BABU RAM Vs. MOHAMMAD ALI AND ORS.

JUDGEMENT

(1.) A criminal complaint was filed by Babu Ram, the applicant, against the opposite parties Nos. 1 to 6 under Sections 466/469 and 120B IPC on January 10,1973, in the Court of the Munsif Magistrate, Konch. By an order dated 15 -2 -1973, the accused were summoned for 17 -3 -1973. Thereafter, it appears that applications for transfer of the case from the Court of the Munsif Magistrate were filed by the opposite parties before the High Court. After these transfer applications were disposed of, the case was again taken up by the Judicial Magistrate, Orai, on 25 -8 -1974. The Judicial Magistrate fixed 27 -9 -1974 for the evidence under Section 252 Code of Criminal Procedure. It was, thereafter, that on 21 -10 -1974 an application was filed by the complainant for deciding whether the case was to proceed as a warrant trial or as a sessions trial. The Judicial Magistrate held by the order dated 21 -11 -1974 that as the case had started under the old Code of Criminal Procedure, therefore, the case had to proceed as a sessions enquiry. Aggrieved by that order, the opposite parties preferred a revision before the Sessions Judge. The revision was allowed by the impugned order on the view that as the enquiry was still pending on the date of the enforcement of new Code of Criminal Procedure, therefore, the case had to proceed as a warrant trial, and that the Judicial Magistrate could submit the proceedings to the Chief Judicial Magistrate for such directions as may be necessary. Aggrieved by this order, the complainant has filed this revision.

(2.) SRI Satya Prakash Srivastava, counsel appearing for the applicant urged that the order of the Magistrate being of an interlocutory nature, the revision preferred by the opposite parties was not maintainable before the Sessions Judge and was thus liable to be dismissed on that ground. As the question involved in the case is of a nature which requires a decision at this stage, without going into the question as to whether the revision filed by the opposite parties was maintainable before the Sessions Judge or not, I would straightaway proceed to decide the case treating it as an application under Section 482 Code of Criminal Procedure directly made against the judgment of the Magistrate.

(3.) THIS proviso makes it abundantly clear that if any enquiry Under Chapter XVIII was pending on the date of enforcement of the new Code of Criminal Procedure, the same has to be conducted and concluded in accordance with the new Code. In the instant case, admittedly, the case was pending at the stage of enquiry Under Chapter XVIII of the Old Code. Therefore, the further proceedings had to be completed in accordance with the New Code. Reference may be made to a decision of the Madras High Court reported in Paranjothi Udvar v. State : 1976 CriLJ 598, where a similar question about the applicability of the New Code arose for decision before the High Court. In that case, the Madras High Court held that irrespective of the stage of enquiry Under Chapter XVIII, if any proceeding was pending under the aforesaid Chapter, the same had to be conducted in accordance with the New Act. I am in respectful agreement with the view taken by the Madras High Court in the aforesaid case. A similar view was taken by the Orissa High Court in Kanika Bewa v. State : 1976 CriLJ 418. learned Counsel for the Applicant, however, relied upon a decision of the Patna High Court reported in Adya Prasad v. Rajendra Prasad Mahto : 1975 CriLJ 997, in support of his proposition that the proceedings had to be conducted in accordance with the Old Code. This case, however, is distinguishable inasmuch as the facts would reveal that the Sessions Judge had already given a direction before the enforcement of the New Act to the Magistrate to commit the accused to the Court of session. In view of this direction, the view taken by the Patna High Court was that the same had to be committed to the Court of session.