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State of Karnataka Vs. Abdul Rahiman and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1976CriLJ928
AppellantState of Karnataka
RespondentAbdul Rahiman and ors.
Excerpt:
.....he, having failed to do that, the sessions judge was right in reasoning that the offences in question being not exclusively triable by the court of session as per the provisions of the new code, the magistrate ought not to have passed the concerned order of commitment......by the court of session, the oases were to be committed to the court of session.5. the learned sessions judge has found fault with this reasoning of the magistrate. he has, by the order in question, held that in view of the proviso to section 484(2)(a) of the new code, section 209 of the new code became applicable to the inquiries before the magistrate and as under schedule i of the new code, offences under sections 467 and 471, i.p.c. are not exclusively triable by the sessions court the magistrate ought not to have committed the cases to the court of session. it is, on this basis, that they sessions judge has quashed the order of committal and directed the trial of cases by the magistrate himself.6. shri a. b. patil, learned government pleader urged that the proviso to section.....
Judgment:
ORDER

M.S. Nesargi, J.

1. The State has filed these revision petitions, challenging the common order dated 16-4-1975, passed by the Sessions Judge, Shimoga, in Sessions Case Nos. 30 to 36 of 1974, quashing the order of commitment dated 19-6-1974, passed by the Judicial Magistrate, First Class, Bhadravathi, in C. C. Nos. 73, 202, 203, 204, 205, 206 and 552 of 1973, under Section 209 of the Code of Criminal Procedure, 1973, (hereinafter referred to as the 'New Code') and directing that the record should be Bent back to the Magistrate and the Magistrate should proceed to dispose of the cases, according to law,

2. The offences for which the respondents were committed are under Sections 120-B, 467, 468, 420 and 471, I.P.C.

3. Though the charge-sheets had been filed in the year 1972, the committal inquiries were pending in the Court of the J.M.F.C, Bhadravathi, even as on 1-4-1974, the date on which the new Code came into force.

4. According to Schedule II of the Criminal Procedure Code, 1898, (hereinafter referred to as the 'old Code'), an offence punishable under Section 467, I.P.C. was exclusively triable by a Court of Session. As such in view of the facts and circumstances-of this case-offence under Section 471, I. P. C-was also exclusively triable by the Court of Session. In view of the proviso to Section 484(2)(a) of the new Code, the Magistrate applied Section 209 of the new Code and passed the order of commitment in question. He. in this connection, reasoned that the offences under Sections 467 and 471, I.P.C. were exclusively triable by the Sessions Court, as per the provisions of the old Code and that was not changed by the proviso to Section 484(2)(a) of the new Code, but, what had been changed was only the procedure applicable to committal inquiries. He therefore concluded that the two offences being exclusively triable by the Court of Session, the oases were to be committed to the Court of Session.

5. The learned Sessions Judge has found fault with this reasoning of the Magistrate. He has, by the order in question, held that in view of the proviso to Section 484(2)(a) of the new Code, Section 209 of the new Code became applicable to the inquiries before the Magistrate and as under Schedule I of the new Code, offences under Sections 467 and 471, I.P.C. are not exclusively triable by the Sessions Court the Magistrate ought not to have committed the cases to the Court of Session. It is, on this basis, that they Sessions Judge has quashed the order of committal and directed the trial of cases by the Magistrate himself.

6. Shri A. B. Patil, learned Government Pleader urged that the proviso to Section 484(2)(a) of the new Code when read with Section 484(2)(a), would mean that only the cumbrous procedure of making a detailed inquiry as contemplated under Section 207 (a) of the old Code is done away. He urged that the proviso had no effect of interfering with the powers of the Courts as enumerated in Schedule II of the old Code.

7. Relevant portion of Section 484 of the new Code reads as follows:

484(1)...

(2)...

(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 Code of Criminal Procedure, 1898, as in force immediately before such commencement, (hereinafter referred to as the Old Code), 0s 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.(b)...

(c)...

(d)...

(3)...

It is plain that in view of proviso to Section 484(2)(a) of the new Code, every inquiry under Chapter XVIII of the Old Code is excluded from the operation of Sub-section (2) (a) and that such inquiry has to be dealt with and disposed of under Section 209 of the new Code only. The proviso does not save Schedule II of the Old Code. On the other hand, it manifestly makes the whole of the provisions of Section 209 of the New Code applicable. That means that Schedule I of the New Code also would have to 'be taken into consideration. Therefore, the Magistrate was not right in reasoning that the offences under Sections 467 and 471. I.P.C. being exclusively triable by the Court of Session as per Schedule II of the Old Code, order of commitment was to follow. What the Magistrate had to consider in view of Section 209 and proviso to Section 484(2)(a) of the New Code was, whether as on 1-4-1974 and thereafter, offences concerned in a committal inquiry were exclusively triable by the Court of Session as per the provisions of the new Code. He, having failed to do that, the Sessions Judge was right in reasoning that the offences in question being not exclusively triable by the Court of Session as per the provisions of the New Code, the Magistrate ought not to have passed the concerned order of commitment. No fault can be found with this reasoning of the learned Sessions Judge.

8. Whether the Sessions Judge had or had not, in exercise of his jurisdiction under Section 399 of the New Code, power to quash the order of commitment need not be, in my opinion, gone into, in view of Section 228 of the new Code.

9. Section 228 of the new Code lays down that in a case committed to Sessions Court, if the offence concerned is not exclusively triable by the Court of Session the Sessions Judge may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial or warrant cases instituted on a police report.

10. The learned Sessions Judge ought to have, instead of exercising his power under Section 399 of the new Code, exercised his power under Section 228 of the new Code.

11. By the order in question, the Sessions Judge has directed that the Judicial Magistrate, First Class, Bhadravathi, should hold the trial and dispose of the cases. On the other hand, he ought to have by the order in question, directed the Chief Judicial Magistrate to try the cases and dispose of the same. Of course, while passing such direction, the Sessions Judge ought to necessarily transfer the cases to the file of the Chief Judicial Magistrate. The Sessions Judge is directed to pass an order accordingly.

12. It is with the aforementioned observations that these petitions are dismissed.


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