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Ram Piare Lal Jogeshwar Munshi Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 66 of 1976
Judge
Reported in1976CriLJ1906; 12(1976)DLT226
ActsIndian Penal code, 1860 - Sections 466
AppellantRam Piare Lal Jogeshwar Munshi
RespondentState and anr.
Advocates: H.R. Bhardwaj and; R.L. Mehta, Advs
Cases ReferredThe State v. Haridas Mundhra and
Excerpt:
penal code - section 466--charge under--triable by magistrate under new code of criminal procedure--whether trial should be deemed to have commenced after the new code came into force, because the charge was amended thereafter.; the petitioner having been charged under, inter alia, section 466, indian penal cod, was, as required by the old code of criminal procedure, committed to the court of session for trial. after the court had framed the charge and fixed a date for prosecution evidence, the new code of criminal procedure came into force. since, under the new code, the case was triable by a magistrate, the petitioner moved for its transfer to the chief metropolitan magistrate's court. on dismissal of his application, the petitioner has resorted to this court. his contention is that..........1898. the proviso to clause (a) is significant. only an inquiry under chapter xviii of the old code, pending at the time of the commencement of the code, has to be disposed of in accordance with the provisions of the new code. the question which now arises is whether in a case where the inquiry under chapter xviii of the old code is no more pending and the accused has been committed to the court of session before the enforcement of the new code, can it be said that the trial is pending in the court of session (3) the facts of this case discussed above show that the court of session had taken cognizance of the case after commitment of the accused and had framed the charge on september 4. 1973 long before the new code came into force. it had also fixed various dates for evidence. the.....
Judgment:

V.D. Misra, J.

(1) The petitioner and another person were charged under sections 120B/420/468/471, 466/471 and 477A, Indian Penal Code, by a Magistrate on July 4, 1973 and were ordered to be committed to the Court of Session since section 466, Indian Penal Code, was exclusively triable by a Court of Session, Mr. O. P. Singla, Additional Sessions Judge, framed a charge against the petitioner and his co-accused on September 4, 1973 and fixed the case for prosecution evidence from November 5 to November 9, 1973. The accused however, challenged the order of commitment and obtained a stay order- The Additional Sessions Judge could not thereforee proceed with the trial. After the Supreme Court dismissed the petition of the accused, January 24 to January 31, 1975 were fixed by the Additional Sessions Judge for evidence. Now the accused moved transfer application and obtained a stay order. The case was transferred to the Court of Mr. O. N. Vohra, Additional Sessions Judge, from which court it was transferred to the court of Mr. T. S. Oberoi, Additional Sessions Judge. On December 15. 1975 Mr. Oberoi amended the charges already framed against the accused by adding a charge under section 120B read with section 420, Indian Penal Code. Now the accused made an application before Mr. Oberoi requesting him to transfer the case to the Chief Metropolitan Magistrate under section 228(1)(a) of the Code of Criminal Procedure, 1973 on the ground that offence under section 466, Indian Penal Code, has been made triable by a court of Magistrate by this Code. The learned Additional Sessions judge dismissed the application by holding that the trial had commenced in the Court of Session before the Code of Criminal Procedure, 1973 came into force on April 1, 1974. The petitioner has moved this Court under section 482 of the Code of Criminal Procedure, 1973 for the transfer of the case to the Chief Metropolitan Magistrate.

(2) Section 484 of the Code of Criminal Procedure, 1973 is the repeal and savings section. The relevant part of this section reads thus:

'484(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 provisions 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 ;

Sub-section 2 (a) provides inter-alai that if a trial was pending immediately before the date on which the Code came into force (i.e. before April 1, 1974) the trial has to be held in accordance with the provisions of the Code of Criminal Procedure, 1898. The proviso to clause (a) is significant. Only an inquiry under Chapter xviii of the old Code, pending at the time of the commencement of the Code, has to be disposed of in accordance with the provisions of the new Code. The question which now arises is whether in a case where the inquiry under Chapter xviii of the old Code is no more pending and the accused has been committed to the Court of Session before the enforcement of the new Code, can it be said that the trial is pending in the Court of Session

(3) The facts of this case discussed above show that the Court of Session had taken cognizance of the case after commitment of the accused and had framed the charge on September 4. 1973 long before the new Code came into force. It had also fixed various dates for evidence. The contention of the petitioner is that since Mr. Oberoi had amended the charges by adding a fresh charge under section 120B read with section 420, Indian Penal Code, it amounted to the trial starting on December 15, 1975 and could not be said to be pending on April 1, 1974 when the new Code came into force.

(4) Chapter Xxiii of the Code of Criminal Procedure, 1898, provides for trials before 'High Courts and Courts of Session'. Sections 266 to 270 of this Chapter are preliminary and fall under Part 'A'. Part 'B' is headed 'Commencement of Proceedings'. Section 271 reads thus :

'271.(1) When the Court is ready to commence the trial, the accused shall appear or be brought before it, and the charge shall be read out in Court and explained to him, and he shall be asked whether he is guilty of the offence charged, or claims to be tried. (2) If the accused pleads guilty, the plea shall be recorded, and he may be convicted thereon.'

It is obvious that the trial commences when the accused is brought before it. The Court is required to read out charge and explain it to him. If the accused pleads guilty he may be convicted. If the accused does not plead guilty and claims to be tried, Section 272 enjoins upon the Judge, in a case not triable by jury, to proceed to try the case himself. Sections 274 to 280 fall under Part C- 'Choosing a Jury' and are not relevant for our purpose. Part E is headed as Trial to Close of Cases for Prosecution and defense'. Section 286, which falls under Part E, provides that when the Judge is ready to hear the case, the prosecutor shall open his case by reading the law and staling the evidence by which he is going to prove the guilt of the accused. It is thus plain that the trial commences when the accused is produced before the court of Session and the Judge takes cognizance of the case. In the instant case the trial had commenced when the accused were produced before Mr. O. P. Singla, Additional Sessions Judge, who framed charges against the petitioner and his co-accused on September 4, 1973, and on the accused pleading not guilty and claiming to be tried fixed the case for evidence in November, 1973. Simply because the evidence could not be recorded for various reasons and the trial could not proceed further, does not mean that the trial had not commenced and it was not pending on April 1, 1974 when the, new Code came into force.

(5) Mr. H. R. Bhardwaj, learned counsel for the petitioner, docs not dispute that in case Mr. Oberoi had not amended the charges by adding a fresh charge, the Sessions Judge was competent to try the accused'. In my opinion once the trial commences it will remain pending till it is concluded and any subsequent amendment of the charge will not affect it.

(6) Mr. Bhardwaj refers to an unreported judgment of the Bombay High Court in Criminal Revision Application No. 399 of 1974 (The State of Maharashtra v. Umer Hasham Batliwala and another) decided by Vimadalal, J., on January 27, 1975(1). I find that the facts of that case are materially different and the decision cannot be of any help. to the petitioner. In that case the accused were committed to the Court of Session by an order dated June 26, 1973 and the case came up for the first time before an Additional Sessions Judge on April 17, 1974. The learned judge referred to and followed two earlier decisions of that Court which held that the trial begins only after the commitment and framing of the charge and not on the date of the committal order. However, in the circumstances of that case the learned judge came to the conclusion that the trial had not commenced before the Sessions judge before April 1, 1974 when the Code of Criminal Procedure, 1973 came into force.

(7) Mr. R. L. Mehta, learned counsel for the State, has drawn my attention to a Full Bench decision of the Calcutta High Court in The State v. Haridas Mundhra and others, : AIR1970Cal485 . In that case, after the accused had been committed to the Court of Session, proceedings under section 271 of the Code of Criminal Procedure, 1898 did not commence before the new Code of Criminal Procedure, 1973 came into force and the question arose whether it could be said that the trial was pending before the Court of Session before April 1, 1974. The Full Bench ruled thus :

'1.The expression 'trial pending' in Section 484(2)(a) of the Code of Criminal Procedure, 1973 has a wide connotation. It cannot be restricted to 'commencement of trial' within the meaning of Section 271 of the Code of Criminal Procedure, 1898. The trial, in the instant case, became pending in this Court when that Court took cognizance of offences in terms of Section 193 of the Code of 1898. In fact, sub-section (2) of Section 484 of the new Code along with its proviso lays down clearly what is saved as well as what is not saved in view of the repeal of the Code of 1898. 3. In any event, the Court of Session which took cognizance of the offences before the 1st April, 1974, has, by implication, the power to commence the trial in accordance with Section 271 of the old Code.'

I am in respectful agreement with the Full Bench decision of the Calcutta High Court.

(8) The result is that the petition fails and is hereby dismissed.


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