LAWS(ALL)-1977-7-8

PARSURAM Vs. RADHEY SHYAM

Decided On July 11, 1977
PARSURAM Appellant
V/S
RADHEY SHYAM Respondents

JUDGEMENT

(1.) THIS is an application under Sec tion 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code) by the accused in complaint Case No. 212 of 1973 on the file of the Judicial Magistrate, Kotwali, Kanpur. They have prayed for quashing the proceedings before the learned Magistrate. Opposite party No. 1 herein had filed a complaint before the lear ned Magistrate against the accused alleging that they had committed an offence punishable under Section 395 I. P. C. After examining the complainant and one other witness under Section 200 of the Code of Cri minal Procedure, 1898 (hereinafter referred to as the old Code), the lear ned Magistrate issued summonses to the accused (the applicants herein.) Before the learned Magistrate proceeded to take evidence under Section 208 of the old Code, the new Code came into force on April 1, 1974. The learned Magistrate did not proceed with taking evidence under Sec tion 208 of the old Code, but decided by his order dated February 19, 1976 to commit the accused to the Court of Sections under Section 209 of the new Code. In this application Sri R. D. Upadhya, learned counsel for the ap plicants, has contended that in view of coming into force of the new Code during the pendency of the proceedings before the learned Magis trate, those proceedings should be quashed leaving it open to the learned Magistrate to follow the procedure under the new Code. In support of his contention Sri Upadhya has relied on the decision of Asthana, C. J., in Criminal Misc. Case No. 4944 of 1974, Gyanendra Nath Awasthi and others v. State and others. There, on a private complaint of offences under Sections 395 and 397 I.P.C. the Magistrate had, under the provisions of the old Code, issued summonses and bail able war rants to the accused. During the pendency of that case the new Code came into force and the accused made an application praying for recalling the summonses and warrants They had contended that under provisions of the new Code the learned Magistrate was bound to examine all the complainant's witnesses before issuing summonses or bail able warrants to the accused and that since all such witnesses had been examined before the Magistrate had issued summonses and warrants under the old Code, de novo proceedings had to be started under the provisions of the new Code. That application had been rejected by the learned Magistrate. His Lordship allowed the application under Section 482 of the new Code, quashed the order of the learned Magistrate, cancelled the summonses and warrants issued under the old Code and directed the learned Magis trate to follow the procedure under the new Code. The aforesaid decision of this Court clearly supports the contention of Sri Upadhya. However, the learned Government Advocate urged that the afore said decision of this Court requires reconsideration. He argued that when the proviso to sub-section (2) of Section 484 of the new Code, states that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of the new Code, shall be dealt with and disposed of in accordance with the provisions of the new Code, it was clear that whatever had been validly done under the provisions of the old Code prior to the new Code coming into force, was not rendered invalid by the repeal of the old Code. He maintained that since the order of the learned Magistrate issuing summonses and warrants, was valid order under the provisions of the old Code, that order should stand unaffected and that the provisions of the new Code should be followed for the subsequent stages of the proceedings. In the aforesaid decision his Lordship had pointed out the course suggested by the learned Government Advocate would lead to incongruity and anomalous results. The view taken in the above decisions receives support from the decision of the Madras High Court in Paranjothi Udyar and others v. State and others 1976 Cr. L. J. 598. However, the learned Government Advocate strongly relied on the decision of a single Judge of Orissa High Court in Sakati Narayan v. Bhasani Lachu and Another 1975 Cr. L. J. 995. That was also a case in which a private complainant had examined some of witnesses under Sec tion 200 of the old Code, in the meanwhile the new Code came into force and he sought for permission to examine a few more witnesses. The learned Magistrate rejected that prayer on the ground that under the pro visions of the new Code such examination was unnecessary. Upholding the order of the learned Magistrate, G. K Misra, C. J., held that there was no need for the complainant to examine fresh witnesses as the lear ned Magistrate had to commit the case to the Court of Sessions under Section 209 of the new Code. His Lordship observed thus at page 997: "In this case the accused had already appeared before the Magis trate and as the committal proceeding was pending by the date of the coming into force of the new Code, the Magistrate shall proceed with the committal proceeding in accordance with the provisions of the new Code which does not prescribe that any evidence is to be taken." The aforesaid decision of the Orissa High Court does not consider the anomalous position that would result by following partly the proce dure under the old Code and partly the procedure under the new Code, whereas the aforesaid decision of this Court and the decision of the Madras Court in Paranjothi's case (supra) have fully discussed this aspect. I respectfully agree with the view taken by K. B. Asthana, C. J. and the Madras High Court and in my opinion the aforesaid decision of this Court does not require reconsideration. Following the ruling in Criminal Misc. Case No. 4944, of 1974, I allow this application, quash the order of the learned Magistrate, dated June 21, 1973, summoning the accused (the applicants herein) and all proceedings thereafter taken under the provisions of the old Code and direct the learned Magistrate to deal with the complaint following the procedure under the new Code. Application Allowed