SARDAR MAHESH SINGH Vs. JAGDISH SINGH AND ORS.

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, IPC. 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 sessions. That section, as in force in the State of U.P., reads:

(3.) THUS , the argument of the learned Counsel is that a Magistrate is bound by his order under Section 204, Code of Criminal Procedure and if he has summoned the accused for an offence exclusively triable by the court of sessions, then, under Section 209 he must commit the case to the court of sessions. He cannot act otherwise. If he does, his action would be in excess of his powers under Section 209, Code of Criminal Procedure and therefore, illegal and without jurisdiction.