VALUBHA MAHUBHA Vs. CONTRACTOR DANUBHA DEVUBHA

JUDGEMENT

(1.) This is Criminal Revision application of one private complainant of Criminal Case No. 35 of 1914 of the Court of the Magistrate at Muli. The complaint was for the offence under sec. 302 read with secs. 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 his 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 on 5-4-1973 about ten months after the incident. The learned Magistrate had held the inquiry under sec. 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 Magis- trate 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 sec. 209 read with secs. 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 sec. 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 sec. 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-sec. (2) of sec. 484 is quoted below verbatim in so far it is relevant :

(3.) The learned Magistrate in the operative part of his order has referred to sec. 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 sec. 245(2). Similarly his reference to sec. 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.