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Shriyans Prasad JaIn Vs. Shanti Prasad JaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1977CriLJ1270
AppellantShriyans Prasad Jain
RespondentShanti Prasad JaIn and ors.
Excerpt:
- indian evidence act, 1872 section 24: [v.s. sirpurkar & deepak verma,jj] dying declaration - multiple murders by accused - dying declaration not implicating one accused - evidence of eye witnesses however completely fixing his criminal liability ocular evidence found credible held, absence of his name in dying declaration would be of no help to accused. - under sub-section (2-a) of that section he was required to commit the accused to the court of session, if he was satisfied from the statements of the approver that there were reasonable grounds for believing that the accused is guilty of an offence. alternatively he says that at best this is an independent proceeding under chap. however, shri desai argues that in a charge like section 409 read with section 120-b which is triable.....deshmukh, j.1. these two petitions arise out of an order passed by the chief metropolitan magistrate in criminal case no. 1/p of 1972 on an application dated 3rd february 1975 by original accused no. 1. the order was passed on 18th july 1975, against that order original accused no. 1 went in revision to the court of session, greater bombay, being criminal revision application no 242 of 1975. that application was disposed of on 1st october 1975. being aggrieved by this final order giving certain directions original accused no. 2 has filed criminal application no. 442/76 and original accused no. 1 has filed criminal application no. 909/76. though the points of view of the parties involved are different, the arguments are common and they are addressed against the same order of the learned.....
Judgment:

Deshmukh, J.

1. These two petitions arise out of an order passed by the Chief Metropolitan Magistrate in Criminal Case No. 1/P of 1972 on an application dated 3rd February 1975 by original accused No. 1. The order was passed on 18th July 1975, Against that order original accused No. 1 went in revision to the Court of Session, Greater Bombay, being Criminal Revision Application No 242 of 1975. That application was disposed of on 1st October 1975. Being aggrieved by this final order giving certain directions original accused No. 2 has filed Criminal Application No. 442/76 and original accused No. 1 has filed Criminal Application No. 909/76. Though the points of view of the parties involved are different, the arguments are common and they are addressed against the same order of the learned Magistrate as varied by the Addl. Sessions Judge. Hence these petitions are heard together and will be disposed of by this common order.

2. The relevant facts for the purpose of deciding these petitions are not in dispute. On a complaint lodged by the Deputy Secretary to the Government of India, Department of Company Law Administration addressed to the Additional Inspector General of Police, C. B. I., S. P. E. New Delhi, an offence Under Section 409 and Section 409 read with Section 120-B of the Penal Code was registered and the investigation was carried out by the C. B. I. Having completed the investigation, the Police applied on 4th July 1969 to Shri M. M. Dhruv, the Additional Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay, for granting pardon to two accused persons named P. L. Sah and T. P. George. They were granted pardon by the Magistrate on that day. Immediately after obtaining the order of pardon the Police filed charge-sheet on the same day in the same Court, viz. the Court of the Addl. C. P. M. 3rd Court, Esplanade, Bombay, presided over by Mr. M. M. Dhruv. Nothing (happened in the case for some time. On 5-1-1970 another application was filed requesting the Magistrate to grant pardon to present respondents Nos. 3 and 4 J. C. Jain and P. K. Roy. That application was in due course rejected by an order dated 19-10-1970. On 19-7-1971 examination-in-chief of T. P. George commenced obviously Under Section 337(2) of the old Code. When this case was instituted Cr. P. C., 1898 was in force and it was replaced by Cr. P. C., 1973 as from 1st April 1974. Since both these Codes are relevant, in this case, they will be refer-ed to as the old Code and the new Code respectively.

3. This examination and the cross- examination continued till 1st of January 1972 when the Presiding Magistrate Mr. Dhruv was promoted and appointed as the Chief Presidency Magistrate. After taking charge of his new assignment Mr. Dhruv in his capacity as the C. P. M. withdrew this part-heard case from the file of the Addl C. P. M. 3rd Court, Esplanade, Bombay, to his own court by an order dated 4th January 1972. The original case which was numbered as 485/P of 1969 in the Court of the Addl. C. P. M. 3rd Court, Esplanade, Bombay, was marked as Case No. 1/P of 1972. The part finished cross-examination of T. P. George was completed by 21st August 1972. The examination of the second approver P. L. Sah was commenced on 10th October 1972. His cross-examination was still in progress when the new Code came into force on 1-4-1974.

4. On 2nd May 1974 the prosecution made an application that the provisions of the new Code apply and without conducting any further inquiry the Magistrate should immediately commit the case to the Court of Session. This application was rejected by the Magistrate by his order dated 8-7-1974. He pointed out that the application was premature and he had to complete the recording of the evidence of the second approver without which no further action can be taken. This examination of P. L. Sah was concluded on 3rd February 1975 on which day original accused No. 2, now respondent No. 2, made the application in question which has led to the filing of these two petitions in view of certain orders passed by the Magistrate and the Additional Sessions Judge.

5. The controversy that is being raised has three aspects. In part, prosecution and accused No. 1 are agreed that to the present pending case before the Chief Metropolitan Magistrate the new Code applies but they differ as to which part of Sub-section (5) of Section 306 of the new Code applies. The case of accused No. 2 represented by Mr. Ashok Desai is that the old Code applies and the present pending ease must be disposed of Under Section 337(2) and (2-A) as if the new Code is not passed. Alternatively, however, accused No. 2 says that if the new Code applies he agrees with the point of view placed before the Court by accused No 1 and not the prosecution.

6. We may now state very briefly the rival points of view. Since there are two different petitions by two different accused persons, for convenience we will refer to them as accused Nos. 1 and 2 only. Original accused No. 2 is being represented by Mr. Ashok Desai and is the petitioner in Criminal Application No. 442/76. Original accused No. 1 is represented by Mr. J. C. Bhatt and is the petitioner in Criminal Application No. 909/76. The State is represented by Mr. P. P. Khambata.

7. According to Mr. Ashok Desai for accused No. 2, the C. M. M. was recording statements of approvers under Sub-section (2) of Section 337 of the old Code. Under Sub-section (2-A) of that section he was required to commit the accused to the Court of Session, if he was satisfied from the statements of the approver that there were reasonable grounds for believing that the accused is guilty of an offence. Undoubtedly, therefore, the C. M. M. was dealing with a warrant case under Chapter XXI as it was a case Under Section 409 read with Section 120-B of the Penal Code. He was so dealing with it subject to the provisions of Sub-section (2-A) of Section 337 which are an independent proceedings for the purpose of committing an accused person to the Court of Session for trial. The nature of the pending proceeding before any criminal court under the old Code is of vital importance because on the language of Section 484 of the new Code that would decide the Code that would control the further disposal of that case.

8. Since according to Mr. Ashok Desai the several pending matters described in Sub-section (2) of Section 484 of the new Code have got to be disposed of in accordance with the provisions of the old Code as if the new Code was not passed, ordinarily the old Code should govern the disposal of the pending cases. There is one exception incorporated in the proviso to that clause and that proviso says that if a pending matter is one under Chap. XVIII of the old Code, which means a committal proceeding, it has to be disposed of under the provisions of the new Code. Since, according to him, this is an independent committal proceeding Under Section 337 (2-A) and not one under Chap. XVIII of the old Code, old Code alone applies. The C. M. M. must now apply his mind to the statements of the approvers and the documents Under Section 337 and make up his mind, after further hearing the parties as required by Sub-section (2-A) of Section 337 whether he will commit the case or will discharge the accused. Alternatively he says that at best this is an independent proceeding under Chap. XXI read with Section 337 and must be disposed of under the old Code. It is his further argument that assuming that because a case was to be treated as committal case under Chap. XVIII, it was not committal proceedings simpliciter under Chap. XVIII, but was one under Chap. XVIII read with Section 337 falling under Chap. XXIV of the old Code. Since the proviso to Section 484(2)(a) of the new Code carves out an exception, it must be strictly construed and such a proceeding cannot be described as a committal proceeding simpliciter under Chap. XVIII. This in brief is the approach of accused No. 2.

9. As against this Mr. Bhatt for accused No. 1 says that Chap. XVIII of the old Code is the only Chapter dealing with the committal proceedings. Wherever the accused is required to be committed to the Court of Session for standing his trial he had to be so done under Chap. XVIII. The provisions of Chap. XXIV, as the heading of the Chapter itself would show, are general provisions as to inquiries and trials. These general provisions become relevant and apply to any inquiry or trial under the Code, since the scheme of the Code contemplates definite types of trials and inquiries which are prescribed under the various Chapters. The provisions of Chap. XXIV are merely supplementary and are to be added to and read as part of the various chapters dealing with inquiries and trials as and when application of any of these sections of Chapter XXIV is invited. The present pending proceedings before the Magistrate would thus be committal proceedings and nothing different. To such a committal proceeding falling under Chap. XVIII of the old Code the provisions of the new Code apply in view of the proviso to Clause (a) of Sub-section (2) of Section 484 of the new Code.

10. Upto here Mr. Khambata for the State is in agreement with Mr. Bhatt. However, hereafter they differ on the course to be adopted by the Magistrate in disposing of these pending cases under the new Code. According to Mr. Bhatt, Section 306 of the new Code would be now relevant which is a substitute for Section 337 of the old Code. He says that the recording of statement of an approver was required to be done Under Section 337(2) of the old Code and is still required to be done under Sub-section (4) of Section 306 of the new Code only in the Court of the Magistrate taking cognizance of the offence.

11. In the present case cognizance of the offence was taken by the Addl. C. P. M. 3rd Court, Esplanade, Bombay. When the case was subsequently transferred administratively by the C. M. M. to his own file, he must be deemed to be discharging the functions of the Addl. C. M. M. 3rd Court, Not only he has recorded statements till now in the discharge of his duties as Addl. C. M. M. 3rd Court, but he must now proceed to act under Sub-section (5) in that very capacity. The present Sub-section (5) of Section 306 has a different wording than Sub-section (2-A) of Section 337 of the old Code. Under the new sub-section after the tender of pardon and after the examination of approver under Sub-section (4), the Magistrate taking cognizance of the offence has without making any further inquiry in the case, to pass an order contemplated either by Clause (a) or Clause (b) which form part of the sub-section. Under the relevant provisions of Clause (a) if the offence is exclusively triable by the Court of Session the commitment shall be made to the Court of Session. If, however, the offence is not exclusively triable by the Court of Session but the person taking cognizance is the Chief Judicial Magistrate, then also the case will stand committed to the Court of Session. In any other case, Clause (b) would apply and the case would have to be made over to the Chief Judicial Magistrate to try the case himself.

12. The Chief Judicial Magistrate as denned in the new Code means for the purpose of the area of Greater Bombay the C. M. M. Since the Magistrate taking cognizance was the Addl. C. M. M. 3rd Court and the case was accordingly pending before the C. M. M. as a transferee court this case will be governed by Clause (b) and will have to stay with the C. M. M. for the purpose of trial by him. With this part of the argument Mr. Desai is in agreement, if this Court comes to the conclusion that the new Code applies.

13. Mr. Khambata, however, says that taking cognizance is not a momentary matter but is a continuing process. It begins when the Magistrate applies his mind judicially for the first time for the purpose of taking action with a view to prosecute and continues to be there all along till the Magistrate has seisin of the case. That being so, on the transfer of the case on 4th of January 1972 to the file of the C. M. M., the C. M. M. became the Court taking cognizance and until today he continues to be the Magistrate taking cognizance. In that view of the matter, the Magistrate taking cognizance being the Chief Judicial Magistrate, viz. the C. M. M., he is prohibited from making any further inquiry in the case and must at once commit the accused to the Court of Session for trial, without assessing the evidence or without bothering to consider whether any offence appears to have been committed or not. That being the requirement of the new Code, he must now pass more or less a formal order of commitment.

14. On such arguments being addressed, the learned C. M. M. came to the conclusion that he was entertaining an inquiry Under Sections 207 and 207-A read with Section 337 of the old Code. He had to complete the recording of evidence under Sub-section (2) of Section 337 of the old Code and he has to complete the inquiry under the old Code. He relied upon the Full Bench Judgment of the Gujarat High Court taking the view that where there is an approver the committal proceeding Under Section 337 (2-A) becomes an independent proceeding and as such not necessarily one under Chap. XVIII of the old Code. Having come to that conclusion, the learned Magistrate further found that though the first application of the judicial mind for the purpose of undertaking prosecution may have been made by the Addl. C.P.M. 3rd Court, he is also the Magistrate who is still exercising (sic--jurisdiction) over the case and as such he is also taking cognizance of the case. He relied upon certain observations of Blacker, J. in the Lahore judgment of 1939 and held that he will follow the old Code and accordingly after assessing the two statements of the approvers and the papers Under Section 173, the will pass an appropriate order Under Section 337 (2-A) of the old Code.

15. In the Revision Application the learned Addl. Sessions Judge, Greater Bombay, rejected the view that a proceeding Under Section 337 was a separate and an independent proceeding. He accepted a part of the argument of Mr. Bhatt and held that undoubtedly a case pending before the C. M. M. was a committal proceeding but one under Chapter XVIII of the old Code. That being so it had to be disposed of under the new Code. He further held that the present C. M. M. would also be the Magistrate taking cognizance for the purpose of Sub-section (5) of Section 306 of the new Code and as such he is now bound to pass an order of committal without further inquiry and without assessment of the evidence and the record. He directed the case to go back to the Magistrate to pass an appropriate order as indicated by him.

16. While the criminal case was pending before the C. M. M. in the circumstances detailed above, the new Code came into force. At that stage he had recorded fully the deposition of T. P. George and had recorded in part the examination-in-chief of P. L. Sah. The new Code came into force on 1-4-1974. It has repealed the old Cr. P. C. by Sub-section (1) of Section 484. However, under Sub-section (2) certain consequences which should follow notwithstanding the repeal have been enumerated, and to those consequences there is a further proviso by way of an exception. The relevant provisions are as follows :

484 (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 Criminal P. C., 1898, as in force immediately before such commencement (hereinafter referred to as the old Code) as if this Code had not come into force :

Provided that every inquiry under Chap. 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.

17. By a Division Bench judgment in Cr. Revision Application No. 575/74 to which one of us is a party (Deshmukh, J.) Clause (a) above has been interpreted. According to that view the pending matter whether it is appeal, application, trial, inquiry or investigation if pending has to be disposed of, continued, held or made as the case may be according to the provisions of the old Code. In other words only that proceeding or inquiry if pending has to be disposed of according to the old Code or if a trial was pending it has to be disposed of according to the old Code. As soon as the trial ends either in conviction or acquittal, the further remedy is under the new Code as it begins to apply and it is not necessary to refer to the provisions of the old Code for the purpose of the further course to be followed in a case of a pending litigation. However, that is not strictly relevant in this case at the moment. Even though that is the method by which all pending inquiries are to be disposed of under the old Code, one inquiry under Chap. XVIII has been carved out by the. exception for being disposed of under the new Code. If a Chap. XVIII inquiry was pending under the old Code, at the commencement of the new Code it has to be dealt with and disposed of in accordance with the provisions of the new Code.

18. This being the legal position, what was the nature of the proceeding before the C. M. M. on 1-4-1974 is of primary importance. Once the nature of that proceeding is decided the further course to be adopted for its disposal would be plain enough on the language of the above section.

19. We do not want to discuss at this stage the effect of the administrative order passed by the C. M. M. withdrawing the case from the file of the Addl. C. M. M. 3rd Court. We will look at this case for the time being just as a pending criminal case and determine its nature irrespective of the fact whether it should have been or ought not to have been transferred administratively by the C. M. M. to his own file at the particular point of time when he did. This topic will be dealt with a little later. In order to understand the nature of this proceeding, one has to go to its commencement on 4th of July 1969. According to Mr. Ashok Desai, the offence alleged by the Police in the charge-sheet presented on that day was Section 409 read with Section 120-B, I. P. C. The case relating to Section 409, I. P. C. is undoubtedly a warrant case. That case is triable, by the Court of Session, Presidency Magistrate or a Magistrate of the First Class according to the old Code. A charge-sheet was thus presented where ordinarily a Magistrate of the First Class or the Addl. C. M. M. was authorised to try the case according to law. In his view therefore this was a warrant case under Chap. XXI at its inception. It is true that there was an additional feature of this case in the form of pardon being obtained for two approvers during investigation. That was an equally lawful act on behalf of the prosecution as Sub-section (1) of Section 337 of the old Code permits pardon being obtained with a view to obtaining the evidence of any person at any stage of the investigation or inquiry into or trial of the offence. The procedure adopted by the prosecution in the present case is to apply for pardon for the first instance and after obtaining the pardon for the two accused, to present a charge-sheet against the rest of the accused persons. It is, therefore, argued that this being a lawful step, it was obligatory upon the Magistrate to record the statements of the two approvers Under Section 337(2) of the old Code. It is also argued that in case the satisfaction as required Under Section 337 (2-A) is reached on the basis of the relevant records, the Magistrate would be bound to commit the accused to the Court of Session. However, Shri Desai argues that in a charge like Section 409 read with Section 120-B which is triable by the Magistrate- himself the accused persons would be justified in assuming that the proceedings pending before the Magistrate are a trial under Chap. XXI of the old Code. He concedes that even in the case of such an offence if the Magistrate forms an opinion Under Section 207 of the old Code that the case 'ought to be tried' by the Court of Session, he may from the inception hold an inquiry under Chapter XVIII instead of a trial under Chap. XXI. He further accepts the proposition that at any stage of any inquiry or trial if it appears to the Magistrate that the case is one which 'ought to be tried' by the Court of Session, he shall commit the accused to the Court of Session. He is not quarreling over the proposition that where the offence is exclusively triable by the Court of Session there is a legal notice to the parties that the Magistrate will never try him and merely commit him to the Court of Session, if the offence is disclosed, or discharge him if there 19 no . evidence at all in the case. When a charge-sheet is presented where the offence is triable by the Magistrate, the proceeding would always be a warrant triable under Chap. XXI and unless the Magistrate so indicates by an appropriate notice to the accused, the. accused are entitled to presume that they are being tried before him and not enquired into for the purpose of committal.

20. For this argument he relied upon a judgment of the Supreme Court in Chhadamilal Jain v. State of U. P., : 1960CriLJ145 . Undoubtedly the Supreme Court expressed itself in unmistakable terms in relation to charge Under Section 406 for which alone the accused had notice that the accused were being tried under Chap. XXI and unless the Magistrate expressed his intention to commit them by holding an inquiry, they would not be made aware of their rights in an inquiry and to protect themselves against the procedure adopted by the Court. Their Lordships noted the argument of the prosecution that Section 207 always permits a magistrate to form an opinion and that formation can be done at any stage of inquiry or trial if those provisions are read along with Section 347 of the old Code. However, they say that when the only offence notified to the accused was one Under Section 406, I. P. C. he was bound to assume that he was being tried by the Magistrate. The Magistrate in such circumstances is bound to inform the accused that he intended to hold an inquiry under Chap. XVIII and not a trial. Without going much deeper in that judgment it appears to us that though technically the proposition is correct it has no application at all so far as the facts and circumstances of this case are concerned.

21. It cannot be assumed that where a charge-sheet presented before a Magistrate includes sections which are exclusively triable by the Court of Session, the accused at once knows under the first part of Section 207 of the old Code that mere inquiry will take place and he will be committed to the Court of Session for standing his trial. Mr. Desai also does not expect any notice in the case of that type. We may at this stage quote the provisions of Section 337(2) and (2-A) which are relevant and which will show the real nature of the proceedings that were pending before the Magistrate.

337. (2) Every person accepting a tender under this section shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent 'trial, if any.

(2-A) In every case where a person has accepted a tender of pardon and has been examined under Sub-section (2), the Magistrate before whom the proceedings are pending shall if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be.

22. In the present case pardon for two approvers was obtained before the presentation of the charge-sheet during investigation and thereafter the charge- sheet was presented. According to the above provisions of the old Code it was compulsory for the Magistrate taking cognizance of the offence to record the statement of the approver under Sub-section (2). It was equally obligatory upon the Magistrate under Sub-section (2-A) to commit the accused to the Court of Session provided 'an offence' appeared to have been committed. The nature of the offence is not relevant in this section, but the only requirement is that 'an offence' appears to have been committed. Can it be said that in the face of these provisions when the present charge-sheet was presented on 4th of July 1969 the accused had no notice that the Magistrate irrespective of his status and other powers could not have tried them at all, but could have merely held an inquiry either for discharging them or for committing them if 'an offence' appeared to have been committed There is no foundation at all in this case on which Mr. Desai seeks to build up an argument. We are not allured by the terminology of a case under Chap. XXI or a case under Chapter XVIII. Cases according to the Procedure Code are divided into Summons-Cases or Warrant-Cases. The definition of 'Summons-case' in Clause (v) of Section 4 of the old Code is a case relating to an offence, and not being a warrant case ; whereas under Clause (w) of the same section 'warrant case' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year. Depending upon the punishment prescribed for the offence alleged in the charge-sheet or the complaint, a case becomes a summons-case or a warrant-case. A case for an offence of murder for instance would be a warrant-case. If the title of the two Chaps. XVIII and XXI are taken into consideration they would show that the Chap. XVIII deals with inquiry into cases triable by the Court of Session or High Court and Chapter XXI deals with the trials of warrant-cases by Magistrates. The inquiry to be conducted under Chap. XVIII for the purpose of committing can relate to cases of two types. Where offence is exclusively triable by the Court of Session, the Magistrate has no option but to hold an inquiry for committal. Where the offence is otherwise triable by him and if he forms an opinion that the case 'ought to be tried' by the Court of Session, he shall commit it to the Court of Session. This formation of opinion in a case otherwise triable by him can be formed at the inception and if he does so he may have to notify to the accused that he intends to hold an inquiry. That would be the obligation on the Magistrate as required by the judgment of the Supreme Court in the case of Chhadamilal Jainv.State of U. P. : 1960CriLJ145 .

23. Where, however, the incapacity or incapability of the Magistrate to try the case in respect of the section being otherwise triable by him is writ large in the proceedings themselves, when an approver appears in the case at any stage and the provisions of Section 337(2) and (2-A) of the old Code are attracted, we do not think that in a case of the present type when the proceedings were instituted after obtaining the pardon for the approvers, the Magistrate is required to give any notice to the accused about the nature of the inquiry that was being held. If the Magistrate need not. give notice at all in a case where the charge of murder or dacoity is alleged that the proceedings will be an inquiry under Chap. XVIII he need not equally inform the accused when a proceeding involves the provisions of Section 337(2) and (2-A) that an inquiry alone is being made, and no trial could be held.

24. It is in this context that we make our observations that we are not so much allured by the terminology of 'Chapter XVIII case' or 'Chap. XXI case'. Every warrant case which is otherwise triable by the Magistrate can get itself converted into an inquiry under Chap. XVIII in two different ways. If the Magistrate forms an opinion that he will not be able to punish adequately the accused before him though the case is otherwise triable by him, he can so form an opinion and then adopt the procedure Under Section 207-A of the old Code. The second way in which the same result can come about is that he gives notice to try the case and would be in a position to inflict adequate sentence but a statutory prohibition comes in, preventing the Magistrate from trying the case like the procedure Under Section 337(2) and (2-A). In other words while the full-fledged trial under Chap. XXI is going on after framing charge and even after the cross-examination of several witnesses, an approver may appear on the scene and if pardon is granted by the Magistrate, he will be incapacitated from trying that accused though the offence may be triable by him and he may hold an opinion that he could adequately punish the accused. There is a statutory prohibition enacted by Section 337 (2-A) of the old Code from holding such a trial and the question of the opinion of the Magistrate becomes irrelevant. In a case where the offence is exclusively triable by the Court of Session and in a case of latter type when statutory provisions intervene and take away the Magistrate's jurisdiction for trial, those are notices to the accused and the Magistrate need not do anything as contemplated by the decision of the Supreme Court referred to earlier. None of the accused in this case can pretend that they were being tried by the Magistrate and that the nature of the proceeding was not an inquiry for committal from the inception.

25. It now becomes relevant to consider whether that inquiry for committal was one under Chap. XVIII or special committal proceedings Under Section 337 (2-A) of the old Code either read with or without reference to Chap. XVIII or XXI. Mr, Desai argues that Sub-sections (2) and (2-A) of Section 337 of the old Code represent independent Code for the purpose of committing an accused to the Court of Session when there is an approver in his case. The fiat of Sub-section (2-A) is that in every case where a person has accepted a tender of pardon and has been examined under Sub-section (2) the Magistrate before whom the proceedings are pending shall if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of Session or High Court, as the case may be. He also argued that in that case none of the provisions of Section 207-A will apply and no other evidence can be recorded. The Magistrate will have to take into consideration the papers Under Section 173 and the statement of the approver and decide whether the satisfaction required by that sub-section is reached. If the reference to the approver's statement under Sub-section (2-A) must be deemed to limit the Magistrate's right to consider matters before committal order is passed, we wonder why the papers Under Section 173 need be looked into. In our view the provisions of Section 337(2) and (2-A) introduce two factors in the case. When there is an approver the first requirement is that his statement must be recorded. The second requirement is that irrespective of the nature of the original proceedings, viz trial or inquiry, not only the proceeding becomes inquiry simpliciter for committal but on the requisite satisfaction being reached under Sub-section (2-A) even though the offence may be triable by the Magistrate and even though the Magistrate may be in a position to punish adequately the accused, he has to commit the accused to the Court of Session and not try himself. Subject to these overriding considerations, in our view, the inquiry is a full-fledged inquiry under Chap. XVIII for the purpose of committal and nothing more.

26. Mr. Desai seeks to draw considerable strength for his argument on the basis of the Full Bench decision of the Gujarat High Court. We will refer to it a little later after analysing the provisions of the old Code in our own way and after pointing out what according to us is the real nature of the proceeding when an approver appears on the scene.

27. A brief survey of the relevant provisions of the old Code will show that in the 'proceedings in prosecutions', which is the theme of Part VI of the old Code, Chap. XV deals with the jurisdiction of the criminal courts in inquiries and trials. The basic division of all the prosecutions, therefore, is that there is either an inquiry or trial. The word 'trial' has not been defined in the Code. However, 'inquiry' has been defined in Clause (k) of Section 4. Inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. It was conceded before us at the Bar that all steps taken by the Court until a charge is framed there is no trial, but the proceeding is merely inquiry. It is only after the framing the charge before the Court of competent jurisdiction that the trial begins. In Chap. XV of the old Code place of inquiry or trial and condition requisite for initiation of proceedings have been dealt with. Chapter XVI deals with the complaints to Magistrates and Chapter XVII deals with the commencement of proceedings before Magistrates. Then follows Chap XVIII which deals with inquiry into cases triable by the Court of Session or High Court. The provisions of this Chapter will show that where the offence, alleged is exclusively triable by the Court of Session or where the Magistrate forms a certain opinion that the case ought to be tried by the Court of Session he has to hold an inquiry under this Chapter. Chapter XIX deals with the form of charges. Chapter XX deals with the trial of Summons-cases by Magistrates and Chap. XXI deals with the trial of Warrant-cases by Magistrates. Chapter XXII deals with summary trials and Chap. XXIII deals with trials before High Courts and Courts of Session. Thus end the specific procedural provisions dealing with either inquiries or trials and they are followed by Chap. XXIV whose heading is 'General provisions as to inquiries and trials.' The provisions of this Chapter XXIV are common to inquiries and trials and such of these sections that become relevant either in an inquiry or trial the Court must take resort to them and dispose of the inquiry or trial before it also by taking into consideration the provisions of this Chapter, Chapter XXIV has not been drafted for the purpose of providing independent proceedings in the nature of inquiry or trial. These are supplemental proceedings. Whenever any section becomes relevant in an inquiry or trial that section will have to be read as a relevant section in that Chapter, It may be Chap. XX relating to summary-cases by Magistrate or Chap. XXI relating to trials of warrant-cases by Magistrate or it may be that it is an inquiry under Chapter XVIII of the Code. A section from this general Chapter whose application is invited becomes a part of that Chapter as if and is to be read for all practical purposes as an additional section in that Chapter.

28. A proper look at some of the sections of Chap. XXIV will show that none of them is intended to be an independent procedure either for an inquiry or a trial. Section 337 for instance, which is a controversial section before us, merely provides for the tender of pardon to accomplices and the manner in which their evidence is to be recorded at the level of the Magistrate's Court or thereafter at the trial. Section 338 for instance speaks of the power to direct tender of pardon after commitment of the case, but before judgment is passed by the Courts. Section 339 merely deals with the procedure for dealing with a person who has been granted pardon and who either remains faithful to the pardon or plays truant. Section 339-A is a procedure of the trial of Section 338. Section 341 for instance is a procedure where the accused does not understand the proceedings. The proceedings in relation to such an accused, though not insane, and could not be made to understand the proceedings, can be either inquiry or trial. That inquiry or trial has to proceed ahead either under Chap. XVIII or some other Chapter of the Code. This is a mere supplemental proceeding. Section 342 for instance is a general section permitting the Court to ask questions to an accused person at any stage of the inquiry or trial and the compulsion upon the court to ask such questions to the accused at the conclusion of the prosecution evidence and before the accused is called upon to enter his defence. Skipping over the other sections we may at once refer to Section 347 which is a relevant section for the present inquiry. It is a section falling in the general chapter and provides for a certain procedure to be adopted for committing an accused to the Court of Session. Section 347 is as follows :

347 (1) If in any inquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained.

(2) If such Magistrate is not empowered to commit for trial, he shall proceed Under Section 346.

This section is attracted at any stage of the inquiry or trial before a Magistrate and before he signs judgment if it appears to him at any stage of the proceeding that the case is one which 'ought to be tried' by the Court of Session. This expression 'ought to be tried' appears in the latter part. If it appears to the Magistrate he is undoubtedly required to commit the accused to the Court of Session, but this general section indicates the manner in which the committal proceedings shall be conducted and concluded. The ending portion of Sub-section (1) says that the accused will be committed under the provisions 'hereinbefore contained'. There is no dispute that this last expression has been judicially construed by the Supreme Court and it is held that the provisions 'hereinbefore contained' are none else but Chapter XVIII provisions.

29. We need not pursue this examination any further as it would be apparent from the scheme of the Code as narrated above that specific provisions have been made for commitment, trials and inquiries of certain types of offences. To all such inquiries and trials the provisions of Chap. XXIV are applicable when a certain step is required to be taken in conformity with one of the sections of these chapters. If that step requires to be taken as in conformity with the specific Chapter dealing with inquiry or trial, it must be held that these provisions will override to that extent the procedure, laid down in the relevant Chapter.

30. The procedure for all committal proceedings is laid down in Chap. XVIIIand all committal proceedings fall under that Chapter only. As and when some special provisions from Chap. XXIV are attracted that procedure gets modified to that extent but otherwise it is a committal proceeding under Chap. XVIII and under no other Chapter. It cannot be doubted that when a Magistrate forms an opinion that the case 'ought to be tried' by the Court of Session because he may not be in a position to punish adequately as contemplated by the second part of Section 207, the procedure Under Section 207-A has got to be adopted. If the. Magistrate otherwise comes to the conclusion or it appears to him otherwise that he cannot try, though the offence is some other ; but he must commit the accused to the Court of Session because of the statutory provisions as Under Section 337 (2-A), what procedure has he to adopt The expression 'ought to be tried' therefore needs some consideration. The formation of the opinion, or it 'appearing' to the Magistrate that the case 'ought to be tried' by the Court of Session can be considered from a little broader point of view. There are two old judgments of the Bombay High Court which throw considerable light on this part.

31. In the case of King Emperor v. Pema Ranchod (1902) 4 Bom LR 85 the First Class Magistrate of Surat committed to the Court of Session a criminal case Under Section 323, I. P. C. The learned Sessions Judge made a reference to the High Court to quash the commitment. The learned Judges of the Division Bench by a short order said that the words 'ought to be tried' (by the Court of Session) in Sections 207 and 347 of the Cr. P. C. must be read with Section 254 of the Code, and a case which ought to be tried by a Court of Session is one which the Magistrate is not competent to try or in which in his opinion adequate punishment cannot be inflicted by him. The incompetency therefore could be arising either out of statutory prohibition where the charges are exclusively triable by the Court of Session or the requisite opinion regarding punishment. For that purpose the learned Judges read not only Sections 207 and 347 together but also Section 254. There is no further discussion hut the general observation that incompetency and the formation of opinion regarding adequacy of punishment being the two grounds, any one of them will be relevant. Under Section 337 though the offence may be otherwise triable by the Magistrate, the provisions of Sub-section (2-A) take away the jurisdiction of the Magistrate to try, could it not be described as a situation where the case is one which now ought to be tried by a Court of Session if the requisite satisfaction is reached under that sub-section

32. In a later decision in the case of Emperor v. Krishnaji Prabhakar Khadilkar : (1929)31BOMLR602 the facts are peculiar. The accused was being tried for sedition Under Section 124-A of the I. P. C. The accused requested the Magistrate to commit him to the Court of Session in view of the importance and the gravity of the charge. From the report it appears that the learned Magistrate refused to commit the case to the Court of Session on the ground that there was already congestion of work in the latter Court. When the matter came before the High Court, the learned Judges of the Division Bench observed that it was not open to a Magistrate to decline to commit a case on the ground that there is congestion of work in the latter Court Ordinarily therefore the only other ground that can survive was that the Magistrate could not have inflicted adequate punishment upon the accused. That, however, was not the view of the Magistrate. Even then the learned Judges enlarged the scope of the expression 'ought to be tried' by the Court of Session and observed.

in committing a case to the Court of Session, the Magistrate has to bear in mind not only the fact whether he could pass an adequate sentence, but has also to pay regard to the gravity of the offence, the effect of the article, subject of the charge, on the public mind (where the accused is charged with sedition) and the public importance of the case.

What the learned Judges decided then is not strictly relevant but we are only pointing out that a situation will develop for various reasons which are legally relevant including statutory prohibition like Section 337 that it will begin to 'appear' to the Magistrate that the case 'ought to be tried' by the Court of Session.

33. For all such cases where it begins to the Magistrate to appear that the case ought to be tried by the Court of Session a general direction is given to him by Section 347 where the case was pending inquiry or trial that he shall commit the accused under the provisions 'hereinbefore contained'. In other words whatever the occasion for converting a regular trial into committal proceeding, the procedure that must be resorted to is that of Chapter XVIII and no other. If that is a correct import and meaning of Section 347, even if we were to assume for a minute that Section 337(2) and (2-A) contemplated a separate and independent proceeding for committal even that proceeding will be covered by Section 347. May be in spite of his opinion regarding adequacy of punishment, the Magistrate has to come, to same conclusion that the case ought to be tried by the Court of Session because of the statutory intervention in the form of Sub-section (2-A) of Section 337 of the old Code. The result however is that he gets a direction from Section 347 to follow the provisions of Chap. XVIII for the purpose of commitment.

34. We may now examine the correctness of this conclusion by taking a few instances. It is entirely different that in this case a pardon has been obtained before the presentation of the charge-sheet, but a certain meaning must be attached to Section 347 and the expression 'ought to be tried' must apply to all contingencies if that interpretation were to be correct. Since granting of pardon is possible at any stage from investigation to trial and pending trial before judgment is signed, we can well imagine that such a contingency might arise and it will have to be dealt with.

35. In the present case for instance it is easy for the learned Counsel Mr. Desai for the accused to argue that this is an independent committal proceeding Under Section 337. But how does it start. It starts with the presentation of a charge-sheet may be after pardon is obtained for the approvers. How does the Magistrate take cognizance of the offence in the first instance undoubtedly Under Section 190 of the old Code under Chap. XV. This cognizance is taken on the basis of a Police report Under Section 173 of the old Code, and therefore the cognizance is one under Clause (b) of Sub-section (1) of Section 190. After having taken cognizance of the offence he has to issue process and has to fix a date for the appearance of the parties long before the recording of the statements of the approver began. Under what provisions did he do it In our view undoubtedly Under Section 207-A (1). If the prosecution had applied for summons to witnesses either for examination or for production of document under Sub-section (2) of Section 207-A of the old Code, could the Magistrate refuse Then again did he not see in this case that all the papers Under Section 173 were delivered to the accused persons. If in a given case a pardon is not asked for before presentation of charge-sheet but after a part of the inquiry began under Sub-section (4) of Section 207-A in a case exclusively triable by the Court of Session, what would happen to the, evidence already recorded Is it to be brushed aside Is not the accused permitted to cross-examine witnesses including approvers, as a combined effect of Sub-section (5) of Section 207-A and Sub-section (2) of Section 337. The only expression used in Section 337(2) is 'examined as a witness', Which would mean examined as per Indian Evidence Act. It is true that in a regular inquiry Under Section 207-A (6) if the Magistrate finds from the evidence recorded and the documents Under Section 173 that the only charge he can frame is one where he can try himself, he could have done so. However, in view of Section 337 (2-A) he is prohibited from doing so and he is directed to commit the accused to the Court of Session. Under Sub-section (4) of Section 207-A the prosecution is entitled to produce such witnesses to the actual commission of the offence as it thinks proper and the Magistrate is obliged to record their statements. The Magistrate himself can call for additional witnesses if he considers them necessary. However, in a given case where there is an approver even though the prosecution offers no witnesses and the Magistrate requires to form opinion under Sub-section (4) of Section 207-A, can he avoid to record the Statement of the approver That would be acting contrary to the provisions of Section 337(2). It is in this manner that to the extent that Section 337(2) requires some positive action to be taken, that it supersedes the relevant provisions of Section 207-A. Reading closely the provisions of Sub-sections (2) and (2-A) of Section 337 the only direction of these statutory provisions is that an approver must necessarily be examined and if an offence appears to have been committed irrespective of the nature of that offence and irrespective of the Magistrate's authority to try the same, he has to commit the accused to the Court of Session. Sub-sections (2) and (2-A) of Section 337 do not substitute an entirely new procedure for committal. On the contrary they merely supplement the provisions of Section 207-A.

36. In our view therefore in a case of the present type, where the approvers have come on the scene even before a charge-sheet is filed, examining them is a must. In addition, if the prosecution produces more witnesses under Sub-section (4) of Section 207-A, the Magistrate would be obliged to examine them. He would otherwise follow the provisions of Section 207-A including the framing of a charge, notifying the same to the accused and then recording a small committal order by which the accused is committed to the Court of Session. This, according to us, would be the proper manner in which committal proceeding could be conducted and terminated as a result of the provisions of Section 347, which apply to all inquiries and trials pending before a Magistrate and irrespective of the stage at which an approver appears on the scene creating a situation that the case now ought to be tried by Court of Session. This approach, according to us, will serve every contingency and will not present any difficulty in properly committing the accused to the Court of Session. When we look to the provisions of Section 337(2) and (2-A) for treating them as independent and exclusive proceeding we are faced with one formidable difficulty. It is true that Mr. Desai for the petitioner, original accused No. 2, concedes that what the Magistrate must take into account for forming the Opinion under Sub-section (2-A) of Section 337 is not only the evidence of the approver but also papers Under Section 173. Apparently he got no authority for the proposition from the language of Sub-section (2-A) itself and probably he relies upon some observations of the Gujarat High Court Full Bench decision to which we will presently refer.

37. Looking to the provisions of Section 337 as such if it were to be argued that only an approver's statement is to be taken into consideration and nothing more, it can lead to disastrous results. Supposing as in the present case, the proceedings started by obtaining pardon first and presenting charge-sheet later. If it is correct that only approver's statement shall be recorded and this alone shall be considered for the purpose of passing a committal order an unforeseen result might follow. If two approvers were to state that none of the other accused before the Court has committed offence, what should be the consequence. Can the Magistrate now say from these statements alone that he reaches the satisfaction required by Sub-section (2-A). If not he will not commit. Not only he cannot commit but if the vague statements were the only material to be looked into he will have to straightway discharge the accused, as this is a contemplated result of an inquiry. Even under Chap. XVIII it is assumed that if no evidence is disclosed and there is no evidence connecting the accused with the crime, the inquiry may end in the discharge of the accused. The moment, how 1977 Cri. L. J./81 VII ever, there is some evidence connecting the accused with the crime, the Committal Court is prohibited from appreciating that evidence and has to immediately commit the accused to the Court of Session for his trial. We do not suppose that by treating Section 337(2) and (2-A) independently, the Legislature ever contemplated such results to follow. The material that can be taken into account in a proceeding of this type would always be the papers Under Section 173 ; the record of evidence of other witnesses, if any ; the statements of approvers and the statements of accused, if any under Sub-section (6) of Section 207-A and thereafter the satisfaction contemplated by Sub-section (2-A) of Section 337 is to be reached and the charge is to be framed in the first instance and then the order of commitment is to be passed as contemplated by Section 207-A.

38. So interpreted, the committal proceedings where there is an approver in a case, present no difficulties and appear to be consistent with the provisions of the scheme of the old Code. So considered, the committal proceeding in a warrant case where there is an approver and the offence is otherwise triable by a Magistrate does not become a separate proceeding but continues to be a committal proceeding under Chap. XVIII. Because of the approver relevant provisions of Section 337 become part and parcel of Chap. XVIII and where these provisions are in conflict with the original general provisions in Chap. XVIII, these additional provisions take precedence over them.

39. We may now consider the Full Bench judgment of the Gujarat High Court on which reliance is placed by Mr. Desai. In Kalu Khodav.The State AIR 1962 Guj 283 : 1962 Cri LJ 604 the learned Judges were dealing with a committal order passed by Judicial Magistrate, First Class where the accused was involved in offences Under Sections 395 and 398, I. P. C. which were exclusively triable by the Court of Session. However there was an approver whose statement was not recorded by the committing Magistrate. He committed the accused to the Court of Session, It is also clear that the pardon was granted in that case by a Sub-Divisional Magistrate, though the charge-sheet was subsequently presented before a Judicial Magistrate, First Class, and it is that Magistrate who committed that accused to the Court of Session. Two questions were posed before the learned Judges. One was, whether the grant of the pardon by Sub-Divisional Magistrate was lawful, With that question we are not concerned. The other was whether the order of commitment without recording statement of approver, vitiated the proceedings and the committal order itself, should be quashed. The learned Judges refer to the unreported judgment of a Division Bench of the Bombay High Court where similar situation has arisen, though the case was exclusively triable by the Court of Session. Committing Magistrate did not record the statement of the approver and committed the accused to stand his trial before the Court of Session. When such a matter readied this Court, the Division Bench consisting of Mr. Justice J. C. Shah, as he then was, and Mr. Justice Shelat, as he then was, took the view that non-examination of the approver was a curable irregularity or illegality Under Section 537 of the old Code. In both the cases the Benches had to consider the legality of the committal order and undoubtedly it was a committal order by a Court of competent jurisdiction. If that was so, when such a competent Court committed a mistake in the procedure of not examining the approver was it curable or incurable. The Division Bench took the view that it was curable as no prejudice was caused to the accused and the committal order was not vitiated.

40. However, the Full Bench of the Gujarat High Court to which Mr. Justice J. M. Shelat, as he then was, was also a party, took the view that the provisions of Sub-sections (2) and (2-A) of Section 337 are imperative and compulsory. Non-examination would amount to incurable illegality and would vitiate the committal order itself. To this extent the Full Bench takes a view contrary to that of the Bombay High Court. However, the purpose of the proceeding would have been served if the judgment had concluded at that stage. However, the learned Judges proceeded to observe that the procedure prescribed by Sub-section (2-A) of Section 337 is an independent procedure subject to the provisions of Section 207-A. These observations are being treated by Mr. Desai as indicating that the procedure under Sub-section (2-A) of Section 337 is an independent procedure.

41. We do not think that the Full Bench really permits such a conclusion being drawn. Even if it were, the learned Judges observe that after reading the statement of an approver the Magistrate has to take into account the papers Under Section 173 and the statements of witnesses and thereafter write his committal order if the requisite satisfaction under Sub-section (2-A) was reached. We have already indicated how we find it difficult to read the provisions relating to Section 337 (2-A) of old Code as providing for a procedure independent of Chap. XVIII. It cannot be said that the relevant provisions of Section 207-A get added as if to a separate inquiry Under Section 337(2) and (2-A). We are thus of the view that the Full Bench of the Gujarat High Court also does not assist Mr. Desai beyond a limit in developing his argument.

42. In the view, however, which we take of the proceedings Under Section 337, the only inquiry that was pending right from the institution of charge-sheet, is only one under Chap. XVIII and none else. However, a full-fledged procedure for inquiry into a case triable by the Court of Session has always been the theme of Chap. XVIII and Section 337(2) and (2-A) had to be read as part and parcel of Chap. XVIII. It may be that some changes came to be made later in Chap. XVIII by the introduction of Section 207-A but they still form part of the provisions of commitment under Chap- ter XVIII and to this Chapter XVIII is to be added Section 337(2) and (2-A). We are thus of the view that the procedural changes introduced from time to time must be deemed to form part of that procedure which is applicable to cases at that time. It is not necessary to think in terms of super-imposition of a section over the other. But it is enough to treat Section 337 (2-A) as part and parcel of Chapter XVIII for the purpose of concluding the inquiry under that Chapter as directed by Section 347 of the old Code.

43. There is a further argument possible, if necessary, to show that as soon as an approver appears in a case, the proceedings become one for committal irrespective of the earlier nature of the proceedings. For instance Sub-section (2) of Section 337 directs that when a person is granted pardon under that section, he shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and the subsequent trial if any. What does this mean It means that even if there is an approver who is examined, the proceeding may not go to trial for various reasons. The Government may withdraw from the prosecution and the prosecution will come to an end, if the Court permits. The papers Under Section 173 and the approvers' statements read together may disclose no offence in a given case and there may be discharge and there may be no trial at all. This is the obvious implication of the expression 'subsequent trial, if any' and this is precisely provided in detail by the substantive provisions of the inquiry Under Section 207-A. Sub-section (2-A) also merely deals with the committal order, if the satisfaction is reached as contemplated by that section. If not reached what is to be done This is not provided by that section, but the implication is that under the other provisions of Section 207 where no offence is disclosed or the evidence does not connect the accused with the crime he may have to be discharged. All this means that Sub-sections (2) and (2-A) of Section 337 cannot and do not provide an independent exclusive committal proceeding. This would be additional argument to support our conclusion that the committal proceeding is only one substantive proceeding provided by Chap. XVIII and that proceeding gets modified in its operation, in view of provisions like Section 337 depending upon the facts and circumstances of a given case. We have therefore no doubt that what was pending before the C. M. M. has always been right from its inception a committal proceeding because the two witnesses were already granted pardon during investigation and before the presentation of the charge-sheet. If the accused had legal notice of this position, the recording of statements was a part and parcel of the committal proceeding right from the beginning.

44. If that is the correct conclusion then it is obvious that what was pending before the Magistrate in this case, whoever he may be, was committal proceeding under Chap. XVIII. The proviso to Clause (a) of Sub-section (2) of Section 484 of the new Code is thus attracted and the pending proceeding has not to be disposed of according to the provisions of the new Code. In what manner that can be done now requires some detailed consideration.

45. When discussion of this question began, it became apparent that there has been violence to Sub-section (2) of Section 337 of the old Code ever since the then Chief Presidency Magistrate withdrew the case to himself on 4-1-1972. Who should record the statement of the approver has been laid down in unmistakable terms by the provisions of the old Code as well as the new Code. In that behalf the provisions are identical. Sub-section (2) of Section 337 of the old Code requires that the person accepting tender shall be examined as a witness in the Court of the Magistrate 'taking cognizance'. Who is this Magistrate, who can be described as the Magistrate taking cognizance. There is no dispute that it was the Addl. Chief Presidency Magistrate, 3rd Court, Esplanade, Bombay, then, that was the Magistrate who took the cognizance. The approver is to be examined as a witness only in the Court of the Magistrate taking cognizance and no other Court. When we look to the difference in the wording of Sub-sections (2) and (2-A) it will be further apparent that the Magistrate who would record the statement of the approver could be one, but the Magistrate who passes the order under Sub-section (2-A) could be different under the provisions of Section 337 of the old Code. Whereas the emphasis in Sub-section (2) is on the Court of a Magistrate 'taking cognizance', in Sub-section (2-A) the direction is that the Magistrate before whom the proceedings 'are pending' is required to pass the requisite order. The Scheme of the old Code therefore contemplates that a Magistrate will take cognizance and as soon as that is done, in that Court only an approver will be examined. The emphasis is not upon the person who probably may be transferred before the approver is examined but his court will exist. Whoever is manning that Court of the Magistrate taking cognizance will be the relevant court for examination of the approver. After the evidence of the approver is recorded the case may be still pending and it may be pending before any Magistrate. This may always mean that the provisions of Section 207-A were applicable and therefore until all those provisions are exhausted the final committal order could not be passed as required by Section 337 (2-A). There is no prohibition to any Magistrate before whom the case is now pending after the approver is once examined before the Court taking cognizance from passing the requisite order of committal.

46. However, in the new Code the language of Sub-section (5) of Section 306, which is a substituted section for Section 337 of the old Code is materially different. Sub-section (4) of Section 306 of the new Code is comparable to Sub-section (2) of Section 337 of the old Code. Clause (a) of Sub-section (4) requires that the approver shall be examined as a witness in the Court of the Magistrate 'taking cognizance' and in the subsequent trial, if any. To this extent the provisions are similar to the previous provisions. However, in Sub-section (5) of Section 306 in the opening clause it is laid down that where a person has accepted a tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate 'taking cognizance' of the offence shall 'without making any further inquiry' in the case commit it for trial etc. It is therefore apparent that under the new Code not only the approver must be examined in the Court of the Magistrate taking cognizance but it is the Magistrate taking cognizance alone who will pass the order under Sub-section (5). In other words recording of approver's statement and passing a committal order thereafter it becomes necessary, are both functions which are now entrusted to the same Magistrate. However in the old Code the Magistrate recording statements has got to be one who took cognizance of the offence but the Magistrate who could pass the committal order could be a different court altogether where the case may be pending. Here again a difference in the two provisions is consistent with the general scheme relating to committal contained in the old as well as in the new Code.

47. The old Code had a fairly elaborate committal proceedings incorporated in Sub-section (2-A). In fact a separate Chapter has been devoted in the old Code being Chap. XVIII of that Code. In the new Code Chap. XVI deals with the commencement of proceedings before Magistrates. It begins with Section 204 dealing with the issue of process and ends with Section 210 dealing with the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. In this Chapter now falls Section 209 which says that 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 commit the accused to the Court of Session. No procedure is indicated, no procedure is laid down and no recording of evidence or appreciation of evidence is called for. If the offence in the charge-sheet is one which is exclusively triable by the Court of Session, the Magistrate has to pass more or less a formal order of commitment and send the papers to the Court of Session. This being the spirit in which the new Code is drafted, Sub-section (5) of Section 306 is so provided as to merely compel the Magistrate to commit the case the moment he finds that there is an approver who is examined. Any further inquiry is prohibited. This only means that even a trial which was going on earlier gets itself converted into an inquiry as soon as an approver appears on the scene. When that happens the only inquiry further provided is the recording of his statement and the passing of the order of commitment without appreciating the evidence and without recording any satisfaction or even without conducting any further inquiry. It is in this manner that Section 306(5) has been brought on par with the provisions of Section 209 of the New Code, as similar Section 337(2) and (2-A) were on par with the provisions of Section 207-A of the old Code.

48. The other point with which we are faced is the proper Court where the controversial statement is to be recorded. Whether it is Sub-section (2) of Section 337 of the old Code or whether it is Sub-section (4) of Section 306 of the new Code, the Court where such statement could be recorded was the Court of the Magistrate who took cognizance. Undoubtedly the Addl. C. M. M. 3rd Court, Esplanade, Bombay, took cognizance of the case and in the Court of that Magistrate a part of the statement of approver George was being recorded. The cross-examination of T. P. George upto 18th of November 1971 was in the Court of Addl. C. P. M. 3rd Court. That was in consequence of the provisions of Sub-section (2) of Section 337 of the old Code. The case thereafter stood transferred to the Court of the C. P. M. The rest of the recording of the statement of George as also the entire statement of P. L. Shah is done by the C. P. M. or the C. M. M. as from 1st of April 1974. Whether this recording of statement of George and Shah after 4-1-1972 by the C. P. M. and C. M. M. is lawful at all Such a question was never raised either before the Magistrate or before the Additional Sessions Judge. No such point has been directly taken in either of the memos of the applications presented before us. However, while Mr. Bhatt tried to interpret the provisions of Section 306(5)(a) (i), the discussion led us to making a query whether the recording of statement by C. M. M. would itself be lawful. Mr. Bhatt thought over the matter for a day and next day stated before us that he is unable to find any provision which could legalise the recording of the statement of the approver by C. M. M. If the legislative fiat was that the recording of the statement must be in the Court of Magistrate taking cognizance, until we are able to say that the Chief Presidency Magistrate or the Chief Metropolitan Magistrate is also a Magistrate who could be deemed to be the Magistrate taking cognizance, it would not be possible to say that the recording of evidence by him is lawful.

49. As yet no effective order is passed and therefore this is not a case where Under Section 537 old Code we are required to consider the legality of any 'finding', 'sentence' or 'order' passed by the Court of competent jurisdiction. Apart from the actual course this litigation should take ii is open to doubt whether the C. M. M. can pass an order of commitment Under Section 306(5)(a) (i) of the new Code because the Magistrate who can do so must be one who has taken cognizance of the offence. Even if any committal order were to be passed in this case by the C. M. M., will that be an order of a Magistrate or a Court of competent jurisdiction. The provisions of Section 537 may not be attracted at all until we have either a 'finding', 'sentence' or 'order' by a Court of 'competent jurisdiction'. Mr. Bhatt therefore argued that this being a pure question of law arising out of discussion of law, and since this Court is seized of the entire case before it, it should apply its mind to this point and give appropriate directions.

50. When this question arose Mr. Khambata for the State relied upon the conclusions arrived at by the Magistrate as well as by the Additional Sessions Judge regarding the Magistrate who must be deemed to be the Magistrate 'taking cognizance'. To support those findings he argued that cognizance is not a static concept, but is a continuing one. It cannot be said that the Magistrate who applies his mind first to any of the material contained in Clauses (a), (b) and (c) of Section 190 of the old Code or the new Code is the only Magistrate who could be described as the one taking cognizance. Wherever the case is pending until it is finally disposed of, the Magistrates of those courts must be deemed to be the Magistrates taking cognizance until they ceased to do anything with the case. According to him, the C. P. M. had the authority to withdraw the case from the Addl. C. P. M. 3rd Court, Esplanade, Bombay to his own Court for inquiry and trial. That can be seen from the provisions of Section 528(2) of the old Code. According to that provision any Chief Presidency Magistrate or Sessions Judge may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him and may inquire into or try such case himself, or refer it for inquiry or trial to any other such Magistrate competent to inquire into or try the same. Under this provision the then C. P. M. withdrew the case to his own file. Undoubtedly that section contains a general power to the C. P. M. and the Sessions Judge. However, if Under Section 337 of the old Code the recording of the approver's statement had to take place only in the Court of the Magistrate taking cognizance and if taking cognizance is not held to be a continuous process, could the C. P. M. have the power to transfer the case at the stage at which the case was pending in the Court of the Addl. C, P. M. 3rd Court, Esplanade, Bombay. Observance of the provisions of Sub-section (2) of Section 337 of the old Code was a statutory obligation upon all Courts. If the only Court where such an examination could be held was the Court of the Addl. C. P. M. 3rd Court, until that recording was over was it permissible to the C, P. M. to exercise his power under Sub-section (2) of Section 528 of the old Code, at all. In the competition between the two sections, it appears to us that Sub-section (2) of Section 337 must prevail over Section 528(2). However, before such a conclusion is reached it would be necessary to decide as to who is the Magistrate taking cognizance as contemplated by the provisions of the Cr. P. C. whether old or new.

51. Mr, Khambata's argument about the continuity of cognizance is very difficult to understand or appreciate. It is true that that is the conclusion of the two Courts below. But both of them rely upon the observations of Blacker, J. in Arjan Singh v. Emperor AIR 1939 Lah 479 : 41 Cri LJ 65. The discussion of the case will show that the two learned Judges were agreed upon the final course to be adopted in the litigation but on the point of the Magistrate taking cognizance they differed. This difference of opinion was not relevant for the final disposal hence it was not referred to a third Judge. However, in view of this difference of opinion it is literally the observations of one Judge alone which support the argument of Mr. Khambata.

52. The observations of the learned Judge on p. 485 of the report show that in his opinion it was an error to regard the taking of cognizance as a single momentary act which can only be done once with regard to a particular offence. A study of the relevant sections indicates, in his opinion, that the taking of cognizance is a continuous act which commences as soon as the Magistrate applies his mind to the case and only ends when the Magistrate no longer has seisin of it. The learned Judge then proceeds to discuss the provisions of Sections 191 and 200 as also Ss 192 and 193 and the difference in the tenses used in those sections at different places The learned Judge therefore thinks that this difference in the language supports his conclusion that taking cognizance is a continuous process.

53. We must point out, with respect, that this reasoning of the learned Judgeand the present argument of Mr. Khambata based upon it, is against the well established and consistent reasoning of the other Courts including the Supreme Court, as can be seen from a long line of reported cases, Mr. Bhatt has cited for our reference a few judgments which will illustrate as to how there is no scope at all to take a view canvassed for by Mr. Khambata. The earliest judgment in point of time cited before us is the judgment of the Patna High Court in Gopal Marwari v. Emperor : AIR1943Pat245 . It is a Full Bench decision of the Patna High Court. Mr. Justice Meredith at p. 251 of the report directly deals with the question when cognizance is deemed to have been taken. What is the point at which cognizance must be deemed to have been taken That has not been defined anywhere in the Cr. P. C. It is a word of somewhat indefinite import. A judgment o the Calcutta High Court in Emperor v. Sourindra Mohan Chukerbutty ILR (1910) Cal 412 : 11 Cri LJ 217 was cited before the learned Judge where the observations were that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. Thereafter the learned Judge observes at follows :

That indeed expresses my own view. In my judgment, the word 'cognizance' is used in the Code to indicate the point when a Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings ; rather it is the condition precedent to the initiation of proceedings by the Magistrate. Cognizance is taken of cases, not of persons, and there seems to be nothing in theory to prevent a Magistrate from taking cognizance of a case even where the offenders are unknown. The fact that a Magistrate has taken cognizance does not necessarily mean that there will be judicial proceedings against any one. For example, where cognizance is taken upon a complaint, the complaint may be summarily dismissed, or may be dismissed after inquiry, Under Section 203. The accused may never be summoned, or made a party to the proceedings. In fact the person complained against may never become an accused person in the technical sense. Nevertheless, having regard to the terms of Section 200 it is clear that in such a case cognizance has been taken. Section 200 seems to regard the taking of cognizance as something prior even to the examination of the complainant upon oath, since the section says : 'a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath.

54. In Artatran v. State : AIR1956Ori129 the learned Judges observe in para, 15 of the report as follows :

Taking cognizance of an offence is a judicial act. The Magistrate is said to take cognizance as soon as he as such takes legal notice, and applies his mind to the suspected commission of the offence, with a view to decide whether he should take such judicial action preliminary to inquiry as is hereinafter mentioned, viz, recording a complaint, issuing processes, Or ordering a previous inquiry.

The term 'taking cognizance' has been defined as a judicial action permitted by the Code taken with a view eventually to prosecution and preliminary to the commencement of the inquiry or trial.

55. It may be noted that the observations and conclusions of the Patna High Court quoted above were expressly approved by the Supreme Court in R. R. Chari v. State of U. P. : 1951CriLJ775 . Their Lordships say that, in Gopal v. Emperor : AIR1943Pat245 it was observed that the word 'cognizance' is used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Magistrate. The Court noticed that the word 'cognizance' is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense.

56. Paragraph 9 of the report, which we are quoting as a whole will show that certain observations of the Calcutta High Court have been approved as laying down the correct law. Paragraph (9) of the report is as follows :

(9) After referring to the observations in Emperor v. Sourindra Mohan ILR (1910) Cal 412 : 6 Ind Cas 8 : 11 Cri LJ 217 it was stated by Das Gupta, J. in Supdt. and Remembrancer of Legal Affairs, W. B. v. Abani Kumar : AIR1950Cal437 as follows :

What is taking cognizance has not been defined in the Criminal P. C. and I have no desire to attempt to define it. It seems to me clear however, that before it can be said that any Magistrate has taken cognizance of any offence Under Section 190(1)(a), Cr. P. C. he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter, proceeding Under Section 200 and thereafter sending it for inquiry and report Under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind i. e. ordering investigation Under Section 156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.

In our opinion that is the correct approach to the question before the Court.

57. In Ajit Kumar Palit v. State of West Bengal : AIR1963SC765 the Court observes as follows :

(19) The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means -- become aware of and when used with reference to a Court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor : AIR1943Pat245 by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R. R. Chad v. State of Uttar Pradesh : 1951CriLJ775 that the word 'cognizance' was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan ILR (1910) Cal 412 : 11 Cri LJ 217 'taking cognizance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.

58. It would further appear that the same view has been repeated by the Supreme Court in the subsequent case as in Darshan Singh v. State of Maharashtra : 1971CriLJ1697 . The facts in this case deserve to be noted because they further illustrate the implication of the word 'cognizance' used in the Cr. P. C. In that case a charge-sheet was presented before the Magistrate Under Sections 419/109, 468 and 471 of the Penal Code. On such a report Under Section 173, Cr. P. C. the Magistrate took cognizance of the offence. When he held inquiry he found that a better charge to frame on the evidence appearing before him on the records was one Under Section 120-B rather than S 109, I. P. C. He did accordingly frame a charge and commit the accused. It is apparent that for taking cognizance of an offence Under Section 120-B a prior consent of the State Government was necessary which was obviously not obtained in this case. It became necessary to consider what is cognizance and what it means. In the facts of that case it was conceded that as the charge-sheet was presented the inclusion of Section 109 was a bona fide act on the part of the Police. When the Magistrate first applied his mind to the papers with a view to take action he took cognizance of an offence Under Section 109 and thereafter issued process. Even if therefore after examination of papers the better charge appears to have been framed Under Section 120-B, it could not be said that he was now taking cognizance of an offence for the first time. He had taken a valid cognizance of the offence when he examined the papers presented to him by the police. In that context the Supreme Court observed in para. 8 of the report as follows :

(8)As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a Police report prima facie he does so of the offence or offences disclosed in such report.

In para. 10 of the report after further discussion the Court observes as under :

It was at a later stage, i. e. at the time of passing the committal order that he considered that a charge Under Section 120-B was the more appropriate charge and not a charge Under Section 109 of the Penal Code, That being so, it must be held that the Magistrate took cognizance of the offence of abetment of an offence of forgery and impersonation so far as the appellant was concerned and not of the offence of criminal conspiracy, and therefore Section 196-A (2) did not apply.

59. We will only add that the same discussion is to be found in the latest judgment of the Supreme Court in the case of D. Laxshminarayanav.V, Nara-yana, : 1976CriLJ1361 . In para. 14 of the report this is what the Court observes :

The ways in which such cognizance can be taken are set out in Cls. (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint the Magistrate applies his mind for the purposes of proceeding Under Section 200 and the succeeding sections in Chap, XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police Under Section 156(3), he cannot be said to have taken cognizance of any offence.

60. In the face of this consistent case law, it is impossible to accept Mr. Khambata's argument that cognizance is a continuous process and the Magistrate who is for the time being seized of jurisdiction must also be deemed to be a Magistrate, who is taking cognizance of the case. Even in this regard we may refer to our earlier discussion regarding the difference of language in Sub-sections (2) and (2-A) of Section 337 of the old Code, Whereas Sub-section (2) refers to the Court of Magistrate 'taking cognizance', Sub-section (2-A) refers to a Magistrate before whom proceedings are pending. We have also earlier referred to the identity of expressions in Sub-sections (4) and (5) of Section 306 of the new Code. We are thus of the view that for the purpose of Sub-section (2) of Section 337 of the old Code so long as was in force, the only Court which could be described as a Court of the Magistrate taking cognizance of the offence, which in the present case was the Court of the Addl. C. M. M. 3rd Court, Esplanade, Bombay. It was an obvious error on the part of the then C. P. M. to have withdrawn the case from the file of that Court to his own file under Sub-section (2) of Section 528 of the old Code. If he had permitted the completion of the statements of the approvers and had transferred the case to himself under Sub-section (2) of Section 528 old Code if it were still to be in force, undoubtedly he would be the Magistrate before whom the case would be pending and the order of committal could be passed by him lawfully. There is an obvious reason why the old Code had different consideration. Until the new Code came into force between the Magistrate as such and the Sessions Court there was no other Court to which the case could go for trial where an approver appears.

61. The scheme of the new Code is quite different. It has created a new Magistrate called the Chief Judicial Magistrate in the mofussil. So far as the metropolitan area of Bombay is concerned, the Chief Metropolitan Magistrate is to be deemed to be the Chief Judicial Magistrate for the purpose of the new Code. This makes all the difference because in certain circumstances any other Magistrate than the Chief Judicial Magistrate is required to hand over a case for trial to the Chief Judicial Magistrate himself. This situation did not exist in the old Code, hence it did not matter where the case was pending after the completion of the recording of statements of approvers.

62. Since we are apprised of this situation at a stage where no final order is yet passed, it would not be proper for us to overlook this illegality and to permit continuance thereof. Before we indicate the proper order to be passed in this case, it would be proper to consider the scheme of Section 306 of the new Code and the course that must be followed in a litigation covered by the provisions of that section. Sub-section (1) of Section 306 of the new Code permits granting of pardon by certain Magistrates. There has been some difference in the scheme of this section as compared to the provisions of Sub-section (1) of Section 337 of the old Code. However, that need not detain us because it is not relevant to point out which are the Magistrates who can now grant pardon even in investigation and which are the Magistrates who can do so only during inquiry or trial. Sub-section (2) of Section 306 of the new Code merely describes the offence in respect of which alone pardon can be granted. Sub-section (3) of Section 306 is comparable to Sub-section (1-A) of Section 337 of the old Code. It indicates a formality of giving reasons for tendering pardon and the furnishing of the copy to the accused etc. It would be worthwhile to quote Sub-sections (4) and (5) of the present Section 306 as they now fall for our consideration :

(4) Every person accepting a tender of pardon made under Sub-section (1)--

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any ;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,--

(a) commit it for trial--

(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate ;

(ii) to a Court of Special Judge appointed under the Criminal law Amendment Act, 1952, if the offence is triable exclusively by that court ;

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

Under Sub-section (4) which is comparable to Sub-section (2) of Section 337 of the old Code it is the Court of the Magistrate taking cognizance of the offence that is relevant for examining approver as a witness. As we have already indicated the committal proceedings now being very much abridged and being almost in the nature of a formality, the provision above contemplated the completion of recording of the statement of the approver in the Court of the Magistrate taking cognizance and an immediate order being passed under Sub-section (5) by the same Magistrate. The requisite conditions under Sub-section (5) are now, where a person has accepted a tender of pardon made Under Sub-section (1) and where he has been examined under Sub-section (4) the Magistrate taking cognizance of the offence shall, without making further inquiry in the case. It is therefore the same Magistrate taking cognizance who has recorded the statements earlier will now pass the order. Clause (a) above has two parts. The second part is not relevant in this case. Clause (i) of Sub-section (a) and Sub-Section (b) of Section 5 are relevant for our consideration. Under Sub-clause (i) the commitment has to be to the court of Session, if the offence is triable exclusively by the Court of Session, or where the Magistrate taking cognizance is the Chief Judicial Magistrate. It is therefore obvious that only in two circumstances the committal of the case is to the Court of Session. If the offence is exclusively triable by the Court of Session, the committal is to the Court of Session ; and where the Magistrate taking cognizance is the Chief Judicial Magistrate it is to the Court of Session. If in a murder charge there is an approver and the Magistrate of the First Class in the moffusil or a Metropolitan Magistrate in Bombay took cognizance of the offence he would record the statement of the approver and immediately thereafter commit the case to the Court of Session for trial. However, where the offence is not exclusively triable by the Court of Session, even if the Magistrate taking cognizance happened to be the Chief Judicial Magistrate then he will commit that case to the Court of Session where the provisions of Sub-sections (4) and (5) above are attracted. If, however, the Magistrate taking cognizance happens to be the First Class Judicial Magistrate, then Clause (b) above is attracted which says that in any other case, make over the case to the Chief Judicial Magistrate, who will try the case himself. Since great emphasis is laid upon the Magistrate taking cognizance and upon the fact as to who is the Magistrate taking cognizance, the Court for committal, or the Court for making over the case, the observance of the provisions of Sub-section (4) of Section 306 of the new Code becomes extremely important and relevant.

63. We will point out what exactly would be the consequence if Sub-section (4) of Section 306 were not to be treated as imperative. The present Chief Metropolitan Magistrate has recorded a part of the statement of P. L. Sah and the whole of the statement of George. If this is to be treated as curable illegality, is he going to commit the case to the Court of Session, though he is not the Magistrate who has taken cognizance of the offence. If he is not a Magistrate taking cognizance for the purpose of Section 306(5) and for the further purpose of passing the committal order, can his court be treated as a Court of Magistrate taking cognizance validly under Sub-section (4) The interpretation of the expression 'Magistrate taking cognizance' must be the same for the purpose of Sub-sections (4) and (5). It would therefore appear that the entire proceedings before the C. M. M. from 4-1-1972 were unlawful. He had no jurisdiction to record the statements at all and not being a Magistrate taking cognizance of the offence lawfully, he is not competent to pass any order Under Section 5(a) (i).

64. Faced with this peculiar situation, the argument of Mr Bhatt at one stage was the recording of the statement may be treated as curable irregularity. Alternatively he suggested that in view of the unreported judgment of this Court in Criminal Revision Application No. 739 of 1958 decided on 2-9-1958 being still good law, at best this might be treated as a case where no statements of approvers are recorded at all. Even then a Chapter XVIII proceeding pending at the commencement of the new Code is required to be disposed of under the provisions of the new Code. The C. M. M. might be deemed to have performed the function of the Addl. C. M. M. 3rd Court, Esplanade, and as such the case should now remain on his own file for the purpose of further trial under Clause (b) of Sub-section (5) of Section 306 of the new Code. In view of the fact that the matter has come to our notice at an intervening stage, it is not possible for us to condone any illegality or irregularity when no final orders are passed either Under Section 537 of the old Code or Under Section 465 of the new Code.

65. As a result of our discussion it would be clear that the entire proceeding before the C, M. M. is without jurisdiction and unlawful on and from 4-1- 1972. The only course open to us is to quash that proceeding and declare it as unlawful. In the circumstances of this case, the only order that can now be passed is to direct the transfer of the case from the file of the C. M. M. to the file of the Addl. C. M. M. 3rd Court, Esplanade, Bombay, and to direct that Court to take steps for completing the record of the statements of approver under Sub-section (4) of Section 306 and thereafter to pass an appropriate order under Clause (b) of Sub-section (5) of Section 306 of the new Code.

66. We are aware that this will mean a great set back in the case and considerable labour put in by the learned C. M. M. may be lost. However, it is an unfortunate result to which every one seems to have inadvertently contributed. The C. M. M. may have transferred the case to his own file out of good intention to complete the part heard matter to which he had already applied this mind However, neither the accused nor the prosecution Counsel brought to his notice the provisions of Sub-section (2) of Section 337 of the old Code which require the recording of the statement by the Magistrate taking cognizance of the offence. If that was done by any one of them at the appropriate time, the Magistrate would have been required to consider the legal position and then decide whether he would exercise Ms powers under Sub-section (2) of Section 528 of the old Code. If this has not occurred to any one earlier, that cannot be made a ground to legalise which, is unlawful in its inception. It is true that Section 347 of the old Code falls in the general provisions of Chap. XXIV and permits any Magistrate to take action thereunder at any stage of the inquiry or trial. In the general Chap. XXIV of the new Code we find a similar section, being Section 323. Under this section, if in any inquiry into an offence or a trial before a Magistrate it appears to him at any stage of the proceedings before signing, judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained. What is meant by 'ought to be tried' has already been sufficiently indicated by us, when we referred to the two judgments of this Court in (1902) 4 Bom LR 85 and : (1929)31BOMLR602 : 30 Cri LJ 1090. It is upto the C. M. M. who may be trying the case to consider whether the provisions of Section 323 are still attracted to the proceeding be-fore him and whether he should commit the case. We, however, express no opinion in that behalf at this stage.

ORDER

67. Both the Criminal applications are partly allowed. The entire proceeding in criminal case pending before the C. M. M. from and after 4-1-1972 is quashed. The case is directed to be transferred to the Addl. C. M. M. 3rd Court Esplanade, Bombay, who will dispose of that case according to law and in the light of the discussion made by us in this order. Needless to add that this being a very old case, top priority will be given to it and it will be disposed of most expeditiously. If tine C. M. M. finds some way to enable the court of the Addl. C. M. M. 3rd Court to record the statements from day to day, it will be very much appreciated.


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