MAHESH SINGH Vs. S I JAGDISH SINGH

JUDGEMENT

(1.) SOMETIME in the year 1972, a complaint was filed by the applicant against opposite parties 1 to 7 in the Court of Additional District Magistrate (Judicial), Kanpur. After holding preliminary inquiry in the usual manner the learned Magistrate found that there was a prima facie case and issued process for compelling the attendance of the opposite parties 1 to 7 to answer the charges under Sections 342, 385 and 395. I. P. C. Thereafter the case was transferred to the Court of Judicial Magistrate. Kotwali, Kanpur. During the pendency of the committal proceedings, the new Code of Criminal Procedure of 1973 came into force with effect from 1-4-1974. On 2-12-1974, the learned Magistrate passed the following order:

(2.) FOR the applicant it has been conceded that, in view of Section 484, the new Code applied to the committal proceedings in the present case, but it was contended that even so the order dated 2-12-1974 was illegal and without jurisdiction. Section 209 of the new Code deals with commitment of cases to the court of session. That section, as in force in the State of U. P. , reads:

(3.) THE contention of the learned Counsel for the applicant is that the Additional District Magistrate (J) had already found that there was a prima facie case under Section 395. I. P. C. , which is exclusively triable by a court of session. Therefore the Judicial Magistrate. Kanpur. in whose court the case was transferred subsequently, was bound to commit the case to the court of session. He could not sit in judgment on the matter over again and hold that the offence under Section 395, I. P. C. , was not disclosed by the complaint, particularly, when no fresh material had come on record meanwhile. At this stage it may be pointed out that the order passed by the Additional District Magistrate (Judicial), Kanpur, is relatable to Section 204 of the old Code which is practically the same as Section 204 of the new Code. I will. therefore, assume that the order passed by the Additional District Magistrate (Judicial) Kanpur was one under Section 204 of the new Code. That section, so far as relevant, says: