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1980 DIGILAW 136 (PAT)

Mundrika Singh v. Marni Kumari

1980-07-08

BIRENDRA PRASAD SINHA

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Judgment Birendra Prasad Sinha, J. 1. A complaint was filed by the opposite party against the petitioner and a few others on 3.10.1966 alleging offences under Ss. 418, 419, 420 and 467 of the Indian Penal Code. Cognizance of the offence was taken on 13.08.1968 and the matter was sent to a Magistrate for inquiry under Chapter XVIII of the Code of Criminal Procedure, 1898. Some witnesses were examined by the Judicial Magistrate and by the impugned order dated 25-4-1974 passed in Case No. 409C of 1966, the learned Judicial Magistrate committed the petitioner and the other accused persons to take their trial for the offences under Sections 418, 419, 420 and 467 of the Indian Penal Code before the Court of Session. 2. Learned Counsel for the petitioner has submitted that under the new Code which came into force on 1st April 1974, offences under Sections 418, 419, 420 and 467 of the Indian Penal Code are triable by a Magistrate of the first class. According to learned Counsel on 26-4-1974 when the impugned order was passed, the learned Magistrate could not commit the accused person to the Court of Session for these offences. 3. Sec. 484 of the Code provides that "if, immediately before the date on which this Code comes into force, there is any 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. "According to the proviso to Sub-section (2)(a), an inquiry under Chapter XVIII which was pending at the commencement of the new Code shall be dealt with and disposed of in accordance with the provision of new Code. This was obviously done in order to facilitate the speedy disposal of criminal cases. According to Sec.209 of the new Code, if it appeared to a Magistrate on a police report or otherwise that, the offence was triable exclusively by the Court of Session, the Magistrate may commit the case to the court of Session. Under the old Code, the prosecution witness was to be examined, but according to the new Code, on a perusal of the police paper, a Magistrate can commit the case to the Court of Session. Under the old Code, the prosecution witness was to be examined, but according to the new Code, on a perusal of the police paper, a Magistrate can commit the case to the Court of Session. In the present case, the learned Judicial Magistrate passed the order of commitment in accordance with the proviso to Sub-section (2)(a) of Sec. 484 of the new Code and committed the accused persons to the Court of Session under Sec.209(a) of the new Code. 4. The question for consideration is whether the accused persons can at all be committed to the Court of session for the offences under Sections 418, 419, 420 and 46/ of the Indian Penal Code when these offences are no more triable by a Court of session. An offence under Sec. 467 of the Indian Penal Code was triable by a Court of session under the old Code but that is no more triable by the Court of session under the new Code. Under Sec.209 of the new code read with the proviso to Sub-section (2)(a) of Sec. 484 commitment of a case to the Court of session for any offence which is not triable by that Court will be meaningless. In such a situation, the Magistrate instead of proceeding with the commitment inquiry, has to proceed straightway with the trial of the case. The commitment inquiry under Sec.209 of the new Code read with Sec. 484(2)(a) shall be only in respect of the offences which are triable by a Court of session under the new Code also. In such a situation, the petitioner and other accused persons could not be committed to the Court of session to take their trial under Sections 418, 419, 420 and 467 of the Indian Penal Code. The impugned order dated 26-4-1974 is accordingly set aside. Since this case has become very old, the learned Magistrate is directed to proceed with the trial himself as expeditiously as possible and should try to complete the trial within three months from the date of receipt of the records. Let the records be immediately sent down.