrate. That court will not take any evidence, but has only to see whether the case is exclusively triable by the court of sessions and the Magistrate will commit the case to sessions. When the enquiry was conducted into the case by the Committing Magistrate, the new Criminal Procedure code would be applicable. ( 6 ) THERE is a difference between investigation and inquiry. Inquiry has been defined in S. 2 (g) and investigation in S. 2 (h) of the Code. Inquiry means every enquiry, other than a trial, conducted under this Code by a Magistrate or court. A Police Officer is not empowered to conduct an inquiry or trial. Here, no enquiry envisaged by the roviso to sub-s. (2) of S. 484 of the new Criminal Procedure Code was pending when the new Code came into force on the 1st April, 1974. Only an investigation was then pending. A Police Officer is not empowered to conduct an inquiry or trial. Here, no enquiry envisaged by the roviso to sub-s. (2) of S. 484 of the new Criminal Procedure Code was pending when the new Code came into force on the 1st April, 1974. Only an investigation was then pending. That investigation was completed after the new Code came into force. Since no enquiry envisaged by the provisions of Chapter XVIII was then pending, we are of opinion that the matter will be governed by the provisions of the new Code, not of the old one. ( 7 ) THEN about the question whether the learned Single Judge rightly decided the case of State v. Dilip Kumar Das. In that case, the learned Single Judge has stated that there is a conflict between the provisions of Ss. 228 and 306 of the new Criminal Procedure Code. The former is a general provision and the latter a special one. The special or particular section will prevail over the general one. Since the S. 306 (5) (a) (i) statutorily enjoins on the Chief Judicial Magistrate to commit such a case to sessions, such order is binding on the Sessions Judge. In such a case, after the commitment, the sessions court cannot, according to the provisions of S. 228 (1) (a), transfer the case to a Magistrate. It has been further held that the provisions of S. 228 (1) (a) of the Code must give way and yield to the special provisions embodied in S. 306 (5) (a) (i) of the Code. ( 8 ) IN that case, the Sessions Judge transferred the case for trial to the Chief Metropolitan Magistrate according to the provisions of S. 228 (1) (a) of the Code. The Chief Metropolitan Magistrate disagreed and made a reference to the High Court. In that case, the offence was triable under S. 326 of the Code. Hence, according to the provisions of the Schedule of the new Code, the same is triable by a 1st Class Magistrate. ( 9 ) THE result of the decision is that though according to the S. 19 of the Criminal Procedure Code, the Chief Metropolitan Magistrate is subordinate to the sessions court, the latter's order of transfer under S. 228 (1) (a) does not become binding on the Chief Metropolitan Magistrate. ( 9 ) THE result of the decision is that though according to the S. 19 of the Criminal Procedure Code, the Chief Metropolitan Magistrate is subordinate to the sessions court, the latter's order of transfer under S. 228 (1) (a) does not become binding on the Chief Metropolitan Magistrate. But the Chief Metropolitan Magistrate's order of commitment under S. 306 (5) (a) (i) of the Code is final and binding on the Sessions Court. ( 10 ) IF there is really any conflict, the Court should try to make a harmonious construction. The relevant provisions of Clauses (a) and (b) of sub-s. (2) of S. 306 show that they apply to any offence triable exclusively by the Court of Sessions or by the Special Judge and to any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. ( 11 ) SECTION 228 (1) is divided into two parts. Sub-section (1) is not in conflict with the provisions of S. 306 (5) (a) (i) of the Code. It has already been indicated that sub-s. (2) (a) of S. 306 says that the section applies to any offence triable exclusively by the Court of Sessions or by the Special Court. Section 228 (1) (b) says that if after such consideration and hearing, the Judge is of opinion that there is a ground for presuming that the accused has committed an offence which is exclusively triable by the Court, he shall frame in writing a charge against the accused. Here, the Sessions Judge has no option of transfer because the case is exclusively triable by that Court. ( 12 ) SUB-SECTION (5) (a) (i) of S. 306 says that where a person has accepted a tender of pardon made under sub-s. (4), the Magistrate taking cognisance of the offence shall, without making any further enquiry into the case, commit it for trial to the Court of Sessions if the offence is triable exclusively by that Court or if the Magistrate taking cognisance is the Chief Judicial Magistrate. Section 306 (2) (b) applies to an offence punishable with imprisonment, which may extend to seven years or more. It has been indicated that in a case triable exclusively by the Court to Sessions that Court cannot transfer the case to a Magistrate. Section 306 (2) (b) applies to an offence punishable with imprisonment, which may extend to seven years or more. It has been indicated that in a case triable exclusively by the Court to Sessions that Court cannot transfer the case to a Magistrate. But when the Chief Judicial Magistrate takes cognisance of an offence under S. 325 of the Indian Penal Code, where the punishment is up to seven years, then according to the provisions of the Schedule to the new Criminal Procedure Code, the matter is triable by any Magistrate. So, that offence is not exclusively triable by the Court of Sessions. ( 13 ) HERE, we can refer to the provisions of Clause (a) of sub-section (1) of S. 228 which says that if after such consideration and hearing, the learned Judge is of opinion that the offence is not exclusively triable by the Court of Sessions, he may frame a charge against the accused and by order transfer the case for trial to the Chief Judicial Magistrate and thereupon the latter shall try such offence. Of course, an amendment of this clause has been made in the State of West Bengal. But such amendment is not germane for the purpose of the present Rule. Any way, when the offence is not exclusively triable by the Court of Sessions, the Session Judge clearly has an option because he may frame a charge against the accused and transfer the case of trial. Such indication has been clearly given by the Legislature by using the word "may" in Clause (a) and "shall" in Clause (b) of sub-section (1) of Section 228 of the Code. ( 14 ) SECTION 26 (a) (ii) of the Code says that subject to the other provisions of his Code, any offence under the Indian Penal Code may be tried by the Court of Sessions. Section 199 (2) says that in a prosecution for defamation, the Sessions Court may take cognisance of an offence without the accused being committed to it. Since in such a case there is no commitment, S. 237 (1) provide for a trial of such case not in accordance with the provisions of Chapter XVIII, but according to the warrant procedure enjoined by Chapter XIX of the Code. Sections 323 and 306 speak of commitment. Since in such a case there is no commitment, S. 237 (1) provide for a trial of such case not in accordance with the provisions of Chapter XVIII, but according to the warrant procedure enjoined by Chapter XIX of the Code. Sections 323 and 306 speak of commitment. The unmanned S. 323 showed that in a case contemplated by the provisions of that section, the Magistrate could commit it to sessions "under the provisions hereinbefore contained". Obviously this expression referred to the provisions of Chatper XVIII of the Code regarding commitment. Hence, there is no manner of doubt that such amendment made at the end of that Section in 1978 is wholly redundant. ( 15 ) AS soon as a statutory commitment is made to sessions under S. 323 or 306, all the provisions of Chapter XVIII come into the picture. Consequently in such a case the Sessions Court can apply the provisions of S. 227 (1) and discharge the accused, (2) proceed according to section 228 (1) (a) and try the case after framing the charge, (3) or after framing the charge transfer it to a Magistrate (4) That court can adopt the procedure envisaged by Clause (b) of sub-s. (1) of S. 228 and frame the charge. ( 16 ) MR. Banerjee has argued that S. 306 (5) (a) (i) uses the word "or". There will some sense in making a commitment only if the court holds that instead of "or" the word "and" shall be read in that section. As stated before, Clause (a) (i) says that in such a case, the Magistrate shall make a commitment to sessions if the offence is exclusively triable by that Court or if the Magistrate taking cognisance is the Chief Judicial Magistrate. If such submission is to be accepted, then we shall have to read the word "and" for the word "or" in that clause (a) (i) and that will offend against the well-established principles of interpretation of statutes. Again, if this argument is to prevail, then the provisions of S. 306 would become utterly useless because when a case is exclusively triable by Sessions Court, there is adequate provision in S. 209 to make a commitment. Again, if this argument is to prevail, then the provisions of S. 306 would become utterly useless because when a case is exclusively triable by Sessions Court, there is adequate provision in S. 209 to make a commitment. Then there was no necessity of enacting the provisions of S. 306 to deal with an eventuality when an offence, which is not exclusively triable by Sessions Court, can be committed to it because the punishment is seven years or more, say, under S 325 of the Code, where the offence is not exclusively triable by the Sessions Court. ( 17 ) IF the reasons given by the learned Single Judge are to be accepted, then the entire scheme of the Criminal Procedure Code regarding the subordinate of criminal courts and the powers wielded by the Sessions Court over the court of the Chief Judicial Magistrate or of the Chief Metropolitan Magistrate, as the case may be will be rendered wholly nugatory. ( 18 ) SECTION 337 of the old Criminal Procedure Code dealt with cases of tendering of pardon. Sub-section (2a) says that in every case, where a person has accepted a pardon and been examined under sub-s. (2), the Magistrate shall commit him for trial to the Court of Sessions or to the High Court, as the case may be. Of course, such commitment was made regarding offences which were exclusively triable by the Court of Sessions or by the High Court. But the changes brought about in the corresponding S. 306 of the new Criminal Procedure Code have already been indicated and it is not necessary to repeat the same. Here all the sections, under which commitment was made, are not exclusively triable by Sessions Court. ( 19 ) WE may state that Mr. Ghosh has pointed out that in Dilip Das's case a distinction was drawn between a case and an offence. Section 193 of the Criminal Procedure Code says that except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Sessions shall take cognisance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. Section 323 speaks of commitment of the case. Section 323 speaks of commitment of the case. Similarly, S. 306 (5) also says that where a person has accepted a tender of pardon under sub-s. (1) and has been examined under sub-s. (4), the Magistrate taking cognisance of the offence shall without making any further enquiry into the case, commit it for trial of sessions. ( 20 ) THUS, it appears that there is no conflict between the provisions of Ss. 228 (1) (a) and 306 (5) (a) (i) of the Criminal Procedure Code. By adopting the aforesaid interpretation, a harmonious construction of the provisions of Ss. 228 (1) (a) and of 306 (5) (a) (i) is possible. The learned Judge of the City Sessions Court fell into an error by saying that the order of commitment made by the learned Magistrate was binding on him. Hence, he declined to go into the merits of the objection taken. So, this order passed by him must be set aside. ( 21 ) MR. Banerjee has stated that this will entail a circuitous process. Now, when the Legislature has made such provisions for transfer in S. 228 (1) (a) of the Code, the circuitous procedure cannot be got rid of. ( 22 ) HENCE, we do not agree with the views expressed in the case of State v. Dilip Kumar Das reported in 1979 1 Calhn 240. By a legal fiction such commitment will be deemed to be made under S. 306 (5) (a) (i) read with S. 209 of the Code. We hold that S. 306 (5) (a) (i) is not a special provision and it cannot prevail over the provisions of S. 228 (1) (a) of the Code. ( 23 ) THUS, the matter will go back to the learned Judge, who will hear the objection on the merits, consider whether he will discharge the accused or frame the charge and retain the case in his file or frame the charge and transfer it to a competent Magistrate. Liberty is given to urge any other point which the petitioner might consider proper. ( 24 ) SUBJECT to the aforesaid observations the Rule is disposed of. P. C. Borooah, J: i agree. Rule disposed of.