BRITISH MACHINERY SUPPLIES CO Vs. BHATTACHARYA

JUDGEMENT

(1.) THE petitioners are accused 1, 3 and 5 in C C. 251 of 1977 on the file of the Chief Judicial Magistrate, Ernakulam. THE petition is filed challenging the order of the Principal Assistant Sessions Judge, Ernakulam, transferring Sessions Case No. 70 of 1975 of that court under S.228 (1) (a) of the Code of Criminal Procedure for trial by the Chief Judicial Magistrate Ernakulam.

(2.) THE proceedings had a very chequered career. THE complainant is the Deputy Chief Controller of Imports and Exports. New Delhi. THE complaint was filed in 1968 before the District Magistrate, Ernakulam, as he then was, alleging that the 5 accused in the case committed offences punishable under Ss 120B, 420, 467 and 471 of the Indian Penal Code and also under S.5 of the Imports and Exports (Control) Act, 1947 and it was registered as Preliminary Enquiry No. 3 of 1968 THE case was being adjourned from time to time on the ground that certain records necessary for the trial of the case were produced in an appeal pending before the High Court, Madras. After a number of adjournments, the case was posted for evidence, though the documents had not been received from the Madras High Court. On 12 6 72 the court discharged the accused on the ground that the complainant was absent and no witnessess were produced. THE complainant took the matter in revision - CRP. No 33 of 1972-befon- the Sessions Judge, Ernakulam. THE Sessions Judge allowed the revision petition and directed the District Magistrate to make further enquiry into the complaint and to dispose of the same in accordance with law. This order was passed on 31 12 73. THE case was re-registered as Preliminary Enquiry No. 1 of 1974 in the Court of the Dist. Magistrate. By the time the case came up for disposal, the new Code of Criminal Procedure (hereinafter to be referred to as 'new Code') bad come into force. THE District Magistrate, who is redesignated as Chief Judicial Magistrate under the new Code followed the formalities under S.208 of the new Code and committed the case to the Court of Session, Ernakulam, under S.209. THE Sessions Judge made over the case to the Principal Assistant Sessions Judge for disposal. THE Principal Assistant Sessions Judge framed charges against the accused and holding that the offences involved were triable by the Chief Judicial Magistrate, passed the impugned order under S.228(1) of the Code transferring the case to the Chief Judicial Magistrate for disposal.

(3.) IN the instant case, the complaint was filed before the new Code came into force. Under S.484 (2), cases of trial, inquiry and investigation pending at the commencement of the new Code are to be preceded with under the old Code except those covered by the proviso. The function of the proviso, as observed by the Supreme Court is to qualify the generality of the main enactment by providing on exception and taking out as it were from the main enactment a portion of it which but for the proviso would fall within the main enactment. Thus but for the proviso, the enquiry in the present case would have been conducted by the Chief Judicial Magistrate and the case would have been committed to the Court of Session and the Court of Session would have conducted the trial. The proviso dors not say that in cases where the enquiry is pending under Chapter XVIII of the Code, the court concern d, if competent to try the case under the new Code, shall dispense with the commitment proceedings and try the case. The proviso only directs that the preliminary enquiry should be as provided in the new Code. Committal proceedings, under the new Code, is governed by S.209 of the Code, relevant portion of which reads: