G.K. Misra, C.J.
1. There was a Postal Savings Bank Account in the Sub Post Office at Parlakhemundi in the name of one S. Appalswamy. He was seriously ill from 5-10-1969 and ultimately died on 25-2-1970. On 29-11-1969 the accused persons withdrew Rs. 4,000/- from his Savings Bank Account by forging the withdrawal application. Accused B. Lachu is the sister of the deceased wife of Ap-palswamy. Accused Rama Rao is a mail peon in the Parlakhemundi Sub-post Of-1 fice. S. Narayana, brother of deceased Appalaswamy, lodged F, I, R. on 10-9-1971 in the 'Parlakhemundi police station for offences under Sections 120B, 406 and 467, Indian Penal Code. On 20-12-1971 police submitted final report. S. Narayana filed a protest petition on 23-12-1971 which was treated as a complaint. The Sub-Divisional Magistrate, Parlakh-mundi recorded the initial statement of the complainant on 3-1-1972 and took cognisance under Sections 406/34 and 467/34, Indian Penal Code and issued summons to the accused persons. It is to be noted that under the Criminal Procedure Code, 1898 (hereinafter to be referred to as the old Code) Section 467, Indian Penal Code is exclusively triable by the Court of Session. Accordingly the learned Magistrate followed the procedure for committal enquiry as provided in Sections 208 to 213 of the old Code, On 24-1-1973 and 25-1-1973 P. Ws. 1 to 3 were examined and the case was adjourned for further evidence of the prosecution. On 30-1-1973 the complainant filed a memo to summon the post master of Parlakhemundi Sub-Post Office to produce the specimen signatures of the deceased Appalaswamy, and to examine Shri Balaram Adhikary, the then Savings Bank Clerk. On 23-2-1973 P.W. 4 was examined. On 26-2-1973 arguments were heard on the application dated 30-1-1973 and another application to the same effect filed on 23-2-1973. After hearing arguments the learned S. D. M. rejected the prayer of the complainant to examine Balaram Adhikary and to summon the post Master, Parlakhemundi Sub-Post Office. Against the order of the learned Magistrate Criminal revision No. 9 of 1973 (G) was filed before the Sessions Judge, Ganjam..which was dismissed on 29-8-1973. This revision application has been filed to set aside the order of the learned Magistrate.
2. If the Criminal Procedure Code, 1973 (hereinafter to be referred to as the new Code) had not come into force, this revision application would have been allowed straightway. The evidence of Balaram Adhikary is very material to the prosecution case and the documents called through the Post Master are also essential. The committal proceeding would have been complete after having those materials before the case would have been committed to the Court of Session.
3. The question for consideration however is whether the same direction would be given after the new code came into force. It is to be noted that under the new code Section 467, Indian Penal Code is triable by a Magistrate, First Class, and not by the Court of Session. There is no fundamental difference in the procedure between the trial of warrant cases and committal proceedings under the old Code. By a common sense view one would be inclined to say that the evidence called for by the complainant should have been examined by the Magistrate himself in a warrant trial without making further commitment.
4. Section 484 of the new Code, so far as relevant, runs thus;-
484. Repeal and savings:- (1) The Code of Criminal Procedure, 1898, is hereby repealed.
(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 provision of the Code of Criminal Procedure, 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; XX XX XX XXIt would thus appear from Section 484(2)(a) proviso -that on 1-4-1974 when the new code came into force the committal enquiry was pending. Such enquiry shall be disposed of and continued in accordance with the provisions of the old code. In other words, the committal proceeding would have continued by virtue of the first part of Section 484(2)(a) without the proviso.
The proviso however prescribes that every enquiry under Chapter XVIII of the-old code which is pending at the commencement of the new code shall be dealt with and disposed of in accordance with the provisions of the new code. In other words, committal enquiry pending by 1-4-1974 shall be disposed of in accordance with the provisions of the new code.]
5. Section 209 of the new code' deals with Commitment of a case to Court of Session when offence is triable exclusively by it. The section runs thus:-
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-
(a) commit the case to the Court of Session;
(b) subject to the provisions of this code relating to bail, remand the accused to custody during and until the conclusion of, the trial;
(c) send to that court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the court of Session.
When the accused appears before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, then he shall commit the case to the Court of Session. Under the new Code he shall not record any evidence. In this case the accused had already appeared before the Magistrate and as the committal proceeding was pending by the date of the coming into force of the new Code, the Magistrate shall proceed with the committal proceeding in accordance with the provisions of the new code which does not prescribe that any evidence is to be taken. The net result is that Section 467, Indian Penal Code being exclusively triable by a Court of Session by the date of the coming into force of the new Code, the present case would be triable by the court of Session and the S. D, M. would merely submit the case to the Sessions Judge without taking further evidence. The Sessions Judge would proceed with the trial of the case.
6. In view of the aforesaid conclusion, the question of giving direction to the Magistrate to take evidence of Bala-ram Adhikary or to summon the Post Master does not arise. That will be done by the Sessions Judge when he takes up the Sessions Case.
7. In the result, though the order of the learned Magistrate is unsupport-able on merits, the revision has to be dismissed and is hereby dismissed.