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Dwarkanath Hansdas Khaparde Vs. Vithal Tulsiram Ramteke and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1977CriLJ1078; 1976MhLJ714
AppellantDwarkanath Hansdas Khaparde
RespondentVithal Tulsiram Ramteke and anr.
Excerpt:
.....commenced under chapter xvi is enabled if under the new code there are offences exclusively triable by the court of session, to follow the procedure under section 209 and to commit the case to the court of session. 15. as stated above and for these reasons and further as there being no dispute that the enquiry was pending in the instant case when the new code came into force and the offences made out were triable by the magistrate, the impugned order of committing the accused to the trial by the court of session is clearly contrary to the contemplation of the proviso appended to section 484(2)(a) of the new code......the code notwithstanding what is enacted by clause (a) of section 484(2). in other words, if in a pending enquiry the magistrate comes to the conclusion that the offence which are being enquired into under chapter xvi are not exclusively triable by the court of session, then the magistrate has to deal with the case taking cognizance of the same and try the accused as per the procedure enacted by this code. any other meaning of the proviso would lead to conflicting results. under the old code chapter xviii permitted and contemplated, the committal proceedings. there too. the court could come to the conclusion as to whether the case brought out offences required to be tried by the court of session or could be tried by the magistrate. no 'antithesis was contemplated as far as the.....
Judgment:

Masodkar J.

1. The petitioner is arrayed as an accused in a complaint presented by the respondent Vithal Ramteke to the Court of Judicial Magistrate, First Class, Nagpur on November 29, 1973. That complaint alleged offence under several counts such as Sections 406, 420, 465, 467, 468, 471, 472, 473, 474, 476 and 477-A of the Indian Penal Code. It is not in dispute that on February 28, 1974, the complaint was registered on all these 11 counts and process issued to the present petitioner-accused. The process issued with regard to offences under Sections 467, 472, 473, 474 and 476 of the Indian Penal Code which were exclusively triable by the Court of Session under the Code of Criminal Procedure, 1898 (hereinafter called the Old Code), would have reference to Chapter XVI read with Chapter XVIII of the Code as then applicable. Under the former Chapter the procedure regarding complaints to Magistrates is indicated while under the latter Chapter the procedure regarding the enquiry into cases triable by Court of Session or by High Court is indicated. Admittedly, the Code of Criminal Procedure. 1973 (hereinafter called the New Code) was applied on April 1, 1974, and on that day the process was not disposed of nor the proceedings pending before the Magistrate had terminated.

2. Eventually, by the impugned order passed on August 80, 1976 the learned Magistrate decided that as the Criminal Complaint was registered on February 28, 1974, i.e. prior to the New Code coming into existence, the case would be governed by the old Code only and it would require the accused to be committed for trial by the Court of Session. He applied the provisions of the New Code as far as the enquiry postulated under Section 209 of the New Code is concerned and committed the accused to face the trial before the Sessions Judge, Nagpur.

3. Now under the New Code the offences under Sections 467, 472, 473, 474 and 47ft I.P.C. are no more exclusively triable by the Court of Session. The Schedule appended to the New Code showed that these offences can be tried by the Magistrate of the First Class. Thus if the New Code applied to the enquiry that was pending on 1-4-1974, it would be obvious that under the Schedule the jurisdiction to try the offences even with regard to counts mentioned above would be that of the Magistrate and there is no need to further follow the procedure of Section 209 as to send the accused for trial by the Sessions Court.

4. The result would depend on the true construction of the proviso to Clause (a) of Sub-section (2) of Section 484 of the New Code, That reads as follows:

484. X X X X

(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 investigations shall be disposed of, continued, held or made, as the case may be, in accordance with the provision of the Code of Criminal Procedure, 1898 (5 of 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 Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.

(Emphasis added)

While interpreting the proviso, it is well settled that we have to approach it as a provision enacting an exception which but for it would be governed by the main part of the section. So approached, it will be indeed clear that enquiries which were pending at the commencement of the New Code are not only to be dealt with but are required to be disposed of in accordance with the provisions of the New Code. The phrase 'in accordance with the provisions of this Code' contained in the proviso is of wide amplitude and cannot be restricted merely to the procedural part of the enquiry as such and would also include the power and jurisdiction to try offences, the question about that essentially would arise at the close of such enquiry, When the enquiry is pending when the New Code was applied concerning offences it may result in an order directing trial of offences exclusively triable by the Court of Session or otherwise. If enquiry result in former it postulates submitting of the papers under Section 209 to the Court of Session and committing the accused to the trial by that Court. That would not be necessary if the Court taking cognizance is possessed of Jurisdiction by virtue of New Code to deal with the offence and the accused involved in the enquiry.

5. It is obvious in the scheme of the New Code that Chapter XVI deals with the commencement of the proceedings before the Magistrates and begins with issue of process under Section 204. Provisions pan materia with old Code regarding framing of the charge under Section 211 to Section 216 followed by the provisions regarding trial are indicated by Section 220. There are independent chapters regarding the trial before a Court of Session under Chapter XVIII, trial of warrant cases by Magistrates under Chapter XIX. as well of summons cases under Chapter XX and summary trial under Chapter XXI, These Chapters regarding the trials from Chapters XVIII to XXI have the foundation and bearing in the initial procedure indicated by Chapter XVI itself which is styled as 'Commencement of proceedings before Magistrates'. Thereunder, the Magistrate before whom the proceedings have been commenced under Chapter XVI is enabled if under the New Code there are offences exclusively triable by the Court of Session, to follow the procedure under Section 209 and to commit the case to the Court of Session. Equally, Magistrate is unable to take cognizance of the offences triable by the Magistrate and deal with it under the Code if the cognizance is competent by virtue of the Schedule.

6. We have referred to all these provisions, because it appears to us that the proviso contemplates in its clear connotation that the enquiries and their results have to be governed by the New Code. He term 'dealt with and disposed of applies the Code notwithstanding what is enacted by clause (a) of Section 484(2). In other words, if in a pending enquiry the Magistrate comes to the conclusion that the offence which are being enquired into under Chapter XVI are not exclusively triable by the Court of Session, then the Magistrate has to deal with the case taking cognizance of the same and try the accused as per the procedure enacted by this Code. Any other meaning of the proviso would lead to conflicting results. Under the old Code Chapter XVIII permitted and contemplated, the committal proceedings. There too. the Court could come to the conclusion as to whether the case brought out offences required to be tried by the Court of Session or could be tried by the Magistrate. No 'antithesis was contemplated as far as the Jurisdiction was concerned and that depended upon the eventual finding at the end of the committal proceedings. The stage of committing enquiry under that Code may thus result either in committing the accused for trial to the Court of Session or if the Magistrate is competent to take cognizance of the offence made out, such Magistrate would be empowered to try the said accused himself. Instead of all that enquiry a simplified provision of perusing the papers under Section 209 now is substituted, the result remaining the same.

7. Therefore the enquiry contemplated by Section 209 of the New Code would mean the enquiry as to whether under the New Code it is necessary to commit the case to the Court of Session. If such an enquiry indicates that by virtue of the schedule enacted the offence is triable by the Magistrate himself, and not by Court of Session, then it is not necessary to commit the case to the Court of Session and the Magistrate would follow the procedure as indicated either by Chapter XIX, XX or XXI and try himself the accused. That should be the plain result of applying the, proviso to the pending enquiry.

8. The provisions of this section i.e. Section 464(2)(a) of the New Code were considered by this Court in State of Maharashtra v. Chandrashekhar (1975 Mah LJ 607) where the present question really did not arise under the proviso itself. There the committal proceedings under Chapter XVIII of the Old Code had concluded by an order dated February 27, 1974, i e. before the New Coda applied, and the question was whether front that date the trial could be deemed to be pending. It was held that the provisions of Section 484(2)(a) in main part attracted, for, once the order of committal was made the trial was pending since 27-2-1974 However, while dealing with the provisions of Section 484, the Court stated in para 19 that there was an exception to the generality of the saving clause and that the pending enquiry will have to be continued and would be governed by the provisions of the New Code and not the old one.'

9. The Full Bench of the Gujarat High Court in H.N. Bhavsar v. State of Gujarat : (1974)GLR725 construed the words 'disposed of of this proviso as meaning 'finally disposed of. The Kamataka High Court in State of Karnataka v. Abdul Babiman understood the provisions of Section 484(2)(a), proviso to indicate that after the coming into force of the New Code the Jurisdiction enacted by the Schedule would be applicable as far as the cognizance of the offence was concerned and the jurisdiction under the Old Code will not be 'available only because the enquiry has to be conducted under Section 209 of the New Code. Similar such view is also taken by that Court in K. Keshavamurthy v. State of Karnataka .

10. Mr. Wahane brought to our notice two decisions to which we make a brief reference. In Sakatt Narayan v. Bhasani Lachu 1975 Cri LI 995, the Orissa High Court applied the proviso of Section 484(2)(a) where the enquiry with regard to the offence under Section 467 of the Indian Penal Code, was pending before the Magistrate on April 1. 1974, i.e., the date when New Code cam(c) into force, and held that because of Section 209 without taking any evidence the case has to be committed to the Court of Session, From the Judgment it appears that the Court did take the view that as the offence under Section 467 was exclusively triable by the Court of Session by the date of the coming into force of the New Code, the case would be triable by the Court of Session and the Sub-Divisional Magistrate would merely submit the case to the Sessions. Judge without taking further evidence. The question whether the words in the proviso to Section 484(2)(a) include the application of the Schedule which lays down the jurisdiction has not been expressly dealt with. As we indicated, proviso in terms required the Magistrate before whom the enquiry is pending to deal with and disposed of the matter in accordance with the New Code and, fa our view, these phrases in terms apply the provisions enacted by the New Code to the trial of offences along with authority to try the accused with reference to particular offences. The judgment does not show why the impact of these terms should not be taken into account

11. Another decision of the Patna High Court, Adya Prasad v. Rajindra Mahto , in Para % observes that on the facts as they obtained therein on April 1, 1974. the date on which the New Code came into force, at the most the enquiry under Chapter XVIII could be treated as pending before the Magistrate and further that in that situation, under the proviso, the Magistrate was to deal with and dispose of the enquiry in accordance with Section 209 of the New Code under which he was required to commit the accused to the Court of Session since the offence related to an offence under Section 886, Indian Penal Code exclusively triable then by the Court of Session under the Old Code and further that merely because this offence under the New Code has been made triable by the Magistrate of the. First Class could not make any substantial change so far as the commitment is concerned. The case, to our mind, with respects, stands on the same footling as the Orissa case.

12. We are in respectful agreement with the contrary view expressed in the Karnataka High Court decisions (supra).

13. We have already stated that this result is preferable in law as is implicit by the very nature and character of the enquiry to which the New Code is expressly applied. If it was a case governed by main Clause (a) of Section 484(2) dealing with pending appeal, application, trial, inquiry or investigation, then the saving would have been attracted, in that the Old Code would be in force That has been the view of this Court in State of Maharashtra v. Chandrashefchar 1975 Mah LJ 807. When however exception enacted, is attracted as applicable to the proceedings pending in inquiry and if such exception has to be given full force and full effect, then it cannot only refer to the application of Section 209 alone. For more than one reason this would be so.

14. Firstly proviso does not indicate that only Section 209 of the New Code is contemplated for the purpose of application. The terms of proviso are general and categorical. Once the enquiry is pending, the cognizance of the offence has to be taken in the manner as enacted by the New Coda Secondly Legislature, as usual, it is salutary to keep in mind, speaks out of the intent by its language. The words 'deal with and disposed of enjoin acting by the Magistrate or the authority in the Judicial disposition of the case. The meaning and the effect of that cannot be constricted so as only to apply Section 209 of the New Code leaving the entire trial to be governed for all other purposes including the jurisdiction and authority, by the old Code. Such an approach would overlook the plain meaning and purposes of enactment of 'saving' and 'non-saving' clauses of the New Code. Section 484(2)(a), with which we are concerned, enacts a saving of certain proceedings thereby indicating that the old Code will be the law in the matter saved. Proviso to clause (a) excepts certain proceedings from the saving itself. That is the primary intent and by inter-pretation the full effect thereof cannot be affected the language being plain and clear. It follows that once the matter is within the proviso, the law applicable to that matter is indicated to be the new Code and none of the provisions of the old Code would govern such matters. Thirdly, any other view by interpretation would result in applying two enactments, i.e. the two Codes, to the cause of the offence under enquiry. For, the enquiry would be carried on as per the provision of the Section 209 of the New Code while the trial would be relegated to the realm of the repealed old Code. Such an antilogy surely is not to be reached by interpretation. Fourthly, the phrase 'shall be dealt with and disposed of in accordance with the provisions of this Code', appears to be explicit as applying the New Coda In its natural meaning and conspectus it refers to all the provisions of the Code. In law to deal with an enquiry and to disposal of the same is the total process of determination by judicial authority, This determination or decision would include and involve the process of finding out the appropriate authority and jurisdiction to try the offence under the New Coda It is implicit that considerations of applying the Schedule which enacts the lawful authority to try the given offences, in the process completely contemplated by the term 'deal with and disposed of the enquiry'. Lastly, the process being of. determination, even under Section 209 the Magistrate, of necessity, and per force of the nature of the enquiry contemplated thereunder, would find Out whether tie offence is triable exclusively by the Court of Session as contemplated by the New Coda It would not be logical to subject the provisions of Section 209 of the New Code to the provision of the Old Code, so as to compel the application of the latter at the stage of making orders at the close of the enquiry under Section 209 of the New Code. Conceivably Legislature has not contemplated any such modality. Therefore, if the Magistrate is competent to cognise and to try the offence eventually disclosed during the course of the enquiry or at the close of it by virtue of the New Code enacted, the accused cannot be committed to trial by the Court of Session. In arriving at such a result neither any vested right of the accused is affected nor the cause of criminal adjudication in any manner prejudiced. Such construction on the other hand, in our view, achieves consistent results subjecting the persons facing 'enquiry' to the same persons of criminal adjudication.

15. As stated above and for these reasons and further as there being no dispute that the enquiry was pending in the instant case when the New Code came into force and the offences made out were triable by the Magistrate, the impugned order of committing the accused to the trial by the Court of Session is clearly contrary to the contemplation of the proviso appended to Section 484(2)(a) of the New Code.

16. Accordingly we allow this petition, set aside the order impugned and direct the Magistrate to proceed under the provisions of the New Code to try the accused if he is minded to take cognizance of the offences in question. Rule absolute. No. costs.


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