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Valubha Mahubha Vs. Contractor Danubha Devubha and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR367
AppellantValubha Mahubha
RespondentContractor Danubha Devubha and ors.
Excerpt:
- - the learned magistrate had held the inquiry under section 202 of the criminal procedure code, 1898 and after being satisfied, had come to issue warrants against the accused nos......police had not investigated the case properly, the complainant had filed the complaint before the learned magistrate 5-4-1973 about ten month after the incident. the learned magistrate had held the inquiry under section 202 of the criminal procedure code, 1898 and after being satisfied, had come to issue warrants against the accused nos. 1 and 2 for the said offence of murder etc this order had come to be passed by him on 14-5-1974. the new criminal procedure code had come into operation on 1st of april, 1974. the learned magistrate, however, came to pass on 25-4-1975 an order discharging both the accused of the offence by virtue of the alleged powers conferred on him under section 209 read with sections 245(2) and 482(2) of the criminal procedure code, 1973. against this order of.....
Judgment:

N.H. Bhatt, J.

1. This is Criminal Revision application of one private complainant of Criminal Case No. 35 of 1974 of the Court of the Magistrate at Muli. The complaint was for the offence under Section 302 read with Sections 120-B and 34 of the Penal Code. The complainant happens to be the uncle of one Indubha, aged about 16 years the deceased. The deceased was serving in the mines owned by the accused no. 1. The accused no. 2 was alleged to be the Sarpanch of village Tranetar. The allegation was that on 20th June, 1972 the accused no. 1 had killed Indubha by means of an instrument known as 'Trikam' and had disposed of hitt dead-body with the' help of the accused no. 2 without informing the police about it. As the police had not investigated the case properly, the complainant had filed the complaint before the learned Magistrate 5-4-1973 about ten month after the incident. The learned Magistrate had held the inquiry under Section 202 of the Criminal Procedure Code, 1898 and after being satisfied, had come to issue warrants against the accused nos. 1 and 2 for the said offence of murder etc This order had come to be passed by him on 14-5-1974. The new Criminal Procedure Code had come into operation on 1st of April, 1974. The learned Magistrate, however, came to pass on 25-4-1975 an order discharging both the accused of the offence by virtue of the alleged powers conferred on him under Section 209 read with Sections 245(2) and 482(2) of the Criminal Procedure Code, 1973. Against this order of discharge by the learned Magistrate, Muli, the original complainant has filed this revision application directly in this Court under Section 439 of the Old Criminal Procedure Code.

2. Though the complaint in this case had come to be filed before the new Code came into force, the offence had come to be registered after the new Code came to be applied. Under Section 484(2), the learned Magistrate was bound to act as per the provisions of the new Code, but the learned Magistrate as a matter of fact exercised powers under the old Code though he referred to the provisions of the new Code for the purpose of his alleged powers to discharge. Sub-section (2) of Section 484 is quoted below verbatim in so far it is relevant:

484. Repeal and savings.-

(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 (V of 1898), as in force immediately before such commencement, (hereinafter 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:

3. The proviso quoted above shows that despite the provisions contained in Clause (a) of Sub-section (2), the inquiry under Chapter XVIII of the Old Code, (i.e. inquiry into cases triable exclusively by the Court of Sessions) has got to be dealt with and disposed of in accordance with the provisions of the New Code. After issuance of the process by him for the offence under Section 302 of the Penal Code, what the learned Magistrate was having with him was the inquiry under Chapter XVIII of the Old Code and it was to be dealt with and disposed of by him under the New Code. Section 209 of the New Code provides that the Magistrate has to commit the case to the Court of Sessions the moment he finds that the offence is exclusively triable by the said Court. Still the learned Magistrate did not act under Section 209 but went on appreciation of the alleged evidentiary material and came to conclude that there were no reasonable grounds for him to believe that the accused had been guilty of the offence of murder. His action, therefore, obviously is without any authority of law.

4. The learned Magistrate in the operative part of his order has referred to Section 245(2) of the Criminal Procedure Code. The said section is contained in Chapter XIX of the Code which is captioned as 'TRIAL OF WARRANT CASES BY MAGISTRATES'. Unfortunately the learned Magistrate has lost sight of the distinction between 'Inquiry' and 'Trial' and that is why he has resorted to Section 245(2). Similarly his reference to Section 484(2), the relevant part of which is quoted above, also is out of gross misunderstanding of the provisions or his non-application of mind to the proviso quoted above.

5. The order that is passed by him is, therefore, without any auth ority of law. This Court, therefore, has to set it at naught and in exercise of the powers conferred under Section 397 and Section 401 of the New Code, I set aside the said order and remand the matter to the learned Magist rate for further action in the matter. The learned Magistrate is further directed to act under Section 209 of the New Criminal Procedure Code. It need not be emphasised that the only thing that the Magistrate would do is to commit the case to the Court of Sessions. (Under the New Code, unlike Section 438 of the old Code, there is no provision for the revisional auth ority to order the direct committal. This reference to direct committal is not there because as per the scheme of the New Act, the Court of Inquiry has to commit the case forthwith under Section 209 of the Code). The rule is therefore, made absolute in the above terms.


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