DWARKANATH HANSDAS KHAPARDE Vs. VITHAL TULSIRAM RAMTEKE

JUDGEMENT

(1.) THE petitioner is arrayed as an accused in a complaint presented by the respondent Vithal Ramteke to the Court of Judicial Magistrate, First Class, Nagpur on November 29, 1973. That complaint alleged offence under several counts such as Sections 406, 420, 465, 467, 468, 471, 472, 473, 474, 476 and 477-A of the Indian Penal Code. It is not in dispute that on February 28, 1974, the complaint was registered on all these 11 counts and process issued to the present petitioner-accused. The process issued with regard to offences under Sections 467, 472, 473, 474 and 476 of the Indian Penal Code which were exclusively triable by the Court of Session under the Code of Criminal Procedure, 1898 (hereinafter called the Old Code), would have reference to Chapter XVI read with Chapter XVIII of the Code as then applicable. Under the former Chapter the procedure regarding complaints to Magistrates is indicated while under the latter Chapter the procedure regarding the enquiry into cases triable by Court of Session or by High Court is indicated. Admittedly, the Code of Criminal Procedure. 1973 (hereinafter called the New Code) was applied on April 1, 1974, and on that day the process was not disposed of nor the proceedings pending before the Magistrate had terminated.

(2.) EVENTUALLY, by the impugned order passed on August 80, 1976 the learned Magistrate decided that as the Criminal Complaint was registered on February 28, 1974, i. e. prior to the New Code coming into existence, the case would be governed by the old Code only and it would require the accused to be committed for trial by the Court of Session. He applied the provisions of the New Code as far as the enquiry postulated under Section 209 of the New Code is concerned and committed the accused to face the trial before the Sessions Judge, Nagpur.

(3.) NOW under the New Code the offences under Sections 467, 472, 473, 474 and 476 I. P. C. are no more exclusively triable by the Court of Session. The Schedule appended to the New Code showed that these offences can be tried by the Magistrate of the First Class. Thus if the New Code applied to the enquiry that was pending on 1-4-1974, it would be obvious that under the Schedule the jurisdiction to try the offences even with regard to counts mentioned above would be that of the Magistrate and there is no need to further follow the procedure of Section 209 as to send the accused for trial by the Sessions Court.