1. This is a revision petition which has been preferred by the State against the order of the Additional Sessions Judge at Hyderabad remanding the case for retrial to the Court of the Special Magistrate.
2. The brief facts are that 51 accused were charged for the commission of dacoity under Section 333 of the Hyderabad Penal Code. Before the trial commenced, pardon was tendered to one of the accused (Zurftqar) in March 1950 by the Magistrate of Taluka Gharbi. The case was transferred to the Court of the Special Magistrate who tried the same and recorded a mass of evidence covering about 157 witnesses. The Special Magistrate held the 24 accused, present before us, guilty of the charge and sentenced them to imprisonment of four years each. The rest of the accused were acquitted. Against that judgment, the accused who were convicted preferred an appeal before the lower Court which allowed the appeal and sent the case for retrial. The Government have filed this revision petition against that order.
3. The learned Judge of the lower Court has referred to two grounds on which he has held that the case ought to have been committed to the Court of the Sessions by the Special Magistrate (the trying Judge) and that he had no jurisdiction to try the same and convict the accused.
4. One glaring point which appears to us very clear in the judgment of the lower Court is that not only the present accused but all the accused who were acquitted have been sent for retrial, though there was no appeal by the Government before the lower Court against the order of acquittal. It is also stated by the learned advocate for the revision petitioner that no notice was given to those acquitted persons. Thus the order of acquittal could not have been set aside without any appeal from the Government or without any notice to them.
5. The first reason given by the learned Judge of the lower Court for quashing the order of the trial Judge is that : From the first of April 1951 the Indian Criminal Procedure Code was made applicable to this State and according to that Code the offence under Section 400, I.P.C. was exclusively triable by the Court of Sessions and therefore the trial of the case from that date was ultra vires till the day the Special Magistrate was vested with special powers under Section 30, Cr.P.C. We cannot agree with the said contention. The learned Additional Sessions Judge has not kept in view the provisions of Section 6 of the Part B States (Laws) Act 1951 by which the Indian Penal Code was made applicable to this State. The relevant portion of Section 6 states that the corresponding law in force in any Part B State shall stand repealed save as otherwise expressly provided for in the Act. There are four provisos in Section 6 and in our opinion proviso No. (d) which runs as follows is applicable in this case:
D. Any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act has not been passed.
6. From this proviso, it is clear that the legal proceeding which was started in this case; could have been continued and was rightly continued by the trial Judge and he was empowered to award punishment under the old Act (H.P.C.) as if the new Acts, the Indian Criminal Procedure Code or the Indian Penal Code had not been passed. Thus the view that the case was exclusively triable by the Court of Sessions making Section 400 I.P.C. applicable to the case cannot be agreed to Section 400, I.P.C. would not be applicable to the case in spite of the fact that the trial of the case continued even after April 1951, as under Section 6 of the Part B States (Laws) Act, 1951 the old Act still remained in operation on account of the above proviso. The observation of the lower Court that unless and until the Special Magistrate acquired special powers under Section 30, Indian Cr.P.C. he could not have heard this case is not also correct. The Special Magistrate, it is clear, has and does exercise the powers of a District Magistrate and under the provisions of the Hyderabad Cr.P.C. Schedule II an offence under Section 333, H.P.C. (under which the accused were prosecuted) was triable by the District Magistrate and lie could impose a punishment of 4 years. No question of the exercise of special powers under Section 30 arises in this case. That question would have arisen if the Special Magistrate had intended to or had actually imposed punishment higher than that of four years under the provisions of Section 30, Indian Cr.P.C.
7. The second point dealt with by the learned Additional Sessions Judge is that under the provisions of Section 337(2-A), Indian Cr.P.C. this case ought to have been committed for trial to the Sessions Court as there was an approver in this case and when pardon is tendered to an approver and his statement recorded, the case must be committed to the Sessions under the provisions of Section 337(2-A). Here it must ho observed that the provisions of Section 268H. Cr.P.C. are not the same as, those of Section 337, Cr.P.C. Clause 2-A which appears in Section 337, I. Cr.P.C. is not to be found in Section 268 of the H. Cr.P.C. It is to be remembered that Clause 2-A was introduced in Section 337, I. Cr.P.C. by an amendment made under the Criminal Procedure Code Amendment Act of 1923. Section 337 of the Indian Cr.P.C. as it stood before the amendment of 1923 was in many respects similar to Section 268H. Cr.P.C. Specially Clause (4) of Section 337 which reads as follows was in substance similar to the provisions of the Hyderabad Cr.P.C. Section 268:
(4) Every Magistrate other than a Presidency Magistrate who tenders a pardon under this Section shall record his reasons for so doing and when any Magistrate has made such tender and examined the person to whom it has been made, he shall not try the case himself, although the offence which the accused appears to have committed may be triable by such Magistrate.
Thus it is clear from above provisions and similar provisions in Section 268 of the H. Cr.P.C. that the only prohibition for trial was with regard to the Magistrate who actually tendered pardon and it was provided that the Magistrate who tendered pardon should not try the case himself. Another Magistrate having equal powers can try the case. It was not necessary, then, to commit the case for trial to a Court of Session. We are fortified in our view by the decision in - 1898 Pun Ro. No. 3 page 6, Queen-Empress v. Batera (A). In that case the same question was raised that where once pardon was tendered the District Magistrate had no jurisdiction to hear the case and he ought to have committed the case for trial to a Court of Session. It was held that the provisions of Section 337 of the Code must be construed strictly and that the disqualification created by the last paragraph of the Section applies only to that Magistrate before whom the suspected person was brought lace to face and who attempted to induce him by promise of pardon to make a true and full disclosure, the examination referred to in the said paragraph being the one made on the tender of the pardon and directly resulting from it. Thus another Magistrate can try the case. In the case before us, the case was not tried by the Magistrate who had tendered the pardon. From this point of view therefore the opinion of the lower Court is not correct.
We also have to keep in mind the provisions of Act I of 1951 by which Indian Criminal Procedure Code was made applicable to Part B States. Section 25 of the said Act (Clause 3) makes it clear that the provisions of Indian Cr.P.C. shall apply to all proceedings instituted after the coming into force of the said Act in any Part B State and 'so far as may be' to all cases pending in any criminal Court, in the State when the said Code comes into force therein. It is clear from the words used that the provisions of Indian Cr.P.C. would apply as far as may be. Their application therefore is not obligatory in all cases. When we read the provisions of this sub-section with the provisions of Section 6 of the Part B States (Laws) Act III of 1951, it is clear that the intention is to permit the courts to continue legal proceedings for the purposes of imposing such punishments as could have been imposed under the provisions of the Hyderabad P.C. It is unnecessary to say that the continuance of the proceedings in this case was for the purposes of imposing punishment (if the guilt be proved) under the provisions of the Hyderabad Penal Code and that could not be done if the provisions of Section 337, I. Cr.P.C. were strictly applied and the cases were to be committed to the Court of Session. The purpose, of saving clause in the Part B States (Laws) Act, was to give validity to the proceedings already undertaken and provide continuance of the proceedings till the termination of the case. Thus we are clearly of the opinion that the view taken by the lower Court is not correct and must be set aside.
8. We therefore hold that the trial was rightly conducted and continued by the Special Magistrate. The committal of the case for trial to the Court of Sessions, was not necessary. We set aside the order and judgment of the Additional Sessions Judge and direct the Sessions Judge to hear the appeals on, merits and dispose of the same according to law.
9. The learned Public Prosecutor drew our attention to the fact that the accused were unnecessarily released on bail by the lower Court, and as they had already been convicted by the Special Magistrate, it was not a fit case for their being enlarged in appeal. We prefer to leave this question to the discretion of the Sessions Judge to whom we have remanded this case. The Revision petition is allowed with the above directions.