Sudhamay Basu, J.
1. This rule is directed against an order dated 19th of February, 1975 passed by the Sessions Judge, Midnapore in Criminal Motion No. 4 of 1975 rejecting the same. The said motion was filed by the complainant against an order dated 23rd of November, 1974 passed earlier by the Judicial Magistrate, 1st Class, Contai, in case No. 305C of 1972 rejecting a prayer to commit the case to the Court of Session.
2. It appears that the petitioner, Ram Chandra Maity filed a complaint egainst the respondents whereupon the S.D.J.M., Contai, took cognizance and directed issue of warrant of arrest against them under Section 467, I.P.C An enquiry under Chapter XVIII of the old Code of Criminal Procedure was pending before the learned Magistrate as an offence under Section 467, I.P.C. was triable exclusively by the court of session under the old Code. After the new Criminal Procedure Code came into force on the 1st of April 1974 the petitioner prayed for committal of this case to a Court of Session. On 23-11-1974 the learned Magistrate rejected the prayer and fixed a date namely, 25th of January, 1975 for examination of P.Ws. as under the new Code the offence under Section 467 I.P.C has been made triable by a Magistrate, 1st Class. Against that order the petitioner went up in revision to the learned Sessions Judge who also rejected the motion on contest. It is the said order which is challenged before us.
3. Mr. Sengupta, the learned advocate, appearing in support of the motion submitted that the Indian Penal Code provides for life imprisonment or a sentence up to 10 years of imprisonment for offence under Section 467 I.P.C. but in terms of the schedule to the new Code of Criminal Procedure the offence is no longer triable by a court of session. In terms of the schedule the offence under Section 467 I.P.C. is now triable by a Magistrate having 1st class powers. According to Mr. Sengupta, this introduces an anomaly. The punishment contemplated by the Penal Code, according to him, cannot be enforced by the mechanism provided in the Criminal Procedure Code. A Magistrate having 1st class powers can sentence a person only up to three years and even if the Magistrate makes over the case to a Chief Judicial Magistrate even the latter cannot punish a person with imprisonment for more than seven years. In this situation Mr. Sengupta submitted that the Court might construe the sections in such a way as to maka effective both the provisions.
4. He submitted for this purpose that when an enquiry under Chapter XVIII of the old Code is pending the operation of the provision viz, that an offence under Section 467 of the Penal Code is triable by a Magistrate of 1st Class in the new Code may be suspended So that the offence may continue to be exclusively triable by Sessions Judge as under the old Code of Criminal Procedure, According to him, this would not offend the proviso to Section 484(2)(a) namely, that a pending enquiry under Chapter XVIII of the old Code should be dealt with in accordance with the provisions of the new Code. According to him, if in such cases the new Code is applied the Magistrate has to proceed under Section 209 which makes it incumbent on a Magistrate to commit the case to the Sessions 'when it appears to him that the offence is exclusively triable by the Court of Session'. If the Courts hold that in pending cases the old Criminal Procedure Code will apply with regard to Section 467 i.e., to say if an offence under Section 467 is deemed to be exclusively triable by Sessions in pending cases then proviso to Section 484(2)(a) would not be interfered with.
5. We are, however, unable to accept the validity of the submissions made by Mr. Sengupta.
6. Firstly his application, it seems, is barred under Section 397 Sub-section (3) under which if a person has already made an application for revision before a High Court or a Sessions Court no further application by him shall be entertained by either of them. In the present case Mr. Sengupta's client also made an application to the Sessions Judge, Therefore, his second application on the face of it is barred.
7. We are also unable to hold that' the facts and circumstances of this case are such that it would require us to exercise our inherent powers.
8. Secondly even on merit it can hardly be said that the learned Magistrate lacked jurisdiction to pass the order which he did. An offence under Section 467 I.P.C. has been made triable by a Magistrate of the 1st class by the new Code of Criminal Procedure. He was therefore competent to proceed with the trial. There is thus no error of law committed by him.
9. Mr. Sengupta, to support his contention, relied on a decision, Adya Frasad v. R. Mahto reported in 1975 Cri LJ 997 (Pat). In that case the impugned order of Sessions Judge dated 22-3-1972 directed a Magistrate to commit the accused persons to the Court of Session for facing trial under Section 386 I.P.C. A formal commitment by the Magistrate in pursuance of the said order would not be effected as there was a stay by the High Court when the same was moved in revision. The learned Judge thought that 'but for the stay the Magistrate would have perhaps recorded his commitment order earlier to 1-4-74. Under the new Code of Criminal Procedure Section 386 was made triable by a Magistrate of the 1st Class. The Court took the view that the change in law effected by the new Criminal Procedure Code would not make any substantial change so far as the contemplated commitment was concerned. The matter was pending for necessary commitment by the Magistrate to do which a. firm direction had been given by the Sessions Judge at the time when the offence was exclusively triable by the court of session. On the aforesaid facts and circumstances it was held that it was no longer open to the Magistrate not to commit. The Court was of the view that the Magistrate was bound to comply with the directions of the Sessions Judge 'notwithstanding the enforcement of the new Code in the meanwhile.'
10. It is patent that the facts of the aforesaid Patna case are quite different from the facts of the present case and the decision, therefore, is distinguishable on that ground. In the present case there is no question of compliance by the Magistrate of an earlier order of Sessions Judge to commit. With great respect we have also our reservation as to the proposition that an earlier order for commitment by a Sessions Judge would still hold good and was to be followed by a Magistrate in a pending committal inquiry even subsequent to the coming into force of the new Criminal Procedure Code. That would, in our view, be overriding and not giving effect to express provision of the statute. Our attention was later drawn to a decision of a Division Bench of this Court viz., State v. Abdul Rashid reported in 1976 Cal HC (N) 569 which expresses the same view. With respect we agree with and follow the same. It can hardly be doubted that the schedule to the new Code is as much an integral part as any other provision contained in the same. The provision in the schedule itself can hardly be ignored. To hold that the committal enquiry commenced by the Magistrate under the old Code should continue in spite of an offence being made triable by a Magistrate of 1st Class under the new Code is to arbitrarily ignore the existence of the new Code and not to give effect to the same.
11. As to the larger question mooted by Mr. Sengupta, it may be pointed out that adequacy of punishment or sentence really is not a question relating to the jurisdiction of the Court. Nevertheless even if the position is that the maximum punishment contemplated by the Indian Penal Code in respect of an offence under Section 467 I.P.C. cannot be in flicted by the mechanism provided in the new Criminal Procedure Code, the same reveals a lacuna which can only be removed by the Parliament itself. The way out suggested by Mr. Sengupta would involve suspending the operation of the new Criminal Procedure Code in cases of pending committal enquiry - a step which would be contrary to the express provision of the new Criminal Procedure Code. In an attempt to harmonise two Acts of Parliament the Court cannot arbitrarily refrain from giving effect to a patent and express provision of the Legislature. In the garb of harmonising the two statutes the court cannot abrogate an express provision or indirectly legislate and arrogate to itself powers which do not belong to it.
12. We are also unable to accept the contention of Mr. S. Pal who appeared on behalf of the Central Government that the apparent anomaly between the Penal Code and the Criminal Procedure Code would be resolved by taking recourse to the provision of Section 323 which according to him would enable a Magistrate to commit to a court of Session. A case which he thought ought to be tried by that court. We do not see how a case which is made triable by a Magistrate, 1st Class, could be thought of by a learned Magistrate as one 'which ought to be tried by a court of Session'. The decision of the Supreme Court in the case of State of U.P. v. Khusi Ram reported in : 1960CriLJ1378 to which Mr. Pal drew our attention after the hearing was over was a case on Prevention of Food Adulteration Act, Section 21 of which authorised a Magistrate of the 1st Class to award a sentence beyond the limits prescribed for him under Section 32 of the old Code of Criminal Procedure. Under the impression that the power of a Magistrate, 1st Class to impose sentence was limited by Section 32 of the Code the Judicial Magistrate in that case committed the respondent to stand his trial before the court of session under Section 347 of the old Code of Criminal Procedure. Thereafter the Sessions Judge convicted and sentenced the accused. He, however, observed that the learned Judicial Magistrate was competent to award the punishment as the offence was committed for the second time and not the third time. In an appeal the Allahabad High Court thought that as the learned Magistrate was competent to award all punishments he had no reason to commit the respondent to a court of session. The Supreme Court, however, set aside the judgment of the Allahabad High Court and held that Section 21 of the Prevention of Food Adulteration Act was not a disabling provision. It only authorises the Magistrate of the 1st Class to award sentence beyond the limits prescribed by Section 32 of the Code, it held that the case had been committed to a court of session by a Magistrate having powers to commit. The conviction was upheld. It is true that present Section 323 corresponds to old Section 347 but we do not find any reason how the present case might appear to a Magistrate as one 'which ought to be tried by the court of session' in spite of the schedule attached to the new Code. We may make it clear that the aspect of apparent anomaly between the maximum punishment of a life sentence provided in the Indian Penal Code for an offence under Section 467 I.P.C. and the provision in the schedule which makes the offence triable by a Magistrate of the 1st Class is not one which directly calls for a solution in this case. As we pointed out earlier in case of such anomaly it is for the Parliament in its wisdom to rectify the same for which its attention may be drawn.
13. The petition is rejected and the rule is discharged.
P.K. Chanda, J.
14. I agree.